The Man Who Wanted to Save the First Amendment by Inverting It

In the 1940s, the scholar William Ernest Hocking envisioned a theory under which the government actively facilitated free speech.

An illustration of printing presses
Getty / The Atlantic

The American news media, we’re told, face an unprecedented crisis. Public trust is eroding. The nation seems to be splintering, as media outlets obligingly provide news tailored to their audience’s ideological preconceptions. For a representative description, consider the introduction to “Crisis in Democracy,” a 2019 report from the Knight Commission on Trust, Media and Democracy:

Political polarization has reached crisis proportions. Americans cannot assume that their fellow citizens are operating under the same set of facts. Many of us live inside echo chambers where only our own political sentiments can be heard, and distrust those who do not agree with our particular viewpoint. Provocateurs and hatemongers, foreign and domestic, are fueling disagreements, and media are amplifying the divides.

The situation might be dire, but it’s not as novel as we might think. More than 70 years before the Knight Commission, another group of intellectuals gathered to analyze the media’s role in polarization, echo chambers, and provocateurs. The Commission on Freedom of the Press, as it was called, blamed these problems on the media. The final report, “A Free and Responsible Press,” published in 1947, charged that journalists were doing a wretched job, abusing the First Amendment with their sensationalism, sloppiness, bias, and outright lies, and in the process imperiling self-government, world peace, and even human civilization.

The theoretical underpinnings of this analysis chiefly came from William Ernest Hocking, an emeritus professor of philosophy at Harvard. He considered the First Amendment “glorious” but “potentially mischievous,” and he took it upon himself to recalibrate it. Initially he proposed adding a codicil to the Bill of Rights stating that its freedoms extend only to those who exercise them responsibly. Other commission members resisted a rewrite of the Constitution, so he came up with a way to reconceive it without changing the text. He decided that, properly interpreted, the phrasing “Congress shall make no law … abridging the freedom of speech” sometimes means “Congress shall make law enhancing the freedom of speech.”

Whereas the First Amendment is ordinarily understood as a prohibition against government action, the Hocking approach transforms it into a mandate for government action. Though rarely credited to Hocking, this theory is known as the positive First Amendment. It lies at the foundation of many of today’s arguments for greater government involvement in the media marketplace. Proponents of state funding of journalism, regulation of social media, and similar policies maintain that in the realm of free expression, as Hocking put it, “laissez faire no longer does the work.”

According to Hocking’s analysis, every right exists for a reason, and that reason limits its scope. Freedom of the press exists for the purpose of informing voters about public affairs; therefore, when the press misinforms voters, it operates outside of its freedom, and the government can intervene. Freedom, then, in part means duty, enforced by the state.

Book jacket cover of An Aristocracy of Critics
This article is adapted from Bates’s forthcoming book.

In developing his First Amendment theory, Hocking drew a distinction between negative and positive freedom—a concept later popularized by the philosopher and political theorist Isaiah Berlin. Negative freedom entails noninterference in the exercise of a right; positive freedom entails the resources needed to exercise the right. In the American tradition, almost every constitutional right falls in the negative category, by prohibiting government action. You have a First Amendment right to exercise your religion, a Second Amendment right to bear arms, and a Fourth Amendment right to be secure in your house, but these rights don’t entitle you to a state-provided chapel or gun or house. A government that ignores you, under this model, cannot violate your rights. Positive freedom, by contrast, allows or even requires the government to act in order to supply what is needed to effectuate a right. Hocking had long embraced the positive view. In 1925, he defined liberty as “the presence of the conditions which enable an individual to fulfill his will, namely, (a) absence of restraint; (b) availability of the necessary equipment.”

According to positive-rights advocates, the First Amendment, by declaring that “Congress shall make no law … abridging the freedom of speech,” implicitly calls on Congress to facilitate free speech. In their reading, the amendment declares free speech so important that Congress must not abridge it, as the text says, and must affirmatively promote it, as the text implies. The Supreme Court heartened advocates of the positive First Amendment in 1945, when it ruled that antitrust law required the Associated Press to make its services available to all would-be subscribers. Writing for the Court, Justice Hugo Black rejected the AP’s argument that the First Amendment shielded it from antitrust enforcement:

It would be strange indeed … if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.

Some commentators, then and later, construed this ruling as tacit recognition of the positive interpretation of the First Amendment. Hocking thought it “enwraps the whole work of the press in a public interest publicly guaranteed.”

Applying his conception of positive freedom, Hocking favored the use of state power to enhance free expression in three overlapping ways. He envisioned rules to foster public deliberation among citizens, rules to protect speakers from economic coercion, and rules to improve the quality of public-affairs coverage in the news media.

With regard to public deliberation, the disorder of the unregulated marketplace of ideas perturbed him. Politicians, he said, were pontificating rather than debating. Citizens too were shirking their duties. They must study issues, candidates, and events, and listen with open minds to both sides, “the fundamental point of intellectual morality.” To be effective and efficient, in his view, public deliberation must be supervised by the government. “The state cannot officially declare the truth,” he said; “but its responsibility is to see that the truth has a fighting chance.” The state should reduce redundancy and distraction, ensure that speakers are knowledgeable and accurate, and guide the discussion toward a conclusion. The town-meeting model of public deliberation is commonly credited to the philosopher Alexander Meiklejohn, but Hocking published it first. Neither of them explained how it might work in practice.

