As we have reported, National Review has filed a petition for a Writ of Certiorari with the United States Supreme Court requesting that in its forthcoming term it take up Mann v. National Review, the nation’s most-pressing case for First Amendment rights which now has accumulated lower-court issues that, unless refuted, will have a massive impact on free speech. A number of entities and individuals, seeing (and fearing) the constitutional consequences of the case, filed amicus curiae briefs in support of NR’s petition.
One brief, filed on behalf of 21 U.S. Senators, is critical of the D.C. Court of Appeals’ decision to allow the case – and therefore policy arguments about pressing, controversial, and passionate issues – to be heard by a jury. The ramifications, legal and constitutional, are serious:
Left uncorrected, it will erode the freedom of political speech that lies at the foundation of our constitutional order. By allowing juries to punish subjective statements of political or scientific opinion as defamatory statements of fact, the decision below will shut down crucial debates on matters of public concern. And the chilling effect of this judicial heckler’s veto will be especially pernicious because it will be felt in the nation’s capital, where much of the nation’s political debate is centered and where that debate is translated into public policy in the halls of Congress and the Executive Branch. The result will be forum shopping and politically motivated litigation that will stifle the marketplace of ideas upon which deliberative democracy depends.
The brief’s core argument is that vigorous debate is essential to the formation of public policy, and the form of that debate — and the extent to just what is “vigorous” — is constitutionally protected, a matter lost upon the D.C. Appeals Court. From the brief’s introduction:
. . . Unlike in England, the American founding generation recognized that “[t]he streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority,” “THE CONSENT OF THE PEOPLE,” and thus entrusted to ordinary Americans the responsibility of self-government. The Federalist No. 22, at 152 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Because the American people are sovereign, the First Amendment freedoms of speech and the press are an essential corollary to the Speech or Debate Clause, assuring the “unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484 (1957); see also Mills v. Alabama, 384 U.S. 214, 219 (1966).
The First Amendment does this by helping “produce informed opinions among members of the public, who are then able to influence the choices of a government.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2246 (2015). “First Amendment guarantees protect the free and uninterrupted interchange of ideas upon which a democratic society thrives.” Procunier v. Martinez, 416 U.S. 396, 427 (1974) (Marshall, J., concurring). In short, freedom of speech is “the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 75 (1964).
The price of vigorous political debate is that “[we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Snyder, 562 U.S. at 458 (alteration in original) (quoting Boos, 485 U.S. at 322). This includes the freedom to harshly criticize the ideas and actions of political or ideological opponents, and to do so with rhetorical gusto. As this Court has explained, allowing speakers to be punished for expressing opinions on matters of public concern using “rhetorical hyperbole” and “vigorous epithet” would “subvert the most fundamental meaning” of the First Amendment. Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970) (speakers could not be punished for characterizing plaintiff’s negotiating position as “blackmail”).
Americans have done more than attest to this principle—we have lived it. Our founding statesmen attacked one another so viciously that it would be inappropriate to reprint their insults here. See James Callender, The Prospect Before Us 57 (1801) (campaign surrogate for Thomas Jefferson colorfully describing President John Adams’s “hideous” character); Ron Chernow, Alexander Hamilton 522 (2004) (President John Adams cruelly demeaning Alexander Hamilton’s parentage); Robert V. Remini, Andrew Jackson 1 (1999) (supporters of President John Quincy Adams spread incendiary rumors about Andrew Jackson’s mother). These “insulting, and even outrageous” statements were not litigated in courtrooms, but rather in newspapers, pamphlets, town squares, and polling places.
To be sure, in one of the more shameful episodes in American history, the federal government tried to suppress “seditious libel,” but the effort backfired. Americans quickly repudiated the idea, “a wholly unjustifiable and much to be regretted violation of the First Amendment,” and President Jefferson promptly pardoned those who had been prosecuted. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 296 (1964) (Black, J., concurring); Abrams, 250 U.S. at 630 (Holmes, J. dissenting) (citation omitted) (“I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed.”). While the Sedition Act was never formally “tested in this Court, the attack upon its validity has carried the day in the court of history.” N.Y. Times Co., 376 U.S. at 276 (footnote omitted).
As a result, vigorous public debate has characterized the United States from the Founding to the present. See Alexis de Tocqueville, Democracy in America 173 (Henry Reeve Trans., Colonial Press 1894) (1835) (Americans “are surrounded by the incessant agitation of parties, which attempt to gain their co-operation and to avail themselves of their support.”). President Lincoln defended the freedom of the press at the height of the Civil War, even when the press was critical of the war effort and of Lincoln. See Harold Holzer, Lincoln and the Power of the Press 424–26, 440 (2014). A century later, following Lincoln’s example, this Court consistently upheld the right of citizens to protest the Vietnam War, even when their protest was vulgar. Cohen v. California, 403 U.S. 15, 25–26 (1971).
