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Thursday, September 30, 2010

Cross-ideological consensus on free speech?

Michael Dorf summarizes his interesting recent talk on the development of cross-ideological consensus for broad protection of free speech. Pointing to last term, he argues that while three cases (Holder, Citizens United, and CLS) divided along predictable ideological lines, there was broad consensus in favor of the free-speech claimant in two other cases (Stevens and Doe v. Reed).

Of course, an ideological cynic (and in June I was on a Supreme Court Review panel moderated by just such an ideological cynic) would say that there is no commitment to free speech, only to raw ideological outcomes, with free speech as a means to that end that the conservatives accept only in furtherance of favorable political goals. So the conservatives accepted the First Amendment claim in Stevens because the statute was broad enough to prohibit hunting videos--and the conservatives like hunting. But a narrower statute that would not reach hunting videos (which Congress is considering) would survive because the Court's "conservatives" would join Justice Alito (who dissented in Stevens), because they no longer have a political dog in the fight (sorry for the unfortunate pun). And they accepted the First Amendment claim in Doe v. Reed only because it was a narrow decision on a facial challenge; the proof will be when the conservatives accept the as-applied challenge by SSM opponents presenting purely anecdotal evidence of harassment by gay-rights supporters in another state in another ballot dispute. I don't buy this; but someone who wanted to latch on to the hard-core, overly simplistic "it's all politics" view could explain away most of what happened last term.

I agree that free speech should not have an ideological valence. There is commitment to speech principles that carry the day regardless of whose ideological ox benefits. But I am not sure how many people are left (especially on the Court) who are truly committed to free speech as a independent value. Dorf points to Texas v. Johnson as a high-water mark of an ideological mix on a sharply (5-4) divided Court. But really the only surprises there were Scalia and Stevens, who switched places from what was expected (see this post by Sonja West, a former Stevens clerk, on Stevens' Johnson dissent). The rest of the Court fell in more or less as one would expect by examining politics. And Kennedy is not surprising because he is, in my view, the most consistent free-speech supporter on the Court (along with Justice Thomas). Any way, only two members of the Johnson Court remain, so I am not sure how valid that case remains as an example of ideological consensus on speech or of genuine ideological mix-and-match in the coalition. A more recent example might be United States v. Playboy Enter. Group, where the Court struck down a requirement that cable channels showing sexually oriented material must block or scramble; that produced a majority of Kennedy, Stevens, Souter, Thomas, and Ginsburg and a dissent of Breyer, Rehnquist, O'Connor, and Scalia. But note again, only two justices departed from what we might "expect."

Owen Fiss twenty years ago described the "ideological drift" of the First Amendment. There are two sides to this. One, as Dorf notes, is that politically conservative groups "discovered" the benefits of the First Amendment for pushing their political interests--religious groups seeking access to the public square, corporations seeking to advertise, and people challenging "political-correctness" limits on expression. Not a problem there, for the most part, because anyone committed to general free-expression principles mostly would continue to protect speech in those cases. But the flip side was the political left abandoning pure free speech principles in favor of (or at least with some respect for) other constitutional values, especially equality and the rights of historically disadvantaged groups. Nothing illegitimate about that choice (although I have a different constitutional view). But it produces the divide on campaign finance and it produces the divide in abortion-protest cases such as Colorado v. Hill. On the other hand, the ideological conservatives on the Court have not shown any greater inclination than their predecessors to protect the rights of anti-war protesters to march without permits anywhere they want in New York during political conventions or to protect the rights of porno theatres or strip clubs to open where they want to in business area. So I am not sure where the divide takes us.

So what does this mean to the coming term's major First Amendment cases-- EMA (challenging regulations on violent video games as to minors) and Snyder (involving a civil judgment against the Westboro Baptist Church for their obnoxious protests)? Snyder strikes me as an easy case and I am guessing at a 9-0 affirmance that civil liability cannot attach; my ongoing hesitation is why the Court would take a case just to affirm 9-0. EMA is a tougher call. It depends on whether folks view violent speech as akin to sexually explicit speech, in which case the "conservatives" may reject the free-speech argument.

Posted by Howard Wasserman on September 30, 2010 at 03:57 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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I appreciate your flagging of Hill, as that case is perhaps the most blatantly political, results-oriented case from the Court's left, with the broader speech-limiting results you describe.

But I respectfully disagree with your implicit downplaying of the harm Hill causes as to abortion-related speech alone. You say that Hill, "if applied widely beyond abortion-clinic speech, would seriously cut into public expression." I submit that even if applied solely to abortion-related speech, it "seriously" cuts into public expression. Restricting debate about one of our most hotly-debated topics is, along, a seriously bad thing.

It is even worse in light of the structure of the abortion debate. A big part of the pro-choice side are those self-described as "personally opposed, but . . . ." That view says that legal restrictions are unjustified, but re-affirms that citizens may use soapboxes to dissuade their fellow citizens from exercising that right.

So when the soapboxing, too, is outlawed, then we have done a massive bait-n-switch, urging acceptance of the choice regime on the premise of the power of persuasion, but then removing the premise. Further, we can't be surprised when rhetoric seems increasingly shrill, as squeezing the debate out of shared, open space will of course have that effect.

The bottom line is that Hill itself is bad for free speech, and its effects in other areas just make it even worse.

Posted by: some skeptic | Oct 4, 2010 3:26:53 PM

Focusing the consensus on how the doctrine applies to other case across ideology is a good touch. But I question how accurately it describes what has happened. For example, Colorado v. Hill is irreconcilable with other doctrines involving public-forum speech and, if applied widely beyond abortion-clinic speech, would seriously cut into public expression on the street. Alternatively, to the extent Hill has been used (in lower courts) to cut into other types of (liberal) public speech, then the cross-ideological effects are actually negative from the standpoint of maximizing speech protection--a case that withholds protection from conservative speech has the effect of withholding protection from all speech.

Posted by: Howard Wasserman | Sep 30, 2010 9:20:29 PM

The winning coalitions in First Amendment cases definitely show a lot of ideological variance.

What really matters here is that the doctrine being applied in 5-4 or 6-3 "conservative" wins often spills over into 5-4 or 6-3 "liberal" wins. In, say, the 4th Amendment context, you definitely see different 5-justice coalitions vote to support the asserted right in different cases. But there's not much spill-over; a conservative can join the majority in a case like the infra-red scan case, but the result doesn't have any ramifications for, say, an exclusionary rule case. Conservatives might vote to find a due process right implicated by punitive damages, but that vote doesn't have any consequences for the next abortion case.

Free speech law has actually evolved some reasonably robust doctrines that apply across different ideological contexts in a meaningful way: most significantly, of course, the content-based analysis. That body of doctrine supports "conservative" results (hate speech) and "liberal" results (pornography). Wins in one ideological context carry over to others, giving first amendment doctrine a real cross-ideological substance that is almost unique in modern constitutional law.

Posted by: matth | Sep 30, 2010 6:31:39 PM

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