Thursday, September 30, 2010

Free Speech Consensus

By Mike Dorf

Yesterday I gave the Keynote Address at the annual luncheon of the Boston Bar Ass'n.  My remarks were too long to reproduce fully in a blog entry, but I'll nonetheless try to summarize the high points.  The title of my speech was "The Cross-Ideological Consensus on Freedom of Speech."  Here's the condensed version.


Consider three Free Speech Cases the Supreme Court decided in the term that ended this past June:
 
1) In Holder v. Humanitarian Law Project the Court split on ideological lines (except for Stevens joining the conservatives) to uphold the application of the "material aid" law to people who wanted to assist the non-violent wings of listed terrorist organizations by training them in peaceful conflict resolution.

2) In Citizens United v. FEC the Court split 5-4 on ideological grounds to invalidate the ban on corporate independent expenditures for "campaign speech" during the statutorily defined election period.

3) In Christian Legal Society v. Martinez, the Court split 5-4 on ideological grounds (with Kennedy swinging liberal here) to reject the expressive association claim of a putative student organization that objected to a public law school's requirement that it take as a member any student who wished to join.

If you're keeping score at home, we can summarize as follows:

Humanitarian Law Project: Liberals (minus Stevens) support speech claim; conservatives (plus Stevens) oppose speech claim; conservatives win.
 
Citizens United: Conservatives (including Kennedy) support speech claim; liberals oppose speech claim; conservatives win.
 
Christian Legal Society: Conservatives support speech claim; liberals (with Kennedy) oppose speech claim; liberals win.
 
Judging by just these three cases, we seem to have here a vindication of the political science view of the Court as essentially political.  The liberals are civil libertarians who worry about protecting dissident speech but egalitarians even more so.  The conservatives support speech claims when they benefit powerful corporations and a socially conservative Christian organization. Despite the evidence of these three cases, and while I think there is definitely something to the general view of the political scientists, I think it's not especially accurate with respect to free speech.

Consider that in two other free speech cases last Term, the Court was nearly unanimous: In Doe v. Reed, the Court found that disclosure of the identities of petition signers did not, absent a particularized showing, so chill their petition signing as to violate their free speech rights; and in United States v. Stevens the Court facially invalidated the federal law forbidding pictures or depictions of animal cruelty as overbroad.

Taken as a whole, last Term's cases show that far from being divided on the value of free speech, the Court as a whole is committed to it; ideology enters into the picture only where the doctrine is unclear.  But that is a substantially different situation from what we see in other settings, where the Court is divided on the very question of whether any judicial protection at all is appropriate.  Consider, in this regard, the right to keep and bear arms (conservatives embrace it, while the liberals reject it), states' rights (conservatives embrace it, while the liberals mostly reject it), and what used to be known as the unenumerated right to privacy (liberals embrace it, while the conservatives mostly reject it).

Consider as further evidence for my core claim here how difficult it is to handicap two free speech cases on the Court's docket for the Term that begins on Monday: Schwarzenegger v. EMA, concerning a ban on the sale of violent video games to minors; and Snyder v. Phelps, concerning liability for offensive speech near a funeral.  It is easy to imagine the Court dividing in either case, but it is not at all obvious what the ideological valence of either case is.  And that's because "free speech" as a general category lacks an ideological valence.

It wasn't always thus.  For one thing, free speech was not an important value for judges or lawyers of any ideological stripe until the mid-to-late 20th century.  As O.W. Holmes Jr. famously wrote in a 1918 letter to Learned Hand, "free speech stands no differently than freedom from vaccination."  In case you're wondering, Holmes did not think much of freedom from vaccination either.  He eventually fell under the influence of Brandeis to become more sympathetic to speech claims, but only in dissent.

Led by its liberal wing, the Court did make strides for free speech in mid-century, especially in the Barnette case, but the Justices then retreated, becoming quite timid during the McCarthy era.  It was not really until the Civil Rights movement of the 1960s that liberals both on and off the Court fully embraced free speech as one of their cherished values.  No doubt they did so at least in part because of the utility of free speech for those who seek to change the status quo.

