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Ivan W.
Parkins |
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©Ivan W. Parkins 2009, All articles, text, web pages property of
Ivan W. Parkins. Use of any material
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About Ivan W. Parkins: Dr. Parkins is a retired professor of
Political Science from Central Michigan University. He received his PhD from the University of
Chicago and is a graduate of the United States Naval Academy. Dr. Parkins served as a naval officer
during WWII aboard the battleship Alabama.
He is a widower with three daughters, 3 grand children and 1 great
grand child. Dr. Parkins has written
extensively, having authored 3 books and a newspaper opinion column for many
years. |
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Front Page |
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THE SURPRISING TRIUMPH OF VERBAL LAISSEZ FAIRE By Ivan W. Parkins
Presaging one of the most significant transformations of
constitutional doctrine in American history, Justice Oliver Wendell Holmes
remarked, “…the best test of truth is the power of the thought to get itself
accepted in the competition of the market. . .” The sequence of decisions through which the
Supreme Court committed the United States to laissez faire policies regarding
speech and press has been reviewed in numerous commentaries. What remains surprising is that the verbal
doctrines replaced, rather than supplementing, economic laissez faire. The
concept of a verbal struggle as the means of establishing truth can be traced
back to John Milton’s AREOPAGITICA in 1644.
Milton’s formulation of the idea was, “let truth and error
struggle. Whoever knew truth to be
gotten the better of in a fair fight.”
Economic laissez faire, after some speculations by eighteenth century
physiocrats, was systematically expounded by Adam Smith in his WEALTH OF
NATIONS, 1776. John Stuart Mill’s ON
LIBERTY, 1859, reiterated and enlarged upon the idea of a struggle for truth
as part of an argument for freedom of speech.
Mill, however, advanced the idea of verbal laissez faire as part of
broader liberties, including those of an economic nature. A broad range of liberties, Mill insisted,
is essential to individual development.
During the late nineteenth and early twentieth centuries a majority of
justices on the Supreme Court favored economic laissez faire. Only, Justice Brandeis, however, joined
Holmes’ dissent re ABRAMS V. NEW YORK (250 U.S., 616; 1919), above.
LOCKNER V. NEW YORK (198 U.S.45: 1905) is especially noteworthy as an
example of the Supreme Court’s penchant for economic laissez faire at the
beginning of this century. The Court
held that “freedom of contract” was implicit in the liberty protected by the Fourteenth Amendment’s
Due Process Clause, and that the state might not, therefore, employ its
police powers to restrict the bargains struck between bakers of bread and
their employers regarding hours to be worked. Meanwhile, the use of police powers in
matters of speech and press was not of much interest to the Court. As late as 1922, in PRUDENTIAL INSURANCE
COMPANY V. CHEEK (259 U.S. 530), the Court commented that nothing in the
Constitution requires that any state guarantee to the people therein freedom
of speech. In
LOCKNER, Justice Holmes dissented, eloquently, an opinion which was to become
one of the prominent items supporting his fame as a dissenter. The Constitution, he insisted, did not
enact Mr. Herbert Spencer’s SOCIAL STATICS, or any other economic
theory. A generation later the Holmes
view was to prevail—and with a vengeance which we may doubt that Holmes
himself would have approved. Not only
did the Court uphold verbal laissez faire as a liberty protected against the
states by the Fourteenth Amendment, but it used the same due process
reasoning that had been used to incorporate economic laissez faire a
generation earlier. The
Court also began to broaden it interpretations of what constitutes free
speech, press, assembly and petition, e.g. THORNHILL V. ALABAMA (310 U.S. 88:
1940). And, a few years later, the
Court renounced, explicitly, any intent of interfering further with police
regulation of economic enterprise, WILLIAMSON V. LEE OPTICAL COMPANY (348
U.S. 483: 1955). On
the one hand, the Supreme Court would uphold state regulation of economic
enterprise, subject only to examination of its “reasonableness.” On the other hand, any state enactment
which on its face restricted speech and press would be denied the usual
assumption of validity until proven to be unconstitutional, and would be
upheld only if the state could establish that it was a clear and narrowly
restrained means of fulfilling some compelling state need. The element of surprise in this turn of
events come not so much from the acceptance of verbal laissez faire as from
the fact that the parallel economic doctrine, which had dominated the Supreme
Court so recently, was renounced. One
example of the extended meaning which the Supreme Court has attached to free
speech came in COHEN V. CALIFORNIA (403 U.S. 15: 1971). There it was determined that a public
display of an obscenity (printed on the jacket worn by the defendant) was not
anything which the state had proved a compelling interest in preventing. Meanwhile, the “news” protected under
freedom of the press was held to include the PENTAGON PAPERS, stolen
government documents—many of which were several years old and all of which
the NEW YORK TIMES had held in its possession for months, NEW YORK TIMES V. UNITED STATES (403 U.S. 713:1971). Even the brief delay while the government
attempted to demonstrate the importance of the PAPERS to national security
was denounced as censorship by virtually all of the American press and by
some members of the Court. In view of
the great volume of the PAPERS and the difficulty of the issue, it is, as
Chief Justice Warren Burger noted, difficult to justify the kind of haste
that permitted the several levels of federal courts involved only three weeks
for decisions, especially since the editors of the TIMES had taken as many
months for their editorial judgments.
