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Legal Commentary

: Balkinization

More on Ed Baker

By Jack M. Balkin

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I join Jack in mourning Ed Baker. This post is a short note on one of his books, so those readers unacquainted with his work can get some idea of what we have lost.

I recently read Ed?s book, Human Liberty and Freedom of Speech, a lucid, philosophically sophisticated treatment of free speech issues. Baker?s central claim is that there really isn?t anything special about speech. Speech is a subset of liberty, and liberty ought to be protected. Government regulation is appropriate in those spheres in which there is no liberty anyway, because absent regulation, the impersonal forces of markets determine what is going to happen. The boundary between the realm of freedom and the realm of appropriate regulation cuts across the category of speech.

Drawing on Marx, Weber, and C.B. Macpherson, Baker argues that the market is a realm of alienation, in which actors are forced to relentlessly pursue profit in order to remain viable. (pp. 105, 198-200) Baker?s most fundamental aim is to transform society in order to end this alienation; ?to reverse the current dominance of purposive-rational action and establish the social and political supremacy of undistorted symbolic interaction.? (96)

I?ve never seen the influence of the ?marketplace of ideas? on the Supreme Court documented or criticized as thoroughly as Baker does it in his first chapter. Every free speech scholar should read the book, but that first chapter is brilliant and absolutely indispensable.

More generally, I admire his effort to link up the theory of free speech with our broader social aspirations, and to make the law responsive to Marxist concerns about alienation. A persistent problem about free speech, indeed about any kind of liberty, is that it will disable the government from addressing pressing problems. What Marx adds to this is the idea that an unregulated private sphere has a logic of its own that is inimical to human purposes.

With respect to speech, this is particularly salient in the cases of campaign finance and commercial speech. Baker worries about ?oligopolistic control of the media, lack of access for disfavored or impoverished groups, overwhelmingly pervasive participation by favored groups, techniques of behavior manipulation, [and] irrational responses to propaganda.? (4-5)

The loss of human control over the social world is a real problem, and I?m glad that Baker has brought it to the fore in the way he has. For that reason, the book is likely to be incorporated into the permanent architecture of my thinking about free speech, in ways that I?m sure I don?t yet fully recognize. Ed and I were in the middle of an extended email conversation about the book when I got the news of his passing. I will badly miss him.

Full post as published by Balkinization on December 09, 2009 (boomark / email).