For about two decades, conservatives lagged behind liberals on such matters, but by the end of the 1980s the ideological valence of free speech had become scrambled, so that the lineup in Texas v. Johnson, invalidating a prosecution for flag burning was:
Majority: Brennan, Marshall, Blackmun, Scalia, Kennedy
Dissent: Rehnquist, White, Stevens, O'Connor

And by now, just about everybody accepts Texas v. Johnson and treats judicial protection for freedom of speech as a starting point--so much so that in his opinion in Heller, Justice Scalia repeatedly comes back to the First Amendment as his model for interpretation of the Second.

This raises a question: If the civil rights movement showed liberals the value of freedom of speech, what did it for the conservatives?  I would venture that at least four factors galvanized the right:
1) Commercial speech
2) Opposition to campaign finance regulation
3) Perceptions of Political Correctness stifling the expression of conservative views on college campuses and elsewhere
4) The recognition that religious conservatives could advance their cause more effectively under the rubric of free speech than free exercise of religion.
 
Thus, today, we have a cross-ideological consensus for robust protection of freedom of speech.  That's a remarkable development that is worth celebrating--or at least worth noting.

7 comments:

egarber said...

Since I finally finished Akhil Reed Amar's "the Bill of Rights," let me attempt a further (admittedly strained) explanation.

Amar claims that pre-reconstruction, the First Amendment wasn’t primarily viewed as libertarian cover for unpopular minority views. It was instead understood to protect popular majorities from an attenuated, self-interested Congress that might try to stifle the press. That fear was vindicated when Congress passed the Sedition Act. (In a way, this seems to sync up with Breyer’s view in “Active Liberty”).

During the reconstruction era, the 14th Amendment (in Amar’s view) literally altered the meaning of the First Amendment in some ways. Now *states* were trampling *individual* (vs popular) liberties – in the form of efforts to oppress abolitionist opinion. In fact, by then, it was Congress that was deemed trustworthy, because the states had butchered basic human liberty long enough.

So here’s the strained connection to your point:

Is it possible that unlike say, “privacy”, speech protection is so rooted in the country’s reconstruction after slavery that its very origin isn’t ideological at all? Perhaps it -- the idea that speech should be firmly protected -- simply had a consensus starting point. If true, there’s really nothing unusual about different emanations of it. I mean, almost all physicists agree that unobserved electrons exist in the form of probability waves; however, not all of them agree the corollary must be parallel universes.

Michael C. Dorf said...

Eric,

The problem with tracing the free speech consensus to Reconstruction is that, so far as the judiciary and political actors were concerned, the libertarian conception of free speech was a minority view for about another 100 years. The reaction to the first Red Scare was illustrative: Long prison sentences for core political speech.

egarber said...

Hence my strained attempt :)

But maybe I could ask this way: would it have gained traction at all without reconstruction (in a substantive way I mean)? I wonder how Amar would answer that.

Michael C. Dorf said...

It's very hard to say. The SCt applied free speech protections against state laws before it did so against federal laws, but that was mostly an accident of what cases got to the Court when. I think the broader question you're asking is whether the Court would have overruled or circumvented Barron v. Baltimore (which held the original Bill of Rights inapplicable to the States) absent the 14th Amendment. There's really no way to know without a "what-if" machine. For a thought experiment along these lines, I recommend the 2004 Kevin Wilmott film "C.S.A.: The Confederate States of America."

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Patrick S. O'Donnell said...

Here's an example of an argument against the grain and consensus: http://www.amazon.com/Freedom-Religion-Terrorism-Global-Justice/dp/0195389255/ref=sr_1_1?ie=UTF8&s=books&qid=1286036522&sr=1-1

There's a discussion of the book at Opinio Juris: http://opiniojuris.org/2010/09/29/book-discussion-freedom-from-religion-by-amos-guiora/

For what it's worth, I share Chris Borgen's view as to the general problems with Guiora's argument.

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