Free Speech in the Balance 1108424007, 9781108424004

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Free Speech in the Balance Alexander Tsesis

free speech in the balance Free Speech in the Balance is the first comprehensive study of proportional analysis in free speech theory. This book challenges the US Supreme Court’s categorical approach and explains the importance of understanding the breadth of concerns arising from regulations directly and indirectly impacting expression. The author provides in-depth analysis of some of the important social and political principles governing topics of vital concern, including campaign financing, university speech codes, secondary school rules, incitement, and threats. This book should be read by students and scholars of free speech theory and anyone interested in learning more about the history of existing law, the issues of current importance, and trends in expressive significance. Alexander Tsesis is the Raymond & Mary Simon Chair in Constitutional Law and Professor of Law at Loyola University School of Law, Chicago. He is the author of seven university press books, most recently Constitutional Ethos: Liberal Equality for the Common Good (2017).

Free Speech in the Balance ALEXANDER TSESIS Loyola University School of Law

University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, USA 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108424004 doi: 10.1017/9781108539463 © Alexander Tsesis 2020 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2020 Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data names: Tsesis, Alexander, author. title: Free speech in the balance / Alexander Tsesis, Loyola University School of Law, Chicago. description: New York : Cambridge University Press, 2020. | Includes bibliographical references and index. identifiers: lccn 2020005171 (print) | lccn 2020005172 (ebook) | isbn 9781108424004 (hardback) | isbn 9781108539463 (ebook) subjects: lcsh: Freedom of speech – United States. Classification: lcc kf4772 .t74 2020 (print) | lcc kf4772 (ebook) | ddc 342.7308/53–dc23 LC record available at https://lccn.loc.gov/2020005171 LC ebook record available at https://lccn.loc.gov/2020005172 isbn 978-1-108-42400-4 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

For my mother, Marina, whose love of literature was contagious

Contents

page xi

Preface

xviii

Acknowledgments part i 1

theory

1

Formalism and Categorical Doctrine 1.1 Unprotected Categories of Speech 1.2 Boring Down into the Categories 1.2.1 Obscenity 1.2.2 Defamation 1.2.3 Fraud 1.3 Reasoned Balancing, Not Ad Hoc Balancing

2

Dominant Academic Approaches to Free Speech Strengths and Shortcomings 2.1 Personal Autonomy 2.1.1 Autonomy Theory 2.1.2 Evaluating Autonomist’s Claims 2.1.3 Autonomy and Copyright 2.2 Self-Government 2.3 The Marketplace for Truth 2.4 Convergences and Divergences of Methodologies

3

Free Speech and Proportionality 3.1 A Matter of Theory 3.2 Primary and Secondary Concerns

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3 4 12 12 15 17 18

19 20 20 22 25 28 35 38 40 42 51

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4

Contents

Civic Community and Social Context 4.1 4.2 4.3 4.4 4.5

Communications A Contextual Theory of Free Speech Speech and Other Constitutional Values Pluralistic Free Speech Balancing Content

part ii

application

57 60 61 63 66 70 75

5

US Formalism and EU Proportionality Alternative

77

6

Offense, Incitement, True Threats, and Hate Speech

83

6.1 Offensive Speech 6.2 Incitement 6.2.1 Historical Dimensions 6.2.2 The Modern Test 6.3 Critics of the True Threats Doctrine 6.4 European Court of Human Rights and Hate Speech

84 85 85 87 92 95

Terrorist Incitement on the Internet

99

7

8

7.1 Material Support for Foreign Terrorist Organizations 7.2 International and Foreign Laws against Incitement and Terror 7.3 Drafting a United States Cyberspace Terrorist Statute 7.4 Social Media Platform Liability 7.4.1 International Guidance 7.4.2 Communications Decency Act § 230 Immunity 7.5 Counterarguments

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First Amendment on Campus

117

8.1 Contemporary Campus Speech Issues 8.2 Doctrinal, Statutory, and Judicial Considerations on the Enforcement of Campus Codes 8.2.1 Campus Codes and Constitutional Doctrine 8.2.2 Hostile Campus Environment: Title VI Litigation 8.2.3 Lower Court Findings on Campus Codes 8.3 Current University Policies

119

102 104 110 110 112 113

123 124 125 129 132

Contents

9

10

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High Schooler Speech in the Age of the Internet

138

9.1 Student Speech Doctrine 9.2 Lower Court Review of Schools 9.2.1 On-Campus Speech 9.2.2 Off-Campus Speech 9.3 Conflicting Constitutional Values in Schools: the Case of Confederate Symbols

138 143 144 146 149

On the Campaign Trail Money and Politics

157

10.1 Campaign Financing Law: Burger Court 10.1.1 Unlimited Expenditure 10.1.2 Contributions by People and Corporations 10.2 Campaign Financing Law: Roberts Court 10.2.1 Corporate Expenditures 10.2.2 Aggregation of Contributions 10.3 Representative Democracy and Market Priorities

159 159 161 162 162 169 171

Conclusion

173

Notes Index

178 225

Preface

Free speech is an essential component to the operation of a representative government committed to equal rights and the general welfare of the people. The constitutional right to engage in open expression is designed to secure personal dignity, civic engagement, and flow of information. No generation of interpreters can claim to capture its full relevance to civic and civil functioning in a pluralistic environment. The broad statement found in the Constitution has long been the subject of evolving, sometimes inconsistent, constitutional meanings. Since the early twentieth century, the Supreme Court has been at the forefront of efforts to articulate the range of words, symbols, arts, and other objects or activities that the First Amendment covers. Interpretation takes into account a variety of constitutional contexts, principles, and discursive considerations. As Justice Sotomayor pointed in her dissent to Manhattan Community Access Corporation v. Halleck, the context within which a statement is said should be considered along with the actual words allegedly in violation of a law.1 The notion of balancing is not novel to the First Amendment context. The Supreme Court already weighs interests in several areas of law, including those dealing with public employees, government speakers, and political participants. Context determines what rules courts apply, what considerations they should evaluate, and what facts are outside the scope of cognizable legal disputes. Contrary to the US Supreme Court’s oft repeated claim, which appears in cases such as Reed v. Town of Gilbert, not all content-based restrictions on speech require judges to engage in the highest level of review. In her dissent to that case, Justice Kagan listed a variety of ordinary uses of police powers incidentally affecting the communication of information that invoke no constitutional query. They include ordinances that regulate speed limit signs posted on roads, address plates on residential houses, and markers on historical sites. Such regulations of content, as she points out, need only be reasonable xi

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without having to pass the stringent test of strict scrutiny. A majority of the Court nevertheless insisted in Reed that all content-based regulations are subject to strict scrutiny.2 The case is part of a pattern of categorical pronouncements in First Amendment jurisprudence whose absolute statements are misleadingly opaque. This book argues for transparent, contextual reasoning in free speech jurisprudence to help lower courts, legislators, and ordinary people best explain why some but not all expressive conduct receives constitutional treatment. Discussions about the Free Speech Clause often focus on the personal or public values of expressions without adequately weighing competing values and surrounding circumstances. In the words of Justice Breyer, in a partial concurrence and partial dissent to Iancu v. Brunetti, categorical rules of free speech doctrine are “rules of thumb.” Choosing an interpretive scheme – be it “commercial speech,” “government speech,” or the like – rather than weighing countervailing government interests created “outcome-determinative rules.”3 To the contrary, the Roberts Court’s approach to the First Amendment has been to reject, out of hand, that speech sometimes must be balanced against other constitutional structures, rights, and procedures. The Court ends its examination of the Lanham Act and finds its prohibition on “immoral[] or scandalous” trademarks unconstitutional in Brunetti and Matal v. Tam,4 ab initio because it regards such restriction to be viewpoint discrimination. A more nuanced method, which I will defend in this book, requires policymakers to evaluate a full range of legally relevant considerations, procedures, and principles when dealing with challenges to government restrictions on expression – be they intellectual property laws, restrictions on terrorist posts on the internet, obscenity regulations, commercial advertisements, judicial solicitations of donors, professional advice, student publications, violent video games, computer generated data, depictions of animal torture, or similarly complex issues. A proportional methodology cannot expect to yield uncontroversial decisions, but it can provide the necessary details needed for appellate review and informed public reactions. Put more simply, speech should not automatically trump all other constitutionally protected interests. Proportional reasoning is more thorough in resolving cases than are textualist, categorical, and absolutist approaches. Our lives are filled with communications. The interest is not confined to academics and politicians. Various topics involving the constitutionality of free speech regularly appear in the news media, including discussions about campus codes, cyberbullying ordinance, and campaign financing law. With such widespread interest in the topic, there are a broad range of opinions about the principal function of the First Amendment. Some individuals favor

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entertainment, others politics or the arts. Pluralistic society countenances differing priorities without enforcing orthodoxy. The legal realm, however, requires definitions: It is one thing for constituents to disagree and quite another for the judiciary to provide inconsistent guidelines for the resolution of cases and the drafting of legislation. Transparent constitutional doctrine is necessary to prevent arbitrary government intrusion into the procedural and substantive rights of people to freely express themselves. The judiciary is entrusted to provide clearer guidance about constitutional principles. In the First Amendment realm, however, the Supreme Court has relied on contradictory approaches, leaving scholars, journalists, politicians, and other citizens befuddled. A single theoretical construct would improve doctrinal development. But identifying a unifying theme in the vast sea of topics associated with free speech carries all manner of pitfalls, from overlooking valuable guidance to oversimplifying analysis. The challenge is to articulate an approach that is flexible enough to be contextual yet rigorous enough to guide judges. In these pages, I argue that courts should evaluate whether speech plays a central or peripheral function in specific legal disputes. Communications enjoy the greatest protections when they further well-ordered representative democracy, whose function is to equally protect individual rights for the common good. Adjudication requires exacting information about the speech involved, any countervailing government concerns, pertinent experiences with similar speech claims, alternative means to the challenged regulation, and examination of whether the legal means chosen are likely to achieve public goals. This value-rich perspective on the First Amendment runs counter to judicial and scholarly interpretations that focus exclusively on categorical First Amendment doctrines. Whether a particular judicial decision is consistent with the values of deliberative democracy should be judged by synthetic considerations of authoritative text, abstract reasoning, civic and pluralistic principles, doctrinal reflections, informational values, and rational applications of existing laws. Categories are useful synthetic starting points of analysis. Behind judicial categories, however, are principles of constitutional governance. Antitrust laws, for example, take for granted that congressional Commerce Clause authority is more weighty in cases involving monopolistic conspiracies than is the interest to communicate insider information. The Court has never explicitly weighed the concerns of market regulation and personal expression, leading to potential challenges to the Securities Act of 1933 and the Sherman Antitrust Act.5 Other cases are more explicit about the multiple factors and complexities involved in resolving controversies. Take, for example, the freedom to communicate in public forums. The case law in

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that area typically discusses the context of free speech6 with a refreshing openness that should appear throughout First Amendment jurisprudence. Often, a variety of constitutional provisions come into play. In deciding challenges to regulations, judges should not limit their analysis to the First Amendment. They should instead review the facts based on all constitutional provisions relevant to the resolution of a legal dispute. Conflicts are inevitable between the values of speech, safety, privacy, intellectual property, national security, education, and many other matters that arise during litigation. A leading free speech scholar, Alexander Meiklejohn, likewise conceived the First Amendment to be part of a broader constitutional guarantee of liberty: In our discussions of the Constitution, we commonly think that the clearest and most compelling expression of the “idea” of political freedom is given by the First Amendment. But in theory, and perhaps in practice, more penetrating insights are given by the Preamble’s declaration that “We, the people of the United States . . . do ordain and establish this Constitution . . .,” or by the Tenth Amendment’s assertion that, while we have delegated some limited governing powers to our agents, we have reserved other powers to ourselves, or, finally, by the provision of Article I, Section 2, that we have authority to exercise direct governing power in electing our representatives.7

Jurisprudence would do well to look beyond the Free Speech Clause to autonomous dignity, representative government, and equal rights to identify underlying principles relevant to the resolution of free speech cases. These are not ad hoc concerns but constitutional interests. And it is the role of judges to engage in justifiable reasoning to parse them, weigh their pertinence to cases, and to resolve disputes between claimants. The aim of this book is to articulate, assess, and critique contextual policies, arguments, and considerations of free speech and to apply them to specific communicative challenges of the twenty-first century. Contextual interpretation involves a conversation about constitutional principles behind law, tradition, individuality, and the general welfare. The approach I propose challenges First Amendment libertarianism. The Roberts Court has moved away from contextual analysis to formalistic rules that often adopt free speech rhetoric to strike commercial and campaign regulations. The first part of the book discusses various theories of free expression interpretation, settling on a contextual approach. Chapter 1 explores and critiques the Supreme Court’s recent turn to a more categorical approach of interpreting the Free Speech Clause. It parses the Roberts Court’s inconsistent claims of free speech absolutism, its lean list of unprotected communications,

Preface

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and its self-contradictory reliance on balancing tests in isolated areas of First Amendment jurisprudence. The chapter concludes with a call for greater transparency in interpretation. Chapter 2 scrutinizes the three dominant schools of American interpretation of the Free Speech Clause of the First Amendment. The chapter analyzes the strengths and weakness of the self-government, self-expression, and marketplace of ideas approaches. While these three approaches are insightful, they do not adequately account for principles of important doctrines. The chapter further argues that judicial formalism, which I call the categorical method of the Court, is not adequately transparent to offer a comprehensive account of the factors about case law about matters such as obscenity, child pornography, and incitement. The third chapter lays out the broad parameters of free speech theory. It explains the importance of principle to constitutional interpretation in general and the First Amendment in particular. The chapter sets out to demonstrate that the Free Speech Clause should be understood as a component of the Constitution that can be balanced against other values, such as human dignity. It seeks to deconstruct the Supreme Court’s recent conclusion in Reed v. Town of Gilbert that all content-based restrictions on speech are subject to strict scrutiny review. Speech is not a stand-alone value but, as Chapter 4 points out, a critical component of deliberative and representative democracy. A theory of free speech – providing for ample safeguards for deliberation, self-expression, self-affirmation – should therefore be built on the foundations of American democracy. Robust protection of expression is critical for fulfilling the federal obligation to inalienable rights in the Declaration of Independence and general welfare in the Preamble to the Constitution. The second part of the book applies a contextual theory to judicial doctrines. It begins with Chapter 5’s look into how the European Union applies proportionality analyses in the area of privacy law. Chapter 6 then differentiates protected forms of obnoxious speech and speech likely to pose threats to public safety. More specifically, the chapter first contrasts how the US Supreme Court treats the outrageous speech from incitement. In addition, the context of when the incitement and true threats doctrines are relevant to adjudication are compared and contrasted. It concludes by showing how the European Union balances values in “hate speech” cases. The book’s seventh chapter discusses the regulation of terrorist speech on the internet. Internet communications have proven to be tremendously influential in recruiting terrorist progenies who function as sleeper cells in the United States and abroad. Contrary to several theorists such as David Cole, the

xvi

Preface

National Legal Director of the American Civil Liberties Union, I conclude that restrictions on terrorist uses of digital platforms are a narrowly tailored means of achieving the compelling end of protecting public safety. Chapter 8 enters into the contemporary debate over whether institutions of higher education should regulate trigger warnings and safe spaces on campus. I unpack the contextual free speech issues pertinent to university education, where tensions can arise between anti-harassment duties under Title VI of the Civil Rights Act of 1964 and commitments to the free exchange of ideas about history, philosophy, art, science, and politics. The chapter reviews several current campus codes of conduct containing speech referents. It also explains how administrators can enact a constitutional defensible harassment code without running afoul of the First Amendment. Chapter 9 continues with the theme of education, turning to the communicative rights of children in elementary and high schools. This area of law has evolved steadily with the growing availability of electronic communications devices that make it easier for children to exchange ideas but also increases the reach of cyberbullying on and off campus. Children’s near ubiquitous uses of the internet have required courts to review First Amendment norms and to preserve students’ abilities to engage in conversations and grow as individuals. Officials responsible for disciplined learning environments are particularly acute during children’s vulnerable youth. Students right to engage in and learn is best preserved by viewing restrictions on speech at schools in the context of diverse young speakers, educational policies, fit between school discipline pedagogical ends, and channels for free discussions. Chapter 10 addresses one of the thorniest issues of our times: the constitutional limits of campaign financing regulations. In a series of cases, the Supreme Court has diminished congressional control over voter discrimination and the appearance of corruption. The Court’s analyses in these opinions have been libertarian. The trend is for cases to lack adequate nuance about distinct features of voters and corporations. The Court even struck down an aggregate limit on campaign financing contributions made to multiple political candidates, further enabling the most wealthy citizens and corporations to have undue influence on American politics. In the context of contributions to and expenditures on political campaigns, I argue, the citizens’ interest in fair elections outweighs for-profit corporations’ interests to influence politicians. The Court’s recent embrace of a categorical approach to free speech analysis runs counter to a holistic framework of the Constitution, as well as extant First Amendment precedents that balance private interests with relevant considerations of general welfare. The constitutional guarantee of free

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speech is twofold: It preserves the dignity of speakers and the audience’s right to hear and know. But these rights are not absolute. They must be balanced against substantial, and in some cases compelling, state interests of preventing imminent threats to violence, the production of child pornography, secondary effects of vice, health and safety, intellectual property, securities markets, professional healthcare regulations, rules of evidence, restrictions on fraud, and other pertinent policy considerations. Contextual guideposts of free speech theory include historical, doctrinal, semantic, aspirational, public function, liberty, and equality details of constitutional principles. Free speech plays an essential role in representative government built on the constitutional principles of liberty and equality for the general welfare of the people.

Acknowledgments

I am deeply grateful to scholars who took time from their busy schedules to review chapters in draft. I owe a deep debt of gratitude to many a person. I cannot say enough about the importance of feedback to constructive thinking on the project. Albert Einstein’s adage has long been affixed on my office lamp, “What a person thinks on his own, without being stimulated by the thoughts and experiences of other people, is even in the best case rather paltry and monotonous.” When I look back at the many conversations and responses this project elicited, I am deeply, deeply grateful and humbled that so many wise people gave it their precious attention. I owe the greatest debt to William Araiza, Christine Chambers Goodman, and Eric Segall who commented on the entire manuscript. It would take me pages to explain how much these three individuals’ guidance helped me with everything from substance to structure. Substantive insights into various portions of the book project came from Enrique Armijo, Amy Barrett, Eric Berger, Ashutosh Bhagwat, Vincent Blasi, Marc Blitz, Danielle Keats Citron, Caroline Mala Corbin, Katie Eyer, Stephen Feldman, Amanda Frost, David Han, Jessie Hill, Matthew Johnson, Olatunde Johnson, Michael Kaufman, Heidi Kitrosser, Andrew Koppelman, Randy Kozel, Toni Massaro, Mollie McKinley, Darrell Miller, Helen Norton, Mary-Rose Papandrea, Elizabeth Pollman, David Pozen, Alexandra Roginsky, Stephen Rushin, Wojciech Sadurski, Elizabeth Sepper, Jonathan Sheffield, David Thaw, Ruth Tsesis, Andrew Tutt, Mark Tushnet, and Evan Zoldan. Support for the project also came from Benjamin Barnett, E. Giovanna Cavallo, Samuel Dykstra, Sarah Eskens, Brian Gibbons, Alexandra Harrington, Helen Kitto, Michael Kaufman, Jonathan Manes, Robert Mikos, Mark S. Scarberry, and Christopher Serkin. I am thankful to

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all these folks for taking time from their busy schedules to give me wise counsel. Any remaining mistakes or flaws are mine. Articles that served as foundations for this book were significantly reworked. They provide the framework for developing a contextual theory of free speech and applying it to contemporary issues: Terrorist Communications on Social Media, 70 Vanderbilt Law Review 651 (2017); Multifactorial Free Speech, 110 Northwestern University Law Review 1017 (2016); Free Speech Constitutionalism, 2015 University of Illinois Law Review 1015 (2015); The Categorical Free Speech Doctrine and Contextualization, 65 Emory Law Journal 495 (2015) Inflammatory Speech: Offense Versus Incitement, 97 Minnesota Law Review 1145 (2013). My greatest sources of daily inspiration are my wife, Sasha, and our children, Ruthie and Ari. I have immeasurably gained from their gregariousness, advice, and good cheer on the happy trails of life.

part i

theory

1 Formalism and Categorical Doctrine

First Amendment jurisprudence contains a variety of rationales for allowing government to regulate speech in public employment, public school, and commercial contexts. Of late, however, the Roberts Court has made several statements about the First Amendment protecting all communications other than several low-value categories, including obscenity and incitement. Other than those judicially defined “historical” categories, the Court now presumes virtually all expression to be covered by the First Amendment. Ad hoc balancing is regarded to be impermissible in this field. Yet many cases contradict the Court’s statement in Reed v. Town of Gilbert: “A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”8 Such a bare statement overlooks the multifarious constitutional values at play in commercial regulations, national security statutes, and professional norms. A majority of justices on the Roberts Court have argued that a predetermined, bright-line doctrine checks judges from exercising “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”9 Their mode of review is not satisfying for identifying why, the Court has said, “[N]ot all speech is of equal First Amendment importance.”10 The Court has asserted its reluctance to expand the elements of a small set of unprotected communications, but its historical justifications11 and absolutist-sounding strictures against content-based restrictions raise questions best answered through proportional analysis.12 While the modern categorical approach sets itself apart from balancing tests, on closer scrutiny, the court has not altogether abandoned weighing of speech interests against countervailing government policies. For instance, government defense against national emergencies or threats to democratic order might outweigh free speech interests.13 While the Court has rejected “ad 3

4

Part I. Theory

hoc balancing of relative social costs and benefits,”14 it has continued to rely on selective balancing in areas like public employment and national security matters. Even when it has relied on strict scrutiny, the Court has found that standard to be satisfied in a select few cases where critical interests are at stake, such as safeguarding the public from terrorism15 or electoral interference.16 This chapter parses the Court’s inconsistent claims of free speech absolutism, its misleading list of unprotected communications, and its reliance on balancing tests in particular areas of First Amendment doctrine.

