Could 'inverse' First Amendment save us from ourselves?

Journalism professor Stephen Bates, J.D., University of Nevada Las Vegas, has published a fascinating article in The Atlantic on "the inverted First Amendment," as envisioned by philosopher William Ernest Hocking (1873-1966) in the 1940s.

Hocking on National
Educational Television

As Bates explains, Hocking posited that a correct interpretation of the First Amendment command, "Congress shall make no law ... abridging the freedom of speech," incorporates the command that, sometimes, Congress must make laws that further the freedom of speech.

Post-war America was beset with the perception that mass media were out of control, contributing, as Bates describes, to "polarization, echo chambers, and provocateurs."  That's a good reminder for our times that since the Spanish-American War and subsequent, in part consequent, invention of modern journalism, it's never quite been the idyllic institution of our imaginations.  Hocking contributed a key study to the work of the U.S. Commission on Freedom of the Press, on which he served.

The commission, otherwise known as the Hutchins Commission after chair and University of Chicago President Robert Hutchins, produced a landmark 1947 report.  Concluding that the press is a vital institution in American democracy, the Hutchins Report could have been read as justification for government regulation in furtherance of social responsibility.  The report was read to bolster the controversial development of journalism professionalization and ethics codes.

Hocking's inverse, or positive, First Amendment would have compelled the government affirmatively to protect free speech and even to promote journalism.  This model of positive speech regulation is not unknown in American media law.  In the broadcast medium, because it was not afforded full First Amendment protection, the dubiously constitutional fairness doctrine was instigated by the Hutchins Commission.  In the same vein and medium, we still have, however increasingly irrelevant it is, the equal time rule.  There is some debate over whether there is not some minimal positive requirement in the First Amendment penumbra.  For example, due process in the Fifth and Fourteenth Amendments may be read to require that a court respond to a complainant's filing—a petition for redress of grievance—if only to dismiss it.

A positive First Amendment could have been the basis for a constitutional right of freedom of information, or access to information, in lieu of the later enacted and oft beleaguered Freedom of Information Act of 1967.  Some states and many countries, not to mention international human rights systems, declare a constitutional or human right of access to information, which may require government transparency and even the affirmative publication of information.

Pres. Roosevelt
proposes a Second
Bill of Rights in
January 1944.

More broadly, the notion of positive civil rights, as opposed to the mostly negative commands of the U.S. Bill of Rights, animates constitutional law in many other countries, especially in association with what are sometimes called "second" and "third generation," or "red" and "green" rights, guaranteeing socioeconomic interests, such as employment, food, housing, and a safe environment, as opposed to "first generation," "blue" rights of a political nature.  ("Generations" models of human rights have been criticized fairly as inadequate, if not patronizing, to describe socio-legal development, but the model is still usefully descriptive in some contexts.)  In fact, some positive, "second generation" rights would have been enshrined in U.S. law, had President Franklin Roosevelt's "Second Bill of Rights" gained traction.  The famously expansive constitution of South Africa well models the codification of socioeconomic rights, while the experience of the courts and the people of South Africa speaks simultaneously to the challenges of making the model work, and the arguable perils of constitutionalizing aspiration.

Prof. Bates

An inverted First Amendment could empower the government to combat misinformation, or "fake news," today in ways that the First Amendment as presently understood forbids.  However, Bates recognizes, such a positive First Amendment would have a dark side to contend with.  A strong interpretation of a positive First Amendment could justify government regulation that would suppress speech in the interest of furthering other speech, just as the fairness doctrine was said to have done.  Critiquing contemporary calls to regulate the internet, Paul Matzko for the libertarian Cato Institute wrote in 2019:

In one of her early newsletters, Ayn Rand excoriated the public interest standard as an excuse covering “the right of some men (those who, by some undefined criterion, are the public) to sacrifice the interests of other men (of those who, for unspecified reasons are not the public)” [1962].

Rand’s words were meant particularly for FCC Chairman Newton Minow, who, in what may be the only famous speech by an FCC commissioner, had described television as a “vast wasteland” and called for limits on the number of game shows, Westerns, and cartoons aired....

.... The more serious danger was the routine weaponization of the public interest standard to advance private or partisan interests. For example, during the early 1940s, the Roosevelt administration pushed for a ban on newspaper ownership of radio stations, ostensibly because of the public’s interest in preventing cross-media consolidation, but also to prevent anti-New Deal newspaper owners from having a radio platform from which to criticize the President’s policies. The FCC during Richard Nixon’s administration would use a similar rule to try and pressure the Washington Post into abandoning its investigation of the Watergate scandal. 

Sometimes the government does, itself, get into the business of journalism.  Yet recent rancor between President Trump and the Voice of America over what the President seems to perceive as partisan disloyalty shows that VOA's very credibility throughout the world depends on its statutorily mandated editorial independence.

The line between government action to protect a negative First Amendment, such as an artistic-value savings provision in indecency law, and government regulation to further a positive First Amendment, such as leveling the free speech marketplace with a must-publish or must-censor rule, is much finer in practice than in theory.  As Bates observes, "Hocking was a philosopher, not a lawyer."

The article is Stephen Bates, The Man Who Wanted to Save the First Amendment by Inverting It, The Atlantic, Oct. 7, 2020.