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Whither the First Amendment?

The free speech clause to the first amendment to the United States Constitution is a bit of a mystery. It holds that Congress shall make no law abridging the freedom of speech. That's it. No frills, no clarifications. Yet we know, if we are originalists about Constitutional meaning, that it can't actually mean free speech absolutism. We know this if for no other reason than that federal legislation against pornography was not considered unconstitutional until much later--at least not on First Amendment grounds. (Back when the 10th amendment was taken seriously, such legislation might have required some justification in that connection.) Even the court's upholding of the Sedition Act of 1918 is some evidence that, the farther back you go, the less likely it is that you will find free speech absolutism as the interpretation of the First Amendment. On the other hand, the fierce and very early controversy over the even more restrictive speech provisions of the Alien and Sedition Act in 1798 does provide evidence that the Founders did intend to protect political speech and criticism of government activities, just as one would naturally assume.

But by the early 21st century, extreme conclusions by SCOTUS about the First Amendment had become commonplace. In the Ashcroft decision (2002) SCOTUS even went so far as to conclude that child pornography could not be banned by content but only in virtue of its having actually been produced by the abuse of real minors. That this was anything like the intent (or for you textualists, the understanding) of the original First Amendment is ludicrous.

As things now stand, flag burning, strip dancing, and virtually all pornography are all treated as first-amendment-protected free speech. (Yes, I know about the "local values" supposed exception on obscenity. In practice, what it means is that the local strip joint and dirty book store threatened to sue my city for any attempt to get rid of it, and the most the city could do was to induce the business to move to a different neighborhood.)

The one silver lining to all of this extremism in the direction of protecting speech (and "speech") was that one would expect it also to protect the freedom to express truths and to refuse to express falsehoods, without government punishment. This was all the more the case because of SCOTUS rulings against government-compelled speech, such as the ruling as long ago as the 1940's that government schools could not compel Jehovah's Witnesses to salute the flag of the United States and the 1970's ruling that citizens of New Hampshire could not be required to have license plates displaying the political message "Live Free Or Die," the state motto.

The incorporation doctrine, dubious as it is on originalist grounds, also now plays its role in protecting the statement of truth. The states and state schools (including state universities) are all, by precedent, covered by SCOTUS rulings both against restriction of free speech and against compelling ideological or political speech.

Nor have these expansive First Amendment rulings always and only protected activities and opinions that leftists tend to like. In 1977 the Supreme Court ruled that the Nazis must be allowed to march in Skokie and display the swastika. And as recently as 2011, with only Justice Alito dissenting, the Supreme Court ruled in favor of Westboro Baptist Church and Fred Phelps, despite the fact that there was a quite reasonable case that Phelps & co. had committed a personal tort against Albert Snyder, which should not have been deemed constitutionally protected from an originalist perspective.

So right up into recent years there has been some hope that even the liberals on the court would continue to be relatively consistent with the history of sweeping First Amendment jurisprudence and apply it to ideas they disliked. Indeed, First Amendment jurisprudence is one area where categories like "liberal" and "conservative" tend to break down, as witness the difference of opinion between Alito and Scalia on the Westboro case, where Scalia joined his more liberal colleagues. Even the distinction between originalists and living constitutionalists does not always allow one to predict First Amendment rulings, as that same case shows and as can be seen by Scalia's rather surprisingly consistent rulings in favor of something nigh unto First Amendment absolutism, despite his originalism. (The Ashcroft child pornography ruling, from which he dissented, being one notable exception.)

Again, all of this could understandably give hope to conservatives now under siege from the forces of the homosexual and transgender lobby, who wish to use the force of government to coerce either the conservatives' silence (as to their true views) or their endorsement for preferred views.

But athwart this semi-sunny scene falls a shadow, no larger than a man's hand. In 2014 the Supreme Court refused to hear Elane Photography v. Willock, a case concerning Elaine Huguenin, who was punished by the state of New Mexico for refusing to do a photography shoot celebrating the commitment ceremony of two lesbians. All of the omens should have been good: By the incorporation doctrine, First Amendment jurisprudence applies to New Mexico. By the rulings against compelled speech, Huguenin should not be punishable by the state for refusing to use her talents to convey a message with which she disagreed. By the rulings giving a broad interpretation of the concept of "speech," so that it could apply to all manner of expressive actions, making a celebratory set of photographs should have counted as speech. Nonetheless, the Supreme Court simply left in place a New Mexico State Supreme Court ruling which held that, by entering the marketplace, photographers surrender as the "price of citizenship" their right not to be compelled to make such creations.

Legally, that is the ominous limbo in which we float today. And yet the left has not been idle. Since then we have seen a positive flurry of attacks on what would be, by previous precedents, First Amendment rights, including but not limited to...

