Populism and Progressivism as Constitutional Categories, 104 Yale L. Rev. 1935 (1995)
It's been a tough day. I've spent most of it worrying about the Free Speech Principle. Or at least, the Free Speech Principle described in Cass Sunstein's Democracy and the Problem of Free Speech, a book by an author I greatly admire. According to Sunstein, the primary purpose behind free speech is promoting democratic deliberation about issues of public policy. Hence he divides speech into higher and lower tiers of protection. Speech most worthy of government protection is concerned with deliberation about public issues; the rest is subject to varying degrees of government regulation. It is a thesis with a considerable historical pedigree. Alexander Meiklejohn made a similar claim in the 1940's. Moreover, like Meiklejohn, Sunstein emphasizes that the scope of individual rights should consciously be shaped in order to promote the goals of democratic deliberation. Conversely, we should be less concerned about regulation of other types of speech-for example, advertising and pornography-because they do not contribute to democratic deliberation.
Date of Authorship for this Version
Balkin, Jack M., "Populism and Progressivism as Constitutional Categories" (1995). Faculty Scholarship Series. Paper 268.