By: John Yoo & James C. Phillips – nationalreview.com – December 31, 2018
Earlier this year, the Defense Department limited the right of the transgendered to serve in the military. Three federal courts blocked the policy for infringing the constitutional rights of the transgender individuals. One of the judges relied on the same clause of the Constitution as the cake maker who refused to bake a wedding cake for a gay marriage. The Supreme Court has invoked that same clause to defend the right to burn the American flag, dance in the nude, and make unlimited campaign contributions.
What is this constitutional catch-all? The free-speech clause.
The Supreme Court’s current law of free speech will perplex the ordinary American. After all, changing sex, making a cake, burning the flag, dancing nude, and contributing money have little in common, least of all speech.
The imperialistic expansion of free speech would not just surprise most 21st-century Americans; it would also make little sense to the 18th-century Americans who ratified the First Amendment. They would find it astounding that the courts have not just read speech to include many forms of conduct, but also have failed to establish any objective test for what constitutes speech. The Supreme Court appears to apply the perpetually malleable standard that emerged when it has sought to identify obscenity: It knows it when it sees it.
When the Court agrees that something is speech, however, it gives it the highest of protections known to constitutional law. The Court allows government to restrict the time, place, and manner of speech, as long as the state does not discriminate based on its content or the speaker. But if government tries to regulate content or discriminate between speakers, it must demonstrate that the law is narrowly tailored to serve a compelling state interest. Observers once thought that this “strict scrutiny” test was “strict in theory, fatal in fact” because no law could survive it.
The Original Meaning
The Court’s failure to apply a consistent test for conduct-as-speech is not really the problem. Rather, the problem is that its First Amendment standards are judicial inventions. The Court’s definition of speech is unmoored from the Constitution’s text and original understanding, which should set the only lodestar for the Roberts Court, now up to full conservative strength with the addition of Justice Brett Kavanaugh.
The First Amendment declares that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This text protects four distinct rights: speech, press, assembly, and petition. Yet the Court has allowed free-speech imperialism to expand so far as to swallow up these other First Amendment rights.
Take the assembly clause. There are few cases where the Supreme Court has protected a right to assembly. Instead, the Court has replaced it with a judicially invented “freedom of association” that it somehow discovered in the constitutional language of “freedom of speech.” This is not only wrong as a matter of interpretive principle, but John Inazu has persuasively shown that the right of assembly was both broader and more concrete than the Court’s creation of a free-speech right of “association.”
For example, the Court’s freedom of association limits constitutional protection through adjectives: “expressive” or “intimate.” But there are no qualifiers in front of the Constitution’s prohibition on “abridging . . . the right of the people peaceably to assemble.” All types of assembly are protected, as long as they are peaceable. In fact, the Congress that passed the First Amendment rejected an attempt to add the limiting language “and consult for the common good” to the freedom of assembly.
Likewise, as Inazu has pointed out, by treating the right of assembly as derivative of the right to speak freely, the analysis turns on the what of a message rather than the who or the where of assembly. This enables government discrimination among groups so long as it is “reasonable” and a group’s message is not targeted.
According to the original meaning unearthed by Inazu, the right to assembly is also broader than free speech because it protects a group’s right to use public space for gatherings. The original right further protected the right to plan an assembly via perpetual associations that controlled the selection of their own leaders. Christian student groups would no longer have to accept a leader, as required by many colleges and universities, who does not agree with their religious beliefs. Thus, as Michael McConnell has argued, much “is lost when the courts reduce the freedom of groups to a freedom of speech and protect groups only from regulations that would impair their public messages.”
The freedoms of press and petition are stand-alone rights just as much as the right to assembly. If the free-speech clause were as broad as the Court now reads it, these rights would have been redundant. But, as Chief Justice John Marshall reminded us in the foundational McCullough v. Maryland, every word of the Constitution must have a meaning. Just as the Court has incorrectly expanded federal power under the commerce clause so as to make Congress’s other constitutional powers redundant, so too has the free-speech clause grown past its original confines to render irrelevant other constitutional provisions. To give meaning to the press, petition, and assembly clauses, we must restore a narrower scope of the free-speech clause’s original meaning.
The Framers believed that the freedom to speak, write, and publish were natural rights. The government could not regulate speech unless it directly injured others. But, as Jud Campbell has recently shown, this allowed the state to regulate speech that misled or directly harmed others, such as “libel, defamation, conspiracy, threats, profanity, blasphemy, perjury, sedition, and so forth.”
Nor did the Framers believe the right to free speech included “expressive conduct.” Thus, for instance, some Founders criticized theater bans not because they infringed speech, but rather because they infringed the natural right to spend one’s time and money as one pleased. In the mid-1790s, some argued that the raising of liberty poles was protected speech, but such views were the minority position.
Some scholars, such as Yale law professor Akhil Amar, take the even narrower view that the free-speech clause stemmed from traditional protections for the official speech and debate of legislators. Article II, section 6, clause 1 protects official speech in Congress: “and for any Speech or Debate in either House, they shall not be questioned in any other Place.” Thus, Amar argues, the First Amendment’s use of the word speech should also be understood as protecting only similar speech. Whatever James Madison and the other Framers’ intentions, however, the constitutional text protects just “speech,” rather than “political speech” or “legislative speech or debate.”
