The modern Court’s reluctance to acknowledge the dignitary interests of speech targets dates from its iconic 1964 decision in New York Times v. Sullivan constitutionalizing the law of libel.58 The case arose in the context of the Southern civil rights movement, where national press coverage was crucial to the political success of Dr. Martin Luther King Jr.’s strategy of nonviolent moral confrontation. Beginning in the late 1950s, targets of critical Northern press coverage struck back with a series of libel actions before Southern juries, complaining of minor factual errors in the reporting. The speech targets succeeded in winning a series of massive damage awards. When Times v. Sullivan reached the Supreme Court in 1964, the New York Times was facing five Southern libel judgments totaling more than $5 million (a huge sum in those days), jeopardizing its financial ability to continue aggressive coverage of the civil rights movement. The Supreme Court responded by developing a First Amendment law of libel making it impossible for a speech target in the public eye to win a damage award based on false defamatory speech unless she could prove that the speaker was on notice of the speech’s falsity. The Court called it, confusingly, an “actual malice” standard of liability. Ironically, the New York Times, the principal defendant in Times v. Sullivan, wasn’t functioning as a speaker at all. It was a paid conduit, being sued for printing a paid advertisement placed by a group of Southern clergy seeking to raise funds to defend Dr. King against a phony South Carolina tax prosecution. The advertisement described efforts by Southern college students inspired by Dr. King to fight Jim Crow, and recounted retaliatory actions against the students, including locking them out of their dining hall and subjecting them to police harassment. Claiming that the advertisement had harmed his reputation by exaggerating the level of police harassment, the local police chief won a $500,000 libel judgment against the Times from an all-white hometown jury.
Once it was clear that the New York Times had nothing to do with writing the advertising copy and had no reason to question the accuracy of the paid advertisement, Times v. Sullivan should have been an easy conduit case because the newspaper did nothing but carry a paid advertisement written by someone else. But the Supreme Court didn’t treat the Times as a conduit. It treated the newspaper as a full-fledged speaker, and gave the Times-as-speaker the same First Amendment protection as the Times-as-conduit. Thus, under existing law, speakers as well as conduits are immune from damages for harms caused by false speech unless they knew the speech was false before they uttered it. That leaves a giant hole in the neighborhood safety net. Where is the dignitary protection for an innocent speech target harmed by false speech who can’t prove that the speaker knew it was false? I believe that proper recognition of the dignitary interest of speech targets requires three tweaks in current libel doctrine.
First, the essentially subjective “actual malice” standard governing speakers should be modified to something resembling gross negligence. Some judges already do that by treating “reckless disregard of the truth” as the equivalent of “actual malice.” But the idea should be expanded to impose a duty on both speakers and conduits to meet a reasonable standard of care in determining whether to utter harmful speech about a target. That’s what good journalists do now. They should not have to compete with irresponsible or malicious speakers or conduits who don’t care whether they are disseminating the truth, but who can hide behind the actual malice standard when their speech turns out to be false.
Second, the prospect of massive damage actions for libel should be minimized, if not eliminated. Elimination of the fear of massive damages would remove the principal reason for ignoring the speech target’s interests. If damage actions designed to repair an unfairly damaged reputation were capped to take into account the restorative effect of judicial vindication, the proceedings would begin to resemble “honor courts,” designed to restore reputation, not impose ruinous punishment on a speaker or conduit. If, instead of a massive $500,000 verdict in Times v. Sullivan, the paper had been faced with a $5, $500, or even a $5,000 verdict, the risk of ruinous deterrence would have been avoided, replaced by a modest incentive to eliminate mistakes, and a judicial finding that restores the speech target’s reputation.
Finally, if speech targets are to receive more protection, they must be discouraged from using that protection to bluff speakers into silence. One way to achieve that goal is to limit damages. Another is to impose serious sanctions on baseless actions against speakers, including awards of attorney’s fees and the imposition of damages. But whatever paths we take, it’s time for a modest upgrade of the status of speech targets in the neighborhood.
