We live in an age when, according to the U.S. Supreme Court, “disgust is not a valid basis for restricting expression.” This open-ended pronouncement now forbids regulating the depiction of animal cruelty, the sale of graphically violent video games to minors, lying about receiving the Medal of Honor, and defaming a soldier at that soldier’s funeral.
Neither these conclusions nor the Court’s premise that “one man’s amusement, teaches another’s doctrine,” is based on the Free Speech Clause first adopted by the American people. This critique may be unfashionable in an increasingly relativistic age, and may confuse the literal reader of the First Amendment’s blanket ban on any “law . . . abridging the freedom of speech.”
But the Court’s free speech absolutism is not the neutral principle it purports to be. By rooting its jurisprudence in the Court’s own value choices and not the First Amendment’s original meaning, the Court usurps the people’s rightful authority to assess the harm inflicted by speech, thereby equating “the freedom of speech” with willful blindness toward the principled distinctions between regulating valuable and vile speech.
The one consistent dissenter from the new depths of free speech protection, Justice Samuel Alito, provides a powerful critique rooted in the same response that Judge Robert Bork leveled against the Warren Court’s usurping of democratic authority in the 1970s. In then-Professor Bork’s seminal law review article, “Neutral Principles and Some First Amendment Problems” (1971), he explained how a judge in a democratic society can strike down democratic acts while preserving democratic rule. Essential to Bork’s argument is that a neutrally-applied principle of constitutional adjudication, such as generally prohibiting the people from regulating any speech content, is not truly “neutral” simply because the Court consistently applies it.
As Justice Alito said in his confirmation hearing, the “task of the judiciary is to apply principles that are in the Constitution, and not make up its own principles” (emphasis added). Thus, genuine neutrality requires the principle to be neutrally derived: it must be drawn from the Constitution’s text, history, and structure. Such a theory is truly neutral in that the judge is an intermediary in the interpretive process: a judge accepts the value choices of today’s majority as expressed in the text of its laws, unless an earlier value choice as expressed in the text of a constitutional provision contravenes it.
To be sure, this “originalist” inquiry is not necessarily easy—a point manifested in how puzzling it is to define the breadth of the Free Speech Clause. Still, we know enough to know that the Court’s recent decisions protect speech well outside the clause’s original scope.
Nearly all legal scholars agree that, if nothing else, “the freedom of speech” includes political speech—given the goal of the Bill of Rights as a bulwark against tyranny. At the Founding, a prior restraint on speech (prohibiting speech before it is spoken) was prohibited. While the Free Speech Clause’s text may tempt one to take its absolutist prohibition literally, the Founding generation had laws against pornography, blasphemy, libel, defamation, fraud, and perjury. Longstanding criminal prohibitions on solicitation (asking another to commit a crime), or conspiracy (an agreement with others to commit a crime) prohibited certain speech on criminal conduct.
In a related explanation of the “freedom of the press,” the First Continental Congress wrote in 1774 that the freedom lies in “the advancement of truth, science, morality, and arts in general,” along with “its diffusion of liberal sentiments of Government.” The one notorious free speech controversy of the Founding era, the Sedition Act, demonstrates that some founders did not think the clause prohibited regulation of even certain political speech. In response, Thomas Jefferson only criticized the Act as an improper exercise of federal power (the implication being that states may have the authority to regulate such speech, as the Bill of Rights did not yet apply against the states).
In contrast, the U.S. Supreme Court sees the First Amendment as taking off the table any deference to legislative value judgments about nearly all speech. As the Court held in United States v. Stevens (2009), a majority opinion in which every justice except Alito joined, “the First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.” To the Court, this is even true when the speech at issue is the depiction of conduct illegal in every state since the Founding—here, the crushing of an animal’s skull between a person’s thighs depicted and sold on video for sexual gratification. With a few pragmatic exceptions made for precedent, the Court’s modern, absolutist position in Stevens views any social interest weighing on speech to be too “dangerous” for the people to engage in, or the Court to affirm.
Justice Alito responded in dissent that while the First Amendment protects free speech, “it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes.” Bork agrees, noting in his article that speech “breaking the premises of our system,” or as Justice Alito says, speech that if protected would require the people to “step aside and let the underlying crimes continue,” cannot be constitutionally protected.
To be fair to the Court, its view seems to stem from an attempt at judicial restraint—the theory being that, since defining the Free Speech Clause’s scope is difficult, it is best simply to prohibit the people from regulating most speech. Yet as noble as that virtue is, it is misunderstood here, and hampers determining the breadth of free speech protection. “It is easy enough,” Bork argues, “to meet the requirement of neutral application by stating a principle so narrowly that no embarrassment need arise in applying it to all cases it subsumes, a tactic often urged by proponents of ‘judicial restraint.’ But that solves very little.” Instead of defining the scope of the Free Speech Clause as an original matter, the Court chooses to provide constitutional protection to all varieties of speech, irrespective of whether they were prohibited at the Founding (pornography is an excellent example in this regard), and regardless of any legitimate social interest in the harmful sensibilities cultivated by the speech.
Bork and Alito likely agree with the current Court that value choices about speech are not a project of neutral principles, and thus the Court cannot engage in them. But they part company with the Court’s thinking that the people are similarly prohibited. As Bork explains, any serious theory of free speech protection cannot be so absolute as to prohibit any government regulation of speech, and some will always consider where the proverbial line is cut between protected and unprotected speech to be arbitrary. To the Court, this means that nearly no lines can be cut at all.
