The First Amendment, Freedom of Speech: Its Constitutional History and the Contemporary Debate (Bill of Rights) - Softcover
Synopsis
This volume collects, edits and presents some of the most important classic and cutting-edge thinking on the constitutional freedom of speech. Students of law, political science, or any other person interested in understanding the basics of American self-government will be able to see the important themes, values, conflicts, and possible resolutions concerning this, our most cherished, democratic freedom. Editor Vikram David Amar has organized the collection into three major sections: historical foundations, theoretical paradigms, and selected doctrinal battlegrounds. Within this framework, he has selected some of the most significant works that address these various themes, including: William Blackstone's classic "Commentaries on the Laws of England" (1769) and Zacharia Chaffee's timeless essay "Free Speech in War Time" (1919), as well as works from more contemporary constitutional giants such as Cass Sunstein's "Free Speech Now" (1992), Alexander Meiklejohn's "The First Amendment is an Absolute" (1961), Kathleen Sullivan's "Political Money and Freedom of Speech" (1997), and many more influential articles. At a time when America is trying to export democracy abroad and preserve it at home against a backdrop of international security concerns, figuring out how society should permit its citizens to identify and represent themselves and come together to deliberate collectively is arguably more crucial now than ever before.
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About the Author
Vikram David Amar is professor of law at the University of California, Davis. He is the author of many books and articles on law including Constitutional Law: Cases and Materials (with William Cohen and Jonathan D. Varat), 12th edition, and Federal Practice and Procedure, Jurisdiction 3D, Vols. 17, 17A, and 17B (with Charles A. Wright, Arthur R. Miller, and Edward H. Cooper). He authors a biweekly online column on constitutional matters for Findlaw.com, the most frequently visited Web site devoted to legal matters.
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The First Amendment FREEDOM OF SPEECH
Its Constitutional History and the Contemporary DebatePrometheus Books
Copyright © 2009 Vikram David AmarAll right reserved.
ISBN: 978-1-59102-632-7
Contents
Series Editor's Preface David B. Oppenheimer.............................................................................................................................9Introduction. Guided Tour.................................................................................................................................................13PART I. HISTORICAL FOUNDATIONSCommentaries on the Laws of England Sir William Blackstone...............................................................................................................23Free Speech in War Time Zechariah Chafee Jr..............................................................................................................................25Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression Steven J. Heyman...............................................................32Seditious Libel and the Lost Guarantee of Freedom of Expression William T. Mayton........................................................................................50The Origins of the Press Clause David A. Anderson........................................................................................................................65PART II. THEORETICAL PARADIGMSMust Speech Be Special? Frederick Schauer................................................................................................................................85Free Speech Now Cass R. Sunstein.........................................................................................................................................100Scope of the First Amendment: Freedom of Speech C. Edwin Baker...........................................................................................................115The First Amendment Is an Absolute Alexander Meiklejohn..................................................................................................................125Equality as a Central Principle in the First Amendment Kenneth L. Karst..................................................................................................141PART III. SELECTED DOCTRINAL BATTLEGROUNDSContent Regulation and the First Amendment Geoffrey R. Stone.............................................................................................................153Rules of Engagement for Cultural Wars: Regulating Conduct, Unprotected Speech, and Protected Expression in Anti-Abortion Protests Alan E. Brownstein.....................179The Concept of the Public Forum Harry Kalven Jr..........................................................................................................................192The Case of the Missing Amendments: R.A.V. v. City of St. Paul Akhil Reed Amar...........................................................................................198Public Response to Racist Speech: Considering the Victim's Story Mari J. Matsuda.........................................................................................214Compelled Subsidization of Speech: Johanns v. Livestock Marketing Association Robert Post................................................................................233Political Money and Freedom of Speech Kathleen M. Sullivan...............................................................................................................251From Watergate to Ken Starr: Potter Stewart's "Or of the Press" a Quarter Century Later Vikram David Amar................................................................272APPENDIXESConstitution of the United States of America..............................................................................................................................279The Amendments to the Constitution........................................................................................................................................295
Introduction
Guided Tour
Free speech in America, while enshrined in the First Amendment and often described as occupying a "preferred position" in the Constitution's constellation of rights, has not always been respected in practice. At the nation's founding, some read the First Amendment quite narrowly, arguing that it prohibited before-the-fact injunctions against speech-so-called prior restraints-but no more. Just a few years after the Constitution was ratified, Congress enacted the self-dealing Sedition Act of 1798, which allowed congressional incumbents to criticize their challengers but prohibited challengers from criticizing incumbents. (Because the act sought to punish the government's critics after the fact of speech rather than silence them before they spoke, its supporters argued that the statute didn't run afoul of the First Amendment.)
