An Originalist Critique of the Court’s Free Speech Tradition

 
 

Free-speech jurisprudence has reached a state where it is acceptable to abridge speech on matters of public concern, but not on vile or private speech. And the Supreme Court has usurped the authority of line-drawing from the people to empower itself.

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The legal movement to restore the Constitution’s original public meaning continues to secure legal victories, but not with respect to freedom of speech. Some cases, like Citizens United v. Federal Election Commission, have reinvigorated political-speech protection, but—as I explain in detail in a recent article for National Affairs—the Free Speech Clause’s original meaning does not inform the Supreme Court’s free-speech jurisprudence overall.

The Free Speech Clause adopted by the American people protects the ascertainment of truth for the benefit of self-government. The freedom of speech does not include speech lacking in social value—either vile speech, or speech unconnected to matters of public concern (frequently called “private speech”). While drawing these distinctions can be difficult in some cases, they are rooted in what Robert Bork called “neutral principles” about self-government and the role of the courts.

In contrast, modern jurisprudence asserts that the Free Speech Clause was meant to create a marketplace of ideas that develops truth by permitting autonomous individuals to express or ignore nearly any speech they want. This may sound attractive to free-speech “absolutists,” at least up to a point. What the “marketplace” and “autonomy” arguments are less up-front about is that the Court determines them both. As the Court rejects the distinction between socially valuable speech protected by the Constitution and speech without social value that may be regulated, the Court is the only body that may draw lines between permitted and prohibited speech. It thus possesses the tools to restrict even public speech—and, occasionally, it does just that.

This jurisprudence rests on principles far removed from the Free Speech Clause’s original meaning. It is detrimental to the distinct constitutional protection for socially valuable speech, the public’s understanding of that distinctiveness, and democratic authority to protect self-government from speech that undermines the search for truth. This should compel a refresher on the Clause’s original meaning.

Free Speech at the Founding

As originally understood, the Free Speech Clause ensured that Americans could debate and make determinations about matters of public life. This endeavor is consonant with the search for truth, and it follows from the Clause’s text.

The phrase “freedom of speech” is part of a broader one in the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . .” At the founding, these clauses guaranteed different manifestations of the same freedom: to speak or publish, as the First Continental Congress said in 1774, on “the advancement of truth, science, morality, . . . arts in general, and . . . liberal sentiments on the administration of Government.” Including this freedom within the Bill of Rights makes sense, as the enumerated rights identify those that a tyrant would probably target. A tyrant may not mind speech without social value; indeed, “bread and circuses” can complement tyranny. But speech about the truth of matters connected to the public good cannot be harmonized with tyranny.

Protecting the right of free speech does not bear upon the authority of communities to restrict speech unconnected to public life and ascertaining truth. Some sentiments may serve to corrupt the search for truth or the civic responsibility necessary for self-government’s endurance. The founders were well aware of man’s propensity to indulge evil, and the debates over ratifying the Constitution include admonitions from Federalists and Anti-Federalists alike to eschew speech that indulges man’s “passions” in favor of a thoughtful, rigorous public debate oriented toward truth. Even as much speech regulation during the founding era came through social standards, rather than legal rules, restricting speech lacking in social value did not implicate the freedom of speech.

Even with state constitutional provisions similar to the federal Freedom of Speech Clause, several states possessed bans on pornography, blasphemy, profanity, false statements, or libel. At the national level, the founders’ distinction between speech with and without social value was made manifest in public reaction to congressional restrictions on speech.

When the First Continental Congress passed a ban on theater performances in 1774, the Act met with widespread compliance and community enforcement, mirroring bans in some colonies. The Congress would pass another theater ban in 1778, and significant opposition only arose in response to the Congress's doubling down on the 1778 ban in light of George Washington having Joseph Addison’s play Cato performed for the Continental Army. This opposition, however, came from solidarity with the army—watching Cato, a play extolling republican virtues, was intended to boost the troops’ morale in fighting for self-government—not an outcry against restricting speech.

