The Complexity of Free Speech Doctrine
by Michael C. Dorf
At 9 am today (that's Friday, August 28, 2020 if you're not sure when I wrote this), I'll be presenting a "Keynote" address on freedom of speech, available for free (but you need to register) through eCornell. This is a lecture for an all-day “boot camp” we provide for students taking Cornell's terrific First Amendment clinic. Most but not all of the clinic students will have taken our doctrinal class in the First Amendment (taught by my colleague Professor Nelson Tebbe). The boot camp lectures provide an overview for those who haven't and a refresher for those who have. I’ve given a version of the free speech lecture the last couple of years in person. We decided to open it up more broadly this year in light of the fact that it will be via electronic means anyway. The clinic students will be able to ask questions via Zoom, whereas the rest of the world will be able to enjoy (or detest or be bored by) my lecture as a webinar.
When I give remarks on a panel, I customarily preview them on the blog. Today I won't do that, because the webinar/boot camp is more in the nature of a class, in which I don't expect to say anything especially original or insightful. My goal in the lecture is to provide a kind of map of free speech doctrine. So, besides providing an advertisement for the course, what is my point in today's blog post? I'd like to say a few words about the complexity of free speech doctrine and what that tells us about constitutional interpretation more broadly.
In putting together an outline for my lecture, I tried to include something about the major topics in First Amendment doctrine. That was a challenge, because there are so many. Here's an illustration. Along with Professors Dick Fallon of Harvard and Fred Schauer of the University of Virginia, I edit a constitutional law casebook. Berkeley Emeritus Professor Jesse Choper is also listed on the cover of the book, in light of his enormous contributions to earlier editions, but Dick, Fred, and I put together the current, 13th, edition, building on earlier versions. I inherited my portions of the book partly from Jesse and partly from the University of Michigan's Emeritus Professor Yale Kamisar. I edit the portions of the book that cover: Judicial review; Powers of Congress (except civil rights enforcement under the Reconstruction Amendments), and vertical federalism more broadly; separation powers/checks & balances; economic rights; and "personal" rights including all the modern substantive due process cases. Dick covers horizontal federalism; state action; justiciability limits; and the very substantial body of equal protection case law. Between the two of us, that's nearly all of the constitutional law course, right?
Nearly, but not quite. Fred is responsible only for the First Amendment. And yet, Fred has a bigger job than either Dick or I has. Excluding tables and appendices, our book is 1786 pages. The First Amendment material extends to 716 of those pages: That's 40%.
How is it that the First Amendment accounts for 40% of constitutional law? You might think that it doesn't, that perhaps Fred is simply a lighter editor than Dick and I? Nope. The proportions were similar in earlier editions, when my now-Emeritus colleague Steve Shiffrin edited the speech portion and Jesse edited the religion portion of the casebook. The reason the First Amendment takes up so much of the casebook is that there are so many First Amendment cases and doctrines.
But why is that? My suggestion is that the First Amendment, more than any other area of constitutional law, is a domain of essentially common law decision making. Yes, occasionally a Justice will try to decide a First Amendment case by reference to original meaning. When they do, the can't agree on what it is or look ridiculous.
In McIntyre v. Ohio Elections Comm'n, the Court faced the question whether the First Amendment protects anonymous speech (pamphleting there). The majority opinion by Justice Stevens sensibly answered the question in light of analogous precedents, the core purposes of free speech, pragmatic considerations, and a little bit of history (like the fact that the Federalist Papers were published pseudonymously and thus anonymously). Justice Scalia (joined by CJ Rehnquist) and Justice Thomas thought they could resolve the question by asking whether the original understanding protected anonymous speech. Scalia (and Rehnquist) said it didn't. Thomas said it did.
If McIntyre were an outlier--a relatively rare case in which good faith efforts to apply the original understanding yield different results--it would not undermine free speech originalism, but of course it is not an outlier. In the vast majority of First Amendment cases, the Court ignores the original understanding or defines it at such a high level of generality that it is a mask for contemporary values. Justice Alito's union-busting opinion in Janus v. AFSCME is an excellent (and of course evil) example. Quoting Thomas Jefferson, he finds that public employee unions can't compel dues for collective bargaining from non-union members of the bargaining unit.
Did Jefferson say anything about labor unions? Of course not. Alito quotes Jefferson saying that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical." So taxes that pay for education are unconstitutional too, right? Or perhaps we should restrict what Jefferson said to its historical context--church/state separation. Except that Justice Alito and those members of the Court who joined his Janus opinion are the very same Justices who ruled in June that government must subsidize religion on equal terms with secular activities. Hunh? So maybe it's not the original understanding that's doing the work.
Does that mean there's no determinate original understanding in free speech cases? No, but resort to the original understanding at a determinate level of generality would obliterate most modern free speech law, which enjoys a fair bit of bipartisan acceptance. That's because it's not clear that the original doctrine did much more than forbid prior restraints and adopt the Zenger principles for defamation cases.
On the rare occasion when Justices look to original intentions and expectations rather than vague "original public meaning" at a harmless level of generality, they look absurd. In Brown v. EMA, the Court invalidated restrictions on the sale of video games to minors. The decision is hardly beyond criticism. Justice Breyer's dissent is quite powerful, especially when he asks:
what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?
As powerful as Justice Breyer's EMA dissent is, Justice Thomas's separate dissent is correspondingly weak. He thinks there's no free speech right of minors to purchase violent video games based on the original understanding: "The practices and beliefs of the founding generation establish that 'the freedom of speech,' as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians."
The complexity of First Amendment doctrine--protected categories, unprotected categories, high-value speech, low-value speech, content-based, content-neutral, viewpoint-based, public forum doctrine, time/place/manner restrictions, government speech, and so much more--reflects the fact that free speech is highly valued for a variety of reasons that have different strengths in different contexts and that come into conflict with other values. The doctrine is best understood as a crystallization of numerous judgments about the relative strengths of those values. It cannot be made substantially simpler without being made substantially less just.
Complexity and normativity--that is to say the derivation of outcomes from normative reasoning rather than an effort to retrieve prior resolutions chiefly from history--are appropriately features, not bugs, of the law of the First Amendment.