Tuesday, June 18, 2019

Liberty and Polarization in Yesterday's SCOTUS Opinions

by Michael C. Dorf

The Supreme Court decided two cases yesterday in which various Justices invoked "liberty" in odd ways. In Gamble v. US, the Court rejected an invitation to abandon the "separate sovereigns" principle under which double jeopardy protection does not extend to dual prosecution for the same conduct under substantively the same statutes at the state and the federal level. As I argued on the blog, I think the Court got it right, even though I also think a couple of Justice Alito's points in the majority opinion were off-target. I won't rehash my argument now.

Instead, I'll just note an odd argument made in each of the dissents (by Justices Ginsburg and Gorsuch). Justice Alito aptly summarizes it thus: "because the division of federal and state power was meant to promote liberty, it cannot support a rule that exposes Gamble to a second sentence." Alito's response is persuasive: Yes, he says, there is a sense in which federalism promotes liberty by dividing power, but it does not do so in every imaginable circumstance. He gives the example of the possibility of conduct being legal at the state level but illegal federally. He also gives the example of a single event giving rise to both state and local tax liability.

Justice Ginsburg responds in a footnote: "The analogy of the separate-sovereigns doctrine to dual regulation is inapt. The former erodes a constitutional safeguard against successive prosecutions, while the Constitution contains no guarantee against dual regulation." But that's a non sequitur. Justice Alito didn't invoke dual regulation as an affirmative basis for the separate-sovereigns doctrine; he invoked it defensively, to ward off the suggestion by each of Justice Ginsburg and Justice Gorsuch that there is some sort of free-floating obligation to ensure that federalism always promotes liberty. There is no such obligation.

If Justices Ginsburg and Gorsuch erred in their federalism-means-liberty argument in Gamble, at least they invoked liberty coherently. That's more than can be said for an aphorism that Justice Kavanaugh recited for the majority in another case decided yesterday--the ruling in Manhattan Community Access Corp (MCAC) v. Halleck that a private company administering a public access cable tv channel in NYC is not a state actor subject to the First Amendment. He wrote: "It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty."

Even if the bigger/smaller aphorism were a generally true proposition--it isn't, as I'll explain shortly--its use in MCAC would be inappropriate. The conclusion that MCAC is not a state actor meant that it was free to censor content in circumstances in which a government-run public access channel would not be. Put differently, here the smaller government (because MCAC was deemed outside the scope of the government) meant the smaller the individual (assuming that the aphorism means the bigger the government, the smaller the liberty of the individual, which is pretty clearly what its association with libertarianism means).

The backwards-ness of Justice Kavanaugh's aphorism is not peculiar to this case or these facts. It's a general characteristic of a finding of no state action. If the defendant is not a state actor, then the defendant is not bound by the Constitution, and therefore is permitted to take liberty-infringing actions that would be forbidden if state action were found. That's just nuts. Is society more free in virtue of the fact that private actors like Facebook and Twitter don't have to respect free speech? Sure, Facebook and Twitter are more free, but the rest of us, not so much.

That's not to say that Facebook and Twitter should be deemed the government. It is to say that the fact that they aren't so deemed is not liberty-enhancing in the sense that ought to matter.

To be sure, there are totally different contexts in which the aphorism's libertarian themes would lead to libertarian results. Suppose the question were whether the federal government has the power under the Commerce Clause to regulate the home cultivation of marijuana for personal use. Here, the larger  the (scope of power of the federal) government, the smaller the (zone of liberty of) the individual. But the fact that one can imagine a totally different case in which the aphorism makes sense hardly justifies its invocation in MCAC, where it does not make sense.

