REHABILITATING THE NEIGHBORHOOD MOTORCYCLE GANG
The modern First Amendment is shaped by an almost pathological mistrust of government’s ability to regulate speech fairly. For many on the right, mistrust of government and hostility to regulation is a natural reflex, reflecting a worldview where government is always viewed with profound skepticism. For many on the left, more than a century of persecution of labor organizers, civil rights workers, and economic radicals has led to a belief that it is necessary to strip the government of virtually all power to regulate speech in order to prevent government officials from censoring speech that questions the political, social, and economic status quo.
The Supreme Court’s pervasive mistrust of government speech regulation is reflected in the three elements of First Amendment strict scrutiny, which is triggered whenever the government seeks to regulate the flow of verbal speech (“pure speech” as opposed to “communicative conduct”). Once the Court unleashes strict scrutiny, the government must demonstrate: (1) a “compelling” governmental interest in regulating the speech immediately, (2) that the regulation will actually advance the government’s compelling interest, and (3) that “less drastic alternatives” do not exist for dealing with the government’s concern. It is a rare government regulation that survives strict scrutiny. Justice Kagan has perceptively suggested that the strict-scrutiny formula is really designed to police the government’s good faith.48 If the proffered government interest allegedly justifying censorship doesn’t seem all that compelling or immediate, if the censorship program isn’t likely to solve the problem or isn’t the only way to cope with it, a whiff of suspicion is created that the government’s real motive is to suppress the speech at issue. Under strict scrutiny, such a “whiff of suspicion” is fatal.
The Court’s intense mistrust of government also underlies the five procedural hurdles that can derail an effort to regulate speech.
1.Prior restraints on speech, as opposed to subsequent sanctions, are deemed particularly dangerous because they tempt government censors to cover up wrongdoing and prevent unwelcome information from surfacing at all.49 That’s why the Supreme Court refused to let the government block publication of the Pentagon Papers, even though five justices indicated that anyone who leaked the documents might be subject to criminal prosecution.
2.Overbroad speech regulations that purport to ban both protected and unprotected speech can be a cover for improperly motivated or overzealous censorship and may frighten speakers away from gray areas.50 That’s why the poorly drafted ban on animal-torture videos was invalidated.
3.Overly vague speech regulations are invalidated because the Court fears that they provide local officials with too much discretion, tempting them to use their ill-defined power to advance their own views at the expense of a disliked speaker.51 That’s why so many poorly drafted statutes banning civil rights demonstrations were invalidated during the 1960s.52
4.Unequal speech regulations are invalid because when the government regulates one speaker but leaves a similarly situated speaker unregulated without a very good reason, the Court perceives a danger of hostility to the content of the speech or the identity of the speaker, and invalidates the statute prophylactically.53 That’s why the Citizens United Court reacted so negatively to a statute that allowed individuals, but not corporations, to speak. Unfortunately, the Court begged the question of whether natural persons and corporations are similarly situated speakers.
5.Finally, First Amendment due process requires a prompt opportunity for a speaker to protest—usually to a court—against government censorship.54
Regulation of communicative conduct, in which speech is closely bound up with action (such as picketing and demonstrating), does not trigger strict scrutiny. Accordingly, it is more vulnerable to improperly motivated censorship. Rather, the Court asks whether the regulation is a “narrowly tailored” good-faith effort at dealing with a “substantial” (as opposed to “compelling”) government interest that is “unrelated to the suppression of speech.” Unlike the pure-speech cases, the government usually wins communicative-conduct cases; a regulation’s fate often depends on which category the Court invokes.
Unfortunately, the Court’s formula for distinguishing pure speech from communicative conduct is, to put it charitably, a shambles. According to the Court, burning a flag is pure speech, but burning a draft card is communicative conduct. Spending millions to elect a candidate is pure speech, but casting a write-in protest ballot isn’t even communicative conduct.
A third-class speech compartment exists solely for commercial speech (defined as speech that proposes an economic transaction), where fear of improperly motivated government censorship is at its lowest point. It’s unlikely that the government cares much whether you buy a Ford or a Buick. Protection of commercial speech excludes false and misleading commercial messages and requires the government merely to prove a “legitimate” reason for regulating the flow of commercial speech.
Unlike the toothless equality standard of review currently used in equality-based voter-suppression cases, First Amendment strict scrutiny, reinforced by the five procedural corollaries, actually works. It’s almost impossible to slip an improperly motivated censorship scheme involving “pure speech” past the courts. But such successful prevention has costs. The Supreme Court’s most controversial exercise in prophylaxis was the enunciation of an exclusionary rule preventing the use of evidence obtained in violation of the Fourth and Fifth Amendments. The exclusionary rule succeeded in altering police behavior, but at a cost. Guilty persons were set free because the constable blundered. Once the rules were well established and police behavior had changed somewhat, the costs became more visible. The Court reacted by slowly loosening the screws in an effort to minimize unnecessary costs, while retaining the core deterrent effect of the exclusionary rule. First the Court limited federal judicial supervision (called habeas corpus) of state search-and-seizure cases, then it established a good-faith mistake exception, and finally it recognized a host of special settings where the rules would be suspended—most dramatically a public-safety exception that allowed Boston police and the FBI to question the surviving Boston marathon bomber for two days without counsel before falling under the prophylactic rule against using custodial incriminatory statements without telling the defendant he has a right to remain silent.