Remarkably, this act was never judicially invalidated (and indeed was enforced by Supreme Court justices riding circuit as lower court judges) but was, as Justice William Brennan observed in the famous New York Times v. Sullivan, 376 U.S. 254 (1964), ultimately repudiated by the "court of history." But this repudiation was late in coming and did not prevent broad suppression of the most vital political speech imaginable throughout the nineteenth century and first half of the twentieth century.
For example, antebellum states aggressively attempted to silence slavery critics in the mid 1800s, just as Congress had tried to silence its critics fifty years earlier. As Yale law professor Akhil Amar has observed:
[a]cross the South, mere criticism of slavery became a crime, and the Republican Party was in effect outlawed via the threat of after-the-fact punishment rather than prior restraint. In response, Republicans insisted on broad protections of expression. Their 1856 party slogan was "Free Speech, Free Press, Free Men, Free Labor, Free Territory, and Fremont." Fremont lost in 1856, but four years later Lincoln won. And the war came. In its wake, Reconstruction Republicans insisted that the South end its regime of antirepublican (and anti-Republican) censorship of opposition speech. Free folk-black and white, male and female, Republican and Democrat, Northern and Southern-must all be guaranteed the right to speak their minds about interlinked issues of law, politics, religion, morality, and even literature. (Reconstruction Republicans viscerally understood the importance of protecting a literary work like Uncle Tom's Cabin.) The Fourteenth Amendment thus commanded that all states observe citizens' fundamental rights and freedoms, with a broad right of free expression, ranging far beyond freedom from prior restraint, at the Amendment's very core.
Even with this reconstruction revolution, federal courts were slow to respond favorably to speech claimants. After having stood by while Southern states effectively criminalized the antebellum Republican Party, federal courts for more than half a century after the Civil War refused to implement the "incorporation" of the First Amendment against the states that the Fourteenth Amendment clearly commanded. And when in 1907 the Supreme Court assumed for the sake of argument that incorporation existed, it did so only to insist that freedom of expression was limited to freedom from prior restraint and thus permitted state judges to fine a newspaper publisher who politically satirized the very judges in question. A dozen years later, in Debs v. United States, 249 U.S. 111 (1919), the Court upheld the imprisonment of prominent and somewhat popular government critic and repeated presidential candidate Eugene Debs because Debs had criticized federal war policy in a peaceful speech. Indeed, before the 1930s, a free speech claimant had never won in the Supreme Court, and it wasn't until 1965 that the Court struck down a federal enactment on free expression grounds.
Things are very different today. Over the past two decades alone, the Court has struck down close to two dozen federal statutes or regulations on free speech grounds. And this is to say nothing of the innumerable state laws that have been invalidated under the First Amendment over the last two generations. Indeed, most analysts think that the commitment to robust free speech protection will persist on the Supreme Court notwithstanding the recent important changes in Court personnel that have moved the Court, in general, to the right. So-called judicial conservatives, as much if not more so than "liberal" jurists, have seen the value of broad free speech protections. The most speech-protective of the justices on the current Court tend to be Justices Kennedy and Scalia, justices who otherwise are more associated with the more conservative end of the judicial ideological spectrum.
But some wonder whether this recent extension and cementing of First Amendment protections has arisen because of a (perhaps problematic) change in the focus of First Amendment doctrine. From the early 1900s through the 1980s, liberal individuals and groups were the ones who viewed freedom of speech as distinctively valuable. The roster of litigants in the major free speech cases during that period-that is, the people who were invoking the First Amendment's free speech clause to challenge government restrictions on expression-comprised a veritable Who's Who of the left side of the political spectrum.