--Civil rights commissions rulings and state court rulings against bakers and florists requiring them to participate in and make artistic creations for homosexual "weddings,"

--A similar requirement on calligraphy artists in Arizona,

--A bizarrely totalitarian accommodations law in New York City micromanaging pronoun use for "transgender" people in businesses,

--Similar attempted speech requirements on public college campuses,

--Public school rules requiring punishment for students who will not agree with their fellow students' "gender identification,"

--a blatantly unconstitutional California law requiring crisis pregnancy centers to tell women where they can obtain an abortion (similar laws in other venues have been struck down as unconstitutional),

--laws attempting to require churches (!) that hold allegedly "secular" events to monitor their speech so as not to offend possible homosexual or transgender people attending the event or making use of the service offered by the church (such as a daycare),

--a decision by the EEOC to investigate whether employers are required by law to prohibit employee speech in order to avoid a "hostile work environment" for protected groups.

The Supreme Court has not ruled on a single one of these cases. It's rather astonishing that, with all the baker-florist-candlestick-maker persecution going on, not a single case in the wedding business anti-Christian purge has made it to the Supreme Court. But in the case of Elane Photography, that's because they wouldn't hear the case. What will happen next is anyone's guess. Nor (cynic though I am) is it absolutely clear that all the Usual Suspects on the court would go the wrong way. Snyder v. Phelps included, in the majority, Sotomayer, Breyer, Kennedy, Ginsberg, and Kagan. But in that case, why wouldn't they hear Elane Photography?

The First Amendment hangs in the balance. By all the rules of stare decisis, these cases should be knock-down, and the above speech-compelling and speech-forbidding policies and laws should be struck down, but now they are up in the air. And I suppose if the justices in question are living constitutionalists, that isn't so surprising. "Do I contradict myself?" quoth the living constitutionalist. "Very well, then, I contradict myself. I am large. I contain multitudes."

Canadian professor Jordan Peterson refuses to use made-up pronouns such as "ze" for "trans people." He's even willing to call an obvious biological male "she" according to the "part" the person "appear[s] to be playing," but he draws the line at "alternative pronouns," and he isn't backing down. Professor Peterson has been warned by his (public) university that he could be in trouble under Ontario's "human rights code." I admire Peterson's bravery, but I have a sinking feeling he's going to be crushed by the leftist machine. Peterson should be so lucky as to live in the U.S. where at least he would have some precedents on his side, even if they are now under assault.

The moral I want to draw from this long, rambling disquisition is perhaps not the one my readers will expect, and it certainly isn't the only one I could draw. Nor is it a moral that everyone who reads this will agree with. But I think it's a worthy consideration nonetheless: When it comes to authoritarian control of ideological speech, be very careful what you wish for, conservatives. You might get it. Maybe those Founders were onto something, after all.

Comments (5)


Thanks for this well researched post. I was not aware of these cases.

You warn conservatives against "authoritarian control of ideological speech," and I agree with you as far as that goes. There's another danger for other types of conservatives in these cases. Conservatives like myself who tend toward a very strict originalist, state's rights interpretation of the Constitution have tended to argue that the First Amendment really shouldn't apply to states and localities, that the explicit language only applies to federal laws enacted by Congress. On this reading, we would defend the right of universities to enact restrictive speech codes if that's what those local authorities want to do, for example.

Perhaps you meant to include those sorts of conservatives in your "moral" and I am too dense to see it. If so, please correct me.

What the state's rights conservatives are trying to head off is federal intrusion into state and local matters, in the hope that liberty can be observed through federalism. But if the culture of states and locales is degenerating quickly, we may rue being so bullish on state's rights. In that case, the only option for Christians caught in the snare of PC state "civil rights" commissions would be to engage in civil disobedience. There's no remedy at the Supreme Court, based on our principles.

We've seen liberals turn to state's rights reasoning selectively when it suits their purposes. See the Terri Schiavo case. In other circumstances, state's rights is condemned as racism. But that's because liberals are political opportunists without principles. They don't fight fair.

I'm curious as to whether you agree with the assessment that a state's rights interpretation is a tactical mistake (for conservatives), or whether you think the state's rights interpretation holds any water regardless, i.e. do you hold the view that the 14th Amendment substantively "changed" what the First Amendment really means?

Ben, what you're asking about there is the incorporation doctrine. Strictly speaking, the incorporation doctrine wouldn't be that the 14th amendment changed the meaning of the 1st amendment but rather that the 14th amendment *meant* that (inter alia) the 1st amendment applied to the states.

My final moral was not directed so much at strict originalists who reject the incorporation doctrine, if that's their _only_ argument, as at those who really _want_ to regulate political and religious speech at some level or other in favor of their preferred positions (and perhaps my preferred positions as well). Whether or not someone who takes that position _also_ rejects the incorporation doctrine or _also_ affirms federalism or subsidiarity, the ultimate goal in such a case is a venue at some level (and presumably a lot of such venues, if enough people agreed with this perspective) where you could be punished for trying to convert people to a false religion, for stating falsehoods about church history, for advocating false political doctrines, etc., etc.