1.1 unprotected categories of speech The Supreme Court first announced a strict, categorical approach to free speech interpretation in United States v. Stevens.17 Although intimations to this approach had appeared in earlier cases,18 the strictly “historical” methodology for identifying unprotected categories of speech in Stevens took the judiciary into a far more formalistic direction than before. The Court refused to give adequate weight to the countervailing public interest against animal cruelty or the lack of alternatives to achieving that goal. Writing for the majority in Stevens, Chief Justice Roberts found the Animal Crush Videos Act (ACVA) to be facially unconstitutional. The statute prohibited individuals from commercially creating, distributing, or possessing crush videos “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.” Congress relied on its Commerce Clause power to pass the regulation to address the manufacture and sale of videos depicting animals being crushed to satisfy a niche audience’s obscene perversity. The statute expressly criminalized, visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State.

A representative visual recording targeted by legislators depicted a woman clad in stiletto heels torturing cats, dogs, monkeys, mice, hamsters, and other sentient animals. The videos were agonizing; in them, tormented animals screamed in pain. Congress identified an important concern related to federalism for creating national legislation. The federal government sought to provide a remedy for the dissemination of videos depicting conduct that had been criminalized

Formalism and Categorical Doctrine

5

throughout the United States. All fifty states had laws against the acts of animal cruelty that appeared in those visual recordings, but none of them “prohibit[ed] the sale of depictions of such cruelty.”19 Thus the ACVA filled a federalist gap, consistent with a national consensus against cruel treatment of animals, by preventing persons from profiting from their own or other persons’ commission of crimes involving real victims. Despite this morally informed statutory intent, the Stevens majority concentrated almost exclusively on speech, ultimately holding that the ACVA was substantially overbroad and, therefore, posed a facially unconstitutional violation of free speech. In a twist to the case, the defendant had not sold any cruel, sexually perverse videos, but instead ones depicting pit bulls goaded into ferocious fighting. Nevertheless the statute served a collective action concern, which Congress had sought to address. All fifty states and the District of Columbia prohibit the staging of dogfights,20 and therefore the reach of the statute was also consistent with national policy. Given the near universal criminalization of those cruelties, the Court could have left the law intact but find defendant’s conviction for distributing dogfighting and dog hunting videos violated the First Amendment., while keeping the law intact. Or it might have deferred to the countervailing state’s policies against animal abuse. Instead, Chief Justice Roberts rejected the Solicitor General’s bare-boned “categorical balancing” test, weighing “the value of the speech against its societal costs.”21 This, the Chief Justice held, would amount to a “free-floating test for First Amendment coverage” that would be startling and dangerous. Roberts had a point: It is critical to have adequate constitutional framework to avoid subjective judgments resulting in censorship. However, he rigidly refused to even consider a rigorous weighing of the nationally recognized countervailing interest in deterring cruelty to animals that is part and parcel of crush videos. The Stevens majority adopted a purportedly historical test, wherein Roberts mistakenly dated his chosen categories to the ratification of the Bill of Rights: “From 1791 to the present,” . . . the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” These “historic and traditional categories long familiar to the bar,” – including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct – are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.”22

6

Part I. Theory

If this statement were to be understood literally, the Chief Justice would be saying that judges can only define low-value categories of speech through historical rather than dynamic inquiries. For Roberts, past rules drive current choices. There is no room for society to learn from the past and to evolve through legal practices. He implies that the foundation of the First Amendment was hardened into a jurisprudence that is necessarily determined by some objectively determinable creed held by the Constitution’s founders. If that were the end of the matter, jurists would need to determine what speech has been banned since the First Amendment’s ratification without raising constitutional concerns arising from new sensibilities, technologies, and insights. The majority’s method rejected any principle-rich approach, and it did not acknowledge that free speech jurisprudence developed only after the First World War. The lone dissent took a more nuanced approach. Justice Samuel Alito recognized that the criminal behavior intrinsic to the creation of animal cruelty videos should have been factored into the decision. Instead, the majority formalistically couched its holding as keeping with a tradition of content neutrality, callous to the abused animals’ sufferings. Alito reasoned that, “The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes.” Because creation of the videos required the perpetration of criminal acts, “Congress was presented with compelling evidence that the only way of preventing these crimes was to target the sale of the videos.”23 Thus, Alito’s principal argument discounted the obvious regulations on communications – a statutory prohibition against commercial transactions in videos depicting animal cruelty – as conduct rather than speech. The majority’s opinion placed a barrier before lawmakers seeking to punish and deter acts of depraved cruelty. “The Court strikes down in its entirety a valuable statute, that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty.” To be fair, Alito’s thought was not purely categorical but looked to the values behind the law: “The creation and commercial exploitation of ‘crush videos,’ [is] a form of depraved entertainment that has no social value.”24 Justice Alito’s suggestion to balance the low social value of crush videos against the free speech rights of those who created or sought to view them was not novel. A nearly century-old precedent allowed for just that sort of balancing.25 Rather than handling the case as a matter that solely raised free speech issues, in contrast to the majority, he recognized that the law regulated wanton torture, killing, obscenity, and brutality. The Act reinforced public morality throughout the United States, not just an abstract philosophy but as one geared to protecting animals against heinous acts of

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7

violence. In this case, the statute was the least restrictive means for achieving the policy goal of disincentivizing children to obtain violent video games without their parents. Neither did Alito agree with the Court’s characterization that the ACVA placed an overbroad restriction on constitutionally protected speech. As he saw it, the majority was too textual in its approach and should have instead ascertained statutory intent.26 His understanding of overbreadth was in keeping with the standard the Court had recently established, which recognized a judge’s needs to “strike a balance between competing social costs.”27 That balance between the liberties of speakers and audiences, on the one hand, and anti-criminal policy of the state allows for regulations unless they interfere with “a substantial amount of protected speech.”28 Like the dissent, the majority also quoted the relevant precedential case, United States v. Williams, but Chief Justice Roberts failed to follow its weighted proscription. Consequently, the Stevens majority struck the law on its face, refusing to give any serious significance to the legislative intent of passing the ACVA to deter and punish acts that, by national consensus, were sexually depraved forms of violent perversion. Moreover, as Justice Alito pointed out, the majority’s slippery slope claim was disingenuous because the Act implicitly exempted hunting and “humane slaughter” from the prohibited conduct. The statute also contained exceptions for “depictions” of “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”29 Thus, the law contained elements consistent with a rigorous balancing test that takes into account a speaker’s interest, the government’s concerns, a means/ends analysis, and the effect of restrictive clauses. Alito believed hunting and slaughter would fall under the educational, historical, or serious scientific value labels.30 Stevens became the first in a series of decisions that relied on the categorical test to advance an increasingly libertarian doctrine. Justice Scalia, who wrote for the majority in Brown v. Entertainment Merchants Ass’n, relied on the same historical sounding test to strike a state law limiting the sale and rental of violent, interactive video games to minors.31 In keeping with Stevens, the majority listed a variety of categories outside the First Amendment protections, including fighting words, fraud, defamation, incitement, and speech connected to criminal activity. Scalia used a strongly historical test (unsurprising given his self-proclaimed, albeit “faint-hearted,” preference for original meaning interpretation).32 He asserted that the listed categories were not malleable but “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.”33 The Court explicitly eschewed the use of evolving

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interpretation: “Without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the ‘judgment [of] the American people,’ embodied in the First Amendment, ‘that the benefits of its restrictions on the Government outweigh the costs.”’34 It was apparently lost on the Court that video games were themselves new interactive art forms, whose playing was of disputable communicative value and which did not correlate directly with any eighteenth-century notion of speech. Contextual balancing was therefore imperative to adjudication. The meaning of speech is not purely categorical but requires connections with other concepts in law. Whether speech should receive the highest constitutional protection depends on how concepts intertwine and how they interact. Thus, speech connects differently to political communications or artistic expression than it does to transactional interactions. The system of law intertwined to accommodate normative choices about considerations of dignity, tradition, normativity, and concrete choices. Values and interests play a role in decision-making. Every legal choice must be analytically consistent and practically sound. Courts rely on scrutiny norms to identify implicit values, such as the distinction between pure speech and commercial transactions. Sales and rentals of violent video games might have drawn intermediate scrutiny, the test ordinarily used for reviewing commercial speech, but the Supreme Court instead invoked strict scrutiny. This choice was outcome-determinative. Video games, the majority found in Entertainment Merchants Ass’n, are protected forms of content simply because they communicate interactive data. The decision made no effort to evaluate whether there are important distinctions between First Amendment values and economic regulations. The Court’s meddling in Entertainment Merchants Ass’n and Stevens into regulations against businesses that created, possessed, or sold animal torture videos and those that rented or sold violent video games to children was reminiscent of its regular disruption of consumer regulations during the Lochner era. Just as it did then, the Roberts Court created a judicial list of categories and thereby erected barriers on the enforcement of commercial laws. The Roberts Court then imprinted its newfound formalistic into United States v. Alvarez, which relied on the Stevens “1791” template for unprotected categories.35 In Alvarez, the Court struck down the Stolen Valor Act of 2005.36 In the trial court, Mr. Alvarez pled guilty of violating the law by intentionally lying that he had been awarded the Congressional Medal of Honor. Justice Anthony Kennedy wrote for a plurality, which reviewed the suppression of speech under the “exacting scrutiny” standard of review.37 He presumed the

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statute’s illegitimacy because of its content-based restrictions, thereby putting the onus on the government to prove the law was constitutional. Keeping in step with the two earlier opinions, the Court regarded it to be “startling and dangerous” to rely on a “free-floating” test of “ad hoc balancing or relative social costs and benefits.”38 In addition to adopting Stevens’s and Entertainment Merchants Ass’n’s list of historically low-value categories of speech, Kennedy added child pornography and true threats to it. Contrary to his assertion, however, neither of them have much of a historical pedigree. New York v. Ferber, the seminal child pornography case, came down in 1982.39 And the Court announced the true threat doctrine in 1969,40 the same year the Court declared its most up-to-date incitement test.41 Thus, neither of the two new categories on Kennedy’s list existed when the First Amendment was ratified in 1791, the Court’s cut-off line in R.A.V., Stevens, and Entertainment Merchants.42 In his concurrence to Alvarez, Justice Breyer recommended relying on means/ends factors. His suggestion was in keeping with those precedents in which the Court relied on a proportionality approach to review laws limiting expressions that warranted neither “near-automatic condemnation (as ‘strict scrutiny’ implies) nor near-automatic approval (as is implicit in ‘rational basis’ review).”43 He argued that courts examine the seriousness and likeliness of a harm; the Act’s counterbalancing objectives; the extent to which the Act was likely to achieve those ends; and whether other, less restrictive, means meet policy objectives. After conducting a contextual review of the Stolen Valor Act, he agreed with the majority that the government had failed to show that a more narrowly tailored statute was insufficient to prevent fraud. Breyer’s proposed test was not categorical but nuanced, conscious of context, values, and countervailing interests. Yet, it misses an important step to integrate learning from European experiences, where proportionality enjoys “central importance . . . in modern public law.”44 Professor Alexander Aleinikoff calls it the “age of balancing,” as the “redominant method of constitutional interpretation.”45 Proportionality is said to be “a universal criterion of constitutionality.”46 Judicially created categories should be treated as starting points for analysis, not a replacement for it. Some forms of speech are conceptual, theoretical, and ideological, placing them outside the scope of regulations. Justice Breyer and Justice Alito, who wrote a separate dissent in Alvarez, noted that any attempt to stifle debate on philosophical, religious, historical, social scientific, or artistic expressions would warrant the most rigorous judicial scrutiny. However, even here it is conceivable that these abstract categories will not yield the

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best results without closer evaluation of legal means and policy ends. It is feasible, for instance, to think that government would have a compelling reason to shut down even religious or philosophical speakers who issue true threats of genocide against an identifiable group. Sometimes the least restrictive means is censure. For instance, a library book containing the renowned Protestant Martin Luther’s violent antisemitism, which advocates the religious repression and burning of Jews,47 is a piece of historical and religious prejudice. However, if a supremacist group were to borrow his dogma in an effort to actualize those views, in some contexts the state might have an interest in intervening before the commission of violence. The threat to burn synagogues and kill Jews might not cause imminent action – perhaps it would take time to organize vigilante gangs – but a court should be able to ascertain the likelihood that the evil will be carried out before police can stop it. So too, people calling for the lynching of a black man who purportedly raped a white woman – a slander that has historically inflamed mobs to commit racist murders – must be examined within the context in which the remark was made, the likelihood of its fulfillment, the burden on restricting the speech, the mental or physical harm to the victim, and the means used to instigate the propagated evil. A judge faced with a state effort to quell such remarks would need to consider the context in which they were uttered and whether censorship was a proportionate remedy to the likely harm. Simple categorization will not do because some statements might not fall under the list in Stevens and its progenies. Nevertheless, judges should reflect on concerns against public violence as well as the interests in maintaining security, tranquility, pluralism, public morality, general welfare, human dignity, equality, and historical records of discriminations. Moreover, challenges brought against efforts to curb violent misethnicity, chauvinism, homophobia, and similar prejudices should identify whether the means government chooses to prevent these harms are proportionate to their gravity and likelihood, and whether there are alternatives to law enforcement. Relying exclusively on categories fails to provide a full picture of the social norms that govern communications. Instead they should be starting points to a context-rich analysis. Where other values, such as privacy, exist in addition to speech, the Supreme Court should closely balance them. This improves accuracy, precision, and reliability. Historic categories are important markers for identifying the First Amendment’s values, but legal legitimacy is not merely backward-looking. The normative question comes down to whether a law accords with the principle of representative democracy for the equal common good. And that issue can only be

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resolved through assessments of law, facts, national ideals, culture, history, and society. The Roberts Court purports that the only exception to the content-based analysis of strict scrutiny is a finite set of low-value categories of speech. This group of doctrines began with Justice Scalia’s argument in R.A.V. v. St. Paul. Upon close scrutiny, however, even the low-value examples listed by the majorities in Stevens, Entertainment Merchants, and Alvarez turn out to be based on value judgments, yet no strict scrutiny applies to them. A purpose-based theory of the First Amendment provides transparency and predictability about how a court should methodically adjudicate cases involving free speech. However, shifting from its categorical paradigm “would require the Court to acknowledge more explicitly that the principle of content neutrality is not in fact as all-encompassing as it has claimed: that both courts and legislatures in fact retain considerable power to discriminate against speech because of the message it communicates.”48 Without the flexibility needed to render nuanced judgments by applying relevant precedents to unique facts of cases, judges are likely to be pragmatists, using case characterizations in outcome-determinative ways. Much rides on whether speech is characterized as, for instance, pornography or obscenity. Likewise, whether a cause of action is adjudicated under the true threats or incitement doctrines is consequential and should be articulated through a balanced explanation, systematically reflecting on speech interests, countervailing policy, means/ ends fit, alternatives to regulation, and relevant precedents. Speech cases can always be considered within the parameters of broader constitutional principles. Besides its content neutrality is a backsliding from recognition that “content, form, and context” play a role in free speech jurisprudence.49 With that said, the content neutral standard is an important starting point. Professor William Araiza has pointed out that rules “provide enough of a thumb on the judicial scale to produce predictable results that do a reasonably good job of protecting the constitutional value at issue.” However, in cases presenting unique facts or social contexts, rigid adherence to categories can be a smokescreen behind which judges might issue politically driven holdings,50 such as those favoring commercial advertisers over consumer protections advocates. The categorical approach is not a panacea; it is, instead, a general rule whose value must be borne out in particular cases within the context of the record before the court. Yet, the Roberts Court’s categories are not historical as they purport to be. The balance in New York Times v. Sullivan, involving an official who unsuccessfully pursued a defamation suit against a newspaper, no doubt falls on the side of speech and information; however, a defamation suit for private insults

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against private individuals is treated differently. In the latter case, common law defamation rules apply rather than First Amendment standards. Sullivan created a new category of public figures and public matters for constitutional analysis that has even deeper meaning. It relates to the ability of representative democracy to function as a system, where ordinary people can play an influential role in the creation of policies through debates and petitions. Moreover, as Professor Steven Shiffrin explains, even the Court’s cited categories – such as obscenity, defamation, and criminal advocacy – “are entirely different than at the time of the framing; indeed their most recent definitions have been refined in a line of cases beginning in the late 1960s.”51 For instance, it was not until 1964 that the Sullivan Court identified actual malice to be the standard for defamation cases involving public officials and public matters. Alvarez cites to Sullivan among those cases that identified low-value categories. But the constitutionalization of defamation is a late-twentieth-century construct, without antecedents traceable from 1791. Cases-by-case balancing, as demonstrated in the second part of this book, is indispensable to fair judgment. The Court’s claim to be objectively uncovering historical and traditional exceptions to free speech protection is dubious. Professor Toni Massaro has pointed out just how much American understanding of free speech has changed: At the nation’s founding, the First Amendment applied only to the federal government, with incorporation to the states occurring only in 1925.52 Several categories of intermediate scrutiny doctrines of speech, including those of commercial speech and government speech, came into jurisprudence even after Sullivan.53 In the contemporary world, examining the internet through the limited prism of categories supposedly developed at the Bill of Rights’s ratification is unreasonable.

1.2 boring down into the categories Majorities in Stevens, Entertainment Merchants, and the Alvarez plurality appeared to rely on precedent to identify long-held categories of low-value speech. Upon closer examination, however, it is evident that neither the chosen categories nor the Court’s past cases support such a formalistic approach. 1.2.1 Obscenity All three of those Roberts Court cases named obscenity as a form of content that has historically and traditionally been restricted without raising First Amendment scrutiny.54 But the precedents on which the Court relies indicate the opposite conclusion; low-value categories derive from twentieth-century

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precedents, not a list that had been predefined in 1791. In fact, the Court did not announce that obscenity was unprotected until Roth v. United States in 1957. In Stevens, which the Court decided fifty-three years later, Chief Justice Roberts nevertheless sought to demonstrate that the low-value category was not an ad hoc agglomeration but dated back to the founding. In essence, the Court was saying that no weighing was necessary to arrive at the holding. But that assumption turns out to be mistaken. What’s more, the Chief Justice’s choice to cite Roth is puzzling as the test for obscenity has long been superseded, clarified, and modified. For example, in Brockett v. Spokane Arcades, Inc., a 1985 case, the Court explicitly recognized that Roth’s model was not adequately rigorous.55 By then, a more demanding, three-part test appeared in the 1966 decision, Memoirs v. Massachusetts,56 and finally in Miller v. California, a 1973 case, the Court announced the now current test.57 In Roth, the Court determined that judges reviewed whether statutory limits on obscenity should be reviewed through the “contemporary community standards” approach. The case arose out of the conviction of a person who had used the Postal Service to mail obscene material in contravention of US law. Interestingly, the majority relied on history to lay out twenty federal obscenity laws enacted between 1842 and 1956. The Court’s “objective” standard was meant to help identify whether the average person would find the suspect material appealed to a prurient interest in sexuality.58 Obscenity, the Court announced, was “utterly without redeeming social importance.”59 It is therefore likely that Chief Justice Roberts relied on Roth because it represented precedent that had used tradition to identify a low-value category of speech. Roberts regarded Roth to have set a bright-line dichotomy between constitutionally protected and unprotected speech. To support that proposition, he might have turned to the Roth majority opinion, which asserted that, “All ideas having even the slightest redeeming social importance . . . have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.”60 But, upon closer examination, even that statement from Roth does not lend credence to the Roberts’s assertion in Stevens that surveying history and tradition suffices to identify legitimate content-based restrictions on speech. Deciding whether certain expressive content is “utterly without redeeming social importance” is itself a value-based judgment. The First Amendment protects any expression of ideas with the “slightest redeeming social value.” Any evaluation of whether an expression has social value is necessarily normative and not strictly categorical. The evaluation further requires assessing

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whether the average person, relying on “contemporary community standards,” would find it to be prurient. The Court, therefore, found that obscenity does not generate free speech concerns warranting strict scrutiny analysis. A defender of Chief Justice Roberts might take me to task for concentrating on the social value portion of the Roth opinion. Instead, s/he might point out that the case contains categorical language, characterizing obscenity to be “utterly without redeeming social importance.” The problem with that line of reasoning is that this standard is no longer good law. With time, the Court recognized the Roth test to be unworkable and under-defined. New guidance was needed for courts to distinguish obscene materials from those that were merely pornographic, and therefore protected by the First Amendment. The Court’s current obscenity test appeared in the 1973 case, Miller v. California.61 It is composed of three parts: A trier of fact must evaluate (1) whether an “average person” who relies on “contemporary community standards would find” the expression “taken as a whole, appeals to the prurient interest”; (2) whether it “depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law”; and (3) “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”62 Any adjudicator reviewing such a case would need to parse each element and then balance the various outputs to determine whether the work is obscene. The first prong is inherently subjective. Each jury or judge will have an idiosyncratic definition of how to define an “average person,” and how to identify what constitutes “contemporary community standards.” What is more, communities’ views change over time, rendering universal agreement impossible. Whatever the findings, the judgment will be predicated on local sensibilities, not categorically correct findings. In this analysis, history and tradition, which the Stevens Court so prominently relied on, are likely to play an insignificant role. Yet, the benchmark of a community’s contemporary standards can only be done by content analysis, sifting through a wealth of possibly pertinent cultural materials, and settling on relevant, local norms. The second prong, on the other hand, does seem to have the hallmarks of categoriality. It is an objective description of how specific state laws outlaw patently offensive materials. Prosecutors tasked with proving up this element would turn to statutory history, precedents, and perhaps debates. But they would only get there after completing the subjective analysis of the first prong. Moreover, Miller’s third prong is deeply contextual. It requires juries and judges to delve into the evidence to determine whether the work, taken in its entirety, “lacks serious literary, artistic, political, or scientific value.” Such an

