Who's afraid of Constitutional Theory?

[Jack Balkin]

Alan Gunn writes:

>New York Times v. Sullivan challenges the very idea of "constitutional
>theory." There is really no theory, and very little of the constitution, in
>the opinion: it says, essentially, "Free speech is good, what Alabama
>did was bad for free speech, and here are some rules that we think will
>make things better." From that point on it's just a common-law opinion,
>and so are all the other Supreme Court defamation cases that followed.
>(This came as a great relief to me when I had to deal with NYTimes v.
>Sullivan in doing a torts casebook: I worried that I knew almost nothing
>of constitutional theory generally or free-speech theory in
>particular--turned out that this didn't matter, because there was none of
>this stuff in that line of cases, and I felt confident of my ability to wrestle
>with a line of common-law decisions.)

That's funny, because if I was asked to point to an opinion which
purported to be grounded in a famous constitutional theory, I would have
pointed to NYT v. Sullivan.  Am I the only one who sees this as
undergirded by Meiklejohn's "Free Speech and its Relation to Self
Government?"  Probably not.  In fact Brennan, the author of the opinion
said as much in a famous law review article.
To be sure Meikeljohn's theory doesn't tell you whether you should apply
actual malice, negligence, or no liability at all.  But you could make a
structural and textual argument based on the Speech and Debate clause,
read in light of Meikeljohn's argument that feedom of speech means that
all citizens get to participate in self-governance.  Given that senators and
congressmen are immune from sanctions for what they say on the floor,
a similar immunity should apply to the general citizenry when they attack
public officials.  That's Meikeljohn plus textualism.  It's not a knock down
argument, but it's certainly driven by a well-known constitutional law
theory.

Jack Balkin
Yale Law School