The liberals on the Supreme Court, and in universities, have been undermining the Framers’ First Amendment handiwork. The Court’s decision upholding campaign-finance restrictions show that Americans are losing the liberties that they’ve long enjoyed; likewise with the speech codes that some public universities have been instituting. And this loss of liberty stems from liberals’ disdain for the text of the Constitution, and liberal judges’ willingness to make law, instead of simply applying it. Soon we will lose the freedom of speech that Americans have long taken for granted.
That’s the story I’ve been hearing from many of my conservative and libertarian correspondents. And it’s just plain false.
1. First Amendment history. To begin with, it’s false because it rests on myths about the past. For most of American history, speech was less constitutionally protected than it is today. There was never a time when “no law” meant “no law” and all speech was protected.
In the late 1700s, it wasn’t even clear whether the First Amendment covered criminal punishment for politically incorrect speech. Many people argued that it applied only to “prior restraints,” such as injunctions or prepublication censorship rule. Laws criminalizing speech after it’s published, the argument went, were perfectly constitutional–even if, for instance, the laws banned criticism of the government. Only in the 1930s was it firmly settled that the First Amendment protects speech against criminal punishment.
In the late 1700s and early 1800s, courts routinely held that some antigovernment speech–even speech that wasn’t directly inciting crime–was constitutionally unprotected. In many states, until the 1810s and 1820s truth wasn’t a defense to criminal libel prosecutions. Even when it became a defense, it generally applied only when the statement was made with “good motives” and for “justifiable ends,” however a judge or jury chose to interpret these vague phrases. Those limitations weren’t eliminated until the 1960s.
In the first half of the 1800s, courts held that blasphemy could be outlawed, and blasphemy covered not just swearing but the offensive public denial of the truth of Christianity. Until the mid-1900s, judges routinely sent people to jail for publishing newspaper articles that criticized the judge’s decisions. Until the mid-1900s, obscenity laws punished not just hard-core pornography, but serious literature as well as discussion of contraceptives.
Moreover, until the mid-1900s, the dominant view was that the government had virtually unlimited power over its own property and its own employees. Until recently, courts would probably have upheld campus speech codes simply on the grounds that public universities were completely free to sanction and expel students for any reason at all.
And modern free-speech protections were largely the work of Justices Oliver Wendell Holmes and Louis D. Brandeis, who were generally associated with the liberal wing of the Court on most issues; of FDR’s liberal appointees to the Court; and of the notoriously liberal Warren Court. On today’s Supreme Court, conservative Justices Anthony Kennedy and Clarence Thomas take a broad view of free speech, often broader than many of their liberal colleagues. But until the late 1980s, conservatives generally took the narrower view, not just on matters such a sex and flag desecration, but even on political and social advocacy.
2. First Amendment text. Nor are conservatives somehow inherently more pro-free-speech because of their respect for constitutional text. The text of the First Amendment sounds categorical–”Congress shall make no law…abridging the freedom of speech, or of the press”–but it can’t be taken as a literal protection of all speech, all the time. Is Congress forbidden from restricting the use of loudspeakers in residential D.C. neighborhoods? Do people have a constitutional right to send death threats to the president, or publicly threaten other forms of terrorism? Would it be unconstitutional for Congress to provide that federal employees can lose their statutory civil-service protection for hurling insults at each other, or at patrons?
What about copyright laws, which restrict the right of the press to publish the words that it wants to publish? The First Amendment has been applied to the states, via the Fourteenth Amendment. Are states barred from enacting laws punishing libel, or false advertising?
Now there are ways to explain why these restrictions are constitutional. For instance, restricting the use of loudspeakers regulates the noise that speech causes, and not its content. Death threats, even if they aren’t accompanied by any actual violence, aren’t a valuable contribution to public debate, and are potentially very harmful. But while these are sensible distinctions, it’s hardly mandated by the text. We can’t just say “no law means no law” and resolve the problems that way.
Nor is the text particularly helpful even in the two examples that most worry many conservatives–campus speech codes and campaign finance. Campuses aren’t “Congress.” They are state agencies, and the Fourteenth Amendment does bar states from depriving people of “liberty” without “due process of law,” or “mak[ing] or enforc[ing] any law which shall abridge the privileges or immunities of citizens of the United States.” But it’s far from clear that restricting what university students say denies them liberty without due process, or involves enforcing a law that abridges their privileges or immunities.
Likewise, restricting campaign contributions is not literally “abridging the freedom of speech.” People are still free to speak. The law only limits their ability to give money to officeholders, candidates, and groups that are closely connected to them–just as federal rules have long limited people’s ability to give gifts to officeholders, for fear that such gifts might be implicit bribes.
Naturally, such restrictions can still be assailed. I do think, for instance, that campus-speech codes are unconstitutional; and while I think limits on campaign contributions are constitutional, I think that limits on expenditures by corporations and unions should have been struck down. My point is simply that the argument against these restrictions must rely on more than the constitutional text.
3. Making up the law. This also shows the error of faulting liberal judges for “making up the law” in this area. Unfortunately, the First Amendment is so general that judges have to create legal rules that turn the broad words into concretely applicable law. Judges can’t just rely on the text. They can’t just rely on the original meaning, which is highly ambiguous. (As I mentioned, the Framers didn’t even agree whether the First Amendment applied to subsequent punishments, or only to prior restraints.)
One can criticize judges for just making up constitutional guarantees that aren’t mentioned in the Constitution at all. But here the Constitution does say something–but something very general. If it’s to be enforced at all, judges have to give it specific meaning. And that’s been part of our constitutional tradition since shortly after the Framing. Conservative and liberal judges alike have done this, as to various constitutional provisions, because they have to do it.
I’m delighted that many modern conservatives take a broad view of the First Amendment. But such a view shouldn’t rest on myths about American history, about the supposed clarity of the constitutional text, or about the possibility of judges simply following the law, without making law in the process.
–Eugene Volokh teaches First Amendment law at UCLA School of Law, and runs “The Volokh Conspiracy,” a weblog.