To Bork and Alito, the question “is whether the general location of the cut is justified.” Both Bork and Alito leave that location to be determined by the people when the First Amendment’s textual meaning is not implicated. When, in United States v. Alvarez, the Court fears that preserving the criminal prohibition against falsely claiming receipt of a Medal of Honor will lead to an open-ended legislative assault on even “white lies,” Justice Alito responds that such concern “falls outside the purview of the First Amendment.” Thus this problem, he argues, “is not the suppression of speech but the misuse of criminal law . . . The safeguard against such laws is democracy, not the First Amendment. Not every foolish law is unconstitutional.”
Bork, when making the same point in “Neutral Principles,” explains that speech understood to be outside the Free Speech Clause’s original meaning is governed by weighing values, and democracy is best equipped to reflect value changes over time—certainly more so than a court that cannot modify where it once drew the proverbial “line” between protected and unprotected speech without confronting stare decisis, justiciability, and jurisdictional limitations. Thus, a more conservative society would have more freedom to make law reflecting its values. And should that society’s sentiments become more liberal, the society can accordingly change its laws with little difficulty and much debate. Such an approach allows different states to learn from one another’s regulatory efforts. In any event, the alternative—courts changing the meaning of the Constitution to ossify current social norms—could hardly be considered “neutral.”
The wisdom of Bork and Alito’s approach compared with the Court's is manifested in the emergence of novel speech problems, and the Court’s contortion of its earlier free speech jurisprudence that was more willing to affirm speech regulations.
When California attempted to regulate the sale of graphically violent video games to minors, “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being,” the Supreme Court invoked the Free Speech Clause to halt the effort in Brown v. Entertainment Merchants Association.
As aptly explained by Professor Hadley Arkes, the majority opinion (written by Justice Scalia) reflected the view that a community’s interest in morality is a mere pretext for personal prejudices. Justice Alito’s concurrence disagreed with this reasoning—criticizing this view of regulatory restraint because it “squelch[es] legislative efforts to deal with what is perceived by some to be a significant and developing social problem.” Rather than constitutionalize previously unprotected speech, it would be better to weigh legislative efforts to regulate it in due course, so that the people can evaluate how these virtual realities may influence minors’ real-world conduct, and the Court can respond only when the people’s efforts conflict with the Free Speech Clause’s original meaning regarding the regulation of interacting with graphic violence.
Earlier Supreme Court cases fit comfortably within Alito’s critique, but are now cabined by the current Court’s Free Speech jurisprudence to discrete contexts. The current Court allows for regulation of speech in certain “historical and traditional categories”— by which it means, as it said in Alvarez, “the Court’s free speech tradition” (emphasis added) of prohibiting obscenity, fighting words, the advocacy of unlawful conduct, and other speech with a history of proscription. To an earlier Supreme Court, as explained in Chaplinsky v. New Hampshire (1942), such speech was always reachable, as was “lewd” speech and “profane” speech, because their acceptance is “clearly outweighed by the social interest in order and morality.” Thus, society is left with space to decide how best to handle the social effects such speech can generate, subject to constitutional limitations.
The Court’s modern, absolutist view in Stevens views these prior judgments of worth as mere descriptions. That view is contradicted by cases like New York v. Ferber (1980), which affirmed a law banning child pornography primarily because such speech was historically understood to be constitutionally worthless. The Stevens Court ignored this, relying instead on Ferber’s secondary rationale, that the speech is inextricably linked to criminal conduct, to avoid jeopardizing Stevens’s treatment of prior cases.
The Court’s preservation of such precedents belies its generally absolutist approach toward the Free Speech Clause, making these exceptions to it a seeming result of pragmatism, rather than neutral principle. To Bork, however, court “judgments about what expediency and prudence require” in speech undermine neutral principles as much as the Warren Court’s “political sympathies” undermined them in other areas. While democratic authority can make prudential and expedient decisions based on political realities, a court cannot make such appeals without compromising neutrality about what the Constitution actually means. The result is greater confusion in free speech law, as well as a hampering of rightful democratic authority. Not permitting any line-drawing by the people, while preserving court precedents that do, leaves the Court to draw the lines. As Alito explains in Brown, this inexplicably constitutionalizes whole areas of speech while not granting constitutional protection to comparable areas—creating a standard that would not allow a minor to purchase “girlie magazines” because they’re obscene, but would allow a minor to purchase a video game where a scantily-clad girl is beaten to death with her own limbs, because a prior precedent did not affirm its regulation. While society, as Justice Alito explains, can afford different weights to the effects of displaying sex versus violence, such a value choice is for the people, not the court.
The Court’s internal inconsistency also demonstrates the inevitability of weighing value when it comes to speech—even when the Court purports to take such weighing out of the process by constitutionalizing nearly all speech. Like Bork, Justice Alito recognizes the community’s interest in preserving its value choices—a point he made at his confirmation hearing in explaining the social interest in raising children in a hospitable environment. To be sure, a court is ill-equipped to make such determinations, but a democratic society is not.
Line-drawing in the free speech context will lead to “close cases”—where constitutionally-protected speech could be detrimentally affected as communities wrestle with regulating unprotected speech. But that alone is not a reason to abdicate line-drawing. In a free society, as Bork says, the freedom of unprotected speech “rests, as does freedom for other valuable forms of behavior, upon the enlightenment of society and its elected representatives.” This is “hardly a terrible fate” because the more absurd a speech regulation seems, the less likely it will be adopted. Not to trust this truth is not to trust our society’s ultimate power source—the people—and leaves value-balancing to the courts. Such an approach does not end interest-weighing in speech. It reorients the judiciary toward lawmaking, makes original meaning a secondary concern of the Court, and ultimately calls the “police power” of local governments (to regulate for the health, safety, and welfare of their citizens) into question. None of that is desirable in a free society, or as Bork says, “at least a society like ours ought not to think it so.”
William J. Haun, J.D., writes from Chevy Chase, Maryland.