Hocking also used his positive First Amendment to argue that the state must play a more forceful role in protecting speakers from private suppression, such as boycotts targeting newspapers that publish disfavored material. He thought the law should distinguish between those who rebut speech and those who try to silence it. Penalties for ideas, he wrote, are unavoidable “except in a moribund society.” One who publicly espouses an unpopular idea must be prepared to suffer the consequences; the freedom to express an idea is no greater than others’ freedom to condemn it. But opponents go too far when they try to suppress speech, thereby subtracting from the marketplace of ideas rather than adding to it. Threats of violence fall in this category, and the state must intervene; public order, said Hocking, is “the cornerstone of free expression.” Some forms of economic coercion, in his view, also cross the line.

Here, Hocking anticipated the First Amendment doctrine of the heckler’s veto, which the Supreme Court recognized in the 1960s. The doctrine generally bars the state from silencing speakers solely on the ground that their messages might provoke violent responses from others. Hocking would have gone further, by requiring the state to protect the speaker from some forms of nonviolent reprisal too, an affirmative obligation to foster freedom of speech and thus an application of the positive First Amendment. His approach, if implemented (and if ruled constitutional), might have blunted the impact of Hollywood and broadcast blacklists of the 1950s. It might also have tamped down some of the efforts to de-platform controversial speakers today, such as calls to boycott companies that advertise on Tucker Carlson’s and Rachel Maddow’s shows.

Hocking’s principal concern was the quality of news coverage. He said that citizens have a fundamental need for truthful information, and therefore a right to receive it. In this realm, the rights of listeners supersede the rights of speakers.

The positive First Amendment might require the government to enhance the quantity and diversity of speech in a content-neutral fashion, such as by releasing its own secret documents, building new auditoriums, prohibiting employers from firing workers on the basis of their speech, subsidizing the postal delivery of newspapers, or limiting the size of media companies. More contentiously, the positive First Amendment might require the government to regulate the content of speech, by telling speakers what they must not say (even though they want to say it) or what they must say (even though they don’t want to say it). Although the line between the two is in many cases contestable, the AP ruling falls closer to the weak approach. It aims to foster diversity of speech and speakers by restricting the AP’s choice of clientele, not its message.

Hocking embraced the strong version. Because “the god that is involved in our discussion is truth,” he said, the community is entitled to “true knowledge of its world.” News organizations perform indispensable democratic functions by acting as intermediaries between the people and the government. These functions make the press “an aspect of government itself,” he said, so, like other parts of government, it must be subjected to checks and balances.

With this, Hocking turned the usual argument on its head. Civil libertarians argue that government officials can’t be trusted to regulate the press because of a conflict of interest: Whether they remain in office might depend on how the press covers them. In this view, democratic discourse is so vital that the state must leave it alone. Conversely, Hocking thought that democratic discourse is so vital that the state must regulate it. He acknowledged the conflict-of-interest argument, but he maintained that the press isn’t neutral, either. As big businesses, news organizations also have a stake in the outcomes of elections. Just as government officials want to keep their jobs, media executives want to keep their profits. Because everyone is tainted, there must be a “mutual checking process” in which the government monitors the press while the press monitors the government. A crackdown on the few irresponsible journalists, he said, would strengthen the credibility and therefore the freedom of the many responsible journalists.

The positive First Amendment in this form essentially negates the First Amendment. In a mutual checking process between an unconstrained press and an unconstrained state, the state always wins. And even if a particular set of government officials can be trusted to regulate speech in a neutral fashion, they won’t always be in charge. “It is a sound practice in a democracy,” said another commission member, the theologian Reinhold Niebuhr, “not to establish an engine of government which we are unwilling to put into the hands of our enemies.” Finally, censors throughout history have advanced Hocking’s argument: Silencing bad speech will improve the system of free expression as a whole. One can only too easily imagine a president declaring that for the sake of enhancing freedom of the press, it’s time to criminalize “fake news.”

For better or worse, though, the courts mostly stick to hidebound precedent rather than venturesome theories. The positive First Amendment hasn’t attained much of a foothold in the law. The main exception is the regulation of broadcasting, where the Supreme Court declared in 1969 that “it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” The positive First Amendment thrives, however, in academia, where scholars and activists cite it as justification for social-media regulation, government funding of journalism, and other progressive policies. Victor Pickard, the author of Democracy Without Journalism?, for example, writes that traditional negative understandings of the First Amendment “protect corporate power, delegitimate government regulation, and impoverish the US regulatory imagination,” whereas a proper interpretation would support “an activist state that redistributes communication resources.”

Hocking was a philosopher, not a lawyer, and he approached constitutional issues from a philosophical perspective, excavating first principles and then fashioning them into new theories. He valued creativity in analysis. In his view, “a theory is false if it is not interesting.” And if nothing else, his ideas were interesting.

This article is adapted from Stephen Bates’s forthcoming book, An Aristocracy of Critics: Luce, Hutchins, Niebuhr, and the Committee That Redefined Freedom of the Press.