Meanwhile, the aphorism is problematic apart from being inapt in MCAC. Here's a thread I posted on Twitter yesterday:
1/ In [MCAC] Justice Kavanaugh writes for the majority: “It is sometimes said that the bigger the government, the smaller the individual.” 
2/ It is? Said by whom? I never heard anyone say this, and the opinion provides no citation, so I Googled it and found the Twitter feed of the Ayn Randian Atlas Society. But what is the origin of this saying? 
3/ It appears to be an aphorism coined by a libertarian talk show host named Dennis Prager (who originally referred to “citizen” rather than “individual”). Various libertarian candidates for office have used the phrase, with or w/o attribution. 
4/ The claim is false insofar as it asserts a linear relationship between the size of government and the ability of individuals to flourish. Ask Hobbes how well individuals do when one shrinks government down to nothing. 
5/ The claim conflates government’s size and its reach. Govt could be large in terms of taxes or spending/GDP ratio but small in its intrusion on people’s lives. Welfare states need not be and generally have not been totalitarian states. 
6/ But merits aside, note how five GOP-appointed Justices issue an opinion containing a slogan that seems to travel almost exclusively in the libertarian right-wing-o-verse. 
I want to correct one trivial and one not-so-trivial error I made in rushing the foregoing out. Trivially, in 4/ I ought to have said "monotonic" rather than "linear." If that's too much math for you, dear reader, just move on to the next, less trivial, point.

More importantly, it turns out my research on 3/ didn't go back far enough. So far as I'm aware, there are no pre-Prager uses of the exact phrasing in Justice Kavanaugh's opinion, but as Prof Brian Frye observed in a series of reply tweets, there are very similar precursors in the 1950s-1970s. I am happy to confess error and to be corrected on that point, although I don't think it changes my bottom line (and neither does Prof Frye).

Certainly the provenance of the aphorism does not have any implications for my substantive responses to it in points 4 and 5. I also don't think it changes point 6. Let me explain why.

In addition to Prof Frye's correction, I received a number of comments from Twitter users who, based on their profiles and other Tweets, appear to be either generally conservative or libertarian or both, in which they said that this phrase -- the bigger the government the smaller the individual -- is just a well-known saying. I have no reason to doubt that it is a well-known saying in the circles in which they travel. But I didn't know it, and the vast majority of my mostly liberal Twitter followers didn't either.

To be sure, when I read the line in Justice Kavanaugh's opinion, I instantly recognized the general idea. I was familiar with a similar aphorism that dates to the middle of the nineteenth century: the best government governs least. But the substantial difference in wording is important, because, by choosing a formulation that is widely known on the libertarian right but not among liberals (even civil libertarian liberals like me), Justice Kavanaugh and the Court's other four conservatives demonstrated that they share a world view with the people who get their news and opinion from right-wing media.

It might go both ways, of course. Perhaps there are words and phrases that liberal justices use in their opinions that baffle conservatives. Certainly one can find such words and phrases in left-leaning outlets. For example, Teen Vogue advises the use of gender-neutral pronouns such as nibling instead of niece or nephew. An opinion by Justice Sotomayor, say, using nibling might well lead to head-scratching on the right, but it hasn't happened yet, probably because Justice Sotomayor doesn't read Teen Vogue. (I don't either; someone forwarded me the article on gender-neutral pronouns.) And I'm generally skeptical that the phenomenon is symmetrical, because the mainstream left/liberal outlets are not quite the mirror image of Fox News and right-wing talk radio.

But if the echo chamber phenomenon is symmetrical, that's problematic too. Since Justice Kagan's appointment, every Democratic appointee has been to the left of every Republican appointee, so ideological splits are also party splits. Of course not every case results in an ideological divide. For example, Gamble didn't. But 5-4 ideological splits--as in MCAC--are exactly where one would expect to see the justices' different world views, indeed, their different worlds, having an impact on their language as well as on the result.


Steve Davis said...

Re this paragraph:

"The backwards-ness of Justice Kavanaugh's aphorism is not peculiar to this case or these facts. It's a general characteristic of a finding of no state action. If the defendant is not a state actor, then the defendant is not bound by the Constitution, and therefore is permitted to take liberty-infringing actions that would be forbidden if state action were found. That's just nuts. Is society more free in virtue of the fact that private actors like Facebook and Twitter don't have to respect free speech? Sure, Facebook and Twitter are more free, but the rest of us, not so much."

Whether or not this position is "nuts" depends in part on your view of what "liberty" is and what the facts are. From a typical libertarian perspective, if Facebook, for instance, is a private, voluntary association, then its imposition of limits on speech on its members is not in any way a restriction on liberty. It's simply a contractual term, which is fully consistent with the libertarian concept of liberty. You are free not to participate in Facebook. You have no right to say what you want in somebody else's house, and if they choose to put limits on what you can say in their house, they are not in any meaningful sense restricting your liberty. Libertarians acknowledge that liberty is restricted when coercion is involved, but not where it's absent. If you accept this concept of liberty then a robust state action doctrine is appropriate, to distinguish "true" restrictions on liberty from "false" ones.

