The First Amendment as a Wall: A Pragmatic View

by Matthew L. Schafer

Harry Wellington, the late Dean of Yale Law School, once hedged one of his articles on the First Amendment by writing, “Those to whom nothing which I am about to say will be new may I hope, excuse me, if on a subject which for now three centuries has been so often discussed, I venture on one discussion more.”

That was over thirty years ago.  If authors had spilled too much ink as of 1979, they have most surely spilled too much as of 2012.  Indeed, First Amendment law remains a topic of interest in and outside academia.

What if that ink was wiped clean though?  How would the First Amendment’s admonition that “Congress shall make no law . . . abridging the freedom of speech” be interpreted?  That’s what this article examines.  It reviews and discards popular First Amendment theory, argues that all speech should be treated equal, and advocates for a Free Speech Clause defined by independence from government interference.

An Eye toward a Uniform First Amendment Doctrine

In academia, the majority of pages devoted to the First Amendment are dedicated to searching for a general theory of the First Amendment.  This quest has been undertaken largely in vain.

Certainly, this literature has not distilled a general theory of the First Amendment.  Instead, First Amendment theory is largely splintered into three or four “good ideas” that seem to explain why some speech is protected and why other speech is not protected.

If authors had spilled too much ink as of 1979, they have most surely spilled too much as of 2012.  Indeed, First Amendment law remains a topic of interest in and outside academia.

First, advocates and academics often invoke the self-realization or liberty theory.  This theory suggests that speech is valuable in and of itself, because it leads to “self-fulfillment and participation in change.”  Professor Baker, the main proponent of this view, said, “The method for determining the scope of protection proceeds, first, by determining the purposes or values [i.e., self-fulfillment] served by protected speech.”  Therefore, only speech related to self-fulfillment is protected.

Because Professor Baker’s theory focuses on personal self-realization through speech as a value, it does not protect corporate, commercial speech.  That speech, unlike the speech of individuals, is not intended to lead to self-realization through “value choice[s],” but to respond to market pressures in order to increase profits, and was thus left unprotected.  For the same reason, Baker’s liberty theory does not extend to commercial journalism outlets, like the New York Times.

Others advocate a marketplace of ideas theory, which is based on the idea that truth will win out in against falsehood or at the very least put up a good fight.  This theory borrows from the laissez faire view of the market economy where the government takes a hands off approach to regulating the market.

Justice Holmes famously transplanted the marketplace of ideas theory into American jurisprudence in the early half of the Twentieth Century:

[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.

The marketplace of ideas theory presumably does not cover – at least not convincingly – speech that is never injected into the marketplace, false speech, or purely expressive speech like art.  As one scholar quipped, “[I]f we were concerned about actually increasing knowledge and exposing error, it is far from clear that we would so easily protect both communication that is largely emotive and communication that is demonstrably factually false.”

The self-governance theory is generally accepted as well.  Alexander Meiklejohn described the theory in great detail in a seminal piece, arguing, “[The First Amendment] is a device for the sharing of whatever truth has been won.  Its purpose is to give to every voting member of the body politic the fullest possible participation in the understanding of those problems which the citizens of a self-governing society must deal.”

This theory, however, has its own problems as well.  If invoked without reference to any other theory, it would protect only political speech relating to self-governance.  This itself raises question.  How should political speech contributing to self-governance be defined on the margins?  Do protestors at a fallen soldier’s funeral contribute to self-governance?  Does vitriolic, white supremacist speech contribute to self-governance?

Finally, Professor Blasi, in the late 1970s, offered a refined, narrower version of the self-governance theory intended to adapt to the social and political context of modern America by arguing that a professional, institutional press is the only way to counterbalance the growing administrative state.  This theory views the press as a fourth estate, where the press is meant to investigate “the particular problem of misconduct by government officials.”

Blasi’s theory suffers from the same definitional problem as Meiklejohn’s, but to a lesser degree.  The checking value would only apply to that speech targeted at government malfeasance, which could still be difficult to define, but perhaps less so than political speech, because it government malfeasance is not as elastic as political speech generally.

When All Speech Is Not Created Equal

While each of these theories alone is attractive to some degree, they each obviously have their own set backs, because each defines protected speech in relation to the goal of the underlying theory or the underlying values of each theory – whether that value be: self-realization, the search for truth, self-governance, or the press and public as a watchdog.

