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

Ivan W. Parkins

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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 recent widower with three daughters, 3 grand children and 2 great grand children.  Dr. Parkins has written extensively, having authored 3 books and a newspaper opinion column for many years. 

Front Page

 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

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.