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assessment of material facts does not yield a predetermined, historicallyunambiguous obscene category. Simply put, there is no objective, historical standard for determining what is literary, artistic, political, or scientific. And therefore any encroachment of expressions of those genres is presumptively protected under the First Amendment. Such judgments will be unavoidably linked to social- and autonomy-based interests. Justice Elena Kagan, when still a law professor, explained that the Court’s constitutional test on regulations of sexual materials, “mandates an inquiry into the value of the materials.” In an even clearer rejection of formalism, she wrote, “First Amendment law is replete with content distinctions that do not count as content distinctions because they disfavor speech found by the Court to have little (or no) constitutional value and thus to receive little (or no) constitutional protection.” Her outlook is not given to historically-calcified categories, unchangeable by litigants and judges, “[D]isfavored categories are based on the content of speech; some, at least arguably, are based on its viewpoint.”63 Obscenity is a category in need of contextual definition. She expanded on her reasoning when a justice on the Supreme Court in her concurrence in Reed v. Town of Gilbert. As she explained, claims that all speech, except a few court-defined categories, should receive strict scrutiny analysis overlooks the many forms of content-based regulations that have never been thought to raise First Amendment concerns. Examples include signs with specific government messages, such as those listing historical sites. Politicians undertaking the enforcement of the Court’s formal rules “will have to either repeal the exemptions that allow for helpful signs on streets and sidewalks, or else lift their sign restrictions altogether and resign themselves to the resulting clutter.”64 Common sense indicates that courts need not invoke strict scrutiny for all content-based regulations.65 1.2.2 Defamation Civil defamation is another low-value speech category, which the Stevens Court listed as being outside the purview of traditional or historical First Amendment concerns. To illustrate this point, Chief Justice Roberts cited to Beauharnais v. Illinois,66 which upheld an Illinois group defamation statute prohibiting private persons from exhibiting materials that “expose[d] the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots.” It does not implicate constitutional issues. Beauharnais contains some historical survey of personal libel laws, so it was a logical precedent for Chief Justice Roberts to cite in Stevens. While only

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brief in presentation, it mentions colonial, common law, early American, and modern laws on the subject. However, the majority was not content with solely listing examples of speech that have “never been thought to raise any Constitutional problem.” Had the Beauharnais Court been categorical, no more would have needed to be said. To the contrary, though, the Court quoted Chaplinsky for the premise that “the social interest in order and morality” was “clearly outweighed” by the slight social value those utterances might have to the search for truth. Hence, even the Stevens Court’s precedent for the category of civil defamation relies on the balancing of social and private values. The critics of Beauharnais condemn the decision for balancing values and upholding a paternalistic state law that restricted free speech without providing adequately clear guidelines.67 Derogatory epithets and those that are abusive may reflect the speaker’s interests to make callous and even inciteful remarks. Yet a narrowly tailored law can provide targeted audiences a sense of self-determination, respect, and civility. Indeed, in its evaluation of whether libelous claims alleging a third party’s criminality were protected by the First Amendment, the Court explicitly asserted, “We cannot say . . . that the question is concluded by history and practice.”68 The state could therefore enforce the statute without breaching the First Amendment because its sovereign duty to prevent immediate harms, such as fights and breaches of the peace, outweighed the speakers’ claims to assert “extreme racial and religious propaganda.”69 The Court has consistently cited to Beauharnais and reconfirmed the state’s interest in preventing true threats that are likely to instigate group violence and other legally cognizable harms.70 The regular Supreme Court citation to Beauharnais for precedent71 belies assertions by those who, like Professor Eugene Volokh, assert that “Beauharnais is now widely regarded as no longer being good law.”72 While that perspective enjoys broad consensus in the academy, this consensus is contrary to the Supreme Court’s consistent reliance on the case for precedent. In Beauharnais, the Court upheld the Illinois law without applying its clear and present danger test, which as we will see in Chapter 6 emerged during the nativity of First Amendment jurisprudence in the aftermath of the First World War. The Beauharnais Court effectively chose not to rely on heightened scrutiny because the state statute was passed for public safety reasons. The majority certainly regarded group defamation to be historically and traditionally of low value, but it also conceived of the category to be a product of the State’s balanced policy of respecting autonomy and securing social welfare. State legislators believed the statute was necessary, given the context of Illinois’s history of racism. After surveying over

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a century of violence against racial and religious groups, Justice Frankfurter concluded: In the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented.73

Those sentiments were not solely politically or personally cathartic, but affective of group humiliation, victimhood, and mistreatment. In a much more recent case, Air Wisconsin Airlines Corp. v. Hoeper, decided in 2014, the Court stressed that the question of whether a “falsehood is material to a defamation claim” is not an abstract question; rather, a judge must determine “whether it affects the subject’s reputation in a community.” And that inquiry “varies according to the context” of the “relevant reader or listener.”74 In adjudicating defamation suits, judges must balance the interests of free and open debate against the plaintiff’s prayer to be compensated for reputational harms. Self-government and personal expression are of such importance that not all false statements are actionable, especially when statements concern matters of interest to the public.75 Moreover, when the libel or slander is directed toward a public figure and touches upon a matter of public concern, even mistakes are countenanced as long as they are not uttered with actual malice.76 Such a balanced recognition of speech and dignity rights provides redress without chilling legitimate deliberation. Irrespective of whether the case is about private or public matters, a court must identify whether compensating a victim for suffering reputational harms is commensurate with the constitutional common good the First Amendment reserves to individuals and associations. 1.2.3 Fraud The same weighing of social against private interests appears in the case that the Stevens Court cited to illustrate that fraud is another historically and traditionally unprotected category of speech. Roberts relied on Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, which repudiated the earlier judicial stance that commercial speech was unprotected by the First Amendment.77 The majority in Virginia Board of Pharmacy recognized that the state does not violate the First Amendment by prohibiting false and misleading advertisement.78 To the contrary, where advertisements are truthful, the balance swings to the side of more speech and away from imposed regulations. The potential that commercial information will convey valuable details about

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products or services rendered it a form of communication that is valuable under the First Amendment.79 Thus, the Court found a ban targeting advertisements of prescription medicines to be an illegitimate use of state authority: The interests of individuals – particularly indigent, infirm, and elderly parties seeking information on the subject – outweighed those of the state.80 Virginia Board of Pharmacy, on the one hand, contains a categorical statement against the inclusion of fraud under the umbrella of First Amendment coverage and, on the other, a balanced explanation of why pharmacists’ advertisement of drug prices provides patients with information needed to budget medicinal treatment.

1.3 reasoned balancing, not ad hoc balancing United States v. Stevens does not overturn free speech doctrines that recognize that well-defined social concerns outweigh expressive liberty in obscenity, defamation, and fraud cases. The categorical approach is simply inadequate and oversimplified for analyzing conflicts between speech and other long-recognized social and constitutional values. Free speech adjudication requires courts to closely assess personal interests, empirical indeterminacy, precedents, history, social traditions, community standards, and the ends government seeks to achieve through various regulatory schemes. While ad hoc balancing is a license for judicial subjectivity, rigorous balancing, relying on articulated rules of reason, continues to be essential for evaluating specific interests in expression, countervailing public interests, and public policies behind regulations. Later in the book, we will find that the Roberts Court is not averse to all forms of balancing, relying on various forms of that method in cases dealing with constitutional challenges to laws regulating intentional infliction of emotional distress,81 material support for foreign terrorism,82 and public employee speech.83 Less convincing is its Stevens line of cases, where the majority has settled for absolute-sounding reasoning in identifying categories of low-level speech. The categorical approach is prone to judicial machinations that rely too heavily on labels rather than acknowledging the complex nature of free expression in public and private discourse. The Court should openly recognize that free speech cases often present conflicting constitutional values. Such conflicts should be transparently evaluated and acknowledged. The Roberts Court’s claim that the First Amendment prohibits content-based regulations except those that were outside the scope of the First Amendment in 1791 is historically inaccurate. That claim disguises the values and interests at stake in First Amendment jurisprudence.

2 Dominant Academic Approaches to Free Speech Strengths and Shortcomings

This chapter evaluates the three most commonly held views on the constitutional purposes for protecting free expression. These theories tend to focus almost exclusively on aspects of speech, while paying little to attention to how communication fits with other aspects of deliberative democracy. The freedom to articulate ideas is essential to all political systems that guarantee deliberative lawmaking and heterodox self-expression. The social values of free expression lie in the speaker’s dignitary will, the public’s antiauthoritarian purposes, and the audiences’ informational desires. This multivariable explanation eschews atomistic formalism, getting at the broader ideals Professor Frederick Schauer integrates into his elaborate model, which recognizes the relevance of political, sociological, cultural, historical, psychological, and economic analyses to First Amendment jurisprudence.84 Such a broad-ranging perspective goes well outside the text. These and other facets of free speech protections should be understood within unified constitutional theory of a government structured to protect individuals and advance democratic representation. Theoretical clarity can provide insights into why certain linguistic content, such as political platforms, is protected while others, such as true threats and incitement, are not. Clarity about the role of selfexpression in a representative government can help individuals, associations, and government actors check abuses of power. The most commonly adopted theories of free speech – self-expression, political autonomy, and the marketplace of ideas – as this chapter seeks to demonstrate, are too narrow to account for the multifactorial strands of constitutional thoughts and ideals. 19

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2.1 personal autonomy 2.1.1 Autonomy Theory A widely accepted rationale for the First Amendment regards free speech to be the foremost safeguard of personal liberty. Such autonomy of communication protects the articulation of personal thoughts, ideas, sensations, and preferences. Without protections on their speech, individuals could not reach their intellectual capacities and artistic abilities. Heavy-handed government restrictions on self-expression inflict dignitary harms by undermining persons’ expressive self-construction.85 Autonomy theorists focus on the individual’s interest without giving equal weight to countervailing public concerns. As Professor Rodney Smolla conceives it, “Freedom of speech is part of the human personality itself, a value intimately intertwined with human autonomy and dignity.”86 He links speech to “each person’s central capacity to reason and wonder.”87 Government cannot stifle a person’s expressivism, even when the speaker might offend others, as when someone uses expletives to voice discontent in public places.88 Professor Seana Shiffrin offers further insight into the self-expressive understanding of the Free Speech Clause. “A large part of what we value about speech is located in the speaker’s intentions to communicate to an audience and to influence, through the transmission of content and its uptake, that audience’s perceptions, beliefs, and plans.”89 Professor C. Edwin Baker also adopts a personalized perspective; however, he is firm in the conviction that audiences cannot dictate individual decisions. Democracies instead safeguard personal liberty of self-expression, selfexploration, and self-reliance against suppression.90 His view is closely tied to Thomas Emerson’s classic expostulation, “The right to freedom of expression is justified first of all as the right of an individual purely in his capacity as an individual. It derives from the widely accepted premise of Western thought that the proper end of man is the realization of his character and potentialities as a human being.”91 Baker is even more nuanced, asserting that the two key values of the First Amendment are “self-fulfillment and participation in change.” He recognizes the value of general welfare, which he links to government’s obligation “not impose restrictions on a person’s right to speak.” It is up to the individual to identify what to value and government’s duty to respect “individual autonomy.”92 That respect assumes that each individual is self-determinating and free to express preferences.93 Baker defines personal autonomy to be “a person’s authority (or right) to make decisions about herself – her own meaningful

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actions and usually her use of her resources – as long as her actions do not block others’ similar authority or rights.”94 Baker is not arguing for a dowhatever-you-want libertarianism.95 In fact, his conception is more restrictive than other autonomy theorists, for instance, he argues against commercial entities receiving the same free speech protections as “citizen governors.”96 Baker further writes that “[s]peech is protected [by the Free Speech Clause] not as a means to a collective good but because of the value of speech conduct to the individual.”97 The Supreme Court has, indeed, recognized the autonomy value of speech in a variety of decisions, but not to the exclusion of other public concerns. In one case, striking an overbroad statute prohibiting picketing near schools, the Court asserted that the guarantee of free expression without government censorship was meant to “assure self-fulfillment of each individual.”98 But, in that same opinion, the majority noted that self-fulfillment was also directly connected with “the continued building of our politics and culture.”99 Speech is valuable on personal, civil, and social levels. Protection of the very personal values of “dignity and choice,” the Court pointed out in another opinion, requires the removal of unwarranted government restrictions. Here too the majority thought that the protection of individual rights functions to “ultimately produce a more capable citizenry.”100 Thus, the Court has time and again integrated the values of the speaker with the social need for communicative liberties. For instance, the self-realization of copyright and defamation laws serve both interests; they protect personal creativity and reputation while also respectively fostering social innovation and mutual respect. Put another way, rather than subsuming social beneficence into personal liberty theory, as Baker’s approach would counsel us to do,101 the Court, quite rightly I believe, regards the value of self-realization to be furthered by regulations designed to protect individuals living and operating within a political unit. In other words, the Court recognized the duality of speech, personal and public. Professor Martin Redish is one of the most convincing supporters of the autonomy argument. He regards self-realization as the “only one true value” of free speech. Redish recognizes that there are, what he calls, “subvalues” such as the “checking function” and “marketplace-of-ideas concept” of free speech, but believes that they all derive from the “self-realization value.” While Redish does a meticulous and nuanced job of drawing attention to the value of selfrealization, his unicentered account does not adequately explain why government can place limits on any speech. The Supreme Court has never understood the First Amendment to be an absolute protection of personal expression. Some other values – such as equality and the common good – also identify the limits of

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what state actions are legitimate. In the end, Redish is too concentrated on speech alone. He writes that other theories of free speech are manifestations of the self-realization approach, but his reasoning does not build up from a cornerstone theory of representative democracy.102 Self-realization is limited by the rights of others, not all of which are speech-based. Redish’s argument is comparable to that of Professor David A. J. Richards’s. Both believe that other explanations of free speech are “less powerful” than the autonomy and self-respect explanations. Richards asserts that all the various modes of expression – freedom of the press, speech, and association – “derive[] from the notion of self-respect.” He locates the central significance of free speech in the “human capacity to create and express symbolic systems, such as speech, writing, pictures, and music, intended to communicate in determinate, complex and subtle ways.”103 The autonomy value of self-expression is undeniably at the heart of why we value free speech. But this monofocus on autonomy does not get at the entire rationale for our constitutional protection of speakers, writers, comics, inventors, actors, scientists, academics, teachers, and all manner of other speakers. Without any additional factors, guaranteeing the self-realization of speech fails to differentiate between the plural social values of speech, including the political and the personally informative. Exclusive focus on personal agency creates a presumption against limitations set on individuals rather than identifying the importance of speech in contextual and balanced terms. Focusing on the individual alone leaves undifferentiated the various types of communication. For instance, the commercial speech doctrine values truthful advertisements above false advertisements. Neither can the person choose to advertise illegal products, such as illicit drugs. Public interest is to receive truthful commercial information. Likewise, with antitrust law, which guards competition for its social utility. The true threats doctrine is for the protection of public tranquility. The autonomy explanation, therefore, cannot fully explain what constitutes constitutionally protected speech. 2.1.2 Evaluating Autonomist’s Claims Autonomy theories focus on the nature of human consciousness, personality, feelings, and other characteristics whose outlet includes communication. A significant aspect of each person’s sense of dignity is the ability to convey facts, views, commands, and inquiries to others. Free speech is also critical to “moral growth.”104 Personal identity is directly tied to the ability to formulate opinions, ascertain facts, and relate ideas. Freedom of speech enables everyone to explore the innermost workings of his or her mind and to spread

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knowledge. All humans engage in the construction of semantic and syntactic combinations of words, symbols, or other forms of categorizations that enable us to interact with others and to gain their insights. Communication allows us to share what we have learned, our preferences, criticisms, pains, joys, and all the various experiences contained within our personal senses that would remain purely phenomenological without language, signs, and sometimes even grunts and gestures. The speaker may seek influence, catharsis, assertiveness, inquisitiveness, boastfulness, or intimacy. The dignity-based justification is appealing because it resonates with the personal desire for self-assertion, but it is vague about how some regulations, such as those on obscenity, can be justified.105 Schauer points out that dignity is a two-edged sword. It can justify self-assertion but also rationalize restrictions, as is the case with defamation.106 While dignity might not be the complete explanation for why liberal democracies treasure free speech so dearly, it is undeniable that the ability to articulate one’s desires and higher intentions is essential for the human pursuit of happiness, which is guaranteed by the Declaration of Independence. The protection of free speech found in the Constitution stems from the Unalienable Rights Clause of the Declaration of Independence. Those two documents establish sovereign and particular institutions to work for the general welfare, by allowing people to enjoy their equal human entitlement. The protection of individual expression and discourse is essential to personal dignity, aspiration, access, knowledge, insight, and wisdom. Chief Justice Warren Burger similarly asserted that the “guarantees of free speech and press” were among our ideals “before and since 1776” that “those who drafted the Declaration, and later the Constitution” had in mind.107 The social contract of government to the people is both about securing personal interests as well as public rights to debate, disagree, and find commonality. But the autonomy branch of free speech hangs its entire argument only on the personal not public nature of free expression. Justice Brennan, writing in a dissent, likewise integrated the two into his thought: “Freedom of speech is itself an end because the human community is in large measure defined through speech; freedom of speech is therefore intrinsic to individual dignity.”108 Speech reinforces and creates associations for personal fulfillment, profit, and political engagement. The Petition Clause, which is a part of the First Amendment, protects an aspect of speech that extends beyond the individual. It safeguards the right to discuss ideas as a political equal. This constitutional safeguard vindicates a grievance American revolutionaries articulated in one of the Declaration’s paragraphs, “In every stage of these oppressions We have Petitioned for Redress in the most

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humble terms: Our repeated Petitions have been answered only by repeated injury.” This is not to equate the two founding documents. Some of the essential features of the First Amendment – right to a free press, free exercise of religion, assembly, and the prohibition against the establishment of a state religion – do not appear in the Declaration. It would nevertheless be too dismissive to ignore this older statement of sovereignty for identifying the public aspects of communication. The Declaration points to how important petitioning is to the people’s ability to protect their independence. This is connected, no doubt, to the ability to express one’s thoughts, but that is still too narrow an explanation. Both the Constitution and Declaration establish something greater than speech: A system of policies and practices for the protection of human dignity and the common good of constitutional society. Self-expression is a key component to this overall purpose of constitutionality. The personal autonomy perspective on free speech correctly recognizes that the First Amendment protects individual self-presentation, but that explanation is too atomistic when it is set apart from other aspects, clauses, and broader ideals of the Constitution. It is a mistake to identify it as the only reason for protecting expression. Justice Brennan articulated in another dissent that free expression fosters self-government, is “intrinsic to individual liberty and dignity,” and advances “society’s search for truth.”109 This statement combines deontological duties to individuals and consequentialist aspirations for a better society. The human urge to assert insight and personality, to make novel and controversial statements, and to explore personal and public ideals typically outbalances the interests of government censorship. However, certain social interests – in intellectual properties, consumer protections, free-market competition, and so forth – sometimes counterbalance those of speakers. Litigants, lobbyists, pundits, and soapbox speakers voicing their opinions experience self-fulfillment and further public values. The underlying purpose behind the First Amendment’s commitment to free expression is to guarantee the individual freedom to pursue happiness within the public structure of a representative democracy. Representative government is clearly instituted to secure rights, such as self-expression. But government as a sovereign unit is composed of multiple individuals, each with his or her own agenda, in need of public policy that can dictate reasonable restrictions. Libertarian defenses of free speech miss the greater functions of social contract – the need to maintain public standards against reputational harms, government accountability, and education that would be impossible to pursue if each person were an island of

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dignity. Government is answerable to the people for the policies it pursues. It is also obligated to maintain order that must limit incitement, conspiratorial criminality, and other harmful forms of expressiveness. The dual personal and public importance of speech has been recognized since the days of the colonists. While free speech was not often discussed in those days (the right to petition was of much greater moment to revolutionaries), in the midst of the American Revolution, a Rhode Island newspaper published an anonymous author’s column eloquently asserting: “Freedom of speech and public writing is the birthright of every man, a sacred and most invaluable privilege, so essential and necessary to the happiness of a free people, that the security of property, and the preservation of liberty, must stand or fall with it.”110 Another, condemning the Alien and Sedition Act of 1798, regarded free speech to be an “unalienable right” protected by the First Amendment.111 The right to freedom of speech was during the Revolutionary period tied to the rights of conscience and private judgment.112 According to these views, speech is an individual right that is equally vested in all of humanity that must be guarded against government intrusion. The individual value of speech does not, however, entirely capture its function and import to a just polity. American colonists regarded speech to be “necessary for the good and welfare” of their provinces.113 Benjamin Franklin recognized the value of discussing matters of “morality, politics, and natural philosophy,” with companions at a weekly meeting.114 From the Revolutionary period to the present, social movements have put great store into the ability to confront oppression, voice opposition, express politically unpopular points of view, and seek reform. The power of speech has been advanced at liberty poles, abolitionist meetings, publishers’ desks, conventions, union halls, woman and manhood suffrage conventions, and civil rights meetings.115 Speech has been essential at all stages of American history. Without the freedom afforded by the First Amendment the whole character of the country would have been different and representative democracy would be quashed. But the Amendment has never been understood to be an unlimited license. Various degrees of regulation are needed. Individual rights of autonomous beings are bound to conflict on occasion as they do in the intellectual property realm where one person’s interest in maintaining proprietary rights over certain content regularly conflicts with the desire of another to use it for self-expression. 2.1.3 Autonomy and Copyright Autonomy theory provides insights into why liberal democracy must give free people space to express their inner thoughts and to gain consent from equally

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free actors.116 Disagreements are inevitable. Edward Baker explains that consensus among equals is sometimes impossible, especially where one person’s gain is another’s loss. The First Amendment recognizes that autonomous agents are empowered to persuade but not to force assent. If a speaker fails to convince others, she remains free to act contrary to accepted orthodoxy, choose to avoid conflict and follow laws, or to engage in civil disobedience.117 While autonomy theorists, like Baker, provide convincing explanations about why the First Amendment should at a minimum be understood to protect moral agency against government orthodoxy, they leave unanswered when and why government can censor autonomous speakers to advance some public good. And there certainly is a need for a comprehensive explanation in areas where law limits a speaker’s autonomy to advance a different policy goal. Baker, for example, acknowledges that copyright law is a “legal mechanism for restricting the content of other people’s expression.”118 Baker criticizes how restrictions on noncommercial copying impact personal and press liberties.119 This begs the question of why courts do not rely on strict scrutiny to review legal restrictions impacting individuals who wish to appropriate copyrighted materials. The creators of new content could benefit significantly, were they able to incorporate copyrighted materials into the work, and so could their audiences. But intellectual property law protects more than personal incentive. Beyond the autonomy explanation, it is fair to recognize that copyright law benefits creators but also stimulates creative cultural developments. Professor Julie Cohen urges “laws granting rights in artistic and intellectual expression should” be mindful of how “autonomy is exercised, and selfdetermination pursued, by working through culture.”120 Copyright law involves trade-offs. It protects an author’s self-expression in tangible forms,121 but simultaneously suppresses the speech of would-be infringers. The potential conflict between copyright and free speech has long been recognized.122 However, the Supreme Court’s copyright doctrine separates analysis under the Copyright Clause from First Amendment scrutiny, rather than weighing the concerns of both in the broader structure of constitutionalism. Connecting the value of expressive proprietary and public information could allow for a full airing of copyright disputes, both commercial and noncommercial. In the remainder of this part of the chapter, I concentrate on how a contextual balancing of constitutional rights should apply to the topic of copyright law, without exclusively focusing on authorial autonomy. Copyright decisions should not solely be based on self-realization or autonomy rationales but, rather, an explicit balancing between the author’s interest in retaining sole ownership of the product of their labor and the utilitarian