They included, for instance, socialists, antiwar activists, civil rights advocates, and avant-garde artists. Consider the speakers in the era's famous cases: Debs v. United States (socialist leader Eugene Debs), Dennis v. United States, 341 U.S. 494 (1951) (communist leaders), New York Times v. Sullivan (critics of Southern racists), Thornhill v. Alabama, 310 U.S. 88 (1940) (labor picketers), Cohen v. California, 403 U.S. 15 (1971) (draft protester), Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (critic of the Vietnam war), United States v. O'Brien, 319 U.S. 367 (1968) (draft card-burning protester), Texas v. Johnson, 491 U.S. 397 (1989) (flag-burning protester), and Miller v. California, 413 U.S. 373 (1973) (purveyor of alleged obscenity).
Granted, some free speech litigants-such as Jehovah's Witnesses-could not reasonably be described as left wing. Yet even they typically espoused dissident beliefs and opposed conventional manifestations of patriotism or other accepted ideals. For instance, in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), plaintiffs attacked mandatory recitation of the Pledge of Allegiance.
Moreover, a summary list of headline cases like these actually understates the utility of free speech doctrine to progressive groups. The Supreme Court, not to mention the lower federal courts, decided numerous other cases relating to the freedom of speech and association rights of unions, civil rights activists, and antiwar protesters-more than could possibly be cited in any contemporary casebook or treatise (let alone here).
There are also exceptions that help prove the rule, so to speak. Near v. Minnesota, 283 U.S. 697 (1931), a famous prior restraint case, protected an anti-Semitic publisher, and Brandenburg v. Ohio, 395 U.S. 444 (1969), used the First Amendment to protect a Ku Klux Klan rally. But these counterexamples are memorable in part because they stick out. Overwhelmingly, leftist speech was the meat and potatoes of the judicial free speech menu for the sixty years following World War I.
During this period, conservatives understandably came to view free speech protections and doctrines as unnecessary, unreasonably burdensome, and downright dangerous. Conservatives of this era thus generally supported the use of government power to restrict or punish speech that threatened established interests or traditional values.
Typically, the speech the government sought to suppress risked consequences conservatives wanted to avoid. In addition, a vigorously enforced free speech doctrine offered conservatives comparatively little in return; after all, they rarely found themselves invoking the First Amendment themselves. No wonder, then, that they tended to be satisfied with free speech cases and doctrines that were relatively weak, providing little protection to speakers.
But over the last two decades, that constitutional calculus has changed dramatically. Beginning in the early 1980s, there are, I believe, at least five substantive areas in which free speech doctrine has proven to be of significant value to conservative interests.
Take, for example, pro-life protesters-who may seek to engage in demonstrations and "sidewalk counseling" in front of clinics providing abortion services and to picket in the residential neighborhoods of abortion providers. Especially since the 1980s, these pro-life advocates have argued their activities deserve free speech protection in a number of cases.
One example is Frisby v. Schultz, 487 U.S. 474 (1988), involving residential picketing. Another is Madsen v. Women's Health Center Inc., 512 U.S. 753 (1994), in which protesters challenged a judicially created "buffer zone" around an abortion clinic, within which they could not operate. Whether challenging municipal regulations or court injunctions, pro-life protesters began to increasingly rely on free speech arguments.
Not all of these challenges have been successful, of course. But many liberal speakers in the 1920s through the 1950s lost their free speech cases too. The key point is that abortion protesters have won enough victories (at least in part) in major free speech cases that they and their supporters recognize the value of free speech doctrine to their efforts.
Free speech doctrine also has proven to be a useful tool for attacking the constitutionality of "hate crime" statutes and many hate speech codes promulgated by colleges and universities. Consider a case such as R.A.V. v. St. Paul, 505 U.S. 377 (1992), which struck down a statute punishing speech and symbols intended to arouse fear and anger in ethnic minorities as unconstitutional content-based discrimination. In this and other cases, conservative groups have used the free speech clause to invalidate regulations that they believe impermissibly target conservative or reactionary speech and association.
