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The Constitutional Doctrines that Won't Change, Even If the Supreme Court Does


Friday, Nov. 26, 2004

This is Part One of a two-part series of columns on the lessons of the free speech experience. -- Ed.

If and when President Bush makes one, two, three or more appointments to the United States Supreme Court, how will constitutional doctrine change? From the point of view of most liberals, depending on their degree of pessimism, a lot of fundamental rights of liberty and equality are on the chopping block. Conservatives, conversely, welcome what they view as a retreat from the judicial activism of the past 40 years.

But are there any areas of constitutional law that are unlikely to see any serious doctrinal change, no matter how many Court appointments are made during the next four years? We are somewhat confident that there is at least one: Freedom of speech.

In order to explain why we believe this to be so, we need to raise a broader and more fundamental question: What factors make any constitutional doctrine permanent, or at least relatively stable, over time?

Much of American constitutional law has ebbed and flowed over time along with the varied cultural and political tides that have influenced our society - and our judges. But some doctrinal principles seem more insulated from retrenchment than others, even today - when change is in the air. Why is that so?

Political Constituencies Will Cut Back on Rights That Never Serve Their Interests

We suggest that a given constitutional doctrine moves toward stability and permanence when it is recognized as valuable by a broad and politically diverse constituency.

To see why, it's important first to note that the rights set forth in our Bill of Rights -- and the structural arrangements mandated by the rest of the Constitution -- impose burdens on third parties and/or the general public. In this sense, constitutional principles can be seen as expensive political goods that carry costs with them. Once these costs are analyzed, it becomes clear that freedom really isn't free.

Why would citizens readily accept the cost of a given constitutional constraint over the long haul, if that constraint has little utility for them right now in the cases the courts are adjudicating? The answer, we think, is that they perceive that the guarantee will work to their benefit in other circumstances and will provide them needed protection against government interference at least some of the time. So even if they are not benefiting with regard to a specific application of constitutional law they see today, they - or their children - may benefit from this guarantee on other occasions.

On this logic, a guarantee will be especially tenuous - and vulnerable to Court reconsideration - if it protects decisions or conduct of only particular political constituencies, and provides no foreseeable benefit to other parts of the polity. Such a guarantee may be short-lived, for when the political winds change and groups that have been out of office regain political power, those groups may well challenge that guarantee. Why wouldn't they? It requires them to incur normative or material losses for which they receive nothing in return - now, or in the foreseeable future.

An Illustration of A Stable Right: The First Amendment Example

Consider, in this vein, the Court's strong (and we suggest continuing) commitment to free speech doctrine. If we focus on the groups that have benefited from robust free speech protections, historically and today, we see that free speech rights have broad, diverse appeal - just as our theory would predict.

From the early 1900s through the 1980s, liberal individuals and groups were the ones who viewed freedom of speech as distinctively valuable. The roster of litigants in the major free speech cases during that period - that is, the people who were invoking the First Amendment's free speech clause to challenge state restrictions on expression -- comprised a veritable Who's Who of the left side of the political spectrum.

They included, for instance, socialists, anti-war activists, civil rights advocates, and avant-garde artists. Consider the speakers in the era's famous cases: Debs v. United States (socialist leader Eugene Debs), Dennis v. United States (Communist leaders), New York Times v. Sullivan (critics of southern racists), Thornhill v. Alabama (labor picketers), Cohen v. California (draft protester), Tinker v. Des Moines (critic of the Viet Nam war), United States v. O'Brien (draft-card burning protester), Texas v. Johnson (flag-burning protester) and Miller v. California (purveyor of alleged obscenity).

Granted, some free speech litigants- such as Jehovah's Witnesses - could not reasonably be described as left wing. Yet even they typically espoused dissident beliefs and opposed conventional manifestations of patriotism or other accepted ideals. For instance, in West Virginia State Board of Education v. Barnette, plaintiffs attacked mandatory recitation of the Pledge of Allegiance.

Moreover, a summary list of headline cases like these actually understates the utility of free speech doctrine to progressive groups. The Supreme Court, not to mention the lower federal courts, decided numerous other cases relating to the freedom of speech and association rights of unions, civil rights activists, and anti-war protesters -- more than could possibly be cited in any contemporary casebook or treatise (let alone here).

There are also exceptions that help to prove the rule, so to speak. Near v. Minnesota, the famous prior restraint case, protected an anti-Semitic publisher, and Brandenburg v. Ohio used the First Amendment to protect a Ku Klux Klan rally. But these counterexamples are memorable in part because they stick out. Overwhelmingly, leftist speech was the meat and potatoes of the free speech menu for the 60 years following World War I.

During this period, conservatives understandably came to view free speech protections and doctrines as unnecessary, unreasonably burdensome, and downright dangerous. Conservatives of this era thus generally supported the use of state power to restrict or punish speech that threatened established interests or traditional values.

