Understanding Post's and Meiklejohn's Mistakes: The Central Role of Adversary Democracy in the Theory of Free Expression

95 Pages Posted: 26 Jul 2008  

Martin H. Redish

Northwestern University - Pritzker School of Law

Abby Marie Mollen

United States Court of Appeals for the District of Columbia Circuit

Date Written: July 25, 2008

Abstract

In this article we provide a comprehensive and original critique of the free speech theories of two of the most heralded scholars of all time, Alexander Meiklejohn and Robert Post, and in so doing employ their theories as a foil for the development of an entirely new theory of free expression, grounded in precepts of "adversary democracy." Both Post and Meiklejohn purport to ground their theories of free expression in democratic theory, but both misperceive the true normative and descriptive nature of American political theory, and in any event both fashion free speech theories that undermine even their own perceptions of democracy. While the two differ in important ways, they share a common theme: an appeal to notions of cooperative democracy and the common good. In this sense, both share the same flaw: the failure to recognize that the essence of democratic theory is recognition of the need to permit the peaceful resolution of adversarial interests grounded either in citizen self-interest or personal ideology.

The goal of free expression, then, should be to foster the resolution of these competing interests through citizens' strategic framing of arguments in an effort to convince others to share their interests. While our theory of expressive adversary democracy protects everything that both Meiklejohn and Post would protect, it goes further to also shield expression that fails to satisfy either the communitarian interests fostered by Meiklejohn or the collectivist interests fostered by Post.

Professor Post has expressed an interest in preparing a response to our article.

Keywords: First Amendment, Democracy, Democratic Theory, Freedom of Speech, Freedom of Expression, Constitutional Law, Public Law,

JEL Classification: K10, K19

Suggested Citation

Redish, Martin H. and Mollen, Abby Marie, Understanding Post's and Meiklejohn's Mistakes: The Central Role of Adversary Democracy in the Theory of Free Expression (July 25, 2008). Northwestern Public Law Research Paper No. 08-26. Available at SSRN: https://ssrn.com/abstract=1177788 or http://dx.doi.org/10.2139/ssrn.1177788

Martin H. Redish (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Abby Marie Mollen

United States Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

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