We are at a point in the evolution of First Amendment doctrine where similar cost-benefit questions may be asked. A powerful prophylactic First Amendment has achieved extraordinary success in deterring improperly motivated government censorship, but at the cost of exposing women to unwanted propaganda as they approach a health facility, exposing minority families to cross burnings, permitting conscious lies, invasions of privacy by bigots, desensitization of children to violence, and the sale of animal-torture videos. The time may be ripe for fine tuning on three levels. First, the deep mistrust of government that fuels First Amendment prophylaxis is based on a fear that officials will use censorship to advance their political or social views. When there are no political views to distort, perhaps the Court should ask whether full-scale protection is necessary. At a minimum, the five procedural corollaries could be loosened to give the regulators some breathing room.
Second, where the institutional value of speech turns on its accuracy and it’s relatively easy to decide whether it is factually accurate—as in false advertising or false information about securities—the Court should ask whether the costs to hearers of tolerating consciously false speech clearly outweighs the risks of loosening the prophylactic screws to permit effective regulation of intentional lying.
Finally, when speech denigrates the hearer’s dignity in ways that impede a hearer’s ability to function as an equal, the Court should ask whether prophylactic protection really is best deployed up front to render the speech fully protected, as opposed to regulating at the back end by acknowledging the unprotected nature of the speech but imposing significant limits on the available sanct
ions. For example, in settings where speech denigrates the dignity of hearers or speech targets, it’s possible to acknowledge the unprotected nature of the speech, while limiting relief to nominal damages or other symbolic remedies designed to restore lost dignity. In short, while keeping the neighborhood motorcycle gang on a very short leash is probably both necessary and wise in political speech settings, it may be neither necessary nor wise where government abuse of the censorship power is less likely. Maybe the best way to deal with the neighborhood motorcycle gang in those settings is just to take away their guns.
OUTING THE CONDUITS
As we’ve seen, conduits, the skilled artisans in Mr. Madison’s neighborhood who are in the business of using technology to amplify the speech of others, have persuaded the Supreme Court to let them dress up as aristocratic speakers. When conduits are transmitting their own speech, as in newspaper editorials, it makes good sense to treat them as speakers. But when newspaper, broadband, or cable companies merely transmit the speech of others, they have their own First Amendment clause—“Congress shall make no law abridging . . . the freedom of the press.” Under existing Supreme Court ground rules, though, the Free Press Clause has virtually no independent meaning. The Court reads it as a colony of an imperial Free Speech Clause that does all the heavy legal lifting. If the Free Press Clause is mentioned at all, it’s usually to reject a separate role for it. It’s as though Madison never bothered to add a provision protecting mass dissemination of speech.
In fact, the “freedom of the press,” viewed as a Madisonian protection of the institution needed in a robust democracy to transmit individual speech to a mass of hearers, is not necessarily the same thing as speaker-centered “freedom of speech.” Historically, government efforts at censorship initially centered on licensing or regulating the operation of the printing press, not the speaker. John Milton’s Areopagitica, written in 1644, is rightly viewed as a crucial milestone in the evolution of the First Amendment. But it wasn’t about speakers. It was about printers—a plea to parliament to end the practice of requiring the 1644 version of conduits to obtain a printing license from the Crown. Similarly, when in 1734 John Peter Zenger, the publisher (and printer) of a New York newspaper, was charged with seditious libel for printing articles critical of the royal governor, Andrew Hamilton’s celebrated successful defense to the jury was all about the rights of the printer, the conduit, not necessarily the rights of the authors who actually wrote the articles under assumed highfalutin Latin names.
If the Free Press Clause were decoupled from the Free Speech Clause and read as a protection designed for conduits, Madisonian press freedom might be both broader and narrower than the speech freedom currently enjoyed by the press. It could be broader because the institutional press might be viewed as enjoying privileged access to otherwise blocked speakers, such as prisoners, or having a duty to uncover information needed by hearers, such as improperly hidden government secrets. Viewed as a conduit, the press might even be treated more like the telephone company, having no legal culpability in merely transmitting the speech of others without knowing that the speech was false or otherwise unlawful. Such an institutionally protected press might also be subject to regulations seeking to broaden the ability of poor speakers to reach a mass audience or preventing any single press entity from becoming too powerful—a kind of First Amendment antitrust law. The Supreme Court has already opened the door a crack by ruling that when cable companies exercise a “gatekeeping function” that controls access by true speakers to critical speech-transmission technology, reasonable regulations ensuring fair access for vulnerable voices would not violate the cable company’s First Amendment or property rights.55 As we experience the increasing consolidation of the press into a few corporate entities exercising “gatekeeper” control over every form of technological amplification, mandated access for weak voices will become crucial to maintaining a genuine free market in ideas. How else can institutions such as Amazon or a merged Time Warner and Comcast be prevented from running the neighborhood?