The major speech controversy during the founding era confirms a distinction between speech with and without social value. The primary argument against the Sedition Act—which prohibited certain speech against the government and officials—was not premised on its infringing the freedom of speech. As Professor Kurt Lash observed, “modern notions of individual liberty cannot obscure what was to Madison and Jefferson the central problem with the [Sedition] Act: [it] violated the rights of the states” to restrict slanderous speech.

The founders’ agreement on this point—that the “freedom of the press” does not protect vile speech—also intimates the risk in failing to draw this distinction.

Why Distinguish Valuable Speech?

When the Free Speech Clause sweeps all speech under its ambit, as Alexander Meiklejohn explained in Free Speech and Its Relation to Self-Government, it conflates the “private interest in speech”—which includes expressing one’s individual tastes and goals—with “the public interest in speech”—attaining truth and adopting wise public policy. Meiklejohn writes:

And from this it follows that, so far as the First Amendment is concerned, the freedom of speech in the public interest may also be abridged. By its association with private speech under a common principle, public speech is reduced to the level of “proximity and degree.” The camel, once admitted to the tent, knocks it down.

As Judge Robert Bork recognized in “Neutral Principles and Some First Amendment Problems,” every serious theory of speech protection draws lines. If a line is to be drawn, Bork explained, the question “is whether the location of the cut is justified.” The reality of line-drawing reveals the logic behind protecting public speech while leaving private speech and vile speech to democratic regulation.

Speech on “truth, science, morality, and arts in general, [and] the diffusion of liberal sentiments on the administration of Government” relies on truth-testing to achieve its ends and furthers public policy toward the good. Defamation of public officials, as Jefferson explained in opposing the Sedition Act, “confound[ed]” vice and virtue and is thus uninterested in the search for truth. Along with private speech, it may need to be tempered to ensure both self-government and the advancement of truth. By leaving those value choices to the people, self-government is preserved. The Court can then evaluate the rationale for private-speech regulations in light of how they bear upon protected public speech and other constitutional protections—which, however, has not been the Supreme Court’s course.

The “Marketplace of Ideas” and “Autonomy” Empower the Court to Censor Public Speech

Modern free-speech jurisprudence takes its cue from Oliver Wendell Holmes’s dissent in Abrams v. United States. Holmes argued that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

The “marketplace” approach facilitated the Court’s embrace of a related free-speech rationale: individual autonomy. Rather than facilitate the pursuit of truth, the freedom of speech aids individuals in expressing their emotions. Both of these rationales give way to relativism about speech’s social value. As the Supreme Court said when articulating these doctrines in Cohen v. California, “one man’s vulgarity is another’s lyric.” The people cannot make “principled distinctions” between valuable and vile speech because such issues are just “matters of taste and style so largely [left] to the individual.” This analysis does away with the First Amendment’s distinct protection of public speech connected to the search for truth. The result is, as Meiklejohn predicted and Bork reasoned, a balancing of all forms of speech by the Court and an erosion of democratic authority to make principled distinctions between valuable and vile speech.

At this point, defenders of current free-speech jurisprudence may mount a few objections. They may argue that the “marketplace of ideas” allows for truth to be developed through truth testing without fear of censorship. They may also argue that, far from eroding restrictions on vile speech, current free-speech jurisprudence—as the Court explained in United States v. Stevens—simply limits democracy’s censoring power to that speech with a demonstrable history of proscription. This both protects the search for truth and distinguishes vile speech, they would claim, without risking the censoring of most speech. These positions do not withstand scrutiny in light of the Court’s jurisprudence, however.

In certain contexts, the Court has provided less protection to public speech than to speech lacking in social value. In “Where Speech Loses its Luster: Campaign Finance Laws and the Constitutional Downgrading of Political Speech,” law professor Patrick Garry compares how the Court has treated campaign finance regulations and how it has treated vile speech. He concludes that, “[c]ontrary to its highly scrutinizing, non-deferential approach in cases involving the regulation of indecent television programming, the Court’s campaign finance jurisprudence does not require tangible evidence of corruption to uphold regulations.” Since Garry’s 2007 analysis, the Supreme Court’s decision in Citizens United correctly overruled some of the case law upon which Garry’s critique relies, but key disparities remain—such as the Court’s presumption that restrictions on anonymous political speech are valid to begin with, and the freestanding interest in regulating certain political speech without tangible evidence of corruption.

