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Sunday, June 29, 2014

Principles and political preferences in the First Amendment

Implicit in these comments is the suggestion that conservatives on SCOTUS are using the First Amendment as a "weapon" to further the conservative political agenda, a "trojan horse" swallowing every other right we cherish. Thus, supposedly speech-protective decisions such as McCullen, McCutcheon, and, everyone assumes, Quinn are wrong, if not illegitimate.

Some of the cricitism is fair, particularly as to Justice Alito, who is highly selective as to the free speech interests he votes in favor of and when. Emily Bazelon correctly points out the striking difference between how solicitous Alito was for the emotional fragility of funeral-goers faced with unwanted offensive speech in his dissent in Snyder v. Phelps, which did not carry over to women seeking access to reproductive health care. But this has always been true of Alito on many issues. During his confirmation hearings, he spoke at length about the difficulties his Italian-immigrant family suffered, although he has rarely voted in the direction of ethnic minorities dealing with, for example, voter suppression. On the other hand, the criticism is less warranted as to Justice Kennedy and, it increasingly appears, the Chief.

In any event, does that inconsistency mean the decisions are wrong? In the case of McCullen and, to hit the big one, Citizens United, I (and at least a few other people) would say no, as a matter of First Amendment principle. Alternatively, can we hurl the same inconsistency criticism at these critics, who are "breaking up" with the First Amendment because it now is being used to protect speakers and interests that they don't like? Alito is striking a balance among "cherished" rights, just as these critics are. But Sam Alito strikes the balance differently than Emily Bazelon or Dahlia Lithwick. Fair enough. But neither should be deemed more legitimate than the other.

Posted by Howard Wasserman on June 29, 2014 at 05:15 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink


"But Sam Alito strikes the balance differently than Emily Bazelon or Dahlia Lithwick. Fair enough. But neither should be deemed more legitimate than the other."

No; your post actually contradicts that.

Posted by: Barry | Jul 1, 2014 5:59:18 PM

Thanks Howard for calling my attention to these article and the mention by Emily Bazelon! I hadn't seen it. As the author of "Brandishing the First Amendment" I am certainly one of those who has been saying that the First Amendment is being used as a weapon. And I would say that rather than identifying it as a weapon used by conservatives, I would say it would be more accurate to say it is being used that way by business. Still, the litigation on behalf of business tends to be furthering a conservative agenda, although not always. And one of the curiosities of the robust First Amendment protection for corporations and commercial speech, which is, as you know, relatively new, being a product of the late 70s, is that it was Chief Justice Rehnquist, no liberal, who objected to both the extension of First Amendment protection Ito corporations in the political arena in Bellotti and to truthful commercial speech in Virginia Pharmacy.

The idea that the left has abandoned its principles in objecting to this expansion of the First Amendment is perhaps plausible with respect to some of its most ardent supporters (although I would say that probably many of them had no idea that commercial speech would ever be a "thing" in the way it is today; and proof of that is that Thomas Emerson barely touched commercial or corporate speech in his "General Theory", so they can be forgiven for not for seeing where their position might lead). But there are many First Amendment scholars -- Steve Shiffrin, the late Ed Baker, Jack Balkin and Fred Schauer, in addition to Robert Post, to name just a few of the most well known, who don't appear to have ever subscribed to either First Amednment absolutism or the idea that it trumps all other interests.

I think the tricky thing is that "speech" is so protean. Everything is potentially expressive activity. But the record seems fairly straight forward that in Virginia Pharmacy all the justices thought they were creating something that didn't previously exist - First Amendment protection for ordinary commercial promotion, albeit only for truthful commercial promotion. But where did that leave commercial promotion that didn't offer a truth proposition? False and misleading commercial speech was not protected, something that after Sullivan could NOT be said of ordinary First Amednment speech. It was a sort of limbo. Yet now, according to Justice Kennedy, a statute that singles out marketing for different treatment is not just ordinary, run-of-the-mill regulation of commerce subject to rational basis scrutiny, but an example of content discrimination that warrants "heightened scrunity". (This is quite apart from how the sale of data is speech, which many are not convinced of.) Nobody knows if "heightened" is the same as "intermediate" scrutiny, although the Court may have suggested it was since it referenced Central Hudson. But given that it DID mention CH, if it "heightened" = "intermediate" why didn't it just say that? Since these are terms of art in law, it seems unlikely that it was an accident and looks more like the Court wanted to introduce an additional layer with "heightened" higher than "intermediate" but lower than "strict."

Given that all these terms, put it most charitably, lack a certain amount of precision, it seems unhelpful to add more layers....unless you want to avoid introducing into the commercial speech doctrine a strict scrutiny standard of review. That is unworkable as a matter of regulating commercial speech, or rather it is very workable, but the way it works is that almost nothing survives. And given that the Court has in Alvarez suggested that its prior declarations that there was no First Amendment value in false speech were dicta and that even false speech might be protected, we face the truly alarming prospect of a First Amendment defense to false advertising.

Fortunately, the POM Wonderful case suggests that the Court is not willing to go that far; but how it will thread this needle and justify why not will have wait I guess for a case that presents that question more squarely.

In the meantime I am, like everyone else, really curious about how the Court will resolve the HL dilemma. Carving out a special niche for certain types of corporations, closely-held, etc. as CJR's questions suggested, would then beg the question of what is so wrong about distinguishing between for-profit and not-for-profit corporations, or between types of corporations based in their business - say media from other corporations? The notion that this is an obviously illegitimate form of speaker discrimination, not to say an equal protection violation, has been lurking implicitly or explicitly in many of the arguments in favor of commercial speech. So the Court may not want to go there.

On the other hand, a broad win for corporations here, without regard to size or status as closely-held or publicly traded might be a nightmare and may be one of the reasons that, as my friend Garrett Epps has noted, that the Chamber of Commerce and the usual suspects from the business lobby have been (mostly) notably silent on this one. It is a dilemma if the Court wants to rule in favor of HL, which I think most of us think that at least its conservative members do. But the only way out of the problem I describe is to rule against them.

I am not putting any money on that outcome though because I don't think the Court has exhibited much hesitation to contradict itself, some times even within the space of a few years, and to let apparently wildly conflicting precedents co-exist and go unresolved (I am thinking here of civil forfeiture decisions in the 90s)

I am speculating that in Hobby Lobby we are seeing a crack in the otherwise mostly united front we have seen between the pro-business conservatives and the social conservatives. They have both embraced the idea of vigorous protection for corporate and commercial speech as self-evidently correct without apparently losing much sleep over Rehnquist's objections. But a development like Hobby Lobby may illustrate its dangers.

If you live in Oklahoma as I do, and if you are conservative, as I am not but the Greens are, I think it is easy to live in a little bubble and imagine that most of the rest of the world shares your views, so that linking your political views to your products is not only not dangerous, it is a good marketing strategy. But if you operate on a larger playing field like Target or Wal-Mart, you can't afford to alienate potential customers. And the social conservatives' agenda, especially on matters like contraception and gay marriage, doesn't play well on the national stage. Whatever the Court does it will be interesting.

Posted by: Tamara Piety | Jun 29, 2014 8:44:57 PM

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