Document Type

Article

Citation Information

Please cite to the original publication

Abstract

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 self-governance 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 jurisprudence." The position that I actually defend is quite different from that attributed to me by Bender. It is that the value of democratic self-governance is the most powerful explanation of the general pattern of First Amendment decisions (and most particularly 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

1997

Included in

Law Commons

Share

COinS