Under the self-government theory, for example, political speech is central to the meaning of the First Amendment.  Under the checking value, speech relating to government misfits is placed on the highest pedestal of protection.  As to the marketplace of ideas theory, private speech – speech that a speaker never intends to enter the marketplace – should also receive less protection, nor would it protect coercive speech that would impede the work of the speech market’s invisible hand.

In general then, these theories all view some speech – implicitly or explicitly – as more deserving of protection than other speech.  Speech that serves the underlying purpose of each theory is protected almost absolutely, but speech that only tangentially advances the underlying purpose is – or, at least, logically – should be protected to a lesser degree, if at all.

While focusing the First Amendment’s protections on specific categories of “important” speech is not a radical idea, it may be the wrong place to start and it may create difficulties of defining the outer boundaries of categories of speech that are more important than others.

While focusing the First Amendment’s protections on specific categories of “important” speech is not a radical idea, it may be the wrong place to start and it may create difficulties of defining the outer boundaries of categories of speech that are more important than others.  Indeed, it is near impossible to define what speech each theory is meant to protect and to what degree.  Some of the Supreme Court’s jurisprudence shows just how difficult it is to stake out the outer boundaries of categories of speech.

In the field of unprotected obscenity, for example, the Court has never been able to nail down what kind of speech is obscene (and, therefore, underserving of protection) and what speech is sexual, but not obscene (and, thus, deserving of protection).  Is showing intercourse obscene, but foreplay not?  Is speech that could be considered obscene in one community only explicit in another?  There are no good answers.

“[N]ot even the most learned judge much less a layman, is capable of knowing in advance of an ultimate decision in his particular case by this Court whether certain material comes within the area of ‘obscenity’ as that term is confused by the Court today,” Justice Black once wrote.

More famously, Justice Stewart once defined obscenity in a horribly unhelpful, idiosyncratic way: “I know it when I see it.”

Similarly, courts are increasingly unwilling to label speech “fighting words,” an unprotected category of speech, even if the speech could arguably fall within a broad reading of “fighting words.”  As one commentator has recently noted, “[T]he category of fighting words has rarely been litigated and the Court has never upheld a subsequent conviction under the fighting words theory, even when presented with strikingly similar facts.”

Arguably, this definitional problem has led the Court to overprotect speech that perhaps should be denied First Amendment protection under the Court’s current jurisprudence.  There is certainly some evidence that this conservative error may be caused by the Court’s uncertainty as to its ability to define categories of speech.

When All Speech Is Created Equal

What if different categories of speech were not protected in relation to whether they advance a theory’s underlying principle and were instead protected simply because all categories of speech are speech?  What if all speech was presumed to be equal?  What if all speech was presumed to be protected by the First Amendment?

At first blush, protecting all speech equally at the outset makes sense, because the First Amendment itself does not distinguish between different types of speech.  It does not say that “Congress shall make no law . . . abridging freedom of political speech.”  Nor does it say “Congress shall make no law . . . abridging freedom of sexual speech.”  Nor does it say, “Congress shall make no law . . . abridging freedom of commercial speech.”  It touches on “speech” generally.

To be completely honest, there is very limited support in the Supreme Court’s First Amendment jurisprudence for the conclusion that all speech should be treated equally.  One scholar, for example, has explained, “It is surprisingly clear that all forms of speech are not created equal.”

He is largely right.  As alluded to above, (since the Supreme Court’s decision in Chaplinsky v. New Hampshire,) the Court has adopted the idea that some forms of speech are less important than others – and, therefore, deserve a lesser amount of protection:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.  These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Setting aside the Chaplinksy categories of speech, the Supreme Court has even recognized that types of speech that are not foreclosed from protection under Chaplinksy may be more or less important than other types of speech that also are not foreclosed from protection.  Currently then, some categories of speech are not protected by the First Amendment at all and some other categories of speech only merit some First Amendment protection.

For example, the Court has noted time and again that political speech is more important than other types of protected speech.  On the other hand, the Court has held that commercial speech is not as deserving of protection as other types of speech.

These precedents are not a reason to abandon altogether the suggestion that all speech is equal and, therefore, deserving of the same amount of protection.  The point urged here is not that the legal status quo supports the idea that all speech is equal, but rather that in spite of the status quo all speech should be presumed equal.

If some precedential support is required though, there are glimmers that the Court has questioned its discriminatory approach to certain types of speech.  Indeed, while the Court has traditionally placed political speech at the center of the First Amendment, it has nonetheless acknowledged that such speech is not the only type of speech that may lie at the center of the Amendment.

[T]here are glimmers that the Court has questioned its discriminatory approach to certain types of speech.

