« More on That Times Op-Ed: Surprising, Disappointing, and Banal--But Not an "Appalling" Surrender on Free Speech | Main | Capital Punishment's Loyal Officer »

Saturday, May 09, 2015

The First Amendment's Burden of Persuasion

In his post on that NYT editorial about Pam Geller and the cartoon contest. Paul says the following:

But their typical "yes, but" editorials on the subject would generally have ended with the civil libertarian point: yes, the speech is contemptible, but, followed by cut-and-paste quotes by Holmes and Brandeis. This is a "yes, but" editorial with the opposite orientation: yes, the speech is protected, but....

Of course, it is not only The Times that  has long utilized that first "yes, but" structure; courts do it, as well. Consider Chief Justice Roberts in Snyder v. Phelps:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But . . .

Or Roberts' former boss, Chief Justice Rehnquist, in Hustler v. Falwell:

There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above, and a rather poor relation at that. If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard  . ..

Several years ago, Erica Goldberg wrote at CoOp that she regretted the continued need for that "yes but" structure: "The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus." In fact, really, it always has been thus.

This is why I believe Paul is onto something that reflects a change in how we think and talk about the freedom of speech. In a comment to Paul's post, I described this as shifting the burden of persuasion. The first orientation acknowledges the speaker and the speech as contemptible, but celebrates First Amendment principle; the second orientation acknowledges the First Amendment, but focuses on condemning the speech and the speaker. Put another way: The first version focuses on celebrating First Amendment principle while accepting the speaker/speech as the cost of that; the  second version focuses on condemning the speaker/speech while accepting the First Amendment as the cost, but one that demands the forceful condemnation as more necessary and more essential. Put a third way: The first structure seems to say "We don't like these speakers, but we have the First Amendment;" the second structure says "We're stuck with the First Amendment, but we really hate this speaker, he should not have spoken, and he may have even brought any injury on himself."

Compare that with how Roberts closed in Snyder: "As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case." That is different in tone, if not substance, from what The Times and others are saying about Charlie Hebdo, Pam Geller, the cartoons, etc. Now, I am not suggesting that it is not ok to criticize offensive speech and speakers even while defending their right to speak; the First Amendment does not immunize Pam Geller from criticism.

The point, I think, is a shift in which of those things we highlight. Perhaps this shifted burden will not make a difference doctrinally. But how we perceive the First Amendment affects how we talk about it, which perhaps  affects how free speech controversies play out. If the focus is on condemnation, does the constitutional principle lose some of its luster? If the focus is on condemnation, will speakers be less willing to speak or less willing to pursue efforts to protect these principles? This, in turn, may affect how the courts eventually come to think and talk about the First Amendment.

Posted by Howard Wasserman on May 9, 2015 at 07:39 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink

Comments

I disagree with all of this. First, I thought the First Amendment advocates' answer to why we can afford to allow bigoted speech, or false speech, or corrupting speech, has always in large part been the marketplace of ideas and more speech, of a critical kind that exposes the bigotry/falsity/corrupting nature of the speech that First Amendment moderates would like to be able to restrict. Just a couple weeks ago, Kennedy suggested in dissent in Williams-Yulee that if you don't like judges soliciting money, "[the] answer is more speech," in the form of disclosure that exposes which judges are on the take from certain donors. That seems unrealistic to me but it's the story First Amendment advocates tell. Now, if every time someone wants to criticize some bigoted college kid for being a bigot, or criticize a judge for soliciting money from attorneys who frequently appear in his court, he has to say something in the form of "I don't like this racist speech or this corrupt solicitation, but we have and I celebrate the First Amendment," the marketplace of ideas isn't going to clear, as it were. Fewer people are going to change what they say if the only rebuke they get is mild, First Amendment-celebrating rebuke that deemphasizes the problems with what they say in favor of emphasizing their legal right to say it. You actually suggest this is a bad thing; "If the focus is on condemnation, will speakers be less willing to speak or less willing to pursue efforts to protect these principles?" Indeed, if we focus on condemning, e.g., racists instead of focusing on celebrating their legal entitlement to engage in racist discourse, people will be less willing to openly espouse racist views and might even become less racist. Isn't that a good thing - in fact, the very thing First Amendment advocates are always promising us, a self-correcting marketplace of ideas where bad ideas won't stay popular for long? Or are we supposed to double our legal protections of speech with a "First Amendment culture" of polite First Amendment-celebrating critique, so that no one will even be dissuaded by social means or means of persuasion from saying certain things? I don't believe in First Amendment culture, just in First Amendment law, but if I did I would say that it's contrary to the idea of a First Amendment culture to tell people how to condemn speech they don't like.