The MCAC case is tricky because the government WAS involved, so the application of this principle is less clear. But the principle is coherent if you accept this concept of liberty.

Michael C. Dorf said...

I don't deny that libertarians seem to care only about liberty from government, thus promoting, e.g., the freedom to work for less than minimum wage. What I deny is that promoting the liberty of powerful private actors enhances the freedom of action of "the individual," which is what the aphorism and Justice Kavanaugh's further elaboration of it claim. There could be OTHER reasons for wanting a narrow state action doctrine, but INDIVIDUAL liberty is not among them, unless one uses the term tautologically, i.e., unless one DEFINES liberty as simply freedom from GOVT restraint but not from any other restraint. Yet notably, that's not what Kavanaugh does. He seems to invoke the ordinary language use of liberty when he says that his approach "protects a robust sphere of individual liberty."

Asher Steinberg said...

Well, the freedom of the shop(ping center)keeper in Hudgens, or that of the cable-access mogul, not to host whatever speech people want to give on their property is an individual freedom.

Steve Davis said...

The concept of liberty I'm talking about isn't just freedom from government restraint but freedom from coercion, generally. If somebody punches me in the face, or threatens me with a gun if I don't give that person money, that person is infringing my liberty, even though no government restraint is involved. That's not analogous to Facebook establishing limits on what people can say on its pages. What Facebook does is merely a contractual arrangement between it and the user. I don't see that as an infringement of liberty in any meaningful sense, as it's not coercive. You may not like the concept of liberty I'm referring to. You may think it's inadequate, or less preferable to some other concept. It's a narrow concept of liberty, and it rests upon a fairly constrained concept of what constitutes "coercion." But it's a coherent and workable concept, it's got centuries of explication and support from many thinkers behind it, and if you adopt it then government regulation of Facebook's policy regarding acceptable speech DOES result in a net loss of individual liberty, because it coercively regulates what people (acting through the corporate entity Facebook) can do, while it enhances no liberty (because no liberty is infringed by what Facebook does).

There are other situations where a robust state action doctrine serves the interest of liberty as I define it. Libertarians want government action sharply constrained by principles of due process, equal protection of the law, and nondiscrimination, because government is coercive and because of the great potential for abuse if it does not abide by these principles. But these principles do not apply in the private sector, where the general principle (subject to some limitations where other considerations may outweigh the interest of liberty) is that you get to say, do, and subsidize whatever you want, and associate with whomever you want, for any reason, even objectionable ones.

I don't know for sure but I suspect Kavanaugh's concept of liberty is somewhat like the one I'm putting forward -- it's broader than just "freedom from government constraint" but it's narrower than the concept of liberty you are advocating.

Michael C. Dorf said...

Steve, coercion/non-coercion is a red herring here. My point is that diminishing the sphere of state action diminishes liberty. That's true in coercive cases as well. E.g., if a contractor for a prison is held not to be a state actor, then that contractor's infringement on the liberty of prisoners will not be subject to constitutional norms. Contractual relations with private firms are only one subset of the sorts of encounters one can have with nominally private individuals or firms that might or might not be deemed state actors.

Asher, yes, of course, as I said, the parties not deemed state actors have their liberty enhanced thereby. That hardly entails that liberty of the individual, overall, is enhanced.

Steve Davis said...

I don't follow your red herring argument. I think the coercion/non-coercion distinction is critical, because it is critical to the concept of liberty I discuss. You cannot understand liberty without it. I think it's the concept Kavanagh is referring to, even if he's not explicit about it, and it does make a difference in certain cases, such as the ones I raised.

That's not to say that application of the state action doctrine will enhance liberty, even as I define it, in every single case. In the case you cite, exempting private prison contractors from the restrictions of the state might allow them freer reign to coerce the prisoners, thereby reducing their liberty. Application of the state action doctrine in a case like that can be defended, however, on the ground that we should adopt a bright-line principle of distinguishing between state and non-state actors, even if in individual cases the results might not seem quite right. I don't argue that liberty is the only basis for recognizing the state action doctrine, but I think it's one of them, and I think it's a sound basis.

