Formal Freedom, Functional Silence: Literacy and the Boundaries of Expression

In the modern American legal system, the practice of free speech has been effectively hamstrung by insufficient legal focus on the conditions necessary for its meaningful exercise, the most fundamental of which is literacy. A strict textual reading of free speech in the Constitution produces a “negative rights formulation” that protects Americans from laws abridging free speech. Many scholars argue that the text of the First Amendment primarily reflects a general distrust of the government powerful enough to call for doctrinal checks on its regulatory power (Norton 2022). This distrust-centered interpretation of the Free Speech Clause stands in contrast with a second, more proactive approach to free speech tradition: an “affirmative rights practice” that privileges the promotion of free speech. While negative free speech theory certainly constitutes the most common interpretation of the First Amendment, to limit the meaning of free speech generally in this way is fallacious. In practice, it comes at the expense of considering a long historical precedent of broader legal protection of an affirmative approach.
Hudgens v. NLRB (1976) explicitly established that beyond the First Amendment itself, other areas of statutory or common law may “extend protection or provide redress against [efforts] to abridge … free expression.” This extratextual approach, known as non-First Amendment free speech law, focuses more heavily on enforcing the affirmative right to free speech. The theory underlying non-First Amendment free speech law is that the negative rights interpretation actually hollows the substance of the right. An affirmative rights theory, by contrast, is motivated by the value of free speech itself, and ensures that everybody within the democratic polity has access; this theory posits that a right is only a right if broadly accessible. A positive right to freedom of expression is both rigorously supported by expansive legal precedent and essential in a world increasingly characterized by illiteracy, which precludes genuine utilization of the technical freedom.
Low literacy poses a fundamental threat not only to freedom of speech, forming an implicit barrier which naturally impedes the ability to practice and defend one’s rights. The current literacy crisis in America is particularly concerning given that it breaks down along racial and socioeconomic lines: of the 18% of U.S. adults affected by illiteracy, a majority are Black, Hispanic, or low-income (Haderlie and Clark 2017). Although formal First Amendment free speech rights protect these individuals from interference by the state, the extent to which they may genuinely enjoy their rights is determined by their ability to understand and effectively employ basic language. This limit on freedom of speech calls into concern another right: freedom of information. Freedom of information codifies the affirmative obligation of the government to disclose information, as well as the affirmative right of citizens to acquire information and be educated. The specific right to education, while seemingly unsupported by a formalist view that privileges government non-interference, finds legal basis in New York Times v. Sullivan (1964), when Justice Brennan argued that “debate on public issues should be uninhibited, robust, and wide-open.” The particular language of “robustness” suggests that free speech, by nature, must have the opportunity to be rigorous and well-understood by all parties. As such, in conjunction with the right to free speech entailed in the First Amendment, this precedent may be used as justification for the affirmative obligation of the government to initiate outreach and ensure that every citizen has the capacity to engage in “robust” debate.
Similarly, although the Supreme Court has previously disclaimed the affirmative right to education (San Antonio Independent School District v Rodriguez, 1973), a decision by the Sixth Circuit Court of Appeals held in favor of a narrower right to literacy per the Due Process Clause (Gary B. v Whitmer, 2020), further supporting the notion that a negative-rights understanding is insufficient when conceptualizing the obligation of the government to its citizens. A consistent trend in cases invoking non-First Amendment free speech law is the finding that technical rights hold little legal weight when people lack the capacity to understand and invoke them. For example, in Bounds v. Smith (1977), the Court held that the Constitution requires states to provide prisoners with meaningful access to the courts, including legal libraries; this demonstrates a judicial recognition of the fact that literacy and access are constitutionally relevant to formal rights, a perspective which has yet to extend fully to the mainstream view of free speech tradition. Reducing free speech tradition to solely the negative rights provided by the First Amendment imagines free speech as outside of the scope of expression, tolerating the exclusion of the communities of color and low-income communities most heavily impacted by the literacy crisis (Blanchette 2023).
To promote a value-based legal orientation towards free speech—that is, to recognize that there is some intrinsic value to free speech distinguishing it from general liberty—requires closing the “gap between potential and actuality” (Huang 2024). This move entails a theoretical reformulation which, in turn, calls for the expenditure of social and economic resources to ensure that every individual has not only the protected freedom, but also the opportunity, promoted by the government, to enjoy their right to democratically shape their individual and collective experiences.
The implications of this affirmative viewpoint are not purely theoretical, but implicate the democratic functioning of American society writ large. If, as established above, low literacy rates create barriers to robust intersubjective engagement, then a view of free speech tradition that fails to account for positive obligations of the government to promote literacy imperils the democratic system upon which the United States was founded. Before contending with questions of where outer limits must be placed on free speech, the U.S. must build on its legal precedent of breaking down its implicit barriers to entry in a democratic society. Accordingly, free speech must not be considered in a vacuum, nor solely in the terms of the First Amendment, but rather in the context of addressing unequal legal access to actualize the republican ideals appealed to in free speech discussions.

References

Blanchette, William. “Sufficiently Fundamental: Searching for a Constitutional Right to Literacy Education.” Boston College Law Review 64, no. 2 (2023): 377-413. https://bclawreview.bc.edu/articles/3043.
Bounds v. Smith, 430 U.S. 817 (1977). https://supreme.justia.com/cases/federal/us/430/817/.
Burnett, Matthew and Rebecca Sandefur. “Justice Work as Democracy Work: Reimagining Access to Justice as Democratization.” South Carolina Law Review 76, no. 4 (2025). https://sclawreview.org/article/justice-work-as-democracy-work-reimagining-access-to-justice-as-democratization/.
Gary B. v. Whitmer. 957 F.3d 616 (6th Cir. 2020). https://law.justia.com/cases/federal/appellate-courts/ca6/18-1855/18-1855-2020-04-23.html.
Haderlie, Chloe and Alyssa Clark. “Illiteracy Among Adults in the United States.” Ballard Briefs. 2017. https://ballardbrief.byu.edu/issue-briefs/illiteracy-among-adults-in-the-us.
Huang, Tao. “Free Speech Capability.” City University of Hong Kong School of Law. June 28, 2024. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4879097.
Huang, Tao. “Freedom of Speech as a Right to Know.” University of Cincinnati Law Review 89, no. 1 (2020): 106-139. https://scholarship.law.uc.edu/uclr/vol89/iss1/4.
Hudgens v. NLRB, 424 U.S. 507 (1976). https://supreme.justia.com/cases/federal/us/424/507/.
Lakier, Genevieve. “The Non-First Amendment Law of Freedom of Speech.” Harvard Law Review 134, no. 7 (2021): 2300-2381. http://dx.doi.org/10.2139/ssrn.3689972.
New York Times Co. v. Sullivan, 376 U.S. 254 (1964). https://supreme.justia.com/cases/federal/us/376/254/.
Norton, Helen. “Distrust, Negative First Amendment Theory, and the Regulation of Lies.” Knight First Amendment Institute. Columbia University, October 19, 2022. https://knightcolumbia.org/content/distrust-negative-first-amendment-theory-and-the-regulation-of-lies.
San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). https://supreme.justia.com/cases/federal/us/411/1/.