Monday, March 18, 2019

Justice Thomas, Jud Campbell, and Free Speech Originalism

By Eric Segall

Professor Jud Campbell (whom I have met only a few times casually) at the end of his excellent Yale Law Journal article titled "Natural Rights and the First Amendment," concluded the following:

The First Amendment ... was not designed or originally understood to provide a font of judicially crafted doctrines protecting expressive freedom....[P]erhaps, with a hint of irony for those who seek constitutional stability in original meaning, this lost history reveals our modern dilemma: the proper scope of expressive freedom is left for us to determine.

This important contribution to both First Amendment doctrine and originalism should be read by everyone interested in the First Amendment or originalism, especially Justice Clarence Thomas, who recently advocated overturning the landmark decision New York Times v. Sullivan. Thomas said the following:

New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own federal rule[s].... We should not continue to reflexively apply this policy driven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

There are two reasons Justice Thomas should read Professor Campbell's article. First, Campbell persuasively demonstrates that most of the Court's free speech doctrine cannot be supported by an originalist methodology. In a sense, this thesis supports Justice Thomas' view that Sullivan should be reexamined, but it also calls into question many other Supreme Court decisions that comport with Justice Thomas' priors. No doubt, Thomas will not suggest reconsidering those cases. Second, Campbell's anti-originalist First Amendment observations apply equally to most other important areas of litigated constitutional law, few of which can be traced back to founding era evidence.

I will not and could not repeat in detail the sophisticated analysis Campbell embraces to demonstrate that hard First Amendment questions today cannot be answered by looking back to the Founding. In sum, the argument goes like this: freedom of speech and the press were thought by the Founders to be natural rights, but what that meant to them was much different from how we view natural rights or some might say fundamental rights today. According to Campbell:

Americans typically viewed natural rights as aspects of natural liberty that governments should help protect against private interference (through tort law, property law, and so forth) and that governments themselves could restrain only to promote the public good and only so long as the people or their representatives consented. And assessing the public good—generally understood as the welfare of the entire society—was almost entirely a legislative task, leaving very little room for judicial involvement. Natural rights thus powerfully shaped the way that the Founders thought about the purposes and structure of government, but they were not legal 'trumps' in the way that we often talk about rights today.

This recounting is consistent with my oft-stated views, discussed most extensively in my book "Originalism as Faith," that the founders thought judges should interfere with legislative decisions only when there was clear constitutional error. Thus, although there were some shared determinate legal interpretations of the freedom of speech and press, such as prior restraints were disallowed and people had the right to state their views in good faith, these were relatively narrow rules, and most everything else was subject to regulation for the common good. The combination of those beliefs with a strong skepticism about judicial power, strongly suggests that the Founders believed that the balancing of speech and press freedoms with other concerns would be left primarily to the legislature in all but the most egregious cases.

Based on these concepts, it is easy to see how many important First Amendment decisions simply cannot be justified on an originalist basis. As Campbell points out, "a huge swath of modern case law, ... falls outside of the First Amendment’s original legal ambit.... If an originalist wanted First Amendment doctrine to track Founding Era judicial reasoning, the Supreme Court’s decisions in Texas v. Johnson, Boy Scouts of America v. Dale, Citizens United v. FEC, and Snyder v. Phelpsamong many, many others, would likely have to go."

 In other words, Supreme Court decisions invalidating the punishment of flag burners, state laws protecting gays and lesbians against discrimination on free expression grounds, campaign finance regulation of corporations (and individual donors), and state laws allowing for the tort of intentional infliction of emotional distress for speech related activities, do not withstand originalist analysis. Thomas joined all of those cases except Texas v. Johnson, which was decided before he was on the Court. Don't hold your breath, however, for Justice Thomas to argue for reconsidering any of those decisions, which arguably says more about Thomas than it does about originalism.

But what Campbell says about the First Amendment is substantially true for virtually all of constitutional law. As I've written elsewhere, most constitutional law doctrine, even those cases seen by most lawyers, scholars, and judges, as well-established, cannot be traced back to persuasive originalist evidence either because the relevant issues simply weren't considered or the Founders were divided among themselves on the issue. Moreover, neither the framers nor ratifiers of the original Constitution or the Reconstruction Amendments thought that the courts would be their primary enforcers. Even the Fourteenth and Fifteenth Amendmen explicitly say that it is Congress who would enforce them through "appropriate legislation."

Professor Campbell's article is persuasive, detailed, and sophisticated. His analysis suggests that if Justice Thomas is going to sincerely second-guess prior First Amendment cases because they don't have an originalist pedigree, he will be quite a busy man. And if Thomas extends that skepticism to all of constitutional law, very few precedents are safe. Of course, Justice Thomas won't do all that because his originalism, like that of all the Justices who claim  to be originalist, is extremely selective. It has to be because "the proper scope of expressive freedom [as well as virtually all of constitutional law] is left for us to determine."


Shag from Brookline said...

Query: Does the bracketed portion of the quote that closes this post reflect Prof. Campbell's view or Eric's view? I am comfortable with the bracketed portion, however.

With the interplay of the 1st A (ratified in 1791) and the 14th A (ratified in 1868) via the incorporation doctrine, how is original public meaning originalism applied? Are different dates applied for federal purposes and for state purposes in determining such original public meanings? Or do they blend into the ratification of the 14th A?

As I've noted on earlier comments, Justice Thomas' "nooks and crannies originalism" is toast.

Joe said...

Prof. Segall has spoken of having some sympathy of an originalist approach if mixed with judicial modesty using his clear error rule. He also has said the second part is not likely to happen and there really wasn't some golden age when justices truly acted the way he wishes they act. Justices did grow in power over time, but so did the federal government and government as a whole, so the cause/effect there is unclear.

I am do not think originalism is a good approach to use and one reason is how it actually tends to be used. Trying to keep originalists honest is akin to trying to use the arguments of some people online against them. It helps on some level but you know good luck with that.

But, even people who are strong critics of conservative judges show the to me somewhat siren's song of originalism. They repeatedly cite what original understanding (or whatever term is used these days) REALLY was. So, separation of church and state is promoted by using what Madison and Jefferson said or something. The selective usage of history shows the limits of originalism, but the broad attractiveness of it.

This is covered some in the author's second book -- why do people who use approaches that don't sound very "originalist" (the whole "construction zone" concept amuses me) want to use that label. Anyway, long excursions of history like this are useful and interesting (as history tends to be), but only so much on the "true meaning" of original understanding.

Joe said...

Off topic ...

I can't find the specific essay, but Prof. Colb had a piece that opposed the whole "punching the Nazi" concept, which justifies physically attacking people. See the "egg boy" deal.

Shag from Brookline said...

Over at Daily Kos there is an interesting post on speech/press:

Trump would probably like to emulate Putin.