FIRST AMENDMENT SWEAT EQUITY
Madison carefully placed a fifth clause protecting collective action immediately after the Free Press Clause had protected mass dissemination of an idea and immediately before the overtly political act of petitioning for a redress of grievances. Freedom of Assembly is perfectly positioned to protect the crucial evolution of an idea into a mass political movement, but you would never know it from current First Amendment doctrine, under which freedom of assembly is almost entirely subsumed under the imperial Free Speech Clause. The Supreme Court treats First Amendment assemblies as a disfavored form of free speech and calls them “communicative conduct.” The resulting watered-down constitutional doctrine purporting to protect free assembly is toothless and incoherent. It recognizes that physical assembly is entitled to a degree of First Amendment protection but rapidly transfers broad discretionary authority to local law enforcement officials to regulate, even ban, assemblies in the name of public order.56 The effect is to permit tightly controlled assemblies in designated places but to place them under intense police scrutiny and render them subject to dissolution virtually at will.
Witness the fate of Occupy Wall Street, an ambitious and chaotic effort to evoke sustained physical assembly in support of an amorphous vision of economic justice. Initial gatherings were tolerated in a number of cities, but the movement was eventually driven from the public square by hostile police forces.57 It turns out that the right to assemble freely is awfully thin. The Free Assembly Clause’s greatest supposed triumph, the protection of demonstrators during the civil rights and anti–Vietnam War era, was something of a mirage. In fact, the Supreme Court’s civil-rights-demonstration cases of the 1960s do very little to clarify the law on when marchers or demonstrators are entitled to First Amendment protection. They read like a giant cat-and-mouse game: the Court almost always found a technical way to invoke prior restraint, overbreadth, vagueness, or unequal treatment as a procedural reason for reversing the convictions of demonstrators, without providing much in the way of prospective guidance about when free assembly is protected and when it is not.
Treating freedom of assembly as just a particularly intrusive form of free speech ignores its unique role in the Madisonian structure. Freedom of assembly differs from freedom of speech in at least two important ways. First, the very act of physically assembling generates by-products of the message, including noise, physical blockage, and the potential for conflict, violent and otherwise. Supreme Court doctrine reflects the physical impact of assembling by recognizing broad power to limit assemblies in the name of securing public order under the “time, place, or manner” doctrine, which grants substantial discretion to local police to regulate demonstrations intensively. But treating free assembly grudgingly, as a disfavored, potentially dangerous subsidiary of the Free Speech Clause, ignores the other important way that assembly differs from speech. Not only is free assembly the crucial point of transformation from abstract idea to collective political action, it is the only political component of the First Amendment that is actually free. Effective verbal speech requires mastery of language, inevitably privileging those with the resources to acquire an education and gain access to a mass public. Remember that as recently as 1959, the Supreme Court upheld literacy tests for voting. Freedom of the press is even more resource dependent. Access to expensive mass media capable of reaching and influencing mass audiences is a prerogative of the rich. Freedom of assembly, on the other hand, requires nothing more than physical commitment, a kind of First Amendment sweat equity that opens Madison’s poem to the poor.
A jurisprudence of free assembly worthy of Madison’s music would not have permitted suppression of Occupy Wall Street on the spurious grounds that it was a threat to public order. While reasonable regulations aimed at preventing violence and unacceptably severe interferences with public order are surely valid, the needle should be adjusted to prevent the police from invoking minor public inconvenience as
a discretionary trump to efforts to assemble freely in support of a political ideal.
REMEMBERING THE SPEECH TARGETS
Speech targets are the lumpen proletariat of Mr. Madison’s neighborhood. The modern Court almost invariably subordinates their interests to the interests of speakers, hearers, and conduits. The woods are full of Supreme Court decisions celebrating the Kantian dignity of heroic speakers, the importance of informed hearers, and value of hardworking conduits. But the Court rarely seems to notice that speech targets are also Kantian beings entitled to be treated with respect. That’s why it was so easy to sacrifice the privacy interest of a deceased soldier’s family to the speaker-centered interest of religious bigots eager to hijack the funeral as a way to enhance their audience. Once the Court made sure that no face-to-face hearer interest existed because the church was too far away for mourners to hear the chanting, the Court declined to recognize the family’s dignitary interest in not being turned into an involuntary backdrop for hate speech. Perhaps in the end such a dignitary interest should not be enough to silence a speaker, but something seems wrong with the Court’s refusal to acknowledge and grapple with the interest at all.
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