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value of open access to culturally valuable works.123 While the creator might want to indefinitely retain sole ownership, social efficiency would counsel that ownership in intellectual property only be retained so long as it is socially efficient. This should take into account the interests of authors, countervailing concerns, means/ends analysis and alternatives to speech restrictions. The current Supreme Court doctrine, unfortunately, separates autonomy from public concerns. An example of this compartmentalization is a case, Golan v. Holder, decided in 2012 where the majority separated its review of Congress’s authority under the Copyright Clause from the First Amendment challenge.124 Justice Ginsburg’s majority opinion neither reflected on how copyright fits into a broad constitutional scheme nor did it apply Free Speech Clause scrutiny. In upholding the constitutionality of Section 514 of the Uruguay Round Agreements Act, the Court relied on the idea/expression dichotomy and fair use privilege in an effort to reconcile the suppression of expressive content, which would have required strict scrutiny analysis under First Amendment review.125 Constitutional balancing in this case was curtailed by precedent. It followed analogous precedential balancing of other areas – such as those involving public employee speech, fighting words, and defamation – insofar as the majority’s consideration was limited to the particular speech at bar rather than to exploring a broader set of relevant constitutional values. Golan’s formulation of the Copyright Clause to the exclusion of First Amendment reflection was consistent with an earlier decision, Eldred v. Ashcroft, where the Court upheld the constitutionality of the Copyright Term Extension Act of 1998 (CTEA), which retroactively extended by twenty years the term of copyrighted works that would have otherwise entered the public domain. This buttressed the right to ownership of intellectual property at the expense of the speech of others wishing to reproduce work that had been scheduled to lose copyright protection. As Professor Neil Netanel has pointed out, that conclusion is unsatisfying since the Bill of Rights as a whole, including the First Amendment, was meant to limit congressional abuse of power under the original Constitution.126 The Court should have weighed the proportional interests of copyright holders and those of persons wishing open access to works newly protected by the Act. Such a balancing might have involved a thorough reflection on the private interests ownership, those of society to access cultural treasures, whether the new law impeded more speech than necessary, the extent to which the law fit the goals set by the statute and the constitutional protection of property and expression more generally, finally the Court should have thoroughly examined the history of copyright protections in the United

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States and how they have played out against the cultural value of intellectual treasures being available in the public domain. In his dissent to Eldred Justice Stevens asserted the public interest in open discussion, writing that the exclusive right granted by the Constitution is “limited [t]imes serves the ultimate purpose of promoting the ‘Progress of Science and useful Arts’ by guaranteeing that those innovations will enter the public domain as soon as the period of exclusivity expires.”127 Instead of contextualizing its copyright discussion with other relevant constitutional facts relevant to the free exchange of ideas, the Court drew its analysis only from copyright doctrine. The underlying purpose of the Copyright Clause requires broader constitutional balancing of speech with countervailing values such as creativity and culture, rather than exclusively staying true to intellectual property precedents as the Court did in Golan and Eldred. The Copyright Clause is clear: “Congress shall have power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This grant of authority contains a twofold principle: Congress is granted the authority to promote discovery and creativity. Both benefit individuals and society, allowing for community progress, cultural enrichment, and personal fulfillment. Without being enhanced by integration into a more complete constitutional theory, the autonomy explanation does not alone explain why the social benefits of copyrights allow for a proprietary paradigm that restricts some people’s expressive conduct. If the distinguishing feature of copyright were purely one of ownership, then the limited time for the creator’s exclusive copyright use is left unexplained by a libertarian explanation. Time restrictions on copyrights should therefore be examined in light of the balance between ownership, speech, social informativeness, public knowledge, and cultural values.

2.2 self-government In addition to its importance for self-fulfillment, the First Amendment is also critical for enabling people to meaningfully participate in representative selfgovernance. Communications are essential to political deliberations. The ability to express conservative, moderate, or liberal ideas enables ordinary people to exercise civic identity. Democratic participation prevents the emergence of autocracy, aristocracy, or plutocracy; three systems of government that exclude some groups and individuals from creation of fair government.

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The Declaration of Independence proclaims the people’s sovereignty over the operations of representative republic committed to inalienable rights, the pursuit of happiness, and human equality. That document committed the newly constituted states to exercising sovereign powers empowering citizens to remain engaged in the formulation of policies likely to benefit their “safety and happiness.” This was not meant to be a limitless license for the powerfully connected to dominate fellow citizens. Even in the revolutionary period prominent advocates for the Constitution’s ratification, including James Wilson of Pennsylvania, believed that the social contract required giving up “a part of our liberty . . . for the security of the rest.”128 Equality for all requires limitations on autonomy. The people enjoy the freedom of speech to explore history, ideals, and norms either on their own or in the company of likeminded associations, social groups, and personal contacts. Speech enables isolated humans to join communities for collective legislative, judicial, and regulatory actions to affect their general welfare, in keeping with the Preamble to the Constitution’s mandate. The need for open debate was evident to American revolutionaries. A letter to a Philadelphia newspaper in 1791 asserted that the same “sages, who penned the Declaration of Independence, laid it down, as a fundamental principle, that government derives its just powers from the consent of the people alone.”129 Ordinary people, with their individual tastes and views, collectively grant officials with limited power to govern. They play a role as individuals, in keeping with the autonomy perspective of free speech, but also as members of distinct groups. A major political impetus behind the Revolution was resentment for the English monarch’s refusal to answer colonial petitions demanding parliamentary representation, just as other Englishmen enjoyed.130 Colonial assemblies also exercised their freedom of speech to make demands and accusations against royal governors.131 This is not, however, to say that the colonial period or even the Early Republic had the universal sense of political engagement of twenty-first-century democracies. Women, slaves, and, for a time, propertyless white men were entirely excluded from political discourse.132 An effective voice in politics is critical to enjoying liberty and equality while participating in debates about how to effectively achieve social and legal betterment. Participating in discussions pertaining to local, state, and national issues provides people with a meaningful outlet to express concerns about issues, even when they are outside their personal spheres of interest. Legal status of persons as equals includes the common entitlement to participate in policymaking.133 The topics may be of national concern, such as healthcare, or more localized, such as the placement of handicapped parking spaces. In

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either case, free speech enables persons to engage with a community, to vent deep-seated concerns, and to gather diverse views for guiding collective action. Engagement is critical for highlighting abuses of public trust, fisc, misappropriation, maladministration, and a host of other topics. One of the most eloquent advocates for the political process perspective was Alexander Meiklejohn. He conceives the right to free speech to be analogous to a New England town meeting.134 He thinks it legitimate to enforce rules to maintain order and to keep discussions on topic.135 First Amendment protections nurture self-government by the dissemination of opinions, ideas, skepticism, and disagreements.136 What is important, from his perspective, is that “everything worth saying” can be vented, but “not that everyone shall speak.”137 That is quite different from the autonomy school, which is joined to the dignity of each person to seek personal advancement, creativity, and selfaffirmation.138 Meiklejohn explains the importance of people accessing enough information to then influence elected leaders and promote favored public choices. They are free to call for change or for the perpetuation of existing policies.139 But his approach downplays the relevance of speech for self-expression, be it artistic or emotive. Cass Sunstein builds on Meiklejohn’s thought. Adopting a “two-tier” approach to the First Amendment, Sunstein writes that free speech is core to deliberative democracy. Lower-level communications includes all other speech. This leaves a disparate and unwieldy coterie of information outside the nexus of protected communications. Political speech enjoys greater protection than all others, but what is political is not always clear. Literature and art, for instance, can straddle both camps; indeed, people can disagree about the central message of a book, painting, or piece of music. Sunstein’s schema contains two separate categories.140 Political speech is fully protected under the strictest judicial scrutiny while intermediate, persuasive justification is needed for the state to limit second tier speech. Even where the speech is not political, government must provide heightened reasons for suppression. In turn, courts must check whether the state acted for legitimate reasons or, rather, because the speaker disagreed with the government’s policies and interests. Furthermore, even lower-value speech is protected against coercive efforts to enjoin persuading or offending others.141 His approach protects against biased suppression of ideas, but it adds little nuance for courts to evaluate the relevant weight of speech and other constitutional values. Meiklejohn’s and Sunstein’s theories are enlightening about democratic participation but not informative about why personally fulfilling modes of expression might also be constitutionally privileged. Both would require

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courts to identify what content is political. They do not, however, indicate how judges should differentiate mixed public and private communications. Under both of their approaches, even restrictions on family communications about, say, choice of contraceptives or literary preferences would only warrant lower tier scrutiny, even though both involve privacy and dignity factors. But repression of such content would be a better fit for a totalitarian state than a pluralistic democracy. Political repression is only one form of government abuse. Suppressing self-expression also offends the rights of free and equal individuals. Professor Harry Kalven questions Meiklejohn’s claim that artistic and literary depictions are clearly distinguishable from those that are political.142 This demand for clarity is consistent with Kalven’s advocacy for unambiguous jury instructions in First Amendment lawsuits. In support of Kalven’s criticism, it seems utterly impossible that the Supreme Court would find the First Amendment allows censorship of Oscar Wilde’s novel The Picture of Dorian Gray or William Wordsworth’s poem My Heart Leaps Up, even though neither is political.143 Professor Zechariah Chafee, another hugely influential free speech theorist and activist of the twentieth century, finds the same fault in Meiklejohn’s public-centered explanation of free speech: “The most serious weakness in Mr. Meiklejohn’s argument is that it rests on his supposed boundary between public speech and private speech.”144 One of Chafee’s colleagues, the lawyer and Librarian of Congress Archibald MacLeish, made this point pithily, “A poem should not mean/ But be.”145 If that’s correct, a poem’s value to poet and audience might be lived experience rather than the message it conveys, whether political or private. While the self-government value of free speech is undeniable, it is not the only value associated with open expression. In response to critics, Meiklejohn revised his theory, asserting that education, philosophy, science, literature, and the arts are necessary for the functioning of self-governing communities.146 But even this modification raises questions about why nonsense statements, such as the author Lewis Carroll’s Jabberwocky poem from the novel Through the Looking-Glass, and What Alice Found There,147 should be protected since they have naught to do with governance and are more an exercise of ribald than rationality. Another of the foremost proponents of self-government, Professor Alexander Bickel, refines Meiklejohn to mean: “The social interest that the First Amendment vindicates is . . . the interest in the successful operation of the political process, so that the country may better be able to adopt the course of action that conforms to the wishes of the greatest number, whether or not it is wise or is founded in truth.”148 This perspective is predicated on the notion

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that the value of speech is to achieve actual democratic will. The judiciary must then favor the desire of the majority, when judging cases.149 Democratic decision-making requires “normative choices and prophetic judgments [that] serve as a general term of praise for any wise and moderate accommodation between conflicting values and interests.”150 This is a loaded statement of questionable normative merit. US politics does not involve universal political participation nor usually does it include individual lobbying. Indeed, quite often the public and even politicians have inadequate opportunity to comment on proposed laws before they are passed on for the President’s signature. Bills are often presented with little time for even congressmen to read, much less closely evaluate, them. This was, for example, the case with the Trump Administration’s tax reform plan, which passed Congress with many congressmen complaining that the law had not been adequately reviewed and debated.151 Bickel believes the Court should be “a leader” in communicating legal values to the public at large.152 The judiciary should play a role in advancing “enduring values” because judges are empowered to construe the Constitution “against the wishes of a legislative majority.”153 Nevertheless, there are limits on the Court’s power to strike state laws restricting injurious communications, such as those that punish the use of extreme speech in public spaces. In this vein, Bickel argued that in Cohen v. California154 the Supreme Court had wrongly overturned a defendant’s disturbance of the peace conviction for profanity in public. He had worn a jacket to court with the swear word printed on it to express opposition to military conscription. Bickel recognized that the speaker’s message reflected a political point of view in opposition to the ongoing military action in Vietnam. He nevertheless regarded vulgar speech in public to be no part of civil debate but an “assault” that inflicted “injury by its very utterance.”155 As with scholars who propound the self-expression school of thought, there are differences among those who argue that the central aim of the First Amendment is to protect political dialogue. Like Bickel, Professor Robert Post regards the public value of speech to be the core of the First Amendment. Their perspectives nevertheless differ as to offensive speech. Specifically, Post disagrees with Bickel’s devaluation of profanity used in communications about matters of public importance. Post defends the Court’s finding in Cohen that obscenity-tainted speech has a legitimate role to play in public discourse. The Court should protect individualistic expression, he believes, including cussing that speakers resort to when opining about issues relevant to the body politic. “Outrageous speech,” as Post puts it, “calls community identity into question, practically

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as well as cognitively, and thus it has unique power to focus attention, dislocate old assumptions, and shock its audience into the recognition of unfamiliar forms of life.”156 Post writes that the democratic presumption of equal, individual autonomy “underwrites the First Amendment doctrine’s refusal to distinguish between good and bad ideas, true or false ideas, or harmful or beneficial ideas.”157 Post expresses sharper divergence from Meiklejohn’s collective notions of the First Amendment, arguing that the latter does not give enough consideration to the importance of individual autonomy in participating, legitimizing, and identifying political will. Self-exploration in the context of political debate, Post refers to as the “communicative process.”158 Yet, elsewhere, Post downplays the individual in a collective democracy. He asserts, for instance, that “democracy is not about individual self-government, but about collective self-determination” and agrees that “democracy requires individual autonomy only to the extent that citizens seek to forge” a collective will.159 Redish goes so far as to assert that Post falls into Meiklejohn’s “very mistake” of collectivism. In Redish’s view, liberty of speech is a private right that people enjoy irrespective of whether it contributes to public discourse. Post acknowledges that individual voices are pivotal to a vibrant democracy. Deliberation would be incomplete without each member of a polity being able to fully participate in public debates. While his focus remains on the public value of protecting free expression, he is careful to elaborate on the worth of individual perspectives to public debate. In other words, in Post we find a picture of private persons who enjoy the right to speech and from whose insights the polity benefits. Similarly, Professor Tabatha Abu El-Haj picks up on this perspective that the function of the First Amendment is to secure conditions “necessary to government responsiveness and accountability.” The Amendment, in the Free Speech Clause and other provisions such as the Assembly Clause, “cordons off certain spaces for individual and collective liberty in order to preserve the possibility that democratic majorities will be able to hold elected bodies accountable to the public interest.” Thus, “individual autonomy and freedom of conscience” are necessary components of “democratic citizenship.” Her focus nevertheless remains consistent with Post: “Individuals’ free speech rights cannot be so great as to undermine, either directly or indirectly, the co-equal rights secured by the text of the First Amendment.”160 Redish, on the other hand, thinks it too narrow to argue that while the individual is important the primary function of the First Amendment is, nonetheless, self-governance. He faults Post for giving highest priority to “democratic legitimacy” and thereby downplaying other aspects of personal,

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expressive autonomy.161 Redish’s bigger point is that one set of speech values should not be preferred above others. But his autonomy-based preference for expression is itself a form of value judgment that happens to be more inclusive. Both theorists focus their wrings on the value of speech, without giving adequate weight to other constitutional values, such as privacy, equality, or federalism. Any combination of these might be relevant to the resolution of specific cases. Political and personal autonomy are among the fundamental concerns policymakers must consider for the creation of policy. However, complex problems often involve litigants’ incompatible assertions. Resolution of these claims requires thorough vetting of claims and counterclaims rather than automatic acceptance that speech in general or one type of speech over others is categorically to be preferred. There are plenty of competing considerations for courts and legislators to evaluate, including professional advice in medicine, law, and other regulated professions; public employee comments in their official capacities; and public school teachers’ instruction in grammar and high schools. Regulating these fields involves content-rich evaluations, case-by-case assessments, and analytical rigor. Autonomy in general or deliberative autonomy are not trumps but essential subsets of the grander norm of the Constitution. They are essential to constitutional resolution, but not always of greatest gravity. Even the most basic aspect of representative democracy requires some intraconstitutional explanation. For instance, Article I of the Constitution, which establishes congressional powers, grants representatives special privileges for debate on the floors of the House or Senate. Indeed, the public elects persons who, in office, will have greater access than unelected citizens to the halls and other channels for political debate. Later chapters will go into the details of comprehensive analysis in the context of existing doctrines on matters like incitement, national security, and campaign financing. This chapter seeks to evaluate other’s explanations of First Amendment purposes. In the chapters that follow, I will set out the contextual theory of free speech. While Post and others in the self-government camp acknowledge that the self-fulfillment (or personal autonomy) model has played a significant role in First Amendment jurisprudence and secondary literature, they do not regard that theory as “especially helpful in explaining the actual” or normative “scope of the First Amendment.”162 Post criticizes the personal autonomy model for not being unique to speech but extending to noncommunicative actions.163 But it is unclear why the dual explanatory function self-assertion plays in the characterization of speech and lawful conduct should detract from its

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explanatory power. After all, concepts like equality and liberty along with speech and other values exist side-by-side in constitutional doctrines without any negation, detraction, nor internal contradiction. Post’s “participatory democracy” model paints an elaborate picture of free expression, but it does not have the comprehensive power we are seeking. The protection of “joint political or democratic activity,” which is championed by Professor Ashutosh Bhagwat, provides a starting point for assessing such matters as the regulation of net neutrality.164 The “collective activities that are tied to . . . democratic citizenship” are indeed at the essence of the Free Speech Clause,165 but so too is the “intellectual privacy” necessary, in the words of a different author, “to develop ideas and beliefs away from the unwanted gaze or interference of others.”166 Freedom of speech surely includes the power to hear ideas167 and participate in debates,168 but also the ability to keep one’s utterances personal.169 Not all the dignitary interests of speech are publicly oriented: Sketching or doodling at one’s desk with no desire to retain the paper and later throwing it into the recycling could be meaningfully cathartic. Despite their adding nothing to deliberative democracy, regulating such creative urges would interfere with individual pursuits of happiness and detract from the general welfare. So too, it is unfathomable to think that the government can regulate persons speaking to themselves in a bathroom, making mock gestures in a closet while getting dressed, reading the lines of a seditious play to a mirror, singing aloud in the woods, and yet none of them contribute to the critically important values of participatory democracy. The First Amendment has both a private and public orientation, meant to guarantee individuals’ equal right to pursue happiness and the people’s representative interest to articulate policy.

2.3 the marketplace for truth The third major free speech theory argues the First Amendment protections of people’s abilities to sift through facts and arguments in order to acquire accurate knowledge. Undoubtedly, robust conversations and debates advance commercial, historical, political, medical, legal, and all other forms of knowledge. But this narrow definition fails to account for the protection of opinions, sarcasm, abstract art, and a host of other non-informative but protected categories of expression. The quest-for-truth explanation of the First Amendment is derived from the marketplace of ideas doctrine. The most influential formulation of the theory appeared in Justice Oliver Wendell Homes’s dissent to Abrams v. United States.

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Part I. Theory [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.170

This assertion is one of the landmarks of First Amendment theory. A later Justice gave the “marketplace of ideas” label that has stuck ever since.171 At first glance, the theory seems to indicate that open debate best facilitates the discovery of empirically verifiable data. But that rendition is certainly not in keeping with his meaning. Professor Vincent Blasi has pointed out that Holmes “displayed an instinctive aversion to assertions of ‘absolute’ truth.”172 In one of his later dissents, to Gitlow v. New York, Holmes wrote that all ideas, especially those that are eloquent, incite people to action or inaction. The views of the majority become community truths, regardless of whether they are objectively verifiable. Holmes embraced the logical conclusion to his majoritarian relativism: “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”173 For him, the determinant of truth was the majority’s political will, not logical outcomes of debates.174 His Social Darwinism differed from the democratizing views of his colleague Justice Louis Brandeis, who, to the contrary, thought the First Amendment was a safeguard against “tyrannies of governing majorities.”175 Even setting aside Holmes’s advocacy for majoritarian dominance, even to the point of putting into political office a totalitarian government, and reinterpreting the truth theory as a search for real political meaning, the marketplace metaphor is not particularly helpful in recognizing why everyday forms of communications are protected. Much of our daily vocabulary is not factual. The First Amendment, for instance, protects parody. The Court in Hustler Magazine v. Falwell, Inc., a case decided five decades after Holmes’s death, held that some statements are so absurd – in that case it was a claim that the subject of a magazine story had sex with his mother in an outhouse – that the parody “could not reasonably have been interpreted as stating actual facts about the public figure involved.” Indeed, it was the lack of factuality of such a “patently offensive” statement that prevented the plaintiff, a minister named Jerry Falwell, from recovering for intentional infliction of emotional distress. Falwell’s status as a nationally renowned religious pundit, with an advisory role to several national politicians and frequent appearances on news shows,

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placed him in a different position than if he had been a private figure. Thus, the Court would likely treat false statements differently depending on whom they target.176 Professor Andrew Koppelman points out that if Falwell’s mother were not dead at the time of the lawsuit, she might have been a proper party plaintiff because she was not a public figure.177 The Court’s approach is not libertarian but content-specific, predicated on the notion that public figures have greater access for response through channels of communication reaching large audiences. In Falwell, the Court followed well-developed precedent not focused on veracity but public affairs and humor. The Court has repeatedly iterated that the search for truth is a key function of First Amendment protection,178 but also that the Constitution safeguards the right to exaggerate and engage in political satire. Truth is clearly not the only value of expression that the First Amendment protects. Most recently, in Alvarez, a plurality found unconstitutional a law that prohibited lying about having been awarded the Medal of Honor.179 Some other forms of free expression, such as pornography and nude dancing, also lack any truth value.180 These protected forms of speech call for rejoinder by counterspeech.181 When they are not forms of exploitation, they may be self-expressive. If set in a political script, they may even contribute to political discourse, but that describes a subset of sexual materials. In all fairness, proponents of the truth model of free expression are not the only ones who struggle to explain the value of pornography. The democratic model also has little to say about its value of social discourse. Displays of nudity or depictions of sexual intercourse, in fact, fit in the realm of autonomy but, short of political parody, they typically contribute nothing to democratic debate nor the exchange of rational ideas.182 The marketplace of ideas doctrine also ignores the different access speakers have to means for influencing truth-seeking discourse. It is too narrow in scope to explain the full range of First Amendment doctrines. Neither does it account for disparities in access to media. In American society, as Professor Owen Fiss has pointed out, economically powerful persons are better equipped than the poor to find communicative outlets through which to disseminate commercial or political messages.183 Some persons – such as news media companies, newspaper owners and producers, labor unions, forprofit corporations, and popular webpage administrators – have vastly more access to the marketplace than ordinary citizens. A speaker with a true message might have an insignificant position in the marketplace, being drowned out by false prophets, fraudulent advertisers, and self-interested actors. Hence debate might not lead to truth; to the contrary, the wealthy can turn to many more resources, from purchasing newspaper advertisements to lobbying politicians,

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in order to drown out their antagonists. Supporters of the marketplace of ideas doctrine also overlook market failures and the lack of rational argument in many forms of protected statements, such as humor and emotivity. Moreover, the expression of fear, happiness, aspiration, dejection, and innumerable other internal and social reactions are nonmarketable. Nor can they be unequivocally gainsaid by rational arguments. These forms of speech, which do not fall under the marketplace of ideas doctrine, contribute to culture in a way that benefits individuals and society as a whole. So diffuse is their effect that the search for truth does not adequately describe all the benefits of constitutional free speech protections. This is not to say that the marketplace of ideas model is unhelpful. To the contrary, it aids in explaining the importance of open dialogue for the acquisition of knowledge. The framework nevertheless lacks the analytical breadth of explaining why the First Amendment protects irrational statements and why less informative people should be able to use their time and resources to access channels of communication. Even in circumstances where the exchange of ideas leads to some certainty, there is no constitutional basis for shutting down further debate, humorous exchanges, or artistic parodies.