I don't agree with, or understand, your argument that "diminishing the sphere of state action diminishes liberty." It seems to me that if you adopt the understanding of liberty I do that's untrue, as a general matter.

Shag from Brookline said...

Could it be that Mike does not adopt S.D.'s understanding of liberty? How unfair of Mike!


Steve Davis said...

Did you ever read Chemerinsky's 1980s article "Rethinking State Action"? I read that 30 years ago, and it influenced my thinking on this doctrine greatly, in a negative way. I thought Chemerinsky's argument was profoundly wrong-headed, but it took me a long time to reason to myself why I thought that. Chemerinsky sees the Bill of Rights as setting forth fundamental values or interests, like liberty, equality, due process, etc. He argues that if you value these interests there's no reason to adopt a bright-line distinction, or any distinction, between state and nonstate action. I disagree. I see the Bill of Rights as having the much narrower function of providing certain checks on the government's powers. Applying these checks to government enhances liberty; applying them to private actors often does not. That's a sufficient reason, in my view, to adopt a bright-line rule, and to leave it to other sources of law to protect people's rights or interests in the private sector.

Steve Davis said...


It's not unfair for Mike not to adopt this concept of liberty. My point is that IF one adopts a different concept of liberty, then there is a logic to Kavanagh's point. One is free to reject that concept of liberty, but it's not "nuts." The concept of liberty at work here is familiar to anyone who's studied classical liberalism over the last 200 years. You may find it inadequate, and I'm not arguing that Mike should adopt it, because I know Mike well enough to know we won't agree on that. But IF you accept this well-known concept of liberty then the Kavanagh comment on state action is not nuts.

Joe said...

The term "liberty" is open-ended and can include the freedom of the people (with various limitations still in place) via republican government to pass laws that in some fashion restrain but in some larger sense increase liberty as a whole. Something like requiring health insurance (or paying a tax) would be an example.

Gamble is relevant here. One argument for the current rule is that even the same act might be different "offenses" (to use modern American spelling) and it might be proper for two sovereigns to prosecute. At least, in certain cases, this might be appropriate. So a state prosecutes attacking someone to protect the well being of their own citizens. Their liberty. It hands down a relatively short sentence.

But, it turns out the person is a mailman. Attacking the person also burdened a federal interest that a state (and vice versa) would not adequately take into consideration, including the judges and prosecutions involved in carrying out the sentence. This is a different offense, even if the same act. Mail service helps "liberty," including delivery of newspapers and so forth.

The same applies in everyday life. A person might do something that harms more than one person and have some duty to pay a penalty to each one, even if it was one action. It would not be a sort of "double jeopardy" to require this really. Letting each person, in their own way, find relief also promotes liberty in a fashion.

As to the the slogan, I really don't know what it adds to the opinion though it can lead to interesting discussions and perhaps get into the mindset of the writer or the people who supported them. It is however unnecessarily divisive and very well might be dubious on the merits. Sotomayor in dissent noted how it was irrelevant really to the result. But, it is somewhat hard to avoid tossing such things in, especially since often the person takes it for granted. Might help to have a liberal or conservative clerk to help them out. It also sounds more like something Gorsuch would say.

Joe said...

The "various limitations" caveat, to underline the point, shows that it is often too easy to focus on one single thing. Gorsuch's dissent opened in such a way, in my view (though I'm sympathetic to the dissents' position), as if the feds were repeatedly, over and over again, prosecuting until they can get what they want.

Most constitutional rules have some sort of exception such as the broad freedoms of speech. RBG's dissent noted how a state prosecution for an attack might still leave open a federal civil rights prosecution. In some fashion, a person can be "put in jeopardy" in a civil and criminal fashion for the same action in a legal sense. etc.

And, it might be that dual sovereignty can be abused. The federal government as a matter of policy tempers things here. A state might be blocked from prosecuting merely to advance a federal interest (Alito cited an example). etc. This too promotes "liberty."

Ryan said...

I think the linear / monotic distinction is not “trivial” as you approach this mythological Hobbesian anarchy. In fact the distinction changes that bit of analysis completely, but admittedly math is more my forte than law.

