UC Davis

                        Over the past several decades, the Supreme Court has repeatedly taken the position that the primary – albeit not necessarily the only – reason why the First Amendment protects freedom of speech is to advance democratic self-governance. Moreover, there is also a broad consensus among First Amendment scholars supporting this view. In this essay, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete.

The Court’s ruminations about the purpose of the Free Speech Clause fail to answer three overlapping questions. First, what is the relevance of the fact the Free Speech Clause does not stand alone, but rather is accompanied by other, equally important provisions? Second, how exactly does the Free Speech Clause, in combination with those other provisions, advance self-governance? And third, what role does the First Amendment as a whole envision for citizens in a democracy? These are important questions, requiring careful consideration that heretofore they have not received.

            The problem starts with the Supreme Court. One noteworthy feature of the Supreme Court’s modern First Amendment jurisprudence is that it is not truly a First Amendment jurisprudence at all; rather, it is series of decisions interpreting the Religions Clauses and the Free Speech Clause. The rest of the First Amendment – the Press, Assembly, and Petition Clauses – might as well not exist. The Press Clause has been entirely subsumed by the Free Speech Clause. The Assembly Clause has not been cited in over thirty years. And the Petition Clause’s relevance has been limited to the peripheral issue of access to courts. Even the nontextual right of association, which has not been entirely abandoned, has been made subservient to free speech, even though historically the right clearly derived from the Assembly Clause.

The topic of this essay, then, is those five rights – speech, press, association, assembly, and petition – what I call the Democratic First Amendment. I will argue that the Democratic First Amendment, in toto, is best read to adopt a particular vision of citizenship, one associated with the Democratic Republican philosophy of Thomas Jefferson and his allies. Citizens, on this view, are meant to be active in a myriad ways, to engage with and even challenge their elected representatives, and to develop and communicate their values and opinions jointly, through assemblies and associations. It stands in sharp contrast to the passive form of citizenship, limited to biennial voting, favored by Jefferson’s Federalist adversaries. Each of the rights of the Democratic First Amendment advance this vision of citizenship, both individually, and in combination. The First Amendment, in short, is not just democratic, it is also kaleidoscopic.