2.4 convergences and divergences of methodologies The marketplace of ideas simply does not identify the full range of purposes for protecting free expression. Identifying whether the state can restrict speech is a matter of case-by-case evaluation, with considerations into political deliberation, self-expression, facts, and policies. But at the root of constitutionalism lies the maxim of representative governance to protect the common good through fair and equal procedures.184 The First Amendment, therefore, should not be conceived as a provision apart, first among equals, but as a component of a system of government that is valuated by the extent to which policies benefit the general welfare and treat people as equal autonomous beings. Speech interests often conflict with other concerns: for safety, national security, foreign policy, privacy, reputation, and so forth. In the latter cases, there should be a consideration of all the relevant legal concerns. Friction between values should not only be acknowledged but also play a role in judicial analyses and attorney arguments. Interpretive pluralism requires contextual consideration rather than kneejerk preference for speech over concerns such as terrorist dissemination of propaganda, anticompetitive collusion, and the like. Arguments should not rest on a preconceived hierarchy but on a thorough examination of textual provisions, relevant histories, pertinent precedents, means/ends analyses,

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alternative means of communications, and so forth. Contextual reasoning – taking account of speakers’ interests, countervailing concerns, fit between policy and regulation, and less restrictive means of achieving public goals – is more likely to strike a fair balance between competing interests than a formalistic appeal to imperfect methodologies. Comprehensive reflection requires integrative and synthetic reasoning.

3 Free Speech and Proportionality

There is an alternative to the Supreme Court’s strict categorical interpretation, a method that uses balancing analysis within the context of specific cases. The First Amendment of the United States Constitution empowers individuals to participate in a pluralistic society. It prevents federal and state governments from inhibiting the exchange of ideas by placing restrictions on their messages and perspectives. Communications operationalize representative democracy and enable individuals to express organized thoughts, wondering musings, normative ideals, business ventures, political affiliations, novel notions, and collective aims. Free and open discussions are invaluable to a constitutional system committed to liberal equality for the general welfare, a principle derived from the nation’s founding statements in the Declaration of Independence and Preamble to the Constitution. Disagreement about the nation’s fundamental principles and how to apply them to specific situations, as Mark Tushnet has pointed out, “does not mean that we as a society have no fundamental law in common.”185 Balancing will not lead to indisputable results, but neither will the three dominant schools of free speech that we reviewed in the second chapter. Systematic thinking about, what Justice Thurgood Marshall called, “principles that sweep no more broadly than the appropriate context of the instant case,”186 provides a more holistic method of working through cases than do rigid categories of interpretation. Context creates social meaning, in matters of speech as with other human behaviors “the character of every act depends upon the circumstances in which it is done.”187 The idea is for a judge to engage in careful reasoning, rather than the categorical approach in the United States v. Stevens line of cases, which was critiqued in the first chapter. The adjudicator is often presented with an aggregate number of irreconcilable claims, as when one party asserts a right to post on social media personal and embarrassing 40

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details about another, while the exposed party claims the right to privacy or reputation. Only one litigant can prevail under those circumstances, even though both assert legally cognizable harms. In some cases, there will be contrary constitutional or policy interests – national security, preservation of government property, pro-competitive markets, or educational goals – that judges will need to balance against free speech claims. Such balancing should be rigorous enough to prevent subjective speech suppression. Yet, flexibility is also necessary to review specific facts of a case and details of public policy. Justice Stephen Breyer’s concurrence to United States v. Alvarez contains a formula for systematic balancing in cases where competing policy concerns negatively impact a speaker’s autonomy: In determining whether a statute violates the First Amendment, this Court has often found it appropriate to examine the fit between statutory ends and means. In doing so, it has examined speech-related harms, justifications, and potential alternatives. In particular, it has taken account of the seriousness of the speech-related harm the provision will likely cause, the nature and importance of the provision’s countervailing objectives, the extent to which the provision will tend to achieve those objectives, and whether there are other, less restrictive ways of doing so.188

He explained the argument for taking categories only as rules of thumb, in a later concurrence, Iancu v. Brunetti, “I would place less emphasis on trying to decide whether the statute at issue should be categorized as an example of ‘viewpoint discrimination,’ ‘content discrimination,’ ‘commercial speech,’ ‘government speech,’ or the like.”189 Rather than pigeonholing a case into a judicially created category, he would evaluate all relevant interests – public and private – and the context of a challenge to a restrictive regulation. Breyer’s methodology for proportional analysis of content regulations should be further coupled with assessments of historical factors that amount to all-thingsconsidered reasoning. The factors of proportionality might be termed rules of reasoning. Insufficient reflection has been given to why so many public policies that restrict communications are not subject to First Amendment scrutiny. A short list of laws restricting or compelling speech that receive no heightened review are health and safety warnings provided before surgery; codes of professional ethics; street signs; alcohol beverage labeling;190 pharmacological information, containing Rx labels191 and scientific data;192 notices of labor violations; rules of evidence; labor standards, including details on filing grievances, negotiating, and arbitrating disputes;193 mandatory listings

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of sex offenders;194 tobacco warnings;195 bank titles;196 and Federal Deposit Insurance Corporation notifications.197 Categories make sense as default rules but they are not rigidly determinative of all restrictions on content. Professor Jamal Greene offers an explanation of the difference between categorical and contextual First Amendment interpretation: “Proportionality tests typically understand rights broadly but require courts to focus on whether the government was acting reasonably (was there adequate means-ends fit?), efficiently (was the government action no more burdensome than it needed to be?), and proportionally (was the government’s action excessive in relation to the benefit in policy terms and the injury in rights terms?).”198 Each legal basis for relief from censorship should be parsed on its merits. No relevant constitutional provision to a case should be discounted, neither should categories obfuscate judicial reasoning.

3.1 a matter of theory The Supreme Court has adopted a rigid, libertarian perspective rather than developing a comprehensive theoretical framework for evaluating First Amendment cases. In its 2015 decision, Reed v. Town of Gilbert, the Court relied on recent precedents to find a town’s ordinance violated the First Amendment by distinguishing between political, ideological, and directional signage. The Court homogenized all manner of speech, holding that strict scrutiny applies to any law that on its face distinguishes between the content of various forms of information.199 The majority thereby rejected the town’s policy of differentiating between signs expressing political ideas and those only giving geographic directions to activities such as church services. Lost on the Court’s reasoning were several other lines of precedents that recognize the legitimacy of regulations based on content and context. The Gilbert majority entirely ignored areas of human interaction – such as, employment, anticompetitive collusion, and health care – where legal restrictions have long governed policies.200 The Reed Court overstated its rule and overgeneralized the extent to which content regulations are suspect. The Court’s outright rejection of balancing in Reed was stated in unequivocal terms. Indeed, the Justices regard a “categorical balancing of the value of speech against its societal costs” to be “startling and dangerous.”201 This statement seems both inaccurate and inflexible. One softening of Gilbert’s seeming rigidity is to read the Court to reject only “ad hoc balancing.”202 That would leave intact precedents relying on intermediate scrutiny to balance competing interests; what is more, as Professor Richard Fallon has demonstrated, balancing even appears in some versions of the strict scrutiny review.203

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While the Roberts Court presents itself as the expositor of the popular constitutional will, asserting that “[t]he First Amendment itself reflects a judgment by the American people,”204 its holdings often strike popular and bipartisan consumer laws in favor of business interests.205 Robert Post and Reva Siegel offer an accurate account of interpretive development, stating that, “Throughout American history, in contexts both liberal and conservative, the Court has consistently interpreted the Constitution to reflect fundamental contemporary values. The Court has rarely regarded the Constitution as a petrified contract, fixed by terms ratified in the distant past.”206 The text of the Constitution is the starting point; the aspirations of the framing generation are important for identifying core, national values, and interpretation should not be nihilistic. But neither is it convincing for the Court to claim its free speech doctrine is predicated on a long-established tradition of low-value categories, supposedly already defined in 1791, that only the Justices are empowered to divine.207 A rigid method of interpretation is problematic because it requires judges to demarcate cases based on inflexible criteria, even when they do not precisely fit the matter before a court. A categorical approach relies on predetermined criteria rather than totality of the circumstances review of specific litigants and conflicts. Categoriality fails to adequately address counterarguments, often disregards conflicting legal reasons, and downplays facts in the record. The First Amendment should be treated as part of a broader scheme of governance, one that protects opinions, institutions, and heterodoxy. The Free Speech Clause does not stand alone but is part of a constitutional design meant to advance the common good by establishing legal safeguards for inalienable rights. Open debate, personal expression, and scientific advancement are essential features of a society that from its founding has been committed to “the equality of rights” for the benefit of the “common good.”208 Since at least the 1780s, the right of speech and assembly were thought to spring from equal human prerogatives to hear arguments and to use them for the benefit of society.209 During the early republic, speech was regarded to be a residual natural right retained by the people pursuant to the social compact.210 The relation between free speech and achievement of the common good of the public realm was taken for granted.211 For instance, the 1780 Massachusetts Constitution provided: “The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives; and to request of the legislative body, by way of addresses, petitions, or remonstrances redress of the wrongs done them, and of the grievances they suffer.”212 Article 32 of the 1783 New Hampshire Bill of Rights was drafted almost verbatim to reflect the broadly accepted principles of petitioning

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and representative governance.213 Early bills of rights – such as those in Virginia, North Carolina, New York, Pennsylvania, and Rhode Island – also guaranteed some versions of freedom of speech, writing, assembly, publication, and deliberation for the common good. The First Amendment’s normative value is part of a more fundamental constitutional scheme of representative democracy, where individuals are treated fairly. Institutions must hold fast to the values of civic governance in order to advance the hopes and aspirations of the people who compose the polity. Government cannot interfere in the communicative rights of individuals, except in limited circumstances where narrow restrictions are needed to advance other constitutional goods such as security, intellectual property, or personal dignity. The Supreme Court’s categorical approach to free speech is linked with libertarianism. The same philosophy claims the mantle of many academics, Justices, and civil liberties groups. More speech in the marketplace of ideas is considered invariably better – irrespective of whether it comes from the Republican Party, Democratic Party, the Nazi Party, or the Communist Party – and government interference is met with suspicion as an affront to personal liberty. The view that speech stands out as the most important bastion of autonomy, rather than one of the essential components of representative democracy, has produced a formalistic approach to expressive freedoms.214 The First Amendment’s guarantees should be understood in the context of a broader ideal of liberal equality, derived from the nation’s core ethos, as set out in the Declaration of Independence and Preamble to the Constitution. Those dictates of governance establish the purpose of representative democracy, binding on the entire federal structure. The polity is organized to address institutional injustices, including arbitrary censorship, by fostering the arts, intellectual entrepreneurship, discourse, debate, and discussion. It is precisely in the arbitrariness of government action that the Court’s ad hoc prohibition should kick in. The fundamental rights to express ideas, opinions, aesthetic views, jokes, and so forth are linked to constitutional normativity that respects individuals, acknowledges their privacy, and understands the function of government to be for the betterment of their social and civil standing. Safeguards for speech deserve substantive and procedural due process. Grounding the First Amendment in constitutional ethos has profound implications for ordinary, natural people.215 A few words are in order here about the scope of the Amendment’s reach. Chapter 10 further explores the implications of extending its protections to artificial entities, like corporations. In Citizens United v. Federal Election Commission, the Court relied on an absolutist notion of speech to guarantee artificial, for-profit entities the same

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right to expend money on elective campaigns as is enjoyed by voters. The majority failed to contextualize how distinct corporations are from natural persons. A proportional approach distinguishes expressions of ordinary citizens and those of artificial entities. The overwhelming financial wherewithal of publicly traded for-profit corporations, allows them to skew elections in favor of their interests, without any possibility for ordinary people to expend any comparable amount of capital on a candidate’s election campaign.216 The overwhelming majority of American citizens simply cannot afford to contribute enough money to gain special access to their political leaders. Thus, the government has a countervailing interest to limit corporate speech to preserve representative democracy. The First Amendment guarantees humans’ entitlement to exercise their innate right to articulate personal, civic, or descriptive thoughts. The right to express ideas freely, therefore, is not a grant from government. It is rather an inborn right, call it innate. The First Amendment mandates the maintenance of safeguards against arbitrary government interference. The Bill of Rights protects the innate will to engage in human dialogue. Moreover, the US commitment to free speech extends beyond existing law, to the unenumerated commitment to protect fundamental rights that are essential to the welfare of a representative democracy. Timothy Zick rightly observes that the dynamic relation between various parts of the Constitution can be identified by intratextual comparisons of the Constitution’s language, precedents, historical meanings, and the contributions of social associations.217 Even more fundamental is the constitutional guarantee that free and equal individuals be allowed to advocate on their own behalf. In a nation with a binding, written constitution, text plays no small role in interpretation. But textual analysis alone does not resolve complex disputes. The First Amendment of the United States Constitution explicitly prohibits only congressionally created laws abridging speech. Analyzing contextual factors is crucial to the resolution of disputes. These factors include assessments of the interests of parties, the potential harms to specific expressions, the fit of policy and regulation, alternative methods of achieving stated goals, and historically relevant events. That multifactorial method of analysis, which is consistent with Justice Breyer’s balancing test in Alvarez, enables judges to reason through cases rather than fit all controversies into a few judicially created categories. The core aim of the First Amendment is to protect open assertion, discourse, and debate. The constitutional significance of free speech is bound up with representative democracy, with its respect for individual and communities. Unpackaged further, this political system provides channels for

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individual articulation and establishes a system for governance whose aim is the pursuit of political actions conducive to people’s happiness. Communication is both an individual interest for self-fulfillment and a social one for articulating and persuading others about how to achieve civic and legal fairness, justice, and electoral parity. Judges presiding over First Amendment cases, therefore, must not deviate from principles that are articulated in the nation’s founding documents. However, free speech doctrine does not provide conclusive answers, since constitutional common law is part of an evolving system. Decision-makers must therefore advance the rule of law through interpretive methodologies that are sensitive to historical, doctrinal, and social evaluations. Free speech remains a bedrock of American law. But the media for spreading communications have greatly expanded from relatively rudimentary printing instruments existing in 1791, which informed views of the Bill of Rights framers. Application of an ancient constitution to issues about new information technologies and digital materials requires contextual flexibility sufficient to apply existing precedents; to modify them when necessary; and, in more unusual circumstances, to overturn them altogether. Theory should inform all decisions, both as to the continued validity of existing precedents and as to novel questions about free speech. Balancing considerations set a method for judicial review that both identifies broadly relevant concepts and the specifics relevant to resolution of legal conflicts. Issues inevitably arise in courts that require the schematic advancement of our understanding about everything from incitement to violence to press freedoms. Even as courts face complex modern questions, the evolution of free speech doctrine should retain stability by staying true to first principles of representative democracy. The contextual approach to free speech diverges sharply from the rigid perspective of jurists like Justice Hugo Black, who asserted that the Free Speech Clause should be read as an absolute bar against government limitations on people’s expressions of opinions and ideas.218 His mistake was in claiming to rely precisely on the actual text of the Constitution, focusing on the First Amendment’s wording: “Congress shall make no law . . . abridging the freedom of speech.” Justice Black understood this provision to mean that any law limiting speech was unconstitutional. As he uncompromisingly put it, “I read ‘no law . . . abridging’ to mean no law abridging.”219 Somehow, he read the referent “Congress” out of his literalist notion of the First Amendment. Absent that advertent oversight, his claim may seem plausible: After all, we have a written Constitution that must be the foundation of any discussion about fundamental principles. But closer examination makes it abundantly evident that the First Amendment is read literally to the detriment of core

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constitutional principles; indeed, counterintuitively, following it verbatim would result in the suppression of speech. For one, the Amendment would be virtually meaningless unless its prohibition against abridging speech applied to all three branches of government, even though that is nowhere stated in the Constitution. Extension of the First Amendment’s restraints to the executive and judicial branches is the only reasonable extrapolation from an implied constitutional principle that prohibits autocratic abuses of legislative, executive, and judicial powers. There are a variety of other problems with a rigid interpretive method. For one, it stifles the development of stare decisis and thereby harms the evolution of legal norms. The First Amendment is ancient and therefore in need of contemporary interpretation. Furthermore, it is unrealistic to believe a few words of the Constitution can categorically determine the outcome of an infinite number of expressive scenarios. Our First Amendment has evolved over time from applying almost exclusively to prior restraints of the printing press to being relevant to digital information on the internet. Identifying the framers’ original intent is insufficient for applying it to most contemporary cases. Over the years, the US understanding of the First Amendment has become far more libertarian than it had been at the nation’s founding. The early republic held to a fairly narrow view of free speech. At that time, even statements critical of the government were suspect and subject to prosecution. The Fifth Congress, in 1798, adopted the Sedition Act, an infamous law prohibiting anyone from engaging in seditious speech. The Supreme Court never formally overturned that statute because it expired in 1801.220 A leading jurist in 1799 defended the policy, “Without suppressing slander and sedition against the government, the support of public opinion cannot be preserved to it.”221 His opinion was consistent with the view of the post-revolutionary period. An anonymous author in 1793, for example, wrote, “Whosoever disturbs the peace, foments disturbance, excites sedition, or scatters discord, ought to be considered and treated as a public enemy.”222 There were, undoubtedly, disagreements about the limits of free speech. While members of the Federalist Party supported the Sedition Act, Democrats condemned the law for gagging the “liberty of saying and doing what we please,” and also asserted “that the liberty of the press is hereby infringed.” Federalists defended the law against charges that it violated the First Amendment by arguing that the Bill of Rights did not upend common law against libel, which like the Sedition Act prohibited false claims about the governmental actors’ reputations.223 But all the framers failed to articulate the distinction between public and private topics and public and private objects of invective, something the Court only identified in the late-twentieth century

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with its decision in New York Times v. Sullivan, which constitutionalized public libel about public officials. Framers of the Constitution were in so great a disagreement about whether the Sedition Act was in keeping with common law or violated the Constitution that, rather than repeal it, Congress simply allowed it to lapse on the eve of Democratic-Republican Thomas Jefferson’s taking over the presidential reins from John Adam’s Federalist Administration.224 Its historic pedigree did not save so blatant a partisan weapon to suppress free speech. Contemporary scholars across the theoretical spectrum, along with the Supreme Court in Sullivan, now regard that statute to have been a grave misuse of power, violative of a foremost First Amendment principle against government suppression of political debates.225 Yet the ancient historical record, which contains contradictory defenses and attacks of the sedition law, cannot resolve the dispute about its constitutionality.226 That task is left to a balanced weighing of interests that take into account the speakers’ interests, government policy, means/ends analysis, alternatives to suppression, and the history behind a policy. The eighteenth and early-nineteenth century understandings of free speech are significantly distinct from contemporary doctrines. As Professor Jud Campbell synthetically explains, Individuals who joined together in a social contract, after all, had no reason to immunize efforts to lie or mislead. Nor did they need to prevent the government from preserving norms of civility and morality, like rules against blasphemy and profane swearing. Indeed, the Founders constantly mentioned that the inalienable right to speak was limited to those who spoke with decency and truth, and state governments routinely and uncontroversially restricted plenty of speech that did not directly violate the rights of others.227

While history is not unequivocally determinative of contemporary disputes, its insights, moral teachings, and objective record are informative to current understandings of the fundamental principles for safeguarding free speech. By identifying and applying first principles to specific decisions, the adjudicator can avoid making ad hoc judgments. Doctrine is nevertheless the product of case-by-case decisions, which necessarily implies the need for justifiable reasoning that is not fixated on categories but comprehensive interpretation. Stare decisis is essential for advancing legal culture within the traditional parameters of US law, but judicial decisions should not be so firm in their reasoning as to overlook relevant constitutional balances. Constitutional integrity requires government and its agents to protect individual rights for the common good. In practice, that means that ideals of

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constitutional equality and justice should inform our understandings and evolutions of free speech categories such as secondary effects, campaign financing, and educational expressions. Some scholars have altogether dismissed the notion of a comprehensive theory of free speech.228 US scholarship and judicial opinions tend to favor speech above other autonomy and equality interests. My suggestion, which is informed by European balancing considerations discussed in Chapter 5, is that proportional reasoning has its place in free speech contexts; although judicially constructed categories, like government speech or incitement, certainly serve as “rules of thumb” for analysis.229 For a normative framework to be applicable and useful throughout the field of free speech, it must advance deliberative and just governance. The polity is composed of individual people with public and private interests. Individuals value their communicative engagement at the micro level, in their homes and among friends, and at the macro level, as members of a sovereign body. The First Amendment stresses the government’s obligation to protect avenues and modes of communications because of their importance to the people’s safety and happiness, both of which, I have argued extensively in other publications, are guaranteed by the Declaration of Independence and Preamble to the Constitution.230 The general welfare of a society can, in part, be measured by the extent to which people are free to openly assert serious, jocular, and informative matters without punishment. Free speech is one of the blessings of liberty intrinsic to representative governance of equals. The protection of free speech, therefore, is a fundamental principle of government because, adopting the words of the Declaration, the ability to petition is an “unalienable right.” This narrow construction has expanded with constitutional reconstruction, technological innovation, and Supreme Court jurisprudence. And we have already seen that the scope of protections far exceeds the Amendment’s textual terms. The majority of the Court never shared Justice Black’s conviction on the First Amendment. In Nebraska Press Ass’n v. Stuart, the Court explicitly stated that the “Court has frequently denied that First Amendment rights are absolute.”231 While free speech is essential to a robust exchange of ideas in our pluralistic, constitutional republic, the Supreme Court has announced that some narrowly tailored exceptions do not violate the First Amendment, as long as they serve a compelling state interest. Contemporary jurisprudence recognizes the constitutionality of a variety of content-based legislative actions. They include a zoning limitation aimed at the secondary effects of operating adult theaters;232 a statutory prohibition against threatening the President;233 a restriction forbidding electioneering

