Cultural Democracy and the First Amendment
Jack M. Balkin
Yale University - Law School
October 15, 2015
Northwestern University Law Review, Vol. 109, 2016, Forthcoming
Yale Law School, Public Law Research Paper No. 556
The First Amendment is designed to secure cultural democracy as well as political democracy. A central purpose of freedom of expression is to guarantee the right of individuals and groups to participate in culture and influence each other. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.
Most First Amendment theories focus either on protecting individual liberty or promoting democracy. The theory of democratic culture grounds freedom of expression in both liberty and democracy. The right to participate in culture is a civil as well as a political freedom.
A cultural approach is superior to a purely democracy-based approach for three reasons.
First, a cultural account offers a stronger and more convincing account of why a great deal of expression that seems to have little to do with political self-government, including popular art, non-representational art and instrumental music, enjoys full First Amendment protection.
Second, democracy-based theories argue that free speech is valuable because it legitimates the power of the nation state. But in the age of the Internet, public discourse easily overflows national borders. Opinions, ideas, and art circulate internationally, as does cultural power. Cultural freedom means that people must be able to participate in the circulation of opinions, ideas, and artistic expression not only within a single nation state, but potentially throughout the world.
Third, a cultural account has important consequences for how governments design and regulate digital telecommunications architectures. A truly democratic culture presupposes a certain kind of communications architecture, one that facilitates the growth, spread and circulation of public discourse, not merely within the borders of a country, but beyond it.
Democracy-based accounts value public discourse because it benefits self-government within a single country. Hence their focus is inevitably parochial. By contrast, cultural democracy demands that states consider the value of global exchanges of ideas and opinions and the health of the global system of telecommunications. These issues have become increasingly important as nation-states try to regulate and deform Internet architectures to further national concerns and bolster national authority.
Number of Pages in PDF File: 44
Keywords: First Amendment, Freedom of Expression, Cultural Democracy, Culture, Public Discourse, Public Sphere, Internet, Digital Communication
JEL Classification: K10
Date posted: October 19, 2015 ; Last revised: December 22, 2016