First Amendment Rules and Standards

My contribution to the con law professor roundtable I blogged about here consisted of a short piece that considered Citizens United, US v. Stevens and Humanitarian Law Project v. Holder from the perspective of rules and standards in First Amendment doctrine.  They're interesting cases to compare -- especially the first and the third, although Stevens' discussion of the Chaplinsky categories of unprotected speech is relevant as well, in addition to being important in its own right.

As the entire world knows by now, in Citizens United Justice Kennedy took a strong, rule-based approach to the First Amendment, in the form of his presumptive rules against identity-based speech discrimination and content-based speech restrictions.  At least somewhat analogously, in HLP Chief Justice Roberts purported to apply "more demanding scrutiny" to the suppression of the expression in that case (i.e., more demanding than the scrutiny in US v. O'Brien).  Nevertheless, he ended up largely deferring to Congress's judgments about the extent to which aid to terrorist groups is fungible -- even if takes the form, as it did in HLP, of speech assisting such groups' attempts at peaceful dispute resolution.  Finally, in Stevens, the Court, again speaking through Roberts, described the Chaplinsky categories not as resulting from the Court's ad hoc balancing of the benefits and costs of types of speech (such as obscenity) but as describing a historical consensus that such types of speech were outside of the First Amendment's protections (presumably because someone earlier -- the Framers, American society in 1791 -- engaged in that balancing).

An interesting point about these cases -- among a lot of others -- is HLP's seeming inconsistency with the Citizens United and (to a lesser degree, Stevens), and what that inconsistency suggests about the constraining effect of rigid rules in the First Amendment context.  The classic exposition of the justification for such rigid rules in the First Amendment is Justice Souter's statement that rigid rules "keep the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said."  My reading of these cases -- in particular, HLP -- makes me wonder about whether that dynamic really works.  I'm not necessarily disagreeing with the result in HLP.  But I do wonder how its deference to Congress can be squared with the "more demanding scrutiny" that the Court applies to what it describes as a "content-based regulation of speech." 

Of course, the restriction in HLP falls in an intermediate zone between statutes that restrict speech only as a collateral matter and those that are aimed directly at content.  It doesn't ban all speech of the sort the speakers wanted to make, just speech made in association with the particular groups.  And it does so as part of a statute that bans providing assistance, not a statute that singles out speech.  And there was a compelling government interest at stake.  But these features of the law push it in the direction of the speech restriction at issue in Citizens United.  And we know how stringently the Court reviewed that restriction.

Still, national security is a big deal -- more precisely, it's a big, difficult, deal, one that presents difficult empirical and policy questions for a court that doesn't have access to the information Congress has.   It's a difficult question what courts should do when confronted with a speech claim that runs into a federal regulation based on this sort of interest.  But having said that, I wonder whether anything is gained by a court pretending to do some form of heightened scrutiny when it more or less just defers to Congress on these issues?  And, moving beyond the case itself, how much credibility does it then have when it confidently intones the rigid rules in Citizens United and Stevens?  Indeed, in Citizens United Justice Kennedy notes his own view that content-based restrictions on political speech should be simply per se unconstitutional, rather than subject to strict scrutiny, before applying the strict scrutiny standard on behalf of the Court.  Yet he joins HLP.  It's more than odd.  It's enough to make one despair of the Court acting in a principled way when the stakes are high.  Kind of like that case about ten years ago or so.

A really nice facet of this issue is the position of Justice Stevens.  Again, as all the world knows, he wrote the dissent in Citizens United, which was a full-throated attack on the idea of rigid First Amendment standards.  (Remember the "not even close" statement he makes when considering the majority's argument that the First Amendment doesn't allow identity-based distinctions with regard to speech.)  And in HLP?  He joins ... the majority, leaving the liberal bloc, on what I think was the last major decision he participated in.  It's a telling way for him to leave the Court: reminding us, by his votes, that rigid standards don't do the job, at least when the issues are as difficult as they are in these cases.