Salemicus said...

I guess it comes down to who is "the individual"? It seems very obvious to me that saying that individuals have diminished First Amendment rights when (say) running a social media website is to restrict their individual liberty. And given the First Amendment also protects the right of the audience to listen, it is also to restrict the individual liberty of people who might prefer to read such an unexpurgated social media website, rather than one forced to abide by neutral rules.

If, by contrast, anyone who sets up a social media website no longer counts as an individual, but a "powerful private actor" whose rights are presumptively forfeit, then anchors away. And if no such website is allowed to exist, then the audience will be putative rather than factual, and can be put out of our minds as well.

And the same applies to shopping centres, cable channels, etc.

Salemicus said...

Regarding the appropriateness of the phrase, one of the roles of the Supreme Court is to uphold the values of the Constitution, in its opinions as well as its decisions. There are no doubt many phrasings in many of the Court's key decisions that would enrage, or draw a blank from, those steadfastly opposed to those values. That is not an argument for the Court to water down its language, but for opponents to educate themselves - or amend the Constitution, if they can.

For example, I doubt the California Legislature was best pleased by Justice Kennedy's paean to the First Amendment in NIFLA v Becerra. I am sure many would be nonplussed - or amused - by the idea that it is "forward thinking" to look to "the First Amendment as ratified in 1791." Many would regard that as archetypal backward thinking - as indeed in a sense it is. But it's in the finest tradition of the Court to educate them out of their ignorance.

Michael C. Dorf said...

I'll take one final crack at this and then subside. I can't get inside the heads of the various Justices, so I won't accuse them of deliberately misleading, but I do think that's an effect of a certain sort of move. A word has a generally understood meaning. Here the word "liberty" is widely understood to mean freedom from substantial restraint, pretty much regardless of the source. The average person would understand that someone who has been kidnapped has been deprived of liberty, even though the kidnapper is a private actor. An opinion then uses the term in a special sense -- here, according to Steve, to refer to classical liberty against the govt only -- but draws a conclusion that appears to gain its strength from the confusion with the common meaning. Who could be against a "robust sphere of individual liberty"? Well, a lot of people could once it turns out that your individual liberty does not protect you against private censorship by monopolists or even against kidnapping. (Cf. DeShaney).

Steve Davis said...

Mike --

We'll have to agree to disagree, and I don't mean to prolong this, but I have to chime in one more time because you mischaracterized my understanding of liberty, which I made clear above. Liberty does not mean absence of restraint by government only. It means absence of coercive restraint, from whatever source. The key is coercion, or if you wish, force or fraud. Kidnapping by a private actor is a deprivation of liberty because it involves force. Abiding by a contractual term with Facebook is not, because there's no coercion involved -- one has no right to Facebook's services, and one is free to walk away from them. I don't think your "substantial restraint" test is sufficient to determine whether liberty is being deprived. I don't see Facebook as depriving anyone of liberty, not just because it's not the government, but also because its contractual terms are not coercive (despite being contracts of adhesion).

One is free to reject this understanding of liberty as too narrow. But I don't agree at all if you are implying that this is an outlier or unusual definition of liberty -- I think most modern day libertarians would agree with me and not with you about when liberty is infringed. Under that fairly ordinary definition, Kavanagh has a point.

Shag from Brookline said...

Outside of the Constitution, liberty may be in the mind of the individual somewhat in the manner of beauty being in the eye of the beholder. The Constitution in the 5th and 14th As references liberty. Perhaps original meaning originalism would look to 1791 for the meaning of liberty in the 5th A, whereas it might look to 1868 for its meaning in the 14th A. [I understand Kavanaugh is an originalist.] Liberty's meaning outside of the Constitution has perhaps evolved post 1791 and post 1868. I wonder if most modern day libertarians agree with S.D. Would a modern day libertarian be a Randian? Was Kavanaugh addressing liberty outside of the Constitution in his use of the phrasing Mike quarrels with? In future decisions of the Court involving liberty under the Constitution, might Kavanaugh's phrase be cited as precedent?

Steve Davis said...


