Civility in the Public Sphere and Free Speech - an Interview with Robert Post

By Sinead Li and Jessica Chang

In an age where it seems free speech is being curtailed - on campuses, in workplaces, and in the public arena, the definition of free speech itself is continually being debated. Robert Post is the Sterling Professor of Law at Yale University, and the author of Democracy, Expertise, and Academic Freedom. The Catalyst interviewed Post to understand his view of our First Amendment rights and where they can be applied.

Let’s begin with definitions: How would you define civility and why is it important for free speech?

Civility we can define roughly as a form of behavior which comports with the social norms by the ways we extend and receive respect from each other. We act in a civil way when we act respectfully to each other. That’s the root of what we mean by civility.

Why is it important to free speech? To answer that question, one needs to understand why free speech is important. So, in this country, we protect freedom of speech chiefly in order so that we can together participate in the formation of public opinion. So, to enjoy the benefits of democratic self-government, since we structure our government to be responsive to public opinion.

But we wouldn’t feel that we’re participating in the formation of public opinion if, when we spoke in public, we couldn’t treat each other with civility. If I went into the public space and all I got was crude attacks and insults, I wouldn’t feel that public opinion was the way to reconcile my individual autonomy with the collective autonomy of the country. And I wouldn’t feel that public opinion was an effective medium for my desire to participate in self-governance. So, it’s because when I allowed it for discourse, when we respect each other, or we talk to each other, that we can continue to think of public discourse as a medium of democratic self-governance.

Given that societal norms are fluid across different generations and communities, is it possible to apply this standard of civility to everyone?

Well, again, that’s a good question, because civility, as I tried to explain at the lecture in the auditorium, rests upon norms, social norms, which are socialized into persons. And so the extent that you have of culture, which is heterogeneous because there are many different communities, the state – the government – always has to decide whose norms of civility will govern.

And that means whenever a government is enforcing community norms, it is always, more or less, hegemonic. That’s just the prerogative of being in the government. Sometimes the government can do that because there is respect for elite groups who control public opinion – that’s true for most countries in the world. In this country, where we tend to be highly individualistic, in which we have low faith in government, we instead adopt a policy under the First Amendment where the government is neutral with respect to the different forms of civility for different communities.

So, a way to say that, in an aphorism, is that the First Amendment protects the marketplace of ideas, the marketplace of community. How does the lack of civility in today’s politics curb free speech? It makes free speech less and less effective for accomplishing values in which we protect free speech in the first place.

What constitutes the public sphere and how does it apply specifically to our definition of free speech?

Well, the free speech which I’m talking about is the freedom to participate in the formation of public opinion. So, the idea of the public sphere is central to any expression of freedom to speech. The public sphere is a formation that appears with the mention of printing. When you have a printing press, you have books which you can circulate, so people who were far apart and didn’t talk to each other and were otherwise strangers to another could be united by reading the same text, they were exposed to the same stimuli. The public sphere became entrenched in the eighteenth century with the invention of newspapers, which were periodical circulations to strangers, who were all reading the same news. So we imagine a public, when we imagine a universe of persons who are exposed to the same texts, interested in the same phenomenons, reading the same news. If you had no public, you couldn’t have a democracy. And we define the public in terms of the circulation of these common stimuli.

How does a state balance its citizens’ right to free speech with its citizens’ safety? Is there a specific criterion it uses, or does it still depend on who sits on the Supreme Court?

Well, everything depends on who sits on the Supreme Court, because it’s the Supreme Court that is making the judgement calls. And judgement calls are intersubjective, not objective, not personal, so people on the Supreme Court, whoever they are, try to give their best interpretation, and people’s interpretations will differ. It always matters who’s on the Supreme Court, for one. Number two: there are tests in the First Amendment where we try to balance the possibility of certain types of harm, the kinds of harm that are contingent against the rights to free speech. And the most general formulation of that balancing is called the clear and present danger test. If the speech is likely to produce an imminent danger, is intended to produce an illegal act, then it can be regulated.

The internet has changed our perception of what constitutes a public sphere, and while Internet platforms unlike the government, currently have the right to censor online speech as private entities, should we expand the right of free speech to the Internet?

We have extended the right to free speech to the Internet. But the right of free speech exists only as against the state, it doesn’t exist as against private entities. You have no right to freedom of speech if you are an employee of a private employer and he says ‘no talking on the shop floor.’ It’s not a freedom of speech issue. So, the Supreme Court has said, very forcefully, that the Internet is part of the public sphere, that the state can’t intervene to regulate speech on the Internet. If we were to imagine that private entities like Facebook or Twitter, because they had become so important to the public sphere, are, in fact, acting like the state – they govern what we can or can’t say – if we were to make that move, then basically we would be saying that, in Twitter and in Facebook, there’s a public, not a community. Facebook imagines itself as a community: it has community standards, it tries to enforce rules of decency; you can’t show certain kind of pictures on Facebook, you can’t say certain types of things on Facebook. That would all be constitutionally forbidden if we were to characterize Facebook as the state, and say that we have the right to freedom of speech as against Facebook.

