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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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February 18, 2004

Miller on Bernstein on Balkin on Free Speech

Posted by Ernest Miller

Yesterday, Prof. Jack Balkin wrote a short post on his view of the purpose of freedom of expression in response to David Bernstein (Save Freedom of Speech, Get Rid of Public Universities?). Bernstein doesn't respond in depth (too busy), but notes the post as an example of "what the brightest minds on the left are thinking on such topics" (Balkin on Free Speech).

I believe that Balkin's view of the purpose of free speech being to promote democratic culture as absolutely spot on, and take exception to Bernstein's suggestion that this is a view from the left. Balkin may rightly be called a "leftist", but his views on freedom of speech are classically liberal, though not libertarian. For example, Balkin doesn't particularly privilege one type of speech over another (as Meiklejohn does), but sees participation in culture as a critical element. This doesn't seem to me particularly leftist, especially given the success of conservatives and rightists in taking advantage of democratic culture (i.e., right-wing bloggers and South Park Republicans).

Furthermore, Balkin believes that "freedom of speech involves important infrastructural elements in technology and institutions that undergird and enrich the system of free expression." In my view, this is obvious. Intellectual property law, telecommunications regulation, the postal service and even property law (to name but a few) all have profound implications for freedom of expression. Even so-called "content neutral" regulations can substantively alter our free speech rights. For example, the choice between end-to-end and centralized communications architectures are content neutral. However, they are not substantively neutral. One architecture will promote democratic freedom of expression values better than another. It hardly seems to me that this view of freedom of expression is leftist.

If you would like to know what the brightest minds, period, are thinking on such topics as freedom of expression and universities, Balkin's piece is a good place to start.

Comments (1) + TrackBacks (0) | Category: Freedom of Expression


1. Cypherpunk on February 18, 2004 10:22 PM writes...

I have to disagree, I think Balkin's perspective is distinctively leftist. Interpreting freedom of speech to entail government support of scientific research is a real stretch. All the First Amendment requires is that the government shall not abridge the freedom of speech. It doesn't say that the government is justified in taking any and all actions which might contribute in some general way to an improvement in public discourse.

And once you take this step and justify public libraries, the postal service, government research, public universities, etc., all on First Amendment grounds, where do you stop? I don't see a principled way to determine how directly a measure has to contribute to freedom of speech in order to be a justified governmental activity.

Of course, the whole notion of asking for justification of government programs is inherently conservative, anyway. Liberals tend to view any government action as OK as long as it is for a good cause, limited only by pragmatic considerations of costs and public support.

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