Abortion counseling cases provide another example of this “second-class” treatment to unquestionably public speech. The Court continues to hold that state laws adopted to prohibit pro-life counseling outside abortion clinics are not restrictions of speech content—even when the Court has struck down such regulations on other grounds. Justice Scalia credits this deferential analysis to the “entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”

United States v. Alvarez provides both an example of the Court’s ability to manipulate its self-imposed limitations on speech regulation and—in an admirable dissent by Justice Alito, joined by Justices Scalia and Thomas—a powerful response to the concern about majoritarian value distinctions in speech. The plurality opinion by Justice Kennedy struck down a statute prohibiting lying about receiving military medals. Despite the dissent providing several examples demonstrating “that false statements of fact merit no First Amendment protection in their own right,” the most the plurality would concede is that speech’s falsity “bears” upon whether the people may restrict certain speech. The plurality’s re-characterization of the nation’s long history of false-speech regulation is akin to how the Court in Stevens avoided the long history of proscribing animal cruelty when it struck down a statute banning the depiction of animal torture—drawing a contrived distinction between animal cruelty, which the government can prohibit, and depicting animal cruelty, which it could not. The attempt at a self-imposed limit at speech regulation, as Alvarez reveals, contains characterization loopholes that a return to the Free Speech Clause’s original meaning could avoid.

The Alvarez dissent makes a strong argument for the Clause’s original social-value speech distinction. Leaving the regulation of false factual statements—speech lacking in any social value—to democratic judgment does not make the state the “arbiter of truth” generally. To the contrary, the dissent identifies a number of areas where the state would lack the authority to prohibit false statements. They are, unsurprisingly, the same areas where the founders found the link between the ascertainment of truth and public policy to be strong: “philosophy, religion, history, the social sciences, the arts, and other matters of public concern.” But even in these areas, the reason for protecting potentially false statements is not because falsity has value in itself, but because these disciplines rely on testing the truth in order to determine it. The right to freedom of speech facilitates the debate over what is true and false by carving out a distinct protection for speech that furthers the determination of truth in connection with public concern. Ensuring this “valuable speech,” as the dissent explains, does not bear upon the people’s ability to proscribe speech that is “verifiably false and entirely lacking in intrinsic value, [and] also fails to serve any instrumental purpose that the First Amendment might protect.”

Reclaiming Free Speech

In sum, free-speech jurisprudence has reached a state where it is acceptable to abridge speech on matters of public concern, but not on vile or private speech. Lopsided Court majorities have prohibited efforts to target the depiction of animal cruelty and shouting hateful epithets at a military soldier’s funeral. But the Court’s protection of public speech, such as in Citizens United, results in closely divided decisions that remain contentious, or in doctrinal manipulation, as in abortion-counseling cases. College campuses evince a similar development: Calling out the vulgarity of certain campus events inspires rebuttals wrapped in the First Amendment, while many of these same free-speech “absolutists” then insist on limiting political or religious speech to designated “zones” or prefacing such speech with “trigger warnings.”

The Court’s failure to preserve the distinct protection for socially valuable speech, and the accompanying arrogation of the people’s power to weigh restrictions on vile speech, crafted a “freedom of speech” defined by its lowest ebb—while leaving any value-weighing over any speech to the least-accountable branch. If defenders of free speech are truly concerned about censorship—of individuals to speak freely on public matters as well as on the people to establish the bounds of acceptable behavior within reason—they ought to be more worried about today’s free-speech jurisprudence, not the founders’ free-speech jurisprudence.

While there are surely challenges in reviving the Free Speech Clause’s distinct protection for public speech, the distinction is critical to the preservation of self-government. The Court should revive the lines drawn by the First Amendment as an original matter.

William J. Haun, Esq., writes from Chevy Chase, Maryland.

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