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Tuesday, September 23, 2008

Heller’s First Amendment – and the Extra Protection it Just Might Provide for Dada and Surrealism


“It is often suggested we may be floating in a sea of radio messages from other civilizations, messages which we do not yet know how to decipher.”   
(from the book, Godel, Escher, Bach)

“It's like a book elegantly bound,
but in a language that you can't read just yet”
(from the song, “I Will Possess Your Heart”)

These quotes – respectively from computer scientist Douglas Hofstadter and the rock band Death Cab for Cutie – were not, but could have been, about The Codex Seraphinianus.  The Codex is a beautiful book by the artist Luigi Serafini that purports to be an encyclopedia of an alien civilization written in that civilization’s language.  It’s filled with paintings of bizarre creatures, swimming trees, unfamiliar weaponry, and a sexual encounter that morphs into a crocodile.   Nobody – probably not even Serafini himself –  has any idea what it’s telling us. 

So unlike The O’Reilly Factor or Hardball with Chris Matthews, it’s unlikely to count as an example of the “political speech” that the Supreme Court has described as being “at the core of what the First Amendment is designed to protect.”  Virginia v. Black, 538 US 343, 365 (2003).  Indeed, under certain theories of the First Amendment that prioritize political speech, Serafini’s encyclopedia would receive no protection at all.  Alexander Meiklejohn once argued for limiting the First Amendment’s scope to speech that contributes to self-government.  Robert Bork offered a similar argument that the First Amendment protects only political speech. Meiklejohn and Bork each retreated from their respective arguments for limiting the First Amendment in this way, and modern First Amendment law certainly protects expression, including a lot of surrealistic and abstract art, that is not about politics at all.

Still, speech sometimes gets extra insulation from government restriction when it has political content.  The Supreme Court plurality in Morse v. Frederick, for example, implied that the nonsensical slogan in that case (“Bong Hits 4 Jesus”) would have been protected from school censorship if it had contained a “political message” like the armbands worn by students in the 1968 Tinker case to protest the Vietnam War. 127 S. Ct. 2618, 2626-27.  And the Court has said, in a similar vein, that government employee speech qualifies for First Amendment protection only when it touches on a “matter of public concern” – “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” San Diego v. Roe, 543 U.S. 77, 84-85 (2004).

But the Supreme Court’s recent Second Amendment decision in Heller suggests that help may be on the way.  Why?  Because the Court in Heller seems to suggest that where a right is not expressly limited to political purposes in the constitutional text, then it should not be so limited by judicial interpretation.  Even if the Framers were concerned first and foremost with political applications of the right, that doesn’t mean these applications limit the scope of the right itself.  Thus, Justice Scalia concedes that the Framers probably codified the right to keep and bear arms in the Constitution to address the “the threat that the new Federal Government would destroy the citizens' militia by taking away their arms.” 128 S.Ct. 2783, 2801 (2008).  But even if our Constitution’s drafters valued the right for that purpose, their purposes for codifying it don’t have to be our purposes in invoking it:  Americans, at the time of the founding and more recently, might have considered the right  “more important for self-defense and hunting” and can invoke it for these reasons since, while self-defense may have been secondary for the founders, it was “the central component of the right” the founders codified. Thus, as my OCU colleague Mike O’Shea has observed on Concurring Opinions (in his edifying play-by-play analysis of the Heller case) the Court had little trouble concluding that the Second Amendment had “[p]rimarily private purposes.”

It occurs to me there’s a probably a case to be made that such an analysis applies to the First Amendment as well as the Second.  In fact, in his book, The First Amendment, Democracy, and Romance, Steven Shiffrin made an observation about the First Amendment that is similar to Justice Scalia’s argument against confining the right to keep and bear arms to political purposes:  He notes there that “[i]t is one thing to show that the Founders focused on political speech; it is quite another to show that they intended that only political speech be protected from subsequent restraints.” (p. 191).  The fact that political speech was foremost in their minds did not mean that this was the only speech to which late 18th century Americans sought to give constitutional protection.  On the contrary, he points out, the 1774 Address to the People of Quebec also identified other important purposes for freedom of speech, such as “the advancement of truth, science, morality, and the arts in general.”  Of course, as I’ve noted above, modern First Amendment law does not exclude non-political speech from its coverage.  But why give it any less protection or treat it outside the “core” of the First Amendment if it was just as much a part of the original freedom?
One might argue that this case against limiting the right to political purposes (or prioritizing such purposes) is even stronger for the First Amendment:  The Second Amendment has a prefatory clause that emphasizes a public purpose (collective self-defense).  If that language doesn’t give the right to keep and bear arms a political character, why should the First Amendment speech clause’s silence on its own purposes?

There are two possible justifications I can think of for continuing to give political speech, or speech on matters of public concern, a privileged place in First Amendment law.  One is that it all depends not on the language surrounding the Constitution’s mention of the right (e.g., the prefatory clause preceding the mention of the right to keep and bear arms) but rather on the public understanding of the right itself at the time it was given constitutional status.  One might argue that unlike the right to bear arms, which – as Justice Scalia emphasizes – was a right understood by 18th century Americans to encompass personal as well as collective self-defense, “freedom of speech” may have been generally understood to protect only the speech necessary to public debate and self-government, or at least to give such speech far more protection from government restriction than speech that lacking political value.  Michael Kent Curtis’s history of popular conceptions of free speech (Free Speech, ‘The People’s Darling Privilege’ Struggles for Free Expression in American History) emphasizes that while freedom of speech was understood as protecting more than speech about politics, “the popular tradition emphasized free speech in relation to democracy, as well as free speech as an inherent human right.”  (pp. 18-19).

Still, it’s not clear to me why – if freedom of speech was understood to cover literature, art, and science as well as political speech – we should be locked into the Framers’ ranking of different kinds of speech any more than we are stuck with their ranking of different purposes for the possession and use of arms, if they codified only the right, and not their ranking, into the Constitution’s text.   Perhaps, it could be argued, it is because the right to freedom of speech was not “’a right inherited from our English ancestors,” Heller, 128 S. Ct at 2802, like the right to keep and bear arms, but rather a break with English political tradition on the subject, giving the Framers more leeway to define it as they wished.

There’s also a second possible reason for believing that political speech should retain a place at the top of a First Amendment hierarchy – which is that even if the Constitution has not placed it there, the court’s precedent has.    Justice Scalia emphasizes in Heller that “nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment.” Heller, 128 S. Ct at 2816.  By contrast, the Court has issued a number of decisions in which it suggests that speech on politics or matters of public concern is at the core of the First Amendment’s free speech protection, and sometimes receives protection that other speech does not.

I’m far from certain what I think about all this – and would be interested in all of your illuminating thoughts (or historical research).  I do think that there would be something odd about having a communitarian and civic republican First Amendment sitting above an individualistic Second Amendment in The Bill of Rights, but maybe the Constitution is a little unusual in this respect.  In any event, I highly recommend taking a look at The Codex Seraphinianus, when you get a chance, if the rules of your school or workplace permit it.

Note:  For some more thoughts on what Heller might tell us about First Amendment free speech, you might check out this post on The Legal Satyricon.

Posted by Marc Blitz on September 23, 2008 at 01:06 PM in First Amendment | Permalink


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