Coercing Virtue Read Online Free PDF

religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for redress of grievances. 1
    The First Amendment is pivotal. Nothing reveals more clearly the contest of views concerning the proper relationship between the individual and society. Equally clear, in the Court’s recent deformation and reversal of the meaning of that amendment, is the rise to dominance of the New Class. Harry Kalven was correct in saying that freedom of speech is so close to the heart of democracy that, if we lack an appropriate theory of the First Amendment, we really do not understand the society in which we live. I would add that if we lack an appropriate theory of the Religion Clauses of the First Amendment, we do not understand the culture that religion in large measure formed nor the erosion of cultural virtues that the Court’s new-found hostility to religion has abetted.
    The Court had little occasion to consider First Amendment speech claims until the early years of the twentieth century; it did so particularly in prosecutions arising out of the First World War and what has become known as the Red Scare. Today, those cases are remembered less for the majority opinions than for the dissents by Justices Holmes and Brandeis that contained the seeds of doctrine that came to fruition in later years and are with us yet. I have expressed my doubts about those dissents elsewhere, but here I want to note that the assumption of complete human rationality made its debut in Holmes’s dissent in
Abrams
v.
United States
(1919). The defendants were convicted for circulating pamphlets construed as harmful to the war effort. Holmes would have set aside the convictions on statutory grounds, which would have been entirely proper, but then proceeded inhis glittering prose to introduce into the First Amendment an unfortunate assumption of rationalism:
    [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the test of truth is the power of thought to get itself accepted in the competition of the market.
    This is a distinctly odd passage since Holmes, again in dissent, said elsewhere that the only meaning of the First Amendment was that the dominant force in the society must have its way, even though that might prove to be the dictatorship of the proletariat – hence the only meaning of the First Amendment is to permit the victory of a fighting faith over the free trade in ideas. That anomaly aside, underlying his argument that the test of truth is acceptance of an idea in the competitive market is the assumption that, in a future short enough to be worth waiting for, men will be rational actors. Since that is obviously not true, the metaphor can be fatally misleading. An economic market imposes a discipline that the marketplace of ideas does not. A producer of shoddy goods will soon find that consumers will turn elsewhere. A producer of shoddy ideas may be able to sell them indefinitely, as Nazism and communism demonstrate. Holmes certainly knew from history that horrible ideas were often accepted in the market. His own experience as a soldierdemonstrated that, when ideas differ sharply enough, the “truth” of one or the other is not settled in the market but in the slaughter of the battlefield. Nevertheless, the compelling quality of his prose and the attractiveness to intellectuals of the notion of the ultimate supremacy of good ideas served, down to our own day, to make his extremely dubious version of appropriate constitutional policy the dominant one. A counterfactual rationalism has become a central tenet of the law of freedom of speech.
    The core value of the First Amendment’s Speech Clause is the protection of political speech, speech