In the last few decades, moreover, invocation of the free speech clause-even more so than invocation of the free exercise clause-has became the primary tactic used by religious groups seeking to gain access to public space and other public resources for religious expressive activities. Examples include cases like Widmar v. Vincent, 454 U.S. 263 (1981), which involved access to university facilities for meetings by a religious club, and Rosenberger v. University of Virginia, 515 U.S. 819 (1995), which involved access to university-mandated student fees to subsidize a religious student group's publications. In such cases, conservative religious groups have relied on the free speech clause's requirement of viewpoint-neutrality to invalidate discriminatory restrictions on their expressive activities-and have achieved considerable success in doing so.
Private associations seeking to defend exclusionary membership requirements have also used freedom of association-a constitutional mandate derived from free speech guarantees-as a shield to insulate their discriminatory decisions from the reach of civil rights laws.
For instance, in Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), the Court held that the free speech clause allowed organizers of the St. Patrick's Day parade in Boston to exclude a gay contingent from marching in the event. Similarly, in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court concluded that freedom of association gave the Boy Scouts immunity to discriminate against a gay scoutmaster-despite a New Jersey statute purporting to outlaw such discrimination.
Finally, commercial speech-often involving advertising communicated to consumers by large corporate interests-is now close to receiving the same level of protection provided to traditional expression. That means that businesses now enjoy both freedom from regulation of their own expressive activities and immunity from being compelled to make contributions to someone else's speech.
In cases involving the tobacco industry and agribusiness, corporate interests have successfully invoked free speech principles in ways that would have seemed exotic a generation ago. And as a recent beef advertising case, Veneman v. Livestock Marketing Ass'n, 541 U.S. 1062 (2004), illustrates, corporate America continues to invoke the free speech clause now that corporate interests have been awakened to understanding just how much protection the First Amendment may provide.
These lines of authority and others (I do not suggest that this list is necessarily exhaustive) provide a lot of utility for conservative purposes. Indeed, they have proven so beneficial that conservatives now have a new and serious relationship with freedom of speech. At the same time, freedom of speech has retained most of its liberal adherents. For the most part, they haven't forgotten America's earlier history-or its lesson. They remember that free speech is the "fella that brung them" to the political dance in the first place. It is that combination of conservative and liberal support, I submit, that makes freedom of speech an enduring constitutional principle for the foreseeable future.
But the contours of that principle continue to evolve, and some folks are unhappy that speech protections have been extended in a way that might obscure the core concern over speech critical of government and speech relating to self-governing. And some also wonder whether the extension of free speech protection has sacrificed other constitutional values such as racial equality and personal autonomy and dignity.
This book provides an introduction to America's free speech journey. I have offered materials that relate to history, theory, and doctrine to give readers a sense of the actual terms on which free speech debates are waged.
I begin in part I with some historical discussions. Freedom of thought and expression is taken so much for granted in America and other Western democracies that we tend to forget how recently it has come to be accepted. The three centuries that elapsed between the appearance of the first book printed in England in 1476 and America's Declaration of Independence in 1776 provide the immediate background of the American constitutional system, and the struggles of this period may prove particularly relevant. The evolution of the law of treason and the evolution of jury powers in the area of sedition libel (libel that undermines government) in England and France in the 1700s are discussed in Blackstone's canonical "Commentaries," first published in 1765. In addition to Blackstone, I have provided excerpts from other commenters, Professors Chaffee, Heyman, Mayton, and Anderson, who present their sense of the historical backdrop.
These materials hopefully will provide some context to help readers to decide whether, as a matter of so-called original intent-even if in England the phrase "freedom of the press" may well have meant only freedom from prior restraint-the First Amendment should be read more broadly. My own view is that it should, even as a matter of history. In England, Parliament was sovereign. Under such a regime, it made perfect sense that rights were designed only against executive and judicial officials, such as Crown-appointed licensers. But in America's system based on popular sovereignty, the protection of speech sensibly seems broader. James Madison, on the very day he introduced the Bill of Rights, explained the key difference between the British system of governmental sovereignty and the American system of popular sovereignty. In 1794, he was emphatic: "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people." Under this new historical conception in America, the First Amendment has to mean more than mere freedom from prior restraint.
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