Another important amicus brief, filed by former US Attorneys General Meese, Mukasey, and Sessions, goes deeper into the jurisprudence issues raised by the D.C. Court. The principle concern of these amici is that First Amendment controversies require judgments to be made by judges. What’s clear from their argument is that the consequences to free speech and jurisprudence will be serious if D.C. Court’s rulings stand. From the brief:
Courts, not juries, should decide whether speech on matters of public concern is constitutionally protected or punishable. Predictable protection of free speech advances the rule of law and enhances public confidence. Both within and beyond the defamation context, this Court’s First Amendment jurisprudence has established standards limiting what speech can be punished. Predictable application of those standards requires independence and understanding of constitutional principles, making courts better suited than juries for the task. Juries are a critical element of our constitutional system, but they are not well-suited to protecting dissenters’ speech. Recognizing that, this Court has repeatedly tasked courts, both in the first instance and on appellate review, with deciding whether speech is protected or punishable.
With an increasingly polarized populace and with free speech under attack, this Court should grant review and reaffirm that courts, not disparate local juries, must decide whether challenged statements on public issues are constitutionally protected or punishable. Deferring to juries on that question will chill speech on public matters, undermine the rule of law, and degrade public confidence, as plaintiffs use friendly juries to punish unpopular speech.
Further into the brief, the AGs argue that the D.C. Court’s determinations are contrary to America’s long-standing constitutional practice which demands that free-speech matters are rightly those to be considered by judges.
Even beyond defamation, this Court has consistently recognized that judges are responsible under the First Amendment for evaluating specific speech and classifying it as protected or punishable. In other words, the “Court has often recognized that in cases involving free expression we [judges] have the obligation, not only to formulate principles capable of general application, but also to review the facts to insure that the speech involved is not protected under federal law.” Letter Carriers, 418 U.S. at 282. “This process has been vitally important in cases involving restrictions on the freedom of speech protected by the First Amendment, particularly in those cases in which it is contended that the communication in issue is within one of the few classes of ‘unprotected’ speech.” Bose, 466 U.S. at 503.
Just as in the defamation context, the other “unprotected speech” cases demonstrate more universally that “the limits of the unprotected category, as well as the unprotected character of particular communications, have been determined by the judicial evaluation of special facts that have been deemed to have constitutional significance.” Id. at 505 (emphasis added). In determining whether particular speech is protected by the First Amendment, courts have predictably protected free speech, bolstered public confidence, and helped to preserve the rule of law—by independently making “sure that the speech in question actually falls within the unprotected category and [by confining] the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited.” Ibid. . . .
Courts are thus best suited to classify challenged speech as protected or punishable. A First Amendment inquiry may involve a clean “question of law.” See, e.g., Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 685 (1989). Or it may involve “special facts” of “constitutional significance.” Bose, 466 U.S. at 504-505. Whatever the inquiry, a First Amendment analysis will undoubtedly entail a “tightly circumscribed legal analysis” into which “factual questions” are “subsumed.” Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668, 1680 (2019). And when “an issue ‘falls somewhere between a pristine legal standard and a simple historical fact,’” this Court typically “determin[es] that, as a matter of the sound administration of justice, one judicial actor”—the judge—“is better positioned than another to decide the issue in question.” Markman v. Westview Instruments, Inc., 517 U.S. 370, 388 (1996) (quoting Miller v. Fenton, 474 U.S. 104, 114 (1985)).
The rationale of the Court’s recent Merck decision is particularly instructive here. Merck held that an administrative law preemption issue “is a legal one for the judge, not a jury.” 139 S. Ct. at 1679. Just as “judges are normally familiar with principles of administrative law,” id. at 1680, they are also much more familiar with First Amendment principles than juries are. “To understand the question as a legal question for judges makes sense” because “[d]oing so should produce greater uniformity among courts; and greater uniformity is normally a virtue when a question requires a determination concerning the scope and effect of” the First Amendment, just as when it involves “the scope and effect of federal agency action.” Ibid.
In addition, briefs on behalf of NR’s petition were filed by Cato Institute, Reason Foundation, and the Individual Rights Foundation (jointly), The American Center for Law and Justice, Judicial Watch, Southeastern Legal Foundation, Mark Steyn, Dr. Judith Curry, and Stephen McIntyre of the much-followed Climate Audit.