Free Speech and the Irrelevancy of Text and History to Constitutional Interpretation

In 2018, Professor Jud Campbell, now of Stanford University, wrote a pathbreaking article in the Yale Law Journal demonstrating that our current first amendment doctrine is almost exclusively based on common law constitutionalism, not text or history. There may or may not be anything wrong with that way of enforcing the first amendment but it is ironic that a Court full of alleged textualists and originalists issues decisions on a yearly basis enforcing free speech principles without persuasive grounding in text or history. Although a few originalists have tried to address Campbell's descriptive account, none in my view have come remotely close to persuasively rebutting Campbell's thesis. 

And now comes Professor Ronald Krotoszynski, Jr., whose excellent article, "Common Law Constitutionalism and the Protean First Amendment," makes very similar arguments as to the complete irrelevancy of constitutional text and history to judicially crafted first amendment doctrines and perhaps to most other litigated constitutional provisions as well. I strongly recommend this article to anyone interested in constitutional interpretation.

The first amendment provides the following:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Krotoszynski makes a number of valuable contributions beyond Campbell's and other scholar's previous work, explaining that the Court simply has not and does not care about the text of the first amendment. Here are two glaring examples.

Although the first amendment speaks to a number of different values, such as the right to freedom of speech and the press, the right of people to peaceably assemble, and the right to petition the government for redress of grievances, the Court has essentially ignored the text except for the speech (and religion) parts. In Krotoszynski's words:

An amendment that specifies four separate forms of expressive freedom—speech, press, assembly, and petition—has been read and applied as if it contained only one (namely speech). The Supreme Court has essentially ignored the Press, Assembly, and Petition Clauses, analyzing virtually all First Amendment claims through the lens of the Speech Clause.

The second example is one I use all the time to show text does not matter to the Supreme Court. The amendment, as Krotoszynski argues, begins with "Congress shall make no law...." Although the incorporation of the first amendment through the fourteenth amendment makes it applicable to state legislatures (analogous to Congress), the Court has applied the first amendment to the President, and to the states regardless of whether a state legislature or Congress is the defendant. 

But Congress does not and cannot mean state governors, state judges, or Presidents, and yet it apparently does. In Krotoszynski's words, "an amendment that begins rather specifically, namely 'Congress shall make no law,' now applies to all government entities— federal, state, and local—and no one bats an eye at this radical expansion in the amendment’s potential scope of application. Indeed, to even raise this point today is to invite being accused of linguistic pedantry of the worst sort."

In the article, Krotoszynski shows, just like Campbell did in his piece, that the many doctrines we associate with the first amendment have been created by the Court in a common law fashion, where virtually all of the attention paid by judges is to previous Court decisions, not text or history. I have made this very point in many of my writings. Krotoszynski's argument is not that this reliance on living or common law constitutionalism is a bad thing (in fact he favors it), but that the hypocrisy on the part of the conservative justices who selectively say that text and history must drive constitutional law is just that--hypocrisy--given how few first amendment opinions written by those same justices actually rely on text or history.

Speaking of history, originalism fares no better than text as an explanatory device to understand the Supreme Court's first amendment opinions. Krotoszynski gives many examples, including the Court's protection of commercial speech (which began around 1980), and the Court's invalidation of mandatory dues for state public-sector unions, that cannot be grounded in the first amendment's original meaning. In fact, if judges were actually constrained by the original meaning of the text, the first amendment would apply almost exclusively to prior restraints and licensing schemes and not to after-the-fact punishments for speech activities. That protection comes from the justices' values, not the meaning or history of constitutional text. In the author's words:

The scope and meaning of expressive freedom within a particular legal system will, like Proteus, change shape and form, evolving over time, as the felt necessities of democratic self-government require. Federal judges will shape and reshape the doctrines associated with the protection of expressive freedom as necessary to enable them to craft judicial opinions that they believe will be credible— reasonably persuasive—to the general political community. This task is, and probably must be, an exercise in common law judging. The First Amendment is protean—and our understanding of how constitutions work would be significantly improved if we invested more time and energy in trying to understand precisely why this is so. 

Professor Krotoszynski's article contains much more depth and acuity than I can summarize here, and he suggests his analysis applies to constitutional interpretation generally, not just the first amendment. I fully agree with that analysis, as the title of my Harvard Law Review Forum essay suggests: "The Constitution Means What the Supreme Court Says it Means." 

But if you do not want to take my word for it, here is another constitutional scholar on the same topic: "The Power of the Supreme Court to find laws unconstitutional turns on unwritten concepts and understandings.... To what degree should tradition, precedent, and prudential considerations inform our interpretation of text?.... We cannot escape these questions. They lurk behind our debates on how to understand the Constitution, and they largely turn on unwritten ideas."

Just so, and the brilliant new article by Professor Krotoszynski on constitutional interpretation goes a long way to supporting that very thesis.