Typically, the speech the government sought to suppress risked consequences conservatives wanted to avoid. In addition, a vigorously enforced free speech doctrine offered conservatives comparatively little in return; after all, they rarely found themselves invoking the free speech clause themselves. No wonder, then, that they tended to be content with free speech cases and doctrines that were relatively weak, providing little protection to speakers.

But during the last two decades, that constitutional calculus has changed dramatically. Beginning in the early 1980s, there are, we believe, at least five substantive areas in which free speech doctrine has proven to be of significant value to conservative interests.

Free Speech Doctrine Benefits Pro-Life Protesters

Consider, first, pro-life protesters - who may seek to engage in demonstrations and "sidewalk counseling" in front of clinics providing abortion services, and to picket in the residential neighborhoods of abortion providers. Especially since the 1980s, these pro-life advocates have argued their activities deserve free speech protection in a number of cases.

On example is Frisby v. Schultz, involving residential picketing. Another is Madsen v. Women's Health Center, in which protesters challenged a judicially created "buffer zone" around an abortion clinic, within which they could not operate. Whether challenging municipal regulations or court injunctions, pro-life protesters began to increasingly rely on free speech arguments.

Not all of these challenges have been successful, of course. But many liberal speakers in the 1920s through the 1950s lost their free speech cases, too. The key point is that abortion protesters have won enough victories (at least in part) in major free speech cases that they and their supporters recognize the value of free speech doctrine to their efforts.

Other Conservative Free Speech Victories: Hate Crime Challenges, and Religious Access

Free speech doctrine also has proven to be a useful tool for attacking the constitutionality of "hate crime" statutes, and many hate speech codes promulgated by colleges and universities. Consider a case such as R.A.V. v. St. Paul which struck down a statute punishing speech and symbols intended to arouse fear and anger in ethnic minorities as unconstitutional content-based discrimination. In this, and other cases, conservative groups have used the free speech clause to invalidate regulations that they believe impermissibly target conservative or reactionary speech and association.

In the last few decades, moreover, invocation of the free speech clause -- even more so than invocation of the free exercise clause -- has became the primary tactic used by religious groups seeking to gain access to public space and other public resources for religious expressive activities. Examples include cases like Widmar v. Vincent, which involved access to university facilities for meetings by a religious club, and Rosenberger v. University of Virginia, which involved access to university-mandated student fees to subsidize a religious student group's publications. In such cases, conservative religious groups have relied on the free speech clause's requirement of viewpoint-neutrality to invalidate discriminatory restrictions on their expressive activities - and have achieved considerable success in doing so.

Free Speech Has Also Benefited Exclusive Clubs and Corporate Commercial Interests

Private associations seeking to defend exclusionary membership requirements have also used freedom of association - a constitutional mandate derived from free speech guarantees -- as a shield to insulate their discriminatory decisions from the reach of civil rights laws.

For instance, in Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, the Court held that the free speech clause allowed organizers of the St. Patrick's Day parade in Boston to exclude a gay contingent from marching in the event. Similarly, in Boy Scouts of America v. Dale, the Court concluded that freedom of association gave the Boy Scouts immunity to discriminate against a gay scoutmaster -- despite a New Jersey statute purporting to outlaw such discrimination.

Finally, commercial speech - often involving advertising communicated to consumers by large corporate interests -- is now close to receiving the same level of protection provided to traditional expression. That means that businesses now enjoy both freedom from regulation of their own expressive activities, and immunity from being compelled to make contributions to someone else's speech.

In cases involving the tobacco industry and agribusiness, corporate interests have successfully invoked free speech principles in ways that would have seemed exotic a generation ago. And as this current Term's beef advertising case, Veneman v. Livestock Marketing Ass'n, illustrates, corporate America continues to invoke the free speech clause now that corporate interests have been awakened to understanding just how much protection the First Amendment may provide.

The Sum of Our History: Now Free Speech Has Broad-Reaching Appeal

These fives lines of authority and others (we do not suggest that our list is necessarily exhaustive), provide a lot of utility for conservative purposes. Indeed, they have proven so beneficial that conservatives now have a new and serious relationship with freedom of speech.

At the same time, freedom of speech has retained most of its liberal adherents. It's true that liberals may lament the Court's application of free speech doctrine in some of the above areas. But for the most part, they haven't forgotten America's earlier history - or its lesson. They remember that free speech is the "fella that brung them" to the political dance in the first place.

Liberal support for rigorously enforced free speech doctrine thus also remains strong. It is that combination of conservative and liberal support, we submit, which makes freedom of speech an enduring constitutional principle for the foreseeable future. In Part Two of this series, we will explore how the lessons of the free speech experience may soon be extended to another important line of constitutional decisions, those involving federalism.

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher. Alan Brownstein is a Professor of Law at UC-Davis School of Law.

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