It can seem as though there’s no principled way out of this conundrum: if you equate democracy with the proliferation of free speech, then how can you, in good conscience, restrict it? And yet—even setting aside the fact that social-media platforms already manipulate the mix of messages we encounter—the history of thought about free speech does contain ideas that can be of use. Among them are the concepts of “audience interests” and the “right to hear,” which have been repeatedly recognized by the Supreme Court. These concepts see the First Amendment from a listener’s point of view. In addition to asking, “Do I have the right to speak,” Genevieve Lakier, a professor at the University of Chicago School of Law, told me, we can ask, “Am I, as a listener, genuinely hearing a diverse and representative array of views?”
The Court, Lakier has shown, took audience interests seriously during the New Deal era. In Thornhill v. Alabama, from 1940, it recognized a union’s right to engage in peaceful picketing; the case was about free speech—the plaintiff, Byron Thornhill, was arrested while on the picket line—but the Court’s judgment addressed the importance of listening, too. One reason why the arrest was wrong, the Justices concluded, was that citizens needed to hear what was being said: pickets could convey valuable information about working conditions, the causes of labor disputes, and how to regulate industry. In other First Amendment disputes from the period, Lakier said—including cases about pamphleting—the Court furthered the cause of free expression by defending “the audience’s right to have a diverse public sphere.” Taking this right seriously entailed, inevitably, the consideration of economic disparities, so that what the Court called the “poorly financed causes of the little people” might get a fair hearing.
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