8
Divine Madness
Hearing Madison’s Music in the Religion Clauses
The Bill of Rights opens with a First Amendment structured as a narrative of a free people governing themselves. That story begins where it must begin, with freedom of conscience. More than a century before Freud, Madison understood that the mainspring of human behavior is found in our psyches. Ronald Reagan, living in twentieth-century fin de siècle California, thought the mainspring was greed. Sigmund Freud, living in nineteenth-century fin de siècle Vienna, thought the mainspring was sex. James Madison, living in eighteenth-century fin de siècle Virginia, was sure the mainspring was conscience. Madison understood that profound conscientious belief, especially religious belief, can be a form of “divine madness,” a powerful psychological force that places a true believer in an impossible moral dilemma when forced by the state to choose between god and Caesar. Madison’s two religion clauses are structurally designed to respond to that dilemma.
PRIVILEGING CONSCIENCE
As we’ll see in a moment, the modern Free Exercise Clause, as tweaked by the Supreme Court, requires us to tolerate conscientiously driven private behavior to the outer limits of a free society’s capacity for such tolerance. Conversely, Madison’s Establishment Clause imposes strong preventive restrictions on the capacity of true believers wielding governmental power to use that power to impose their religious beliefs on others. What ties the two clauses together is Madison’s understanding that the commands of conscience, especially religious conscience, can transcend the capacity for reasoned judgment.
If it had been up to Madison, the First Amendment would have opened with three different ways to protect conscience—non-establishment of religion, free exercise of religion, and freedom of conscience. Madison’s original version of the First Amendment contained a separate clause for each.1 Throughout the summer of 1789, the three clauses rotated in and out of the text. Sometimes the free-exercise clause was discarded in favor of the conscience clause. Sometimes the conscience clause was bumped in favor of free exercise. Sometimes establishment was dropped. The clauses were clearly seen by many to be overlapping, perhaps redundant. The version of the Bill of Rights that passed the House and went to the Senate contained all three clauses. The Senate deleted Madison’s proposed conscience clause at the last minute, leaving the Establishment and Free Exercise Clauses to open the Bill of Rights. Because the Senate’s deliberations were secret, we’ll never know precisely why. I like to think it was because the senators believed that the Establishment, Free Exercise, and Free Speech Clauses already provided full protection to conscience, rendering a separate conscience clause redundant.
One hundred seventy-eight years later, in two cases arising out of the Vietnam War,2 that’s just what the Supreme Court ruled in granting conscientious objector status to two young pacifists who denied the existence of a Supreme Being but professed deeply held secular philosophical objections to wars of any kind. As a technical matter, the Court’s plurality merely broadly construed a congressional statute granting conscientious-objector status to religious objectors to war in any form as applying to secular objectors, as well. The plurality’s extremely broad reading of the statute was, however, explicitly designed to avoid the serious constitutional question that would have been raised if Congress had granted CO status on the basis of religious belief but denied it t
o an identical secular believer. Justice Harlan’s influential concurrence makes it clear, moreover, that the commands of both religious and secular conscience enjoy equivalent First Amendment protection as long as secular conscience plays a comprehensive role in the believer’s life analogous to religion.3
Justice Harlan’s move from protecting religious conscience under the two religion clauses to protecting secular conscience in the white space between Free Exercise and Free Speech was pure Ninth Amendment equity of the statute in action. The commands of religious and secular conscience are closely analogous. Recognizing an implied protection of secular conscience is broadly harmonious with the First Amendment’s text. Most important, as Madison had understood in 1789, protection of secular as well as religious conscience is vital to the First Amendment’s story of the evolution of an idea in a well-functioning democracy. In fact, Justice Harlan simply made explicit in 1970 what had been implicit in Justice Jackson’s magnificent 1943 rhetoric protecting the right of Jehovah’s Witnesses schoolchildren to refuse to salute the flag. Justice Jackson chose not to rest his seminal flag-salute opinion on the Religion clauses. Instead, he recognized First Amendment protection of secular conscience.