In a case regarding whether pharmacists could be prohibited from advertising the price of drugs, the Supreme Court confessed, “[T]he particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.”

The Court has also rejected the idea that the gravamen of the political controversy should determine the amount of protection that it receives.  In a case discussing the broadcasting of an illegally intercepted phone call discussing a school board, the Court wrote, “[The] debate [over teachers’ salaries] may be more mundane than the Communist rhetoric that inspired Justice Brandeis’ classic opinion in Whitney v. California, . . . but it is no less worthy of constitutional protection.”

In yet another context, the Court has explained that “[a]ll ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.”

As the Second Circuit succinctly summed up, “Even dry information, devoid of advocacy, political relevance, or artistic expression, has been accorded First Amendment protection.”

The First Amendment as a Wall around Speech: Toward an Independence View

Even if the idea of presuming that all speech is protected by the First Amendment, it is still necessary to lay down a general principle that dictates how far that protection extends.  Indeed, presumptively protecting all speech does not mean that all speech must always be protected.

This must be the case, because a completely hands-off approach is simply unsupportable.  Indeed, numerous scholars have roundly rejected the idea that “make no law” actually means “make no law.”  Robert Bork, famous for his “ink blot” comment in his failed confirmation hearing to be a justice on the Supreme Court, once grumbled, “Any [absolutist] reading is, of course, impossible.”

In addition to academics, the Supreme Court has also rejected an absolutist view of the First Amendment.  As Justice Blackmun noted in the Pentagon Papers Case, where an angry Nixon administration attempted to prevent the New York Times and the Washington Post from printing a report on Vietnam, “First Amendment absolutism has never commanded a majority of this Court.”

In the absence of an absolutist view or an existing First Amendment theory, how should the First Amendment’s scope of protection be defined?  Ironically, the answer can be found in the theories just rejected.  The answer is the common denominator of each theory: independence from government.

If the government could restrain the press from publishing, for example, a watchdog press under Blasi’s checking value or under the self-governance theory could not hold government officials accountable.  If the government corrupted the marketplace of ideas, the truth-seeking function of the market could not operate effectively.  If the government was able to dictate what was morally objectionable and what was not, individuals under the liberty model could not gain self-realization.

To be clear, independence is not the purpose of each theory, but rather a necessary preterit for each to work.  This observation should be unsurprising, as the First Amendment specifically contemplates that government shall make no law abridging the freedom of speech.  As far as speech goes then, the government must, in modern parlance, stay off the free speech lawn.

Under this [independence] view, freedom of speech under the First Amendment simply means  that the right to speak should be independent from any governmental action.

The guiding principle – the same one underlying all of the widely accepted First Amendment theories – should be the guiding First Amendment principle and to avoid the definitional problems of traditional First Amendment theory, it should be untethered from the value based purposes of those theories. Once untethered, under this view, freedom of speech simply means that the right to speak should be independent from any government interference.

Because this view of the First Amendment’s protections is a content neutral one, the protections justified by this view and the extent of those protections must also be content neutral.  Luckily, several Justices, in other circumstances, have already explained how such content neutral protection would operate as a guide in the real world.

In Employment Division v. Smith, a religious freedom case, Justice O’Connor wrote an opinion concurring in judgment, which was joined by Justices Brennan, Marshall, and Blackmun (in part).  The issue there was whether two men could constitutionally be denied unemployment benefits on the basis that they smoked peyote – an act that was a violation of the law, but required by their religious beliefs.

Justice O’Connor began by explaining that “the ‘free exercise’ of religion often, if not invariably, requires the performance of (or abstention from) certain acts.”  These Justices were unwilling to distinguish between different types of religious speech and conduct.  And, they were unwilling to distinguish between different types of religions so long as each was “sincere.”  Thus, because both the belief and conduct at issue in Smith were sincere, these Justice thought that the act of smoking peyote must be presumed to be protected.

Presuming the religious act at issue was protected, Justice O’Connor nevertheless acknowledged, as it has been acknowledged here, that the First Amendment’s protections in the case were not absolute.  Instead, Justice O’Connor would have determined whether the government’s actions in denying unemployment benefits were constitutional “by requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.”  As Justice O’Connor explained:

The compelling interest test effectuates the First Amendment’s command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling government interests “of the highest order.”

Thus, once a citizen shows that their First Amendment rights, like the right to freedom of speech, are interfered with by the government – in violation of the independence principle – the government should show that such interference is justified by a compelling government interest and that the interference is the minimal amount necessary to advance the interest.

