Reply to Bender, 29 Arizona State Law Journal 495 (1997)
Paul Bender has interesting and telling points to make, but a good
many of them do not concern the paper I have actually published in this
volume (or my work generally).
Bender cogently argues, for example, that because democratic selfgovernance
is not "the only reason for protecting speech in a democracy,"
"public discourse . . . is clearly not the entire realm of constitutionally
protected free expression, nor should it be." I quite agree with Bender on
this point, and I have never anywhere argued anything to the contrary.
Indeed, I explicitly observe in my contribution to this volume that the theory
of the "marketplace of ideas," which is limited to neither public discourse
nor democracy, "does constitute a significant presence in First Amendment
The position that I actually defend is quite different from that
attributed to me by Bender. It is that the value of democratic self-goverance
is the most powerful explanation of the general pattern of First Amendment
decisions (and most particulary of its nationally idiosyncratic aspects), and
that democratic self-governance is the only value that can convincingly
account for the specific set of decisions protecting the abusive, outrageous
and indecent speech that are of most concern in this Symposium.
Date of Authorship for this Version
Post, Robert, "Reply to Bender" (1997). Faculty Scholarship Series. Paper 4652.