It is also interesting that the Court, which did not advance any claim
of judicial competence to reexamine what a journalist designates as “news,”
was confident of the capacity of judges, even in the lower federal courts, to
review Executive Branch decisions regarding what is or is not information
vital to the nation’s security.
Legal commentators on the transition from economic laissez faire to
such “personal” liberties as free speech usually begin with an observation
made by Justice Stone in a footnote to his opinion in the Carolene Products
Case ( 304 U.S. 144: 1938). On the
principal involved the commentators display a remarkable consensus, offering
little by way of critical discussion.
Apparently, to people such as academics and judges, who make their
livings with words, it is very nearly self-evident that free verbal
expression is a more fundamental, humane, and constitutional value than
economic enterprise can be. To other
kinds of persons, the basis for that judgment is likely to seem less clear,
more a matter of selfish interest, or both.
Historically, the economic and verbal laissez faire doctrines
succeeded in the esteem of the Supreme Court at about the same times that
economic and communication elites, especially benefiting from those doctrines,
displayed awesome political power.
Even the “freedom of contract” phraseology, which the Court used to
help extend economic laissez faire, has a parallel in “the peoples’ right to
know,” a phrase recently invented by the press and sometimes cited by members
of the Court in supporting the claims of the press. What makes the transition
from economic to verbal laissez faire most suspect is the single major
exception that the Court has made to verbal laissez faire.
Commercial advertising, one of the largest categories of verbal (and
graphic) expression, the one that probably employs more artists than any
other, and one that is intimately connected to the lives of nearly all
Americans, was excluded from the general rule of verbal laissez faire. While the Supreme Court has now modified
its decision in the Chrestensen Case (316 U.S. 52: 1942), by providing First
Amendment protections to professional and to welfare agency types of
advertising, the scope of those modifications is narrow. Decisions during the Court’s latest terms
added institutional advertising and some general promotion of services by
utilities companies to the protected list.
Still, most of the multi-billion dollar efforts of businesses to make
their products and services known and attractive to the public remain subject
to extensive censorship, especially that of the Federal Trade
Commission. The Supreme Court’s
rationalization of this huge exception to freedom, i.e. that commercial
motives reduce the legal immunity of advertising, would be more persuasive if
it were applied with more consistency.
With the notable exception of an obscenity case, GINZBURG V. UNITED
STATES (354 U.S. 476: 1957)—a case widely ridiculed as a bad precedent in
academic commentaries—commercial motives have not been given much
consideration. The anomaly of
exempting commercial advertising from protection is noted by Thomas I.
Emerson, THE SYSTEM OF FREEDOM OF EXPRESSION, 1970, page 415; Allen Hyman and
M. Bruce Johnson, editors of ADVERTISING AND FREE SPEECH, 1977, deal with it
at some length. Mostly, it has escaped
attention. Are
the motives of professional writers and speakers, including ministers and
teachers, really that easy to differentiate from those of
businessmen with a product or service to market? Thorstein Veblen, early in this century,
accused the churches of eclipsing business advertising in the extravagance of
their promises. And television
promotions of religion, today, concede little in either their techniques or
the size of their financial takes to business advertising. Is lecturing or writing a book about a diet
plan an entirely different kind of endeavor than advertising dietary aids for
sale? When publications are
specifically required for academic promotions, does the motivation of the
scholarly author remain untainted by commercial bias?