If the government decides that it does want to treat Facebook as an entity of the state what would that process look like? 

There are precedents in the Supreme Court which say that if a private entity performs public functions like the state does, then it will be considered the state for purposes of constitutional law. There is a famous case called Marsh v. Alabama (1946) in which there was a company town in the South and it prevented people from speaking in the streets. They brought suit, and the company said that ‘I’m a private company; you have no First Amendment right against me’, and they said, ‘Well, the company owns the streets, and they, in every way, act as if they are the government of the town.’ And the Supreme Court said ‘Yes, if they are acting like the government of the town, then we will treat them like that.’ So, if it’s going to happen, then it will be happening because of precedents like Marsh vs. Alabama. It’s a very complicated situation for Facebook because, of course, as you know, Facebook has users all around the world, not just in the United States, and most countries in the world prohibit indecent and outrageous speech from being broadcast in public; they have much stricter rules regulating speech than we do because they don’t have  the same kind of First Amendment that we do; they think that civility is much more important than we do, and so they prohibit uncivil, indecent, outrageous, abusive speech. So, Facebook would be caught in a bind. On the one hand, if they were the state, they couldn’t regulate such speech, and on the other hand, because they’re the state and because they exist in countries like Germany or Japan or France or Spain or Argentina, they would have to regulate some speech. They would be caught between a rock and a hard place.

So, you’ve written that free speech isn’t a right in certain institutions like private corporations or universities, where individuals have to defer to the norms of that institution or community instead of the principles of self-governance. When, if ever, will the rights of those individuals supersede these norms?

So, when you say in that question ‘free speech’, you’re imagining free speech according to the model of public discourse. So, let’s be precise what we mean by freedom of speech, and what you mean when you ask a question like that, which is about rules like no content discrimination, all ideas being equal. And within public discourse, those are the rules that we apply to the government, it can’t do any of those things. But when we get together and talk about what we want to do in modern society, we were talking because we want to reach a decision. And if we reach a decision and want to accomplish something, the question is how do we go about accomplishing it. The answer is we typically create an organization. So, if we were to create a public health system, we would create a system of hospitals and whatever. Whenever you see an organization, or an institution like that, it’s always organized to accomplish its mission or its goal. It organizes its resources, its money, its furniture, its computers, to achieve its purposes. And it also organizes its people. It has to regulate its employees to accomplish the goal of the organization. And it regulates people within the bounds of the institution already to accomplish its purposes. And that means it has to regulate their speech in order to accomplish its purposes. And that means that there is no freedom of speech.

So, a university is an organization, and like other organizations that are organized to accomplish a purpose, the purpose of the university is, let’s say, teaching. And as I create the organization to teach, I have to regulate the speech of persons within the organization in order to accomplish that purpose. So, I do compel speech, I make you take the test, or I do content discrimination, I give you grades, or ideas aren’t equal: if you’re not competent to teach, you don’t get to teach. Like that. And so, when you say ‘when if ever’, do the people in the institution get to have freedom of speech? The answer is when they’re not in the institution. So, if you’re in the university, and you’re in a classroom, you don’t have freedom of speech. But if you go home, go on the Internet, and start blogging about other things, and you start blogging about the president, then you do have freedom of speech because your speech isn’t occurring what might be called the managerial domain of the organization.

In the past couple of years – moving away from private institutions – we’ve seen a lot of changes regarding free speech in the public sphere from social media to the rise of populism. So, in your opinion, how will the 21st century continue to change the meaning of free speech?

So, what we’re seeing now in the Supreme Court of the United States is an effort to say that ‘free speech should extend into the commercial sphere.’ So, what I just described to you is the thought that speech has to be categorized according to where it occurs and what is moral statuses. So, if its status is public discourse, it receives some sets of protections; if its status is a different type of speech, like within a university as a student, it receives different protections, etc. The trend we see in the Supreme Court now is that speech in the commercial sphere should receive the same protections as speech in public discourse. So, if you take that to its logical conclusion, it means that, for example, we can’t regulate fraud in the commercial sphere, we can’t regulate misleading advertisements in the commercial sphere, we can’t regulate drug advertisements to make sure that drugs are safe and effective, we can’t give safety warnings, we can’t require labels, etc., etc. That’s the route the Supreme Court is taking now under the influence of a very libertarian set of ideas that are trying to use the First Amendment as a mechanism to force constitutional deregulation of the marketplace. That is what’s actually happening now. And given the current composition of the Supreme Court, it will grow in intensity in the next decade.