Free Speech and Political Legitimacy: A Response to Ed Baker
Normative discussion too often suffers from lack of agreement on criteria by which to judge the merits of the various contending theories. Bereft of such common ground normative debate often has the deep subjectivity—and hence the productivity—of schoolyard boasts about whose dog is best. I was therefore delighted to discover that the normative essence of the autonomy-based theory of free speech that Ed Baker proposes in this Symposium is political legitimacy, the same basic norm underlying the somewhat different visions of participatory democracy that Robert Post and I defend in a related symposium as the best explanation of the American free speech principle. Having identified this common ground, I will in Part I of this response attempt to show that there is a firmer connection between legitimacy and participatory democracy than there is between legitimacy and the autonomy theory that Ed proposes. Part II responds to certain of Ed’s claims about the fit between his theory and current free speech doctrine. Part III concludes this response with a short discussion of why overall doctrinal fit matters in determining the best theory of the First Amendment.