Second, I don't understand why anyone needs to even nod in the direction of the First Amendment when they're condemning someone's racist or xenophobic speech (outside of the context of arguments about the speaker's legal entitlement to speak, which the Court's opinion in Snyder was and editorials about Geller's being a bigot aren't - that's why Snyder has a different emphasis than a Times editorial on Geller). If I'm arguing that someone's ideas are bad, or even that it's morally wrong for that person to express his ideas, I don't need to add that they shouldn't face some legal sanction for saying what they say. It isn't germane to what I'm talking about - what I think of their ideas - and I haven't suggested that they should face any legal sanction. For example, I obviously think calling for less public, forceful shaming of bigots and more polite First Amendment-celebratory disagreement with bigots is a bad and harmful idea. But it would be very strange if, having said that, I went on to say that of course I recognize and celebrate your legal right to express your idea. That's just a given; what I'm talking about is whether or not you're right.

Finally, I think that most of the time people understand that First Amendment protections are such a given that there's no need to acknowledge them while condemning someone's speech, and that the cases where people do this or think it's needed are gratuitous. For example, people who fault the President for calling some protesters in Baltimore thugs never feel obliged to acknowledge the President's First Amendment rights to characterize protesters in that way. That's because it would be absurd to suggest there's any doubt about the President's First Amendment rights. Likewise, no one who condemns Bill Maher's ruminations on Islam brings up the First Amendment. We all get that Maher will forever be free to express his view on one cable channel or another. And people like you don't criticize people who condemn the President or Maher for forgetting to celebrate the First Amendment. But when it's someone like Geller, all of a sudden even people who condemn her feel obliged to give a little nod in the direction of the First Amendment, and you're upset that they're not making the nods big enough. How come? The law isn't any less speech-protective of her criticisms of Islam than it is of Maher's. She could picket Muslim funerals or jeer outside hospitals where Muslim babies are born and a nearly unanimous Court would still protect her speech. Her right to speak is a truism and I don't know why we have to compulsively acknowledge and celebrate a truism. One might as well start celebrating the Second Amendment every time someone gets shot with a legally purchased handgun. That would be rather perverse. The only purpose all this celebration can serve is to stop conservations about changing doctrine before they ever start.

Posted by: Asher | May 10, 2015 1:00:51 AM

I disagree with all of this. First, I thought the First Amendment advocates' answer to why we can afford to allow bigoted speech, or false speech, or corrupting speech, has always in large part been the marketplace of ideas and more speech, of a critical kind that exposes the bigotry/falsity/corrupting nature of the speech that First Amendment moderates would like to be able to restrict. Just a couple weeks ago, Kennedy suggested in dissent in Williams-Yulee that if you don't like judges soliciting money, "[the] answer is more speech," in the form of disclosure that exposes which judges are on the take from certain donors. That seems unrealistic to me but it's the story First Amendment advocates tell. Now, if every time someone wants to criticize some bigoted college kid for being a bigot, or criticize a judge for soliciting money from attorneys who frequently appear in his court, he has to say something in the form of "I don't like this racist speech or this corrupt solicitation, but we have and I celebrate the First Amendment," the marketplace of ideas isn't going to clear, as it were. Fewer people are going to change what they say if the only rebuke they get is mild, First Amendment-celebrating rebuke that deemphasizes the problems with what they say in favor of emphasizing their legal right to say it. You actually suggest this is a bad thing; "If the focus is on condemnation, will speakers be less willing to speak or less willing to pursue efforts to protect these principles?" Indeed, if we focus on condemning, e.g., racists instead of focusing on celebrating their legal entitlement to engage in racist discourse, people will be less willing to openly espouse racist views and might even become less racist. Isn't that a good thing - in fact, the very thing First Amendment advocates are always promising us, a self-correcting marketplace of ideas where bad ideas won't stay popular for long? Or are we supposed to double our legal protections of speech with a "First Amendment culture" of polite First Amendment-celebrating critique, so that no one will even be dissuaded by social means or means of persuasion from saying certain things? I don't believe in First Amendment culture, just in First Amendment law, but if I did I would say that it's contrary to the idea of a First Amendment culture to tell people how to condemn speech they don't like.