Libertarians come in many stripes, but I think it's fair to say my understanding of liberty is consistent with that of modern libertarian thinkers like Mises, Hayek, Nozick, Rothbard, and Friedman. It's consistent with the Libertarian Party's statement of principles, which emphasize the use of force. It's consistent with this statement from Thomas Jefferson: "Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others." When Facebook sets terms on the use of its services, it in no way infringes upon my liberty, because my rights don't encompass the right to do whatever I want on Facebook. It's Facebook's property. Facebook's right of liberty over its own domain is equal to my right over mine, and I can't claim to have my liberties diminished when I used Facebook's services on its terms and I don't like the terms. If I borrow my neighbor's hammer and he imposes certain conditions on its use I cannot claim that my liberty is diminished by his terms, even if those terms are onerous.

Re Ayn Rand: Libertarians are all over the map about Ayn Rand. Most libertarians, I think, experience Ayn Rand's books early in the process of identifying as a libertarian as a kind of rite of passage. Most libertarians find some things in her books that they like, but don't consider themselves followers. I enjoyed her books as interesting and entertaining political fantasy, in the same way I would a science fiction book. I agree with her on some things. But I also think she was a nutjob and an egomaniacal cult leader. Ayn Rand, by the way, repeatedly said that she despised libertarians.

Joe said...

I liked the movie "Liberty's Secret."

Shag from Brookline said...

Ayn Rand may well be a "passage to the right" for Trump judgeships. Check out Gary Lawson''s posts at Balkinization on the symposium on Ken Kersch's new book, as well as Kersh's response, on the role of Rand in constitutional conservatism up to 1980. Former Speaker Paul Ryan spoke favorably of her until it was politically not so wise to do so. Maybe all libertarians like to show themselves pumping iron. Also, on 5/22/19 the NYTimes featured a review of Lisa Duggan's new book "Mean Girl: Ayn Rand and Culture of Greed." Some say Rand was a libertine rather than a libertarian, but many libertarians might have been attracted by the greed she espoused. Rand wrote more than the fiction that lured teenagers into the fold. But those "modern libertarian thinkers" you list are a tad long in the tooth. By the way, you may have described yourself as an anarcho-libertarian, not that there is anything wrong with that: Lawson described himself as an anarchist to somewhat distinguish himself from Rand. [Lawson indicated he just might write a book on Ayn Rand who may have influenced the Federalist Society.] And didn't Rand Paul propose a "Liberty" constitutional amendment? Also, Federalist Society member George Conway has raised questions recently about the direction to its libertarianism. And of course Jefferson said what you quote as a slave owner. But perhaps libertarians have been persecuted in America's history and prevented from taking too many liberties. Rand's fiction opened the eyes of the youth in her day. Randy may be dandy, but as Ogden Nash said "Liquor is quicker." But no bites on original meaning originalism on the meaning of liberty in the Constitution as opposed to private individual liberty?

Shag from Brookline said...

Joe, I haven't seen the movie. But does it reveal Trump as a libertarian?

Steve Davis said...

I'm not sufficiently familiar with any contemporaneous discussions of the meaning of "liberty" in the 1790s to comment on originalism. My less than expert understanding is that the term then was understood much the way I understand it, but I don't have a strong opinion on it because I wasn't opening a discussion on originalism. I doubt very much that originalism plays much of a role in the understanding of "liberty" by the conservative Justices on the Supreme Court. I suspect Mike is right that they are steeped in the terminology and discussions that have been going on in conservative media for the last few decades. Libertarians may not win elections, but they write a lot, and there's a significant body of libertarian literature since the late 1960s, and it has been influential in conservative circles. Gorsuch and Kavanagh may well be familiar with it.

My view of Ayn Rand is that she's overused and over-rated both as a poster-child by the right and a whipping-girl by the left. It's odd that she's held up by the right because she was an avowed atheist.

I'm not an anarcho-libertarian. I'm much more moderate than that and don't regard myself as very dogmatic or concerned about ideological purity.

Michael C. Dorf said...

Wow, a lot going on since I signed off. Just to close the loop on Steve's distinction between force/fraud -- which can deprive liberty in the sense you use the term -- and contract -- which cannot: I'm happy to concede that this is your view, but it's not mine and it's not the view of the body of constitutional law. Consider that the liberty-protecting elements of the Constitution -- including free speech -- apply even when one interacts with the government in its proprietary rather than its regulatory capacity. On the view that only force or fraud implicates liberty, the employee speech doctrine is misguided; so is the right to due process at a state university. Why? Because working for the government and attending a state university are voluntary undertakings. But that isn't the law and it oughtn't to be. As a state judge, Holmes said that a man "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." That hasn't been the law for a very long time.