Thus, although it took almost two centuries, the Supreme Court used Madison’s Ninth Amendment equity of the statute to insert an implied right of secular conscience into the text of the First Amendment, finally correcting the Senate’s erroneous rejection of Madison’s proposed conscience clause in 1789.
Recognizing the primacy of freedom of conscience in the structure of the First Amendment has one important immediate payoff. It reveals the current Court’s error in limiting full free-exercise protection to intentional government interferences with religious conscience. Under the Court’s current narrow reading of the Free Exercise Clause, religious conscience receives virtually no constitutional protection unless the government is consciously targeting religion. For example, Justice Scalia, writing for a narrow majority, ruled in 1990 that Native Americans can be punished for using peyote in age-old religious ceremonies under general laws banning hallucinogenic drugs. The Court reasoned that since the drug ban was not intended to interfere with religion, the government had no duty to make an exception for a Native American caught between god and Caesar.4
Such a grudging view of the Free Exercise Clause cannot be squared with Madison’s vision of the importance of a free conscience in a democracy. Intended or not, government prohibition of Native American religious practice forces the true believer to choose between god and Caesar—exactly the existential choice that Madison tried to avoid. Recognizing the primacy of conscience in the First Amendment should lead the Court to provide enhanced constitutional protection against all forms of government interference with individual behavior driven by sincerely held religious or secular beliefs, whether the interference is intentional, reckless, negligent, unthinking, or inadvertent. That’s just what Congress did when it reacted to the peyote case by enacting the Religious Freedom Restoration Act (RFRA), providing enhanced protection for religious (and presumably secular) conscience against the federal government.
That is not to say that conscience always wins under Madison’s First Amendment or Congress’s new statute. Conscience is not a license to harm others. Freedom of conscience does not empower even a true believer to shift the costs of her belief to others.5 For example, Christian Scientists may neither deny their children critical medical care nor enroll them in school without inoculation against communicable diseases.6 A religious aversion to paying Social Security taxes doesn’t license a true believer to avoid a general duty to help pay for the program.7 Nor would a religious aversion to unions excuse an employer from complying with the collective bargaining rights in the National Labor Relations Act. In each of those settings, a true believer unfairly asks someone else to bear the costs of the believer’s religious conduct. Thus efforts by family-owned corporations to carve a religious exemption from the duty to comply with the employee health insurance obligations of the Affordable Care Act should have failed because, even if corporations may raise a religious freedom claim (itself a dubious proposition), granting the religious exemption would force the corporation’s employees to bear the economic costs of their employer’s religious conscience—a classic improper burden shift.
Justice Samuel Alito, writing for the U.S. Supreme Court’s five Republican justices in Burwell v. Hobby Lobby, insisted that a religious exemption is mandated under RFRA because it carries “zero cost.”8 Read the Alito opinion carefully; it may be the only time in our nation’s history that Republicans embrace the idea of a “free lunch.” According to Justice Alito’s voodoo economics, exempting religious employers from paying for insurance coverage for contraceptives carries no cost to their employees. They will continue to receive full health insurance coverage (including contraceptives), because the insurance company will willingly absorb the premium shortfall on the grounds that it’s cheaper to provide contraceptive coverage for free than to pay for the ensuing pregnancy. If Justice Alito’s free-lunch fairy tale is correct, the Hobby Lobby case is nothing more than an example of tolerating the free exercise of religion as long as there is no cost to anyone else. Who can argue with that? But the jury is out on whether health insurance companies will continue providing free contraceptive coverage to large numbers of employees who happen to work for profit-making corporations owned by religious shareholders. My prediction is that if the numbers get high, the insurance companies will demand a government subsidy that shifts the costs to the taxpayers. But, as we’ll see in a moment, requiring taxpayers to subsidize the costs of someone else’s religious beliefs is exactly what the Establishment Clause forbids. So we haven’t heard the end of the Supreme Court’s free-lunch story. Moreover, Hobby Lobby may be an example of being careful what you wish for. In order to allow a corporate employer to claim a religious exemption, Justice Alito had to dissolve the wall between shareholders in small family corporations and the corporation itself. A small, family-owned corporation is, Justice Alito ruled, just a group of closely related people gathered together to carry out an economic project. But if the shareholders can “pierce the corporate veil” from the inside in order to claim a corporate religious exemption, why can’t creditors, government regulators, and the IRS pierce the veil from the outside to sue the shareholders, as well as the corporation? That’s playing with fire because it endangers the bedrock principle of “limited liability” and “corporate separateness” on which our corporate culture rests. Maybe that’s why the Chamber of Commerce didn’t file a brief in Hobby Lobby.