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within 100 feet of a polling place on election day;234 a provision prohibiting the deceptive and misleading use of trade names;235 a statute punishing the knowing destruction or mutilation of draft cards;236 and a prohibition of the distribution of obscene materials that appeal to prurient interests and portray “sexual conduct in a patently offensive way . . . which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”237 Each of these categories imply social balancing, the type recognized in the landmark case of Chaplinsky v. New Hampshire, where certain utterances are of “such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”238 The policies behind restrictions on communications are best ascertained through open airing of those social values, countervailing concerns, the means chosen, and any historically relevant facts tied to constitutional safeguards of representative democracy. The right to free expression is an inborn entitlement of natural persons by virtue of their dignity, humanity, and civic personality. Even when it comes to the Constitution, the protection of verbal, written, and otherwise expressive communications extends infinitely beyond the words of the First Amendment. That instrument protects “the freedom of speech.” It does the same for written texts, drawings, and multimedia data. All of them are covered under the Free Speech Clause. Reliance on an expansive method for reviewing free speech differs from the approach of most mainstream scholarship and current doctrine on the subject. The Supreme Court has of late resisted using considerations for the public good and social harms in its free speech cases, formalistically relying, instead, on strict scrutiny in cases of content or viewpoint restrictions. In one case, writing for a plurality, Chief Justice Roberts stated: “[T]here are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good.”239 Roberts’s injunction requires laws to be narrowly tailored. But proportional analysis need not be overly broad. Other democracies and the European Union rely on proportionality for their reasoning disproving the notion that balanced interpretation of free speech threatens pluralism and communication. In countries like Canada and Germany, constitutions direct judges to balance free speech rights against other fundamental values, especially the value of representative democracy.240 The United States Supreme Court relies on formalistic categories – like those of public forum, limited public forum, and designated public forum – to decide when strict scrutiny would be appropriate. When dealing with limitations on speech, the Court will first decide whether the government had

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a compelling state interest before it ever gets to the question of whether the policy is narrowly tailored to some other public purpose, such as judicial integrity.241 Contextual reasoning is better done by reflecting on all relevant constitutional values at stake in a case, rather than on the basis of judicially created categories. The default should be for courts to complete a thorough review of the record and applicable case law, rather than basing decisions on narrowly defined, judicial categories. European courts have consistently found some interests, such as privacy, are fundamental enough to constitutional order to balance them with speech.242 In the United States, which is more protective of expression than its continental counterpart, the Supreme Court is given to strict scrutiny analysis of content regulation; but, even then, deliberative interpretation is needed rather than conclusory doctrine.

3.2 primary and secondary concerns When a judge selects what line of precedents fit a case, he or she is neither engaged in a straightforward, obvious, or particularly clear-cut undertaking. Even where the First Amendment is of primary judicial concern, considerations of secondary relevance often have an important role to play in adjudication. These concerns of secondary relevance are, what in a different context Justice O’Connor called, a “series of prudential and pragmatic considerations.”243 As Frederick Schauer has pointed out, judges routinely (and sometimes, I would add, calculatingly) select doctrinal frameworks – be they public forum, designated public forum, limited public forum, unconstitutional conditions, or some other doctrine – to justify contingent judgments and make them appear obvious, objective, and straightforward.244 In order to give first-order free speech decisions the appearance of content neutrality, the Supreme Court often fails to flesh out second-order issues pertinent to the resolution of a case. I am here leaning on Joseph Raz’s distinction between first-order and second-order judgments.245 The former help resolve disputes intrinsic to a case, such as one involving free speech concerns, while the latter provide more general reasoning for judicial outcomes. His definition is, however, narrower than mine, perhaps because his work emerges from the British legal system with its scattered constitutional provisions, rather than a unified, written constitution. I mean for “second-order judgments” to both refer to general constitutional structure and to be linked to specific clauses of the US Constitution or a law passed pursuant to that power.

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Second-order insights provide cultural background, as when in Virginia v. Black the Court discussed the meanings of the burning cross to contextualize its reliance on the true threats doctrine. Most opinions are less ambitious at looking to general and historical examples. Some cases seem to select an outcome determinative category. In a recent decision, the Court upheld the State of Texas Department of Motor Vehicles Board’s decision to prevent a private group from posting a Confederate logo on license plates. In Walker v. Tex. Div. Sons of Confederate Veterans, Inc., the Court deferred to the government speech doctrine for its first-order decision, but, behind the holding lurked a second-order viewpoint value. Confederate symbols, after all, are tied to the Thirteenth Amendment’s rejection of the badges of slavery that, arguably, empower officials to prevent some symbols of racial intolerance to be printed on state issued licenses.246 The majority opinion nowhere asserted the second-order judgment about the cultural content of Confederate symbols because to do so would have deviated from its injunction against government regulations on offensive speech. It might have also relied on analogous second-order reasoning in United States v. Stevens to find that the first-order prohibition against the sale of videos depicting the torture of animals was tied to a norm, adopted in all states, by way of animal anti-cruelty laws. Instead, in the latter case the Court would only give credence to the speech interest not the countervailing concern for animal safety.247 Without the needed second-order transparency, only the Supreme Court’s first- order free speech doctrines are binding on lower courts, legislators, and the members of the executive branch. Without explicitly wrestling with the second-order questions, many of which are content-based, the Court leaves itself latitude in future decisions to qualify holdings without revealing all the social values and structural concerns that go into the resolution of complex issues. Judges should, at a minimum, reveal when foundations and key concepts – such as fairness or equality principles of the Fourteenth Amendment – are relevant to its second-order reasoning. In many cases, reasoning should not be confined to the first-order First Amendment doctrine. All relevant clauses of the Constitution, underlying principles, and all-thing-considered judgments should be explicitly fleshed out in the body of decisions. Where the Court’s holding is based on essential second-order ideals – be they equality, social justice, post-bellum Reconstruction, or some combination thereof – all of them should be stated rather than hinted at, as the Court did in Walker. Without the depth or historic analysis, in an earlier case, Capitol Square Review & Advisory Bd. v. Pinette, the Court found the Ku Klux Klan had the associational speech right to demand its cross appear on the grounds of a public state plaza.248 Balancing

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might have identified the second-order relevance of the Thirteenth Amendment’s prohibition against the incidents of slavery, which the Klan’s display glorifies.249 Contextual analysis makes resolution of cases more complex, but the reasoning more comprehensive, and the holdings more accurate. Failure to flesh out proportional reasoning increases the risk of judicial manipulation of doctrines. In this regard, the Court’s decisions have increasingly sided with corporate speakers who challenge commercial regulations. While these opinions smack of libertarianism, the Court has never officially adopted that social philosophy. Much as the Court relied on second-order libertarian considerations in favor of corporations during the Lochner era – but claimed its decisions were based on the first- order Fourteenth Amendment liberty of contract explanations – several of its current First Amendment arguments – in cases of campaign financing,250 for instance – don a free speech mantle, while obfuscating second-order economic preferences for corporate identity. Lack of proportional transparency has empowered the Court to favor corporate speech above social regulations. Therefore, in Citizens United v. Federal Election Commission it expanded the ability of corporations to expend funds on elections and diminished unions’ efforts to engage in effective collective bargaining.251 Notable in decisions striking social legislation is the Court’s regular unwillingness to defer to legislative policies.252 An approach narrowly focused on speech without the requisite reflection on communicative contexts downplays important factors. The outsized concern for maintaining an uninhibited marketplace of ideas has even led the Supreme Court to strike laws designed to protect public safety, although that is an ancient governmental function.253 McCullen v. Coakley, for example, found unconstitutional a Massachusetts law that created a protective buffer zone in close proximity to the abortion clinics.254 After repeated violence, intimidation, and harassment at a health care center that provided abortion services, the state legislature had passed the law prohibiting third persons from approaching to speak to entering patients.255 The Court found the restriction to be an excessive interference with protected speech because it prevented peaceful anti-abortion protestors from approaching and ministering to arriving women. However, in finding the majority gave little consideration to the legislature’s reliance on eyewitness testimony about the unsafe conditions abortion opponents had created. The Court discounted evidence of the infringement of women’s privacy right, in preference for its own sensibilities. The risks women perceived to their safety should have been a second-order concern to balance against the first-order

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speech of persons who wanted to express anti-abortion sentiments at that location. Without providing any empirical evidence that might have disproved state legislative findings, the Court held that a thirty-five foot buffer zone between speakers and the clinic entrance was not narrowly tailored enough to meet legitimate state concerns for safety, health, and welfare.256 The Court was persuaded that the state had placed too heavy a burden on the speech rights of counselors and ministers. The patients’ sense of intimidation and threat was given little credence, empathy, or concern. The majority selectively chose the first-order interest of speech without sufficiently weighing the state’s policy of patient protection. The Court’s libertarian preference for the interest of anti-abortion speakers to persuade women not to undergo the medical procedure can come at the expense of patients’ privacy. It also runs counter to other cases. The Supreme Court had previously favored patients’ right to be left alone. The state of Massachusetts had sought to safeguard the privacy and dignity of women entering the clinic; therefore, the second-order principles of privacy should have been balanced against the Court’s first-order preference for free speech. A similar consideration is implicit in Ohralik v. Ohio State Bar Association, which found attorneys can be barred from soliciting to represent recently injured persons at hospitals. The majority ruled against the attorney who had tried to contact car accident victims either personally or by letter. The First Amendment offered him no defense for trying to drum up business from a vulnerable party.257 The anti-abortion protests in McCullen were intimidating and infringed on the constitutional right to privacy, as it was identified in Roe v. Wade. The Court’s reasoning and decision in McCullen should have included application of the reproductive rights case balanced against the silencing of protestors. Context matters. Soliciting a hospital patient with a concrete and nonspeculative medical condition differs from cases of ordinary advertising that lack the same social concerns of vulnerability and privacy.258 In McCullen, the Court should have deferred to the legislative decision to protect patients seeking to exercise their private, constitutional right to terminate a pregnancy, without being harassed and distressed by a gauntlet of strangers seeking to talk them out of the abortion procedure. There are several other recent decisions that, like McCullen, find speech to be dispositive without adequately weighing other factors. In these cases, the Court takes for granted the primacy of speech but does not give adequate weight to the policy behind the regulation. Some cases presume audiences are interested in obtaining more information, even manipulative advertising, rather than the

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countervailing interests in consumer protection and obtaining optimal healthcare.259 In the area of commercial speech regulations, the Court has recently increased protections for advertisers while discounting legislative reasons for limiting a business’s access to private patient information. In Sorrell v. IMS Health, Inc., the Court protected pharmaceutical manufacturers’ prerogatives to gather and use pharmacy records containing prescriber information for the promotion of prescription drugs.260 The Court held that marketing such data was a form of free expression protected by a heightened level of judicial review. The holding is based on the presumption that, given ever more information, marketers will provide better and more accurate medical information. But to come to that conclusion, the Court downplayed concerns of medical societies and their members, who for empirical reasons were concerned that data mining companies would use the information to pressure physicians to prescribe more expensive medicines, rather than those that might be clinically better or simply less expensive for the patients. After all, the data miners’ primary goal was commercial, not medical. They sought to manipulate the marketing and sales in the direction of more profitable drugs rather than those best suited by research or accessibility. Corporate information was incomplete and biased in favor of pharmaceutical profits. Moreover, the state enacted the privacy regulation to protect privacy against companies who would share health information with parties unconnected with treatment: Technically speaking, information obtained by the data vendors was anonymized, but patients’ identities could be readily extracted through unique identifiers linked to physicians’ prescription histories.261 Despite the intrusive nature of the marketing and the adverse interest of prescribers to be let alone, the Court in Sorrell favored marketers’ right to gather data and develop strategies to ingratiate their marketing plans to physicians. The holding advanced product marketing as a form of speech while discounting government’s interest in protecting consumers against misleading drug advertising. The lack of context and preference of advertisers empowered companies to increase profits by aggressively targeting physicians “to prescribe particular pharmaceutical[s],” especially highly expensive ones that continue to be protected by patents rather than their cheaper generic equivalents. The majority’s fixation on first-order free speech concerns gave inadequate weight to second-order privacy health-related issues. Focusing only on the categorical notion that more speech is better for consumers, grounded as it was in the iconic marketplace notion that more speech always advances truth, dismissed state legislative findings of how companies manipulated the

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pharmaceutical market. Neither did it give adequate weight to the constitutional right of privacy, which other cases had identified.262 Contextual interpretation can better get at the breadth of policies involved in cases like McCullen and Sorrell. Relying on narrow First Amendment categories to exclusion of proportionality obfuscates the multiplicity of factors of countervailing policy concerns. The implication of the Court’s increasingly decontextualized libertarianism is that speech is a first-order value that reflexively supersedes other constitutional values. The automatic primacy of speech rights comes at a cost of other constitutional principles. The Court too often closely scrutinizes restrictions on speech without giving due deference to other legislative policies.

* Libertarian free speech theory emphasizes autonomous expression of ideas, topics, and viewpoints. The Court’s holding in Reed v. Town of Gilbert that judges must examine all content restrictions through the lens of strict scrutiny is inconsistent with other doctrinal decisions. The majority’s rigid interpretation overlooked that secondary public concerns – such as privacy, elective integrity, or inequality – sometimes outweigh speakers’ interests. It also ignores that there are many types of content-based restrictions that do not warrant exceedingly rigorous review, such as advertisement restrictions imposed on tobacco distributors or disclosure requirements for publicly traded securities, that raise no constitutional problems. Treating all content restrictions as suspect creates a body of law susceptible to judges selectively picking doctrinal labels and then cherry-picking the record for facts to fit the chosen rule of construction. This approach may mitigate the problem of open-ended balancing, but the quest for predictability often comes at the cost of interpretive nuance, context, and flexibility.

4 Civic Community and Social Context

The First Amendment is a normative component of the US Constitution’s system of representative governance, instituted for persons to pursue their happiness by safeguarding fundamental rights essential to general welfare and safety.263 The US government is built on a foundation that safeguards deliberation, self-expression, self-affirmation, and scientific pursuits. These rights are not only guarded by the Amendment, by statutes, and by judicial opinions, but by the very structure of a government created by the people to preserve their inalienable interests in liberty and equality. The nation’s founding statement of purpose, which is set out by the Declaration of Independence, recites a commitment to establish a nation to protect ordinary citizens’ safety and happiness. Given the First Amendment’s dearth of textual guidance, an analytical, structural, and normative model is needed to prevent abuses of power. As with the acts of all branches of government, judicial doctrines must be consistent with grander principles of constitutional ethos, which mandate that officials formulate and pursue policies likely to protect individual rights for the common good. Case-by-case analysis is a balancing act, requiring examination of facts in the context of speech interests, countervailing public concerns, fit between regulation and stated statutory goal, and availability of alternative channels for communication. The historical centrality of free speech – evident from prerevolutionary pamphlets condemning British taxation without representation, to abolitionist pamphlets and speeches against slavery, and the civil rights movement’s articulation for the second reconstruction – also informs the reach of the First Amendment to modern dilemmas, sometimes pitting speech against privacy, reputation, and public safety. A synthetic approach to speech differs from the Supreme Court’s current embrace of a categorical rule. Free speech is not a value separate and apart but intrinsic to constitutional order. Theoretical context is necessary to explain 57

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why despite its absolutist pronouncement in cases like Reed v. Town of Gilbert, the Court finds a variety of content-based restrictions on speech (such as securities regulations, antitrust laws, and incitement statutes) to be legitimate uses of state powers, while others (such as those limiting political debate or placing prior constraints on licenses) do not withstand judicial scrutiny. A robust theory should provide the normative basis for balancing free speech against other constitutional values, and it should mark a descriptive baseline for assessing existing doctrines, legislative initiatives, administrative regulations, state statutes, and municipal regulations. No simplistic, categorical hierarchy can provide consistent, in-depth, and accurate interpretation. Rather, courts should engage in close scrutiny to determine and evaluate relevant public policy concerns, past practices, social needs, laws’ connections to asserted public goals, and any alternative means of achieving them. Frederick Schauer has similarly expressed the need for courts to review broad second-order factors, including “the political, sociological, cultural, historical, psychological, and economic milieu in which the First Amendment exists and out of which it has developed.” These content specific areas of analytical consideration are not exclusively relevant for First Amendment disputes, rather they are critical to constitutional order as a whole. The judiciary’s responsibility is to parse relevant factors and policies in the context of cases. As Schauer points out, analyses of those general considerations come into play in the development of the free speech doctrine.264 Facets of representative government clarify the significance of the First Amendment to a free and deliberative democracy. Members of political communities benefit from sharing ideas and being interactive. The multifactorial milieu in which the Free Speech Clause ought to be interpreted implies the need for a contextualized approach that is true to principle, doctrine, and sensitive to material facts.265 Resolution of conflicting values requires proportional reflection on the divergent interests of litigants. Without a core theory, government officials lack a consistent and uniform ground for decision-making. The Supreme Court’s categorical method to free speech often isolates a rule of decision and does not give adequate consideration to policies meant to safeguard public safety, reputation, and privacy. The Justices often overreach by invoking a hollow shell of the First Amendment to strike legitimate economic regulations, child safety laws, protections of personal data, associational rights, and campaign finance restrictions. The Court relies on laissezfaire ideology when it strikes public welfare, public health, and labor laws. This approach harkens to an often condemned period of judicial supremacy. During the Lochner Era – so named after a Supreme Court decision, Lochner

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v. New York – the Court repeatedly found unconstitutional state and federal laws that restricted the exploitation of power against ordinary individuals. In the late-nineteenth and early-twentieth centuries, the right to contract became the doctrine of choice to invoke against enforcement of labor regulations designed to prevent employers from exploiting vulnerable populations, such as bakers, child laborers, and factory workers. At the dawn of the twenty-first century, litigants rely on the First Amendment to challenge securities disclosure requirements, conflicts of interest regulations, scientific requirements for licensed therapists, antitrust restrictions on retailers and distributors, seizure of computer equipment needed for criminal investigations, health regulations for tattoo parlors, and notices of employees’ legal rights.266 These efforts to undermine commercial regulations are not new. Professor Jack Balkin pointed out that in the latetwentieth century businesses and conservative groups invoked the First Amendment to formulate “absolutist forms of arguments” in defense of corporate property rights, opposition to affirmative action, and vindication of racist speech.267 The pattern favoring corporate interests continues; twentyfirst-century business litigants have time and again relied on a Court composed of members who tend to favor affluent and commercial interests. Often only passing reference is made to legislative policy and the Court shows little credence to legislative findings of countervailing concerns. For example, in Brown v. Entertainment Merchants Justice Scalia, writing for the majority, selectively culled evidence about the importance of parental controls and influence of violent depictions. The Court found a First Amendment right to sell and rent interactive violent games to children. The state of California, it held, had overstepped its authority by requiring that children get prior parental permission. The decision heavily favored commercial distributors of violent games, with competitors engaged in virtual reality killings and sometimes even rape, in games such as Grand Theft Auto. California had promulgated the law after conducting extensive hearings during which social scientists testified that children engaged in long-term play of violent video games tend to be more irritable, antisocial, and callous to violence. Research had identified a correlation “between minors who play violent video games and physical and psychological harm.”268 Notwithstanding those findings, the Court framed the reasoning in terms of content neutrality. It found that video gaming companies have a First Amendment right to distribute their products to children without state restrictions on the time or manner of the transaction. If the Court were more contextual in its analysis and comprehensive in its weighing of speaker, policy, means/ends, and available alternatives reasoning, its opinions would have

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been less prone to discount age-sensitive regulations that govern commercial interactions.269 Assumed in the opinion is that video games speech protected by the First Amendment should be extended to interactive video games.

4.1 communications The Constitutional protection of speech encompasses a wide variety of utterances, symbols, and reference that are invaluable for catharsis and understanding. Meaning is derived from grammatical rules, contextual uses, idiomatic nuances, local customs, and other semantic features of articulation, referencing, and gesticulation. This, of course, is a non-exhaustive explanation of self-expression, but it suffices to demonstrate the many ways that communications between people are possible, relevant, and influential. The First Amendment covers an infinite set of communications about perceptions, ideas, sensations, emotions, philosophies, scientific findings, empirical studies, and other data containing internal and external stimuli. Grammatical structure and vocabulary set some limitations on the ability to fully and accurately articulate our feelings and ideas. Nevertheless, whether the uneducated or savant, each of us has varying degrees of knowledge, understanding, and wisdom with which to affect culture, comfort each other, and advance political agendas. This is done by adopting standards of language, rhetoric, cadence, and inflection to convince others. The implication here is far-reaching. It means that the value of speech to individuals and polities extends from the teaching and learning of creative writing, to the construction of philosophical theories, and the articulation of empirical findings. This elaborate process – this human dance, if you will – is achieved by borrowing from other languages, abandoning archaic words and phrases, and creating something new to better depict modern technological and political realities. Language colors how individuals and groups perceive themselves, their culture, their roles, and their values. Free expression is vital to our constitutional community. It animates legal, public, and personal actions. The ability to communicate with others allows individuals to integrate or distinguish themselves from social, cultural, religious, or community norms and institutions. By itself, language is a neutral medium available for conservative, moderate, and liberal causes, for both personal development and public aspirations. Speech can spark change or promote stasis. For constitutional purposes, the First Amendment creates a legal right to express a plethora of ideas. The views can be mundane, orthodox, or heterodox. The right to speech extends to a multiplicity of human interactions necessary for the pursuit of happiness. However, not all speech is protected.