Steve Davis said...


Offering only state examples does not support your position that my concept of liberty isn't the constitutional concept of liberty. Even when state actors act in their proprietary rather than regulatory capacity, we have good reason to subject those actors to the restrictions of the Bill of Rights, because they are inherently coercive in their creation and operation. They are funded by taxpayers, who have a right to expect that the government they are forced at the point of a gun to pay for must hew to strict principles of free speech, due process, equal protection, nondiscrimination, and the like. Coercion is an element of everything that the state does, regardless of the capacity in which it does it. The inherently coercive nature of government, regardless of its capacity, requires that everything it does must be subject to stricter regulations than we would apply to parties acting in a free and voluntary way in the private sector.

Consider somebody applying for a job with the government. As a potential employee, that person stands in the same position as somebody applying for a job with Google. But that person also is a taxpayer, and a citizen who is subject in innumerable ways to the coercive power of the entity to which he or she is applying for a job. So, yes, that person has a Constitutional right to demand that the governmental employer, in deciding whether to employ him or her, must make that decision consistent with the Bill of Rights. Moreover, other citizens and taxpayers have a Constitutional interest in the state employer's employment decisions in a way that no one has an interest in what Google does. The same reasoning applies to public universities and free speech, and every other issue involving public entities and Constitutional rights.

None of this applies to private actors, because coercion is not involved in the same way.

So I don't agree with you that my analysis is inconsistent with the body of Constitutional law. I think it is consistent.

I'll add, too, although I don't expect you to agree, that my concept of liberty is much more coherent and easier to administer than yours. Yours is based upon an amorphous concept of "substantial restraint." But what does that mean? Where is that concept articulated in constitutional law? I'm not aware that it is. You will agree, I believe, that in a run of the mill contract situation a contractual term that limits what A can do does not infringe A's liberty in a meaningful sense. But you seem to think that Facebook is infringing people's liberty. So when does a contract term become a "substantial restraint" and an infringement? How do you tell? I don't think there are clear, easy principles that help us tell when it's just a contract term and when it's an infringement of liberty. And I especially don't think there's any politically neutral way to tell the one from the other. As the Court once said (in a phrase I don't like but which seems appropriate here): "Liberty finds no refuge in a jurisprudence of doubt." Liberty is better served by adopting the clearer and easier to administer definition of it.

Michael C. Dorf said...


1) Govt as employer must abide by the Constitution even with respect to employees who are non-citizens, although in certain circumstances (e.g., overseas), those obligations may be different. The main point is that there are obligations not to infringe freedom that apply simply in virtue of the proprietary connection.

2) I didn't offer the broader conception of liberty as a legal test, so administrability is not relevant. I offered it as the ordinary-language meaning of the term "liberty," from which Kavanaugh's (and others') usage of it derives its moral force, making reliance on Richard Epstein's considerably narrower conception a kind of bait-and-switch.

Shag from Brookline said...

A wise man once said: "Libertarianism = selfishness uber selflessness."

Did Patrick Henry mean: "Give me liberty (as I understand it) or give me death!" such that each libertarian determines his/her own liberty?

Joe said...

It was noted that "liberty" has a generally understood meaning.

I think it does on some level but even there it seems to have multiple meanings. It was noted that Twitter not being bound by the First Amendment makes us less free.

("Is society more free in virtue of the fact that private actors like Facebook and Twitter don't have to respect free speech? Sure, Facebook and Twitter are more free, but the rest of us, not so much.")

To be clear, "Twitter" here includes individual residents of Twitter. I personally, for instance, can block people in a way not allowed in a public forum by state action. See, e.g., the lawsuit involving Trump's Twitter account.

The people I block lose out here (except to the extent they are free of my typos) but it suggests the complications involved. In other words, WHAT individual? At the end of the day, it all is somewhat besides the point, as Sotomayor notes, which is often a thing in these cases. The "even granting that" maneuver.