Friday, December 02, 2022

Of Free Speech, Non-Discrimination, and the Futility of Originalism

 By Eric Segall

Next week the Court will hear oral argument in 303 Creative LLC  v. Elenis. This controversy involves a wedding website designer who does not want to extend her services to same-sex weddings despite a Colorado law requiring her to do so. The case is a hard one because it pits important principles against each other: the right of the people to free expression against the state's interest in non-discrimination. Mike wrote a thoughtful piece about the case yesterday. 

The point I want to emphasize about this case is how useless originalism is to its resolution and that no one should pretend otherwise. To illustrate this futility, I will focus on an amicus brief (in support of the Court hearing the case) written by a number of all-star first amendment and originalist scholars including Michael McConnell, Richard Epstein, Mark Scarberry, Larry Alexander, Robert George, Steven Smith, and numerous other constitutional law heavyweights. If they can't show the relevance of originalism to this case, it is likely no one can. And, as shown below, they cannot.

The brief devotes an entire section to "The Original Meaning of the First Amendment's Free Speech Clause." In its first sentence, the brief says the following: "Blackstone’s four volume magnum opus, Commentaries on the Laws of England, constituted the preeminent authority on English law for the founding generation." That is true. 

The brief then discusses what all first amendment scholars know: the principal evil that Blackstone and the founding fathers were afraid of was prior restraints of speech (not after the fact punishment for speech already uttered). The brief says that in "16th and 17th century England, Parliament passed licensing laws 'to contain the evils of the printing press....' These 'licensing laws' were the core abuse' to which the First Amendment was directed." 

Exactly. But notice this sleight of hand. Immediately before that sentence the brief also says: "Recognizing the limitations of prohibiting prior restraints only, the Framers of the First Amendment sought to broaden the protection of free speech." There is no citation appended to that sentence or support for it.  And, as I've written before, relying on the work of Jud Campbell and others, that idea simply has no weight or history behind it. The infamous example of the Alien and Sedition Acts enacted shortly after ratification, which punished core political speech is one example; blasphemy prosecutions being allowed well into the 19th century constitute another. As Jud has repeatedly pointed out, our conception of free speech today is simply not traceable to the founding era (nor 1868).

The brief goes on to say the following:

Two of the leading Framers of the Constitution, Thomas Jefferson and James Madison, both recognized the dangers of a government inserting itself into the public square to “pass judgment on the content of speech.” 534 U.S. at 320 (stating that although the English licensing system expired before this Nation’s founding, Blackstone still expressed alarm “against the restrictive power of such a licenser—an administrative official who enjoyed unconfined authority to pass judgment on the content of speech.”) .

But the citations in this paragraph do not support any free speech principle separate from the concerns about prior restraints and "the licenser." Censoring speech before-the-fact is not the same thing as saying the government can never "pass judgment on the content of speech." It just means that judgment must come after the speech, not before. This paragraph ends as follows: "For that reason, James Madison recognized that the Constitution should enshrine a commitment to fostering a free exchange of ideas." There is no citation appended to that sentence. 

Later in this section of the brief, the authors quote Madison for the proposition that it is indefensible that the "Govt. may stifle all censures on its misdoings; for if it be itself the Judge it will never allow any censures to be just, and if it can suppress censures flowing from one lawful source it may those flowing from any other— from the press and from individuals as well as from Societies." Again, Madison may simply be referring to prior restraints in this quote. Moreover, let's remember that most public meaning originalists rely not on the subjective expectations or beliefs of the founders but what the words meant to the public at the time. There is not a syllable in this section of the brief on that question.

The brief also relies on Thomas Jefferson. This is the entire passage:

Thomas Jefferson considered it both “sinful” and “tyrannical” to compel an individual to pay for the dissemination of opinions with which the individual disagreed. Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2464 (2018) (citing A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950).

There are numerous problems with this passage, beginning with the fact that Jefferson was talking mostly about religion, not speech. Also, the case at hand has nothing to do with making someone pay for expression she objects to, though it admittedly does implicate free speech, as the Colorado law does forbid the plaintiff from advertising that she won't design websites for same-sex weddings. But she is totally free to express in an infinite number of ways her views about same-sex weddings. 

Most importantly, the context of Jefferson's remarks may involve a general nod towards the benefits of freedom of expression but does not purport to say anything about how to balance that value against non-discrimination principles. And again, today's originalists claim to care about what the words meant to the public, not what two Founding Fathers thought they meant. I am quite confident that if the subjective expectations of the framers were the real focus of the question, more than two would be required, and it would be extremely difficult to find people at the time who thought free speech trumped strong public policy interests. 

And that is the entire substance of the section in the brief on the original meaning of the free speech clause. 

Several things should be clear. First, the authors of this brief spend no time discussing the important legal scholarship by Campbell and others that the framers and the public thought that the first amendment's free speech clause was almost entirely concerned with prior restraints. Second, as other briefs in the case show, at the founding and up through the Reconstruction Amendments, there was a strong common law rule that places of public accommodations, like the plaintiff's business, had to accept all customers. As the brief for the Constitutional Accountability Center explains: "Public accommodations laws, which have existed for centuries—long before the proliferation of ready-made consumer products— require one that has made profession of a public employment like innkeepers or blacksmiths, to be bound to the utmost extent of that employment to serve the public.” There is nothing in the Constitution's original meaning that suggests the free speech principle overrides that common law principle that Colorado is trying to further with its law.

Finally, as I wrote on this blog previously, all constitutional rights at the founding were subject to regulation if the public interest was weighty enough. There can be no question that the non-discrimination principle Colorado's law furthers is important and compelling public policy. So, as I said at the beginning, in today's world, though not in 1791, there are two important principles at stake in this case: free expression and combating invidious discrimination. I am not sure how I would balance those two ideals on these facts. What I am positive about is that there is nothing in the Constitution's original meaning to help us with that difficult task. 

And the eminent scholars who wrote the brief, nor the parties, nor the Court should pretend otherwise.

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