Second, I don't understand why anyone needs to even nod in the direction of the First Amendment when they're condemning someone's racist or xenophobic speech (outside of the context of arguments about the speaker's legal entitlement to speak, which the Court's opinion in Snyder was and editorials about Geller's being a bigot aren't - that's why Snyder has a different emphasis than a Times editorial on Geller). If I'm arguing that someone's ideas are bad, or even that it's morally wrong for that person to express his ideas, I don't need to add that they shouldn't face some legal sanction for saying what they say. It isn't germane to what I'm talking about - what I think of their ideas - and I haven't suggested that they should face any legal sanction. For example, I obviously think calling for less public, forceful shaming of bigots and more polite First Amendment-celebratory disagreement with bigots is a bad and harmful idea. But it would be very strange if, having said that, I went on to say that of course I recognize and celebrate your legal right to express your idea. That's just a given; what I'm talking about is whether or not you're right.

Finally, I think that most of the time people understand that First Amendment protections are such a given that there's no need to acknowledge them while condemning someone's speech, and that the cases where people do this or think it's needed are gratuitous. For example, people who fault the President for calling some protesters in Baltimore thugs never feel obliged to acknowledge the President's First Amendment rights to characterize protesters in that way. That's because it would be absurd to suggest there's any doubt about the President's First Amendment rights. Likewise, no one who condemns Bill Maher's ruminations on Islam brings up the First Amendment. We all get that Maher will forever be free to express his view on one cable channel or another. And people like you don't criticize people who condemn the President or Maher for forgetting to celebrate the First Amendment. But when it's someone like Geller, all of a sudden even people who condemn her feel obliged to give a little nod in the direction of the First Amendment, and you're upset that they're not making the nods big enough. How come? The law isn't any less speech-protective of her criticisms of Islam than it is of Maher's. She could picket Muslim funerals or jeer outside hospitals where Muslim babies are born and a nearly unanimous Court would still protect her speech. Her right to speak is a truism and I don't know why we have to compulsively acknowledge and celebrate a truism. One might as well start celebrating the Second Amendment every time someone gets shot with a legally purchased handgun. That would be rather perverse. The only purpose all this celebration can serve is to stop conservations about changing doctrine before they ever start.

Posted by: Asher | May 10, 2015 1:00:53 AM

You are welcome to believe this is a good or bad thing and that it will or will not have an ultimate effect. My point is simply that it reflects a different way of talking about these things. And, again, I am not questioning the right/import of criticizing objectionable speakers/speech. But you read the Times and other criticisms of Geller differently than I did.

Posted by: Howard Wasserman | May 10, 2015 8:23:38 AM

This debate is old and probably unresolvable. Mill argued that speech shouldn't be subject to state prohibition or to social pressure. The modern First Amendment reaches only state action. That split in attitudes toward private condemnation of speech goes all the way down. "I wish you'd just shut up!" is both speech and speech-suppressing.

Posted by: James Grimmelmann | May 10, 2015 9:06:16 AM

First, it is good that we note that the NYT "acknowledges the First Amendment" -- that is they are not really "giving up on the 1A" since they are "acknowledging" it. In the very first sentence.

Second, there is a dispute here on just what the spirit of the 1A requires. This apparently is the "giving up" part. On that point ... First, the op-ed differentiated Charlie Hebdo and Pam Gellar, though "others" might put them together.

Second, I duly note the difference of opinion, but just don't see any "we are stuck with" sentiment in the op-ed. It is not sufferance. It is an opinion on the "trollish" nature of Gellar, which is different than even many who overall agree with her general expressed beliefs. If she is one, we can call her out. As I noted before, that sort of thing can hurt discussion of ideas in the long run. It is okay sometimes to tell the truth there. It isn't anti-free speech.

The 1A says the government should not abridge freedom of speech. The overall principle is important enough for private actors -- so, e.g., academic freedom isn't only an important value in public universities. But, private action here is different. People can boycott certain speakers without violating free speech. I don't think we "give up" freedom of expression by not "feeding the trolls" while we might if we refuse to engage with those we strongly disagree with.

I again don't know if there really has been a "change" here. The "troll" is not some recent invention. Concern that certain people or groups are not advancing debate but just causing problems probably goes back to ancient times.

Posted by: Joe | May 10, 2015 11:25:55 AM

Post a comment