The substitution of verbal for economic laissez faire as a fundamental
freedom of constitutional law might, conceivably, be justified by noting
difficulties in our practical experience with economic freedom. John Kenneth Galbraith, in one of the best
known criticisms of economic laissez faire, contended that its value system
rested upon the primacy of economic productivity (THE AFFLUENT SOCIETY,1958). That, Galbraith observed, may have been
appropriate in the relatively poor American society of a century or two
ago. But, he insisted, we are now
producing, or capable of producing, surpluses. Now, in our affluent society, problems of
what to produce and how to distribute it are increasingly vexatious, and
values centering upon productivity are no longer reliable guides.
Continue essay |
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REVOLUTION IN AMERICA? By Ivan W. Parkins
What we are witnessing, and many Americans find confusing, is a major
stage of revolution in America.
Whether this is to further, perhaps to cement, revolutionary change or
to fade into something more compromising and consistent with our past, is yet
to be determined.
President Obama has developed for himself a remarkably attractive
personality and manner. But, on “the
greatest” political stage he often seems to follow a script that has been
written elsewhere, and one that is both disturbing and dangerous to
America. Certainly there were
evidences of this before his election.
But far too many of those whose job it is to reveal such matters to
the public share with Obama most of his disturbing and dangerous political
attitudes. To
take just the policy issue most salient at the moment, health care is
deserving of prime consideration. But,
the nationalization of an increasing portion of health finance appears to be
counter-indicated by most of the evidence at home and abroad. Our existing government programs are
already operating “on borrowed time” by most financial indications. Other advanced nations, with greater health
care roles, are having severe and increasing difficulties. Nothing that this new Administration has
reported so far suggests that it has really incorporated new or especially
constructive research into its proposals. On
the contrary, what is probably the most wasteful, and dangerous, aspect of
our health care, is also a major source of campaign revenue for Democrats who
now press for health care reform. (I
was drafting this as President Obama was addressing the American Medical Association. If he does act vigorously in this matter, I
will need to apologize.) Excessive,
and too often corrupt, tort proceedings utilize the complex variations in how
individuals respond to medications and treatments. That, plus the limited
comprehension of medical science and the often sympathetic reactions of
jurors to individuals who are ailing, enables trial lawyers to extract vast
“booty” from the health care industry.
First, among those who profit from the above practice, are the trial
lawyers; they are followed by various coconspirators. Among the latter are dishonest medical
practitioners and other witnesses. Not
least among beneficiaries have been the judges and politicians who maintain
or make the rulings and laws that facilitate such practices. The few huge damage awards that are widely
publicized are only the tip of the iceberg.
Many more, and often not small, cases are settled out of court. Physicians and others of the medical
professions pay high insurance premiums to protect themselves. They also proscribe expensive tests, often
mainly for their own protection. And
defense attorneys seldom work for free.
Worthy of emphasis in all of this is the fact that both gross bribery,
and the more widely accepted practice of politicians allowing their legal
rulings and legislation to be tipped by the campaign contributions they
receive, are both essential to its continuation at any but a tiny fraction of
the level now prevailing.
When this Democrat Administration can act decisively to remedy such
health care related tort abuses, perhaps it will be able to deal with such
practices in other parts of our economy.
That would weaken substantially my charge that what we are really
facing is not mere reform, but revolution. I.W. Parkins 061908 |
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A Note About the Essay
Below The
April 20 issue of this web site carries an excerpt from an old thesis of mine
that economic and verbal laissez faire are remarkably similar. Both are theoretically similar and similar
also in many of the practical effects and problems arising from their
applications. I believe that they
could and should be valued similarly, as sound approaches to public policy,
but not held as quasi-religious truths.
Surprisingly, in our politics and law they are often treated very
differently. And, that provides some
insight into what is now happening in our law and politics. For
a more lengthy and scholarly exposition of this thesis see below THE
SURPRISING TRIUMPH OF VERBAL LAISSEZ FAIRE. That essay was published in 1982,
but the editor of a small journal who accepted it, with high praise and as an
“essay,” published it as mere correspondence and made several significant
changes in it. |