In your own case, what I gather from your comments is that you would actually prefer that the lower levels also have a great degree of freedom of speech, and I would point out here that I believe every state in the union has a mirror clause to the first amendment in its state constitution, which would presumably also apply to state universities, which makes the issue somewhat moot. It's not as though New Hampshire's state constitution says, "Hey, because we're a real lefty state, we do _not_ protect freedom of speech from you damned conservatives." Arguably, all of the laws I highlight are contrary to their relevant state constitutions as well as to the federal constitution. The only thing one might say is that there simply haven't been as many _rulings_ at each state level, so there aren't as many precedents specific *to each state* creating a body of jurisprudence for interpreting that *specific state's* first amendment mirror clause.

My own opinion is that the incorporation doctrine is somewhat dubious from the perspective of what was intended by (or understood by) the writers of the 14th amendment and their original audience. I haven't done extensive research on this, though, and might be convinced otherwise. As you probably know, the incorporation doctrine applies only to the Bill of Rights. However, my practical approach to the incorporation doctrine is very similar to my practical approach to non-discrimination laws: *Given* that this is in place, the *worst possible outcome* would be the selective enforcement of it. For example, for non-discrimination laws, the "worst of both worlds" is that employers are permitted blatantly to ignore non-discrimination laws concerning religion and discriminate against Christians, while simultaneously they are scrupulously forced not to discriminate on the basis of "sexual orientation," or not to discriminate against atheists and other religions, and so forth. Therefore, lawyers who fight for their clients in court on the basis of existing non-discrimination law are, in my opinion, doing right, even though with my semi-libertarian sympathies I doubt the wisdom of employment non-discrimination law overall. Similarly for the incorporation doctrine: The *worst of both worlds* would be a situation where the high court applies the incorporation doctrine rigorously to strike down state laws against pornography or go-go dancing or to strike down prayer in schools or the teaching of intelligent design, etc., etc., as "unconstitutional" but suddenly turns a blind eye to blatant cases where the states, state schools, etc., are violating the 1st amendment rights of their citizens, assuming the incorporation doctrine. Therefore, I think that lawyers who assume the incorporation doctrine in their briefs and arguments and vigorously defend their clients, including appealing to SCOTUS, are doing right in the given legal context in which we find ourselves, including the precedent context.

The incorporation doctrine, dubious as it is on originalist grounds, also now plays its role in protecting the statement of truth. The states and state schools (including state universities) are all, by precedent, covered by SCOTUS rulings both against restriction of free speech and against compelling ideological or political speech.

Yeah, but that assumes that the Court remains more or less "true to itself" in upholding its own stated concepts and theories about freedom of speech. But (as Ben points out) quite a few liberals, including ones on the Supreme Court, are well capable of convincing themselves that a certain amount of pliability and flexibility about precedent is better than a rigid adherence to precedent, when the issue is right. (Some conservatives do it too. But the squishy soft-headedness that it entails is more attuned to the liberal mind-set.)

*Given* that this is in place, the *worst possible outcome* would be the selective enforcement of it. For example, for non-discrimination laws, the "worst of both worlds" is that employers are permitted blatantly to ignore non-discrimination laws concerning religion and discriminate against Christians, while simultaneously they are scrupulously forced not to discriminate on the basis of "sexual orientation," or not to discriminate against atheists and other religions, and so forth.

True enough. Having to submit to this use of the 1st Amendment when it protects forces of evil, and then not to be able to use it defend ourselves, is a gravely nasty condition. However, if we were to hypothesize some eventual turn-around in the law and jurisprudence in these waters, so that with either an amendment, or laws, or court doctrine changed and the courts were in a position to not protect pornography under the 1st amendment and like things, without necessarily saying that this meant giving up protections for conservative values, would we still want to hold on to the notion that "the first amendment protects EVERYTHING"? Would it be imprudent to introduce a new doctrine of 1st amendment rights that puts things like pornography in its proper place, if we cannot be completely certain the new doctrine could be used to attack our own positions? (How could you ever be certain any new doctrine "cannot be used against us"?)

And to push that a little further: if we ever DO get enough power to initiate at least some changes in the picture, would that too be "too dangerous to try" if we couldn't foresee fixing all sides at once? I.E. do we risk never making a change for a better state of affairs if incremental change is deemed too risky, that it _might_ get us the worst of both worlds?

Off-topic: new entry at Miller case.org. Ken describes "Diesel therapy". Being transported in shackles "8 moves and 7 institutions in 47 days,"

Man, the one day I don't check the site, they posted an update! And here's a giving web site for Timo Miller.


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