Ironically, while the Court has diverged from the First Amendment’s original meaning by watering down the definition of speech, the Court has determined that commercial speech deserves lesser protection. But again, the Constitution makes no distinction between types of speech. Speech is speech under the First Amendment, whether political, religious, commercial, ideological, academic, or other. The only way that commercial speech could receive less protection under the Constitution is, under the natural-rights framework, because it is more prone to certain harm than other types of speech, and thus can trigger government regulation. But that’s a correlation, not a categorical distinction — and must be determined case by case.
Given this original meaning, some of the Court’s canonical, if not controversial, free-speech decisions have wandered far beyond the Constitution’s text and history. Certainly the Court’s 1972 decision finding a constitutional right to nude dancing is wrong (California v. LaRue). Similarly, Texas v. Johnson, in which the Court concluded that flag burning is speech, is also probably wrong.
Restricting free speech to just that — speech — rather than conduct, cuts both ways. For example, liberals want sexual orientation to be speech. Conservatives want cake baking to be speech. Neither would have constituted speech at the time of the ratification of the Bill of Rights. The Constitution’s original meaning is not necessarily conservative or liberal.
Conservatives have arguably pushed an erroneous free-speech argument as to why limits on campaign contributions, such as those upheld in Buckley v. Valeo, violate the First Amendment. Adopted in Citizens United v. FEC, conservatives on the Court reasoned that financial contributions facilitate candidate speech; thus, limiting donations unconstitutionally limits speech.
We think the Founders might have disagreed that money equals speech. Money facilitates speech. So does a megaphone, or a personal computer. Nor does all money constitute speech; we do not speak when we buy an apple at the supermarket. Not all money given to candidates even goes towards electoral speech.
It would be different if a law banned spending money on speech directly by individuals or entities. Imagine a law making it illegal to buy billboard space or take out an ad in a newspaper. Such a law prohibits spending money to speak in a forum that one has to first pay to use. This would violate the free-speech clause.
Still, that doesn’t mean conservative arguments are wrong regarding the constitutionality of campaign-contribution laws. These arguments just look at the wrong part of the Constitution.
The first question one should always ask in constitutional analysis is: Under which enumerated power did Congress act? No doubt Congress claims its authority to regulate campaign contributions derived from its power to regulate “The Times, Places and Manner of holding Elections for Senators and Representatives.”
Notice, though, that Congress is not authorized to regulate campaigns, but the “times, places, and manner of holding elections.” As research on the framing suggests, regulating the manner of holding elections only included the actual running of the election, such as whether to have secret or voice voting, not the campaign leading up to the election. Citizens United may have reached the right result but taken the wrong path by neglecting to demand constitutional authority for the federal campaign laws.
What is more, there may be a free-press problem with the statute struck down in Citizens United. Today’s television, radio, and Internet ads are the equivalent of the pamphlets and handbills of 18th-century politics. It’s hard to believe that the founding generation would have understood the Constitution to tolerate a government ban on private ownership of printing presses, or the prevention of the use of money to buy them. Citizens United makes more sense under the original understanding of the First Amendment as a protection of the right to a free press than as a right to make unlimited campaign contributions.
The Court’s errant course will leave it at sea for the most important free-speech issues coming over the horizon. While past cases focused on whether cities could ban nude dancing or the government could stop flag burning, future cases will ask whether the First Amendment regulates the most important arenas for the communication of ideas today: universities and the Internet.
Traditional paradigms of free-speech cases involve the government pretextually using neutral laws to target unpopular views. But our future controversies will not fit that familiar form. Congressional hearings have already sought to determine whether Facebook, Google, and Twitter have suppressed speech by conservatives. Universities have attempted to prevent controversial conservatives from speaking on campus, punished conservative professors for their speech (including in the classroom), or generally suppressed conservative student groups’ attempt to communicate to the greater campus a message that does not stick to the views of the liberal orthodoxy. Corporate chieftains or university presidents will play the censors of the future.
Does this violate the free-speech clause? Under its original meaning, often not. The clause applies only to government actors, so it wouldn’t apply to private companies or private universities, just public ones. On the other hand, both the Internet and universities are intertwined with the government. The federal government created the Internet and provides important support for its operation, such as protecting Internet firms from liability and excessive state regulation. Many universities, similarly, received their founding land grants from the national government and continue to receive millions in federal research grants and scholarship monies.
UC Berkeley cannot restrict speech because of its content unless the speech causes physical injury to individuals or the public — a riot, not offended feelings. Harvard, by contrast, can suppress speech all it wants. But once Harvard accepts federal funds, under the condition that recipients not discriminate on the basis of ideology, it has placed itself under the same obligations to respect speech as public schools. While the Framers might not have understood the Constitution’s spending clause to include the massive educational-grant programs of our time, so long as colleges and universities accept the funds, they must accept the nondiscrimination conditions attached.
It would be a different world if the Court returned to the original meaning of the free-speech clause. Some “speech” would not be as protected. Other speech would be more protected. And other constitutional clauses could be restored to their original meaning and again have some reason for existing. That will be the mission of the Roberts Court, just as much for free speech as for other rights.
Editor’s Note: The following is the seventh in a series of articles in which Mr. Yoo and Mr. Phillips lay out a course of constitutional restoration, pointing out areas where the Supreme Court has driven the Constitution off its rails and the ways the current Court can put it back on track. The first entry is available here, the second here, the third here, the fourth here, the fifth here, and the sixth here.
To see this article and it’s links, click read more.