Constitutional right not to turn over evidence about free spe ech activity

[Scarberry, Mark]

Utilitarian notions are important, aren't they, in the justification of
freedom of speech? I've always thought that a basic justification for a
refusal to allow government to prevent most "harmful" public statements is
that a better result is reached if "bad" public speech is countered by more
public speech. This notion did not seem to get much traction the first time
I stated it (a few days ago), and thus perhaps most persons on this list
think it is a naive high school civics approach. But it seems to me crucial
that we have a free public marketplace of ideas--in which "bad" speech is
countered by "good" speech--and to have such a marketplace we need to
protect persons who read or listen to "bad" speech against any quick
assumption that they must agree with it.

This marketplace of ideas justification for freedom of speech (and of course
freedom of the press) is particularly relevant to public speech. Thus I
suggested a few days ago that the underpinnings of freedom of speech and of
the press in our political system are largely concerned with public
communications. Many societies in which there is no freedom of public speech
or of the press permit relatively free private conversations. My friends in
the People's Republic of China tell me that criticism of the government in
private conversations is tolerated; of course public criticism is not.

It has been suggested, implausibly I think, that we can predict what a
person will do almost as well from what the person reads as from what the
person says he or she plans to do. I continue to disagree with that
suggestion. On balance we should be particularly on guard against allowing
the government to judge a person's intentions by what he or she reads.

Mark Scarberry
Pepperdine

-----Original Message-----
From: sandy levinson
To: CONLAWPROF at listserv.ucla.edu
Sent: 4/11/02 9:48 AM
Subject: Re: Constitutional right not to turn over evidence about free
speech activity

Malla Pollack writes;

These privilege against discovery protect places where society considers
privacy more important both (i) to encourage conversations which
"improve"
society; and (ii) because speakers have a more emotional reaction to
intrusion.

But there is a clear difference between (i) and (ii).  (i) rests on
purely
utilitarian considerations of what, in fact, is most likely to lead to
an
"improved" society (assuming, of course, we can agree on what counts as
improvement, which is no easy matter).  (ii) ultimately rests on a
rights-based notion (on the assumption that the "emotional reaction" is
predicated on feeling that one's basic rights have been violated) that,
as
Dworkin has insistently argumed, must be honored even at significant
social
cost.  Consider the framework within which the current debate about the
use
of torture is being conducted.  There is, obviously, a world of
difference
between arguing that torture is inefficacious and that, even if useful
in
some contexts, is violates what is truly a "fundamental" norm.

sandy