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It is the function of free speech theory to better understand what forms of communication the Constitution protects and what forms can be regulated.

4.2 a contextual theory of free speech A theory of free speech must explain the role of self-expression in a constitutional democracy. A systematic framework must provide lawmakers and judges with a consistent body of law and interpretive method for setting policies and deciding cases. At the judicial level, it must provide guidance for protecting speech, balance any alternative policies, examine whether the speech-restrictive regulation is overbroad or underinclusive, and identify whether stated objectives can be achieved through less restrictive strategies. Debates about the purpose and function of the First Amendment remain as in flux today as over half a century ago, when Thomas Emerson declared that “no really adequate or comprehensive theory of the first amendment” had been proclaimed despite “the mounting number of decisions and an even greater volume of comment.”270 Since then, precedents and studies of the First Amendment have continued to increase, shift, and yield new insights. The rationales courts use in their opinions remain piecemeal and often seem to be chosen post hoc to justify libertarian decision-making. A more stable explanation of constitutional free speech concerns could create greater consistency and systematicity. Such an advance in the area of free speech, as in any other area of law, would provide courts and scholars with coherent principle, predictability in adjudication, and uniformity of precedents. One of the most profound and influential statements about the First Amendment and its importance to democracy appears in Justice Brandeis’s concurrence to Whitney v. California.271 His approach, as Vincent Blasi has pointed out, is that of a political philosopher delineating how private individuals exercise their communicative autonomy in order to engage in statecraft.272 The Whitney facts are not particularly memorable; in fact, it’s specific holding – that of upholding Ms. Whitney’s conviction for associating with communists – is best known for having been subsequently overruled.273 It survives in constitutional memory not for the majority’s depth of reasoning, far from it, but for the lasting impact of Brandeis’s partial concurrence and partial dissent on modern free speech thought. The Supreme Court decided the case at a point of American history when members of the American Communist Party were subject to prosecution under criminal syndicalism statutes. Justice Brandeis distanced himself from the Court’s deference to state suppression of speech. He outlined functions of

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constitutional protections of free speech, including the ability to think, speak, and disseminate ideas without fear of government persecution. The Justice nevertheless realized that “the rights of free speech and assembly . . . are not in their nature absolute.”274 Brandeis drew from a tradition of free speech that had gained momentum in the early-twentieth century. He argued that no culpability should vest unless government could prove a clear and imminent danger of substantive evils. In a time of a true national emergency, the Constitution is not a suicide pact; imminent threat of harm can be dealt with even when it restricts speech until the emergency is over.275 However, government authority does not extend to political affiliations, even when they are outrageous to the public. The choice of political membership is personal, extending to the right to associate with like-minded individuals and to access information relevant to their civic mindedness. In one of the most eloquent and thoughtful opinions ever written, Brandeis demonstrated those values the framers enshrined in the Constitution’s guarantees of free speech and assembly as “indispensable to the discovery and spread of political truth.” Free discussion he believed to be cathartic of social tensions. The foremost function of the Free Speech Clause, according to his description, is the advancement of effective democratic values, safeguarding against “tyrannies of governing majorities.” But the picture Brandeis paints is incomplete. His political framework does not encompass all speech covered under the First Amendment. Artistic endeavors, theatrical performances, and personal discussions of all types are all critical to individuals’ communal humanity. Dignity interests are of even greater day-to-day importance to the average person than periodic forays into politics. In addition to civic consciousness, humans communicate, listen, and participate in private conversations. While Justice Brandeis was undeniably correct that in 1791 the framers amended the Constitution to guard against suppression of unorthodox political thought, he might have reached even further back into the nation’s founding to identify the value of free speech. The 1776 Declaration of Independence contained a statement on the importance of free speech and that predated the Bill of Rights by fifteen years. One aspect of free expression that the First Amendment explicitly protects is the right to “petition the Government for a redress of grievances.” This safeguard is meant to prevent the types of abuses against which the Declaration states: “[i]n every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated Injury.” Both documents established the right of the people to participate in debates and discussion.

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In the age of digital, telephonic, and other electromagnetic communications, the channels for reflection, contemplation, and learning have grown in leaps and bounds. The United States has long since adopted an understanding more in keeping with Justice Brandeis’s statement in Whitney. People now speak freely against the government and its laws without fearing arrest for abstract opposition to government. Millions write on blogs; speak in coffee shops; converse on telephones; engage in real time, face-to-face communications voicing their opposition to government programs, regulations, or any other official conducts. Greater commitment to debate and discussion has loosened the fears that informed earlier times. But debate is not of independent value. That value is tied to speakers and audiences. As individuals in a polity of equals, they enjoy the ability to vent, discuss, and otherwise communicate their ideas.

4.3 speech and other constitutional values America’s vociferousness predates the First Amendment. The American Revolution would have been impossible without liberal intellectual associations, especially the Sons of Liberty organizations, which led efforts at British taxation. They wrote and disseminated petitions and letters, gathered in parks and at conventions. Following British Parliament’s passage of the 1765 Stamp Act Americans expressed themselves at liberty poles; through speeches, books, and pamphlets. The dominant thread of late-eighteenth-century American pamphleteering was participatory government; and the many newspapers, journals, and person- to-person contacts to spread word of charges against the Crown and ideas for constitutional change. Free speech was an essential feature of social and cultural advance at the nation’s nascence. Diffuse revolutionary discussions between political action committees in the thirteen colonies culminated in the 1776 declaration of independence, severing ties with Great Britain. The right to free speech is not only a function of the written Constitution. Its cultural value memorializes the nation’s experience with the great movements of American history from the Revolution, through abolitionism, Jacksonian populism, feminism, and unionism, to name but a few. All understood the power of words to bring about meaningful change. The American tradition of free speech is, thus, linked to activism, personality, sociability, and progress. Exclude any of these, with the single-minded focus of the theories reviewed in Chapter 3, and we are left with an incomplete explanation. Without the ability to freely articulate one’s thoughts, government of the people and by the people cannot function.

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Speech is a diffuse right that is best understood in connection with relevant constitutional norms rather than in isolation. Courts hearing cases involving free speech should consider whether there are countervailing constitutional concerns to weigh against those directly dealing with expression. Categories, to paraphrase Justice Frankfurter’s discussion about legal canons, “give an air of abstract intellectual compulsion to what in fact a delicate judgment, concluding a complicated process of balancing subtle and elusive elements For the demands of judgment underlying the art of interpretation, there is no vademecum.”276 Values that are compelling enough to warrant balancing include privacy, travel, suffrage, the guarantee against self- incrimination, and so forth. Such normative considerations do not exist as separate from text. They are, rather, based on the need to understand statutes on the basis of the overarching ideals of representative governance to protect individual dignity on an equal basis for the general welfare. The value of free speech to individuals, culture, and civil society goes far beyond First Amendment text, doctrines, or judicial traditions. Professor Pamela Karlan points out in different contexts, especially voting and abortion rights, that the discipline of constitutional law should “build constitutional bridges” by identifying “doctrinal connections across constitutional subfields.”277 The broader subject of free speech also comes into constitutional paradoxes and otherwise analytical puzzles on such matters as due process; equal protection; national security; dignitary, common law rights such as defamation; broader matters of justice and fairness; and other counter interests. Where these come in conflict with free speech concerns, they must be balanced, assuring speakers the opportunity to express ideas but recognizing the role of narrowly tailored laws to advance other concerns critical to deliberative democracy, including voting, intellectual property, and national security. The power of speech and the constitutional protection of speech in inexorably connected with personal and public realms. Speech is both selfassertive and a means of getting others’ attention, swaying them, and changing political, normative, or cultural opinions. In addition, communication is necessary for visual arts, parodies, tragedies, poetry, religious performances, familial tranquility, and an innumerable number of other subjects defining personalities, giving wings to flights of fancies, and empowering persons to exercise their rational faculties. Expression can also have a direct impact on audiences. Dialogue is necessary to make informed healthcare decisions, to share experiences, to commiserate with others, to acquire financial information, to lobby, to rely on legal remedies, and myriad other human activities.

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The Free Speech Clause is not alone in protecting communications. In order to assert fundamental rights, an individual needs to voice personal concerns. This is evident not only from the First Amendment but also from tangentially-related constitutional guarantees. Take for instance the Third Amendment’s prohibition against quartering soldiers at times of peace. Implicit in this primarily privacy-related portion of the Constitution is that homeowners will be able to protest, to speak their mind, against any effort to violate their fee simple interests in property and their right to private control of possessions. Furthermore, sometimes secondary concerns are at play. The First Amendment should not be interpreted solely by the ideals of 1791,278 when it was ratified, but also by later constitutional evolution. For instance, the Amendment should be read through the lens of the three Reconstruction Amendments, which were ratified in 1865, 1868, and 1870. The Thirteenth Amendment’s prohibition on slavery and involuntary servitude, the Equal Protection Clause of the Fourteenth Amendment’s restriction on discrimination, and the Fifteenth Amendment’s restraint against racially exclusionary voting regulation augmented government’s power to further civil rights through antiharassment norms, such as those that exist in the Civil Rights Act of 1964 or the Voting Rights Act of 1965. Formalistic solutions to the resolution of free speech disputes are inadequately nuanced for courts to apply law, doctrine, history, prudence, and public morals to disputed facts. Narrow reliance on judicially created categories forces factually complex disputes into a small set of legal identifiers that are subject to selective interpretation that may not capture all the considerations relevant for legal resolution. A court’s choice of categories – be they government speech, public forum, or content-based doctrines – can skew the outcomes of cases involving challenges to restrictions on speech, such as regulations prohibiting the display of Confederate symbols on license plates.279 Rather than resorting to oversimplified categorization, judges should examine a broad range of constitutional considerations that are materially relevant to the resolution of a controversy. Legal doctrines and categories should suggest, but not determine, outcomes. Juries and judges should consider them in the context of real disputes, real people, real social conditions, real cultural concerns, real audiences, and real speakers. Representative democracy requires the protection of fundamental rights and the advancement of the public good. Citizens are not solely civic actors but also self-interested individuals. A government beholden to the will of the people must respect their participation in governance and self-assertion. People are not divorced from their society or culture, nor does the polity

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exist without unique constituents. The right to free speech is therefore neither a purely democratic nor solely libertarian value. A person enjoys constitutional safeguards even when raising a toast, joking, singing, or otherwise entertaining. Only a totalitarian government would restrict someone from engaging in expressive activity in the privacy of one’s home, alone on a park bench, or under a deserted but acoustically sonorous viaduct. Courts are just as likely to find unconstitutional overbroad suppressions of private speech280 as they are to strike regulation restricting public expressions about community concerns.281 The First Amendment is a legal instrument that empowers people to realize the Declaration of Independence’s guarantee to pursue happiness. So too, voicing personal and public aspirations is secured by the Preamble’s General Welfare Clause. By safeguarding personal expression, individuals maintain the autonomy necessary to debate the latest news or to articulate mundane concerns. The power of speech, then, opens channels for the flow of information about everything from political parties to the exchange of recipes. The Constitution’s protections of such deep concerns as sexual preferences282 and family living arrangements283 implicitly allow for the discussion of those subjects without government interference. Stated synthetically, the right to express oneself freely is a function of both the constitutional protections of equal citizenry with dignitary interests and the structural features of a deliberative government. The communication of ideas is both subjectively beneficial for the speaker, and objectively necessary for measuring legal standards applicable irrespective of any specific traits.

4.4 pluralistic free speech The individual voice can shed light on subjects to enlighten others. There is a value of tolerating disparate opinions and tastes, adding to the depth of discussion and diversity of perspectives. Governmental institutions should be designed to protect citizens’ abilities to meaningfully and sincerely engage others’ views. The First Amendment ennobles a plurality of voices to engage in democratic discourse about traditional or progressive views on matters ranging from law, to society, and to culture. The multifarious personalities that make up a community of equals hold various and often divergent opinions about what constitutes an enjoyable lifestyle. Retaining an open outlet for catharsis and exchange secures the pursuit of happiness for a nation diverse in its religious and political affiliations. This openness differentiates deliberative democracies from autocracies. The ability to express differing conflicting or supportive impressions without government interference tends to increase

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personal happiness and diversify input about public policies. The right to speak freely enables all people – regardless of their religion, race, tastes, group affiliations, and socioeconomic background, to share ideas. Representative democracy presumes that policy will be informed by the airing of distinct opinions for which the First Amendment is instrumental.284 The Supreme Court has noted that there is a “close connection between our Nation’s commitment to self-government and the rights protected by the First Amendment.”285 A government of the people presupposes the existence of differing, conflicting individual and associational points of view. Sometimes airing these differences goes no further than a debate at a bar or coffee shop; at other times, though, speakers can convince audiences to put pressure on elected officials to attend their efforts for some greater good. Pluralistic society is not a unity, but a community of distinctive personalities who act together, but retain the right to disagree about preferred courses of action, convince each other to reject the ideas of others, and even to castigate others for their views. The role of the First Amendment, then, is to safeguard the right of distinct individuals to vet their ideas as equals, but ones that often conflict. A system that enables speakers to freely address private and public concerns provides legal redress against governmental obstacles placed in the way of personal exploration and engagement in efforts to advance the common good. Sometimes these goals are met through personal efforts, but they can also be achieved through collective activism, community organization, reading clubs, or board membership. The First Amendment has broad implications for the entire system of constitutional governance. It enables everyone to pursue selfish or altruistic goals that do not create harms such as conspiracies, corporate trusts, harassment, or fraud. The latitude for open debate does not imply that popular pressure can justify legislative or constitutional inequalities. Popular support for discrimination brings into play the Equal Protection Clause, which prohibits discrimination against persons’ dignitary interests. When Colorado citizens voted for a discriminatory referendum, which would have prevented activism against abridging equal access to gays and lesbians, in Romer v. Evans286 the Court gave greater weight to the equal protection principle preventing arbitrary treatment of an identifiable group rather than to majoritarian effort to interference with civil rights. A democratic referendum, a prized instrument in the pantheon of constitutional democracy, did not supersede the comprehensive prohibition against discriminatory treatment. Likewise, the majority has no license to stifle disfavored viewpoints from being aired in public. The First Amendment protects the expression of views about matters of such great relevance as gun reform, consumer protection, corporate taxation,

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foster care, school governance, immigration, and infinite other topics. Unlike totalitarian states, the range of conversations in constitutional democracies are only limited by the people’s imaginations. And this right extends not only to self-expression but also to advocacy for other’s causes, even ones that the speaker may not believe. The value of speech is entrenched in the constitutional system of representative democracy, one that is open to divergent political perspectives and not limited by philosophical commitment to uncompromising ideology. Culture advances through the exchange of ideas. As constituents of communities, individuals can influence friends, neighbors, those of their cities, states, and nation. Speech is therefore not only of value to the speaker or to the state but for the public person, who lives in a private sphere with external and cultural concerns. Insofar as government is created for the people, it must assure the testing of ideas both behind closed doors and in public spaces. Speech is not only a personal outlet but it is also a necessity for the achievement of social aims, such as prohibiting intrusions into bodily integrity, advancing the administration of vaccination plans, or regulating of affordable health care. The exchange of ideas presupposes the possibility of organic process, an evolving community that can analyze, process, and act on new critiques, perspectives, and insights. Change must be tethered to a constitutional norm in keeping with the nation’s written Constitution. It is important to remark here that tolerance of divergent opinions also enables social movements to wage vigorous campaigns against institutionalized stereotyping, discrimination, and parochialism that have riddled the nation from its founding. As Balkin has put it, in the course of discussing the Bill of Rights, succeeding generations are not obligated to meet the detailed expectations of 1791 as long as the newly “proposed construction . . . makes the most sense of the clause in the context of the larger constitutional plan.”287 The First Amendment must be balanced against other constitutional and legal concerns germane to any dispute arising from direct or incidental effects on expression. Free speech is not a separate right over and above all others, it is part of a grander scheme for protecting individual rights for the common good. It fits nicely with other portions of the First Amendment, such as the Free Exercise Clause, but so too with less obvious provisions such as the Copyright Clause, the Equal Protection Clause, and the Due Process Clause. Any time that there is more than one constitutional provision at play, a court must balance these several interests; decide how closely the provisions are tied to the ends that are sought; and assure that expression has adequate outlets without inflicting significant speech-related harms, such as reputational defamation. Simply

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rendering categorical judgments about differing texts of the Constitution, as is the typical interpretive route, will not suffice to offer a solution. Neither will the ideas of the founding nor the thought and ideas of the founding generation provide the rigorous analytical guidelines for interpretation. That is not to under state the importance that written text and the historical record play in how cases are decided, but to fixate on textualism or originalism is not determinative. Norms of communications evolve. No generation can delimit expressive freedoms for all future constitutional interpreters. In a representative democracy, functioning for the betterment of the people, associations, individuals, social movements, government actors, and foreigners contribute to dialogue, the arts, and overall knowledge. Yet speech is often one constitutional value among others. Automatic preference for speech does not account for the complexity of cases such as Masterpiece Cakeshop v. Colorado Civil Rights Commission case. There a baker refused to decorate a cake for a couple’s same-sex marriage. The dispute between the baker and couple to be married pitted the values of his free speech and free exercise of religion against the grooms’ dignity, freedom to have equal access to public services, and simply to be social equals wishing to celebrate their wedding. Just resolution required deep analytical analysis of facts, laws, historical values, and constitutional principles. Instead, the Court’s categorical examination of religion with no finality on the issue of speech (remanding the case below, instead), did not get at the full range of considerations relevant to resolution of the case.288 Neither is the balance between speech and competing values always substantive. A functionalist approach can get at the balance of values. Where, for instance, a speaker is a government employer, the balance often falls on the side of the employer, who is even allowed to make certain content-related restrictions. As long as these are work related, and not a suppression of civic communication, the court does not use strict scrutiny assessment on contentbased public employment regulations, such as limiting journalistic contacts to a single press liaison. In the public employee line of cases, where the Pickering v. Board of Education rule is determinative, a court must consider the right of the speaker as citizen and the government as employer. And in the primary and secondary education cases, which are governed by the Tinker v. Des Moines Independent Community School rule, balance must be struck between the interests of teaching, discipline, and order and those of expression and debate. So too, issues of privacy about intimate details of a person’s life also implicate a speaker’s right to communicate and the audience’s right to obtain

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information. As the Court put it in a due process case upholding the right to sexual privacy, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”289 Values of selfexpression should sometimes be balanced against equality and general welfare concerns. In the employment discrimination field for instance, policies against discrimination can gainsay those of verbal harassers. Free speech, autonomy, fairness, and the public good are all have constitutional value with no definitive hierarchy, but one that can be ascertained through justifiable proportionality. Where litigants raise conflicting claims involving these rights, judges are therefore left with no option but to balance them in the context of the dispute or controversy.

4.5 balancing content We saw in Chapter 1 the extent to which the Roberts Court speaks against ad hoc balancing. Justice Clarence Thomas made the starkest statement on this point. As we saw in Chapter 1 his claim in Reed v. Town of Gilbert that content regulation automatically gets strict scrutiny review is inaccurate.290 On closer examination, not all categories of speech are protected and some are explicitly balanced, as can be seen with the Pickering line of cases on public employee expression. Reed v. Town of Gilbert’s categorical assertion misrepresents existing doctrine. Certain forms of speech are denied protection because of their content. The antiharassment provision of Title VII of the Civil Rights Act of 1964 is telling.291 The statute provides remedies for victims of hostile work environments, even where there is no direct negative employment consequence. The statute is grounded on the principle that employers have the obligation to create a work environment where employees will not be subject to “discriminatory intimidation, ridicule, and insult.”292 The statute creates civil liability against employers who tolerate work environments where victims are subject to undesired sexual advances, other unwanted sexualized verbal requests, or sexualized hostilities and intimidations.293 The statute is constitutional despite its overt content restrictions on self-expression. A court can only ascertain whether a statement is hostile by examining the words or gestures and the context in which they were uttered, other public interests, the extent to which the law is likely to meet stated ends, and whether less restrictive means are available to achieve stated aims. A worker’s claim of sex harassment must demonstrate that the employer made or tolerated sexually derogatory comments. Courts can evaluate evidence tending to show whether the alleged victim was subject to insulting epithets or sexual

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objectifications.294 But all these are content-based analyses, as Justice White wrote in his concurrence to R.A.V. v. St. Paul.295 A finding against the employer requires evidence of allegedly offensive comments.296 Content-based evaluations are also made for other protected categories under Title VII. An Arizona-based district court judge insightfully asserted, “To establish that a hostile environment claim based on national origin exists, plaintiff must show that: (1) he was subjected to verbal or physical conduct because of his national origin; (2) the conduct was unwelcome; and (3) it was sufficiently severe or pervasive to alter the conditions of his employment.”297 The plaintiff can recover when the totality of circumstances indicate that the employer showed “manifest indifference or unreasonableness in light of the facts the employer knew or should have known”298 of harassment, such as explicitly degradingly pejorative statements made at work.299 Under these circumstances, the public policy of protecting civil rights can only be achieved by restricting harassing speech and providing remedies against the conduct. Title VII complaints raise a panoply of legal concerns only one of which is speech. Title VII belies the Court’s formalistic statement in Reed that “[c]ontent-based laws – those that target speech based on its communicative content – are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”300 While employers on occasion propound First Amendment defenses in sexual harassment law suits, courts have found verbal discrimination in workplace settings to be unprotected. The Supreme Court has signaled that any free speech challenge to workplace antidiscrimination law would be such a nonstarter that in a case where both sides briefed that matter, the Justices expressly refused to review the First Amendment attack on Title VII workplace harassment and hostile environments prohibitions.301 The Court’s effort to justify the content neutrality standard and still maintain its deferential treatment of Title VII302 are not at all convincing. Indeed, there is content-based judicial assessment explicitly built into the current rule for finding a Title VII violation, “When the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.”303 Identifying whether statements are intimidating, ridiculing, and insulting requires parsing their contents, viewpoints, and contextual meanings. Neither the US Equal Employment Opportunity Commission (EEOC) or private litigants need not prove that there is a compelling state interest in

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restricting harassing speech in the workplace.304 The antiharassment policy is not merely content-discriminatory, but it disfavors a particular viewpoint, one that is abusive because of its degrading sexual, racial, xenophobic, or bigoted perspective. There is a mix of personal and private concerns in this area of law that relates back to the guarantee of dignity as the best means of securing civility. In the case of workplace harassment, the Supreme Court has explained that the harm extends beyond the victim.305 Workplace behavior has an impact and is influenced by “a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.”306 Judges must therefore bear in mind the “social context” of an act in Title VII cases as well as the federal government’s Commerce Clause power to pass laws regulating businesses that have a substantial effect on interstate commerce.307 We are members of a civic community, and any review of a speech regulation should look to social context and any nexus to other relevant constitutional clauses, statutory provisions, and common laws to weigh the state’s purported policy. Moreover, the centuries of employment discrimination – whether it be racialist, sexist, or bigoted – that spurred Congress to enact Title VII may also be contextually relevant for judicial review. In exceptional circumstances, even where more than commercial regulation is at stake, the Court has found the government has met the strict scrutiny standard. Professor Alan Brownstein points out that in such cases the Court determines whether, “‘compelling’ state interest is of sufficient weight to justify the substantial abridgment of a fundamental right. The determination of what constitutes a compelling state interest inevitably requires a value judgment by the reviewing court.”308 To this insight Professor David Han adds that the strict scrutiny standard provides transparency to expose “intuitions and assumptions regarding the social harm caused by the speech and weigh these against the presumed high value of the speech in light of the Government’s chosen regulatory approach.”309 In Burson v. Freeman, for instance, the Court reviewed a challenge to a state election statute. A Tennessee law made it illegal for anyone on the day of an election, who was located within 100 feet of a polling station, to solicit votes, display campaign posters and other materials, distribute campaign literature, or make campaign speeches for or against a particular candidate or political party.310 A treasurer for a candidate seeking municipal political office in the state of Tennessee had facially challenged the law, arguing that it “limited her ability to communicate with voters.” The regulation was an

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overt restriction on the expression of political content and viewpoint. The Court upheld using strict scrutiny analysis, holding that Tennessee had a compelling reason to secure voters’ unimpeded right to vote. The law allowed the state to maintain the integrity of elections against fraud, intimidation, interference, and manipulation despite the limitation it placed on core political speech. Courts throughout the democratic world also rely on proportional analyses.

