Cultural Democracy and the First Amendment

Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals. The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems to have little to do with political self-government enjoys full First Amendment protection. Second, democracy-based theories value speech because it legitimates state power. But in the digital age, public discourse does not respect national borders. Opinions, ideas, and art circulate internationally, and so does cultural power. Cultural freedom means that people must be able to participate in the circulation of opinions, ideas, and artistic expression throughout the world whether or not this legitimates a particular nation state. Third, democracy-based theories protect speech because this benefits self-government within a single country; hence, their focus is inevitably parochial. By contrast, cultural democracy demands that states consider the value of global exchanges of ideas and opinions and the health of the global system of telecommunications. These issues have become increasingly important as nation-states try to regulate and deform Internet architectures to further national concerns and bolster national political authority. AUTHOR—Knight Professor of Constitutional Law and the First Amendment, Yale Law School. My thanks to Ash Bhagwat, Andrew Koppelman, and Robert Post for their comments on previous drafts. N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W 1054 INTRODUCTION .......................................................................................................... 1054 I. THE THEORY OF DEMOCRATIC CULTURE ...................................................... 1055 II. THE IDEA OF PUBLIC DISCOURSE .................................................................. 1062 III. THREE CONCEPTS OF DEMOCRATIC LEGITIMATION ....................................... 1068 IV. THE JUDGE OF SOCIETY ................................................................................. 1072 V. THE NESTED OPPOSITION OF CULTURAL AND POLITICAL DEMOCRACY ......... 1076 VI. COMMERCIAL SPEECH AND PUBLIC DISCOURSE ............................................ 1080 VII. WHAT CULTURAL DEMOCRACY ADDS TO DEMOCRACY-BASED THEORIES OF FREE SPEECH ............................................................................................... 1088 CONCLUSION .............................................................................................................. 1095