Simply, this test “reflects the First Amendment’s mandate of preserving religious liberty to the fullest extent possible in a pluralistic society.”

Essentially, under this approach, if transplanted into the First Amendment context, courts should consider the government’s interest and the means the government uses to achieve those interests, while at the same time seeking to protect all speech “to the fullest extent possible.”

Essentially, under this approach, if transplanted into the First Amendment context, courts should consider the government’s interest and the means the government uses to achieve those interests, while at the same time seeking to protect all speech “to the fullest extent possible.”

Notably, consistent with the independence view of the First Amendment, this approach would not, at all, take into consideration the value of speech or the type of speech – just as in the religion context, it does not depend on the value of the activity or the kind of religion at issue.

As Justice O’Connor explained in Smith, “Respondents also note that the sacramental use of peyote is central to the tenets of the Native American Church, but I agree with the Court that because ‘it is not within the judicial ken to question the centrality of particular beliefs or practices to a faith,’ our determination of the constitutionality of [the law here] cannot, and should not, turn on the centrality of the particular religious practice at issue.”

In sum, under the independence view, all speech would be created equal and presumptively protected.  The government must, as a general rule, stay out of the business of regulating or interfering with speech.  If the government chose to do violate the independence principle, however, this violation would, in all circumstances, have to be supported by a compelling government interest that is also narrowly tailored.

The main argument against this approach is likely that it leaves courts to make case-by-case determinations without any guiding values like those ensconced in the self-governance theory, for example.  The lack of these values, it could be argued, will make it impossible to know how a court will come out in any given case.

This criticism has been put forward in another context as well.  The response to it there is the same here.  “Ask yourself whether [this proposed test] is any more [indeterminate] than the tests which the Court has evolved to meet other hard situations.”

Others might argue that the lack of principles will allow courts to undervalue speech, where it would otherwise be protected.  This seems unlikely.  Courts have traditionally protected speech quite extensively – and are, in many circumstances, doubtful of the governments bona fides when it tries to suppress or influence private parties’ speech.  Moreover, the compelling interest test puts in place one of the highest bars of judicial scrutiny.  It is unlikely that the government will often be able to justify a restriction on speech.

In fact, this view would likely protect more speech than others.  This must be the case, because under the status quo, courts often suggest that a government regulation is valid, because the speech it infringes is relatively valueless, like pornography for example.  For example, a sex tape may not be protected First Amendment speech, because a court finds it both invaluable insofar as speech goes and the government has some kind of interest in shielding the community from its own prurient interests.  If, however, the Court was required to ignore the value of the speech at issue and focus only on the government’s interest, it is likely that the speech would be protected.

Finally, it might also be argued that the independence view does not give courts any guidance in close cases that lie on the margins.  As shown, however, neither do any existing theories.  At the very least, the independence view is more honest about the judgment calls courts have to make in close cases by not suggesting, sometimes falsely, that the result reached is required by some content-based First Amendment theory.

A Clean Slate Moving Forward

The government must practice independence from all speech.  If it acts on speech, it must justify those actions with a compelling interest further by its narrowly tailored actions.  A court, thereafter, must assess the offered government interest without reference to the type of speech at issue.  It must, for example, analyze a speech restriction targeted at political speech and one targeted at fighting words without reference to the content of the speech.

It may seem odd to ignore the value of the speech at issue.  This realization is less odd when one looks at the First Amendment’s content neutral admonition against government interference.  Indeed, a content-neutral approach to the First Amendment is truer to the words of the First Amendment than an approach that includes the value of the speech in a courts calculus.

It is, of course, unlikely that the analysis set forth above will ever be adopted by a court.  Nonetheless, the analysis here is an attractive one, because it removes courts from the messy business of judging some speech as more important than other speech.  Moreover, it would bring clarity to an area of law that is replete with different tests that are to be applied in different circumstances.

First Amendment theory is inadequate, confused, and plainly contradictory.  More to the point, its filled with after-the-fact justifications that have little to do with the words of the Amendment itself.  The independence view of the First Amendment attempts to remedy this.  Or, at the very least, move the conversation out of the theoretical quagmire its currently in.


About Matthew L. Schafer

Matthew L. Schafer graduated from the University of Illinois in 2009 with a Bachelor of Science in Media Studies. He later attended Louisiana State University’s Manship School of Mass Communication where he earned a Masters of Mass Communication and Georgetown University Law Center where he earned his J.D.
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