Even when a conscientious exemption is not constitutionally required because it would impose an unfair burden on someone else, respect for the primacy of conscience in Madison’s text should lead us to try hard to find a way to accommodate the belief or practice without harming others.9 That’s why we voluntarily provide for conscientious objection from compulsory military service, even in times of national crisis. Because exempting a true believer shifts the burden of military service to someone else, no free-exercise right exists, but, channeling Madison, we allow the believer to contribute to the nation in other ways through alternative service. That’s probably what we should do in dealing with employers who have deep conscientious scruples about funding health plans providing for abortion or birth control. Perhaps a form of health care “alternative service” is possible that would ensure full benefits for employees while finding another way for the employer to satisfy the full duties of citizenship. Sure, that’s formalistic. In the end, the economic consequences are virtually identical. But if it lets a true believer sleep better at night, Madison would be pleased and our democracy strengthened.
What happens when a particularly finicky believer says that her conscience won’t even let her apply for the conscientious exemption? During the Vietnam War, we sent so-called noncooperators to jail in droves for refusing to apply for the CO status to which they were almost certainly entitled. Today, when nuns running
a business or academics running a religiously affiliated college claim that they can’t even fill out the government form that will exempt them from having to support employee health insurance for contraception, should the Supreme Court treat them as it treated Vietnam War noncooperators? I think the answer is no. We fell short of Madison’s music when we jailed a generation of our most conscientious young men. We would fall short today if we can’t find a way to exempt the nuns or academics without forcing them to violate their consciences. After all, everyone needs a Shabbos goy sometimes, even the Little Sisters of Mercy.10 But whatever we do in an effort to tolerate religious conscience, it cannot shift a significant cost to nonbelievers. That’s why religiously based claims to be free to discriminate against blacks or gays in employment or in the delivery of consumer services are such constitutional nonstarters. It would force members of the minority to bear the cost of the true believers’ religious bigotry.
THE DARKER SIDE OF DIVINE MADNESS
The two religious conscience clauses function in tandem to ensure both freedom from and freedom of the most powerful psychological force known to Madison and the Founders: the commands of conscience, especially religious conscience. Madison understood that religion has a dark side capable of inciting true believers to inflict unspeakable cruelties on nonbelievers. Europe was a religious bloodbath; Catholics and Protestants took turns killing each other, uniting only to kill Jews. John Rawls, the leading American political philosopher of the twentieth century, reminded us that the West’s vaunted commitment to religious tolerance is really an exhausted truce flowing from the mutual recognition by Europe’s Catholics and Protestants that neither could wipe the other out. The Founders knew from personal experience that true believers often use the state to impose their beliefs on others and to persecute, harass, and even annihilate nonbelievers. Much of the New World had been settled by fugitives from government-enforced religious oppression in Europe. Ironically, many religious refugees were perfectly willing to use their newfound political power on this side of the Atlantic to oppress even weaker minorities, to say nothing of exterminating the “heathens” who were here first. That’s why, even before there was a Bill of Rights, Article VI, clause 3 forbade the political majority from imposing religious tests for public office, one of the few protections of civil liberties in the text of the 1787 Constitution. Two years later, Madison opened the Bill of Rights with an Establishment Clause that takes the idea of separation of church and state one step further by forbidding public officials from using their government power to impose religious beliefs on others.
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