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5 US Formalism and EU Proportionality Alternative

The first part of this book challenges the US categorical approach and elaborates a theory for judicial contextual analysis. The United States Supreme Court and scholars tend to be libertarian in opposition to such a proportionality approach to free speech. Scholars, like Professor James Weinstein, express concern that judicial balancing might lead to “ideological bias” and thereby reduce the “rigorous protection from content regulation.”311 Essential to free expression is the ability to maintain robust discussion and an openness to heterodox, nonconformist, and unpopular ideas. The worry that a balancing approach to free expression theory will suppress ideas is significantly overstated. As we have seen, some of today’s jurisprudence already relies on balancing and finds no First Amendment violation in prohibitions against the regulation and prohibition of secondary boycotts, “despite [the] political purpose”;312 unfair trade practices;313 corporate proxy statements;314 and employer statements that constitute unfair labor practice.315 Notwithstanding existing proportionality doctrines, such as those dealing with public employees and commercial speech, the Court’s “outcomedeterminative” categories lack transparency about the social tradeoffs. Categories mask the range of analytical factors and lead to inaccurate statements of law, such as in the majority opinion to Reed v. Town of Gilbert, that all content-based restrictions deserve strict scrutiny analysis. Unable to explain why it sometimes weighs interests while at other times selects categorical rules governing free speech, the Roberts Court and libertarian academics simplify the decision-making process. Weighing free speech against other values goes against the commonly accepted grain in the United States. Justice O’Connor, for example, asserted, “It is a rule, in an area where fairly precise rules are better than more discretionary and more subjective balancing tests [that] are particularly susceptible to 77

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being used by the government to distort public debate.”316 Even more firmly in their rejection of balancing, Justices Black and Douglas were regarded to be speech absolutists.317 US scholars typically argue that “proportionality review remains fundamentally subjective” and does not provide workable judicial oversight.318 For this reason, free speech libertarians, like ACLU legal director Professor David Cole, argue that balancing is open-ended and unprincipled.319 Cole warns that proportionality standards “provide[] little if any principled guidance.”320 Professor John Hart Ely championed the argument that rather than balancing, ex ante categories of speech would define what forms of expression are unprotected by the First Amendment.321 The aversion to balancing tests in the First Amendment area, as Professor Martin Redish explains, comes from the worry that balancing will stifle the expression of viewpoints. Redish is correct that ordinarily only “real threat to society” will suffice to curtail information,322 but that criterion does not explain limits on speech such as defamation, fraud, contract, and antitrust legislation, all of which are content-based restrictions that balance social norms other than public safety. Most prominently on the other side of the American argument was Justice Frankfurter who defended balancing of constitutional law, primarily to be undertaken by legislators.323 Justice Harlan, the younger, likewise argued for a limited balancing model.324 As discussed in the first chapter, Justice Breyer has offered a systematic four-part balancing test for free speech balancing, to which I have suggested adding a historical element for judicial reflection. And Justice Stevens also proposed a proportionality test.325 I turn in this chapter to foreign guidance, rather than further engaging in this theoretical American debate. I do not wish to belabor the point, given that Chapter 1 elaborated on the strengths and weaknesses of the US Supreme Court’s categorical doctrine and Chapter 2 evaluated the dominant American free expression schools of thought. This chapter, examines European Union case law employing balancing standards to adjudicate conflicts between privacy and free expression. This analysis will provide fresh indications of why balancing constitutional interests adequately protects free expression. I focus on EU opinions dealing with cases of conflicting privacy and speech claims. The next chapter turns to conflicting US and EU standards of incitement and speech concerns. Given the strong American sentiments against balancing speech with countervailing social concerns, reflection on European Union law gives a glimpse of how proportional reasoning is applied in foreign democracies. The European Court of Human Rights (ECtHR) explicitly balances other constitutional values alongside speech.326

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Professor Robert Alexy has pointed out that in Europe “many constitutional courts” engage in balancing or weighing.327 In turn, a scholar has accurately asserted that constitutional courts “all over the world” have adopted Alexy’s principled theory of proportionality.328 The four classic aspects of proportionality analysis are pursuit of a legitimate end; suitability of an act achieving the objective; necessity of an act determined by whether it results in minimal disruption; and proportionality in stricto sensu, also called the balancing stage of net gains against reduction in right.329 Alexy is the leading proportionality scholar in the world and presents his theory in close relation with the ECtHR. In these pages, I follow his methodological example. Such an exercise is not in vain in a book about American free speech law, as the US Supreme Court has in recent years looked increasingly to foreign judgments as advisory opinions.330 While in the First Amendment field the Court has increasingly relied on American libertarian theory, looking to international and foreign models of proportionality can only help in understanding the operation of balancing or weighing. The European Union regards free expression to be among the preconditions of a functioning democracy, just as the US First Amendment, Article 10 of the European Convention on Human Rights secures the freedom of expression for everyone. More specifically protected are the rights “to hold opinions and to receive and impart information and ideas.” Exercise of those human right carries “duties and responsibilities” through laws necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In the United States, privacy is an unenumerated fundamental right,331 but in the European Union respect for privacy is codified in Article 8 of the European Convention. The most often discussed opinion in the European privacy/speech context is the Princess Caroline case in 2004.332 The daughter of Princess Grace and Prince Rainier III of Monaco, known as Princess Caroline, was the subject of voracious press coverage. Magazine photographers followed her incessantly and took pictures of her retail shopping, dining, and even leaving her residence. The German Federal Constitutional Court decided the case in favor of the magazines, protecting their right to free expression rather than the Princess’s privacy claim. The ECtHR reversed on review. It found that the

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magazines had violated Princess Caroline’s right to live a private life, which outweighed public interest in her shopping dining, and other outings. As for “the decisive factor in balancing,” the Court found the magazines enjoyed “no official function and the photos and articles related exclusively to details of her private life.”333 In a later 2012 case, with the Princess seeking injunctive relief for republishing photos, the ECtHR found that where tabloid photographers create a “climate of continual harassment which may induce in the person concerned a very strong sense of intrusion into their private life or even of persecution” the balance, in both cases, favors privacy over free expression.334 The follow-up decision also set five proportionality factors for balancing privacy against the right to free expression: (1) the work’s contribution to a debate of general interest; (2) how well-known is the person concerned and the subject of the report; (3) prior conduct of the person concerned; (4) content, form, and consequences of the publication; and (5) circumstances in which the photographs were taken. Most importantly for this book, the ECtHR reconfirmed an earlier judgment “that the context and circumstances in which the published photos were taken cannot be disregarded.”335 These factors were readily recognizable in the 2013 case of Delphi AS v. Estonia,336 where the ECtHR added a penal severity factor to “fair balance” between privacy and expression: “contribution to a debate of general interest, how well known the person concerned is, the subject of the report, the prior conduct of the person concerned, the method of obtaining the information and its veracity, the content, form and consequences of the publication, and the severity of the sanction imposed.”337 The Court was not done yet, however, and in the 2017 case of Einarsson v. Iceland, it balanced the right to private life and reputation against the right to free expression.338 There too the ECtHR weighed six factors: “the contribution to a debate of general interest; how wellknown is the person concerned and what is the subject of the report; his or her prior conduct; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanctions imposed.”339 Einarsson highlights how the ECtHR uses these factors to differentiate between protected speech under Article 10 and unprotected infringement of Article 8 privacy. The Petitioner, Egill Einarsson, was well-known in Iceland. He was accused of rape, but after being acquitted of the criminal charges, a magazine published a picture of him with the caption, “Fuck you rapist bastard.” Reviewing the record “contextually” the court found that the statement was a false accusation capable of harming Einarsson’s reputation.

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Therefore, even though he was a public figure, the libel was prejudicial to his “right to respect for private life.” The treatment here is more nuanced than in the US as to context and dignitary harm of the defamatory statement. The right to provide the public access to information outweighed plaintiffs’ privacy rights in the 2018 case of M.L. and W.W. v. Germany, where two people sought to remove a record of their 1991 murder conviction from a weekly magazine’s website archives. On balance, the ECtHR found Article 8 privacy concerns were outweighed by the values of historical research to teaching and accessibility to information available on the internet.340 These opinions grant judges the authority to look at the content of statements rather than simply categorizing them and dismissively ignoring secondorder judgments. The ECtHR recognizes how essential free expression is to democratic governance, but it is more transparent and therefore accountable for its reasoning than choosing and applying a pre-existing judicial category. The outcome of Tamiz v. United Kingdom contrasts from M.L. and W.W., with the former arising from a politician’s lawsuit to recover for insulting comments made on a blog run by Google, Inc., including one calling him a “violent racist.” In Tamiz, the ECtHR found that while the comments were deeply offensive the context was too trivial to make them actionable. Therefore, the scales tipped in favor of expression rather than privacy.341 The Court recognized that only serious harms to reputation are actionable, but not trivial ones like might be the consequences from everyday internet posts.342 In contrast to these nuances in the evaluation of content and form of speech, the US method rests on categories that, in the words of Justice Breyer in a partial concurrence and partial dissent to Iancu v. Brunetti, are “outcomedeterminative.”343 The EU secures privacy to a greater degree than the United States; however, that is not to say that the benefits of US vigorous protection of expressive autonomy are insignificant. US courts tend to favor speech above other values, whereas the Europeans recognize that in order to maintain privacy rights a balance is needed to avoid uncompromising opinions that do not take seriously all interests raised by the litigant. Professor Ronald Krotoszynski concludes that, “[u]nlike the European approach, the US approach leaves very little discretion to elected politicians – or even to unelected federal judges – to make and enforce civility norms.”344 Better than automatically preferring speech or privacy over the other is engaging in a case-by-case considered assessment, consistently relying on a formula for examining the value to the speaker, the government’s countervailing concerns, fit between regulatory means and ends, and whether alternatives for communication are available. That suggested approach is

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multifactorial, as are the EU tests found in Princess Caroline, Delphi AS, and Einarsson cases. Both the US and EU rigorously protect “parodies, satire, comment, criticism and art.”345 The US should go further in the EU direction, recognizing, as does the ECtHR, that “a careful distinction needs to be made between facts and value-judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof.”346 That distinction further helps to understand proportional analysis of speech relative to other constitutional values. Regulations on speech should and can be based on the context of when the expressions were uttered, the surrounding circumstances, available channels of discourse, and the extent to which any restriction advances constitutional values. Free speech is quintessential for providing for the general welfare of any democracy because it facilitates the exchange of diverse opinions. In a representative democracy, dialogue facilitates the testing of competing claims and obtaining of diverse input into political decision-making. Free speech is also essential to the enjoyment of privacy. Just adjudication of conflicting claims requires a realistic assessment of those conflicting claims. Categories are rules of thumb, but they do not exhaust the factors relevant to judicial or social fairness. Balancing in the EU extends to other areas, such as the regulation of incitement, that differ substantially from US doctrines.

6 Offense, Incitement, True Threats, and Hate Speech

Courts use categories of communication to identify what subjects are protected under the First Amendment.347 The Supreme Court’s modern doctrine, announced in starkly absolute terms in a 2015 decision, reviews content-based restrictions under the rigorous strict scrutiny standard.348 This categorical approach is a formalistic and inadequate substitute for comprehensive assessments into the interests of speakers; public policies; means for achieving legal ends; and available alternatives for expression. The relevance of proportional analysis is apparent to cases in traditional areas of free speech, as with offense, incitement, and true threats doctrines. Lower courts in continental democracies and in the United States have recognized the importance of context in evaluating whether a comment or symbol constitute true threats or innocent jests.349 A thorough analytical approach should consider the timing, substance, and background of the statement; policy concerns for public safety; whether the factual context of a case falls under a narrowly tailored law designed to check incitement or intimidation; and whether the government‘s purpose or effect is to shut down the expression of ideas. A variety of factors come into play when deciding whether a speakers intends to incite, threaten, advance discriminatory harm, or harass. Contextual evaluation considers the historical relevance of an expression within economic, social, and legal circumstances. The identity of the speakers are important for determining whether statements are private or public, political, religious, comedic, or dangerous to identifiable groups. The style with which a statement is made and the form used to convey the message are likewise important contextual considerations. Whether the statement was made in public or private also can be significant to the public interest or lack thereof. The imminence or likelihood of the hostility, discrimination, or violence being carried out must be reasonably probable. Also relevant are the 83

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characteristics of speakers, audiences, and targets of inflammatory expressions. Sanctions must be proportionate to the judicial assessment of how capable a speaker is of inciting violent or discriminatory actions.350

6.1 offensive speech The Supreme Court has been clear that speech cannot be prohibited simply because it offends listeners, is in bad taste, or is simply vexatious. For instance, in the landmark Hustler Magazine, Inc. v. Falwell decision, the Court unanimously held that a plaintiff needed to prove malice before being able to recover for intentional infliction of severe emotional distress about a matter of public concern.351 Principles against content-based regulations on speech recognize that even obnoxious and degrading statements are protected. The Snyder v. Phelps decision demonstrates the Court’s unwillingness to countenance censorship of insults.352 The case arose after a pastor and parishioners of the Westboro Baptist Church protested at a military veteran’s funeral, carrying signs with messages like, “God Hates the USA/Thank God for 9/11” and “God Hates Fags,” in protest of the United States’ tolerance of homosexuals. The deceased soldier’s father, Albert Snyder, filed a lawsuit in which he claimed their rude antics caused him to suffer at the funeral “severe and lasting emotional injury.” The protesters confined their gathering to public land, in keeping with police orders for staging the demonstration. Protestors did not enter the cemetery, where the funeral took place; used no violence; and did not resort to profanity. The district court, nevertheless, found them liable for intentional infliction of emotional distress, intrusion into seclusion, and civil conspiracy. The court of appeals reversed on First Amendment grounds.353 The Supreme Court, then, upheld the appellate court’s decision, finding that the distress occasioned by the picketing “turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself.”354 While members of the Westboro Church engaged in outrageous conduct, they were at liberty to express political views even though they were “upsetting or arouse[d] contempt.” The First Amendment shields speech even when it is made under circumstances that some people might find to be hurtful or misguided.355 The decision was in keeping with the established distinction between narrowly tailored regulations that further compelling government purposes, like deterring violence, and overbroad prohibitions that are meant to safeguard emotional sensitivities by restraining speakers from uttering unpleasant or even uncivil statements. Government is prohibited from showing

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favoritism to one viewpoint over another, even when the perspective taken is an affront to others.356 Had the mourning father in Snyder been captive audience to the protest, for example if the degrading signs were being paraded within sight of the burial, some government regulation might have been warranted.357 But throughout the funeral, the Westboro protesters were 1,000 feet away, and Mr. Snyder could not read their signs nor make out their words. He only later found out details of what was said through a television news report about the event. The physical distance between them was only one important contextual fact. The protesters meant to shock the conscience but not to intimidate Mr. Snyder’s entourage. Police officers were sent to the protest to maintain public order, which public authorities understood would be necessary after granting Westboro a picketing permit. Without any contemporaneous awareness of the message, Snyder was unable to prove the picketers were intentionally threatening him or engaged in intentional infliction of emotional distress.358 The protestors did not threaten the democratic order; to the contrary, they were exercising their rights to political speech and self-expression. Now, if members of the Westboro Church had gone beyond obnoxious and callous statements to intentional threats against the funeral procession, they might have been held criminally liable. The precedential value of Snyder, then, concerns circumstances when picketers do not intend to threaten audiences.

6.2 incitement Inflammatory speech is not simply offensive or outrageous. Incitement lacks political, philosophical, informative, or discursive values at the heart of the First Amendment. Where an imminent threat of harm exists, a speaker’s interest must yield to the countervailing public concern for maintaining order through laws enforced to prevent imminent violence. 6.2.1 Historical Dimensions From its earliest developments following the First World War, First Amendment jurisprudence addressed whether states can prohibit incitement. Three cases that arose from prosecutions under the Espionage Act of 1917 – Schenck v. United States,359 Frohwerk v. United States,360 and Debs v. United States361 – established the groundwork for contemporary doctrine. Justice Oliver Wendell Holmes, Jr. drafted all three majority opinions.

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The first case of the trilogy remains the most influential. Charles Schenck was the general secretary of a Socialist Party who was criminally convicted for interfering with the US effort to recruit soldiers during the First World War. In 1917, he had ordered the printing and distribution of pamphlets directed at men accepted for the military draft, urging them to resist conscription. The pamphlet stated that forced military service violated the Thirteenth Amendment’s prohibition against slavery and involuntary servitude. The Supreme Court upheld his conviction and, more importantly for posterity, formulated the “clear and present danger” test for reviewing incitement cases.362 It allowed for limitations on speech when there was a high probability it could cause grave harm.363 Judges were thereby empowered to balance selfexpression concerns against those of public safety. However, ambiguity of what constituted a clearly present danger still required additional doctrinal development. Just a week after deciding Schenck, the Court clarified that a criminal conviction for speech could not be based solely on the content of the message, but it also required the government to prove up the intent of the speaker and the context of the utterance. The trial court in Frohwerk issued arrest warrants against a newspaper editor for printing and circulating articles opposing military service.364 The Supreme Court held that the First Amendment “was not intended to give immunity for every possible use of language”; for instance, criminalizing incitement to murder is not unconstitutional. Jacob Frohwerk’s intent to obstruct recruitment was evident from his working jointly with others, even though he lacked the means, other than the power of persuading his audience, to carry out the scheme. Frohwerk’s principle, that restrictions on speech must be judged on a caseby-case basis, is consistent with civil procedure rules of standing and ripeness, but today a court would certainly find that the First Amendment protects the expression of antiwar sentiments.365 None of the extant history suggests that Mr. Frohwerk sought to instigate a clear and present public danger.366 He seemed instead to have simply been voicing his opinion against the war. His resistance efforts were just as outrageous to many Americans living during the Wilson administration as the statement of funeral protestors in Snyder v. Phelps may sound to modern sensibilities. Offensive speech, as we saw in Part I, is constitutionally protected. The questionable application of the Espionage Act of 1917 against both Mr. Schenck and Mr. Frohwerk is of lesser moment than the lasting impact the clear and present danger test has had on First Amendment doctrine. Frohwerk and Schenck determined that there are categories of antisocial communications that involve more than the private interest of self-expression.

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While the doctrine was facially correct, the Court’s application of it was flawed. In both cases, the Court was convinced that the speakers’ intents to instigate resistance to conscription posed a clear and present danger, even though the defendants had done no more than protest US foreign policies. In so doing, the Court upheld punishments for politically charged statements that were not menacing, violent, or dangerous. It would take decades until the holding in Brandenburg, for the Court to provide the current standard for protecting political expressions, even those that are extremely offensive. 6.2.2 The Modern Test 6.2.2.1 Incitement In the case that set the modern incitement test, Brandenburg v. Ohio, the Court found that the Constitution protects even statements calling for abstract violence, without the speaker’s intent to provoke an imminent threat to the public.367 The case should be contextually understood in light of the Court’s later decisions. The per curiam opinion extended the right of free expression to make hypothetical statements, voiced at a Ku Klux Klan rally. Almost all participants were Klan members. The racist organization had only invited two outsiders, a journalist and his cameraman. The Klansmen burnt a cross. Clarence Brandenburg, leader of the Klan in the Cincinnati area,368 made a speech on June 28, 1964 that was couched in statements of future attacks rather than immediate or imminent violent action. His statements included, “The Klan [is] not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance [sic] taken.” Brandenburg further averred, “I would like to – how far is the nigger going toyeah. Over there. This is what we are going to do to the niggers. I would like to ask – call this – Patrick. A dirty nigger. Send the Jews back to Israel. I’m for it. Let’s give them back to the dark – garden. Save America. Bury the niggers. We intend to do our part.”369 Brandenburg was convicted under the Ohio Criminal Syndicalism Act, which prohibited advocacy to commit sabotage, violence, and terrorism. Despite the antagonistically racist and antisemitic nature of the statement, the Supreme Court ultimately found his words were derogatory but not meant to or likely to incite other attendees to imminent violence. The record contained derisive statements against blacks and Jews, but no direct threats against individuals. In Brandenburg, the Court held the statute

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to be unconstitutional because it punished mere associational advocacy that amounted to something along the lines of puffery. Thus, the speech was protected under the First Amendment. Even if the threat was to be taken seriously, it was neither directed at anyone at the rally nor was it meant to call for action. While the facts of this case were quite different from Snyder, the Court’s decision likewise protected outrageous statements not meant to provoke violence nor to draw any reasonable person into a fight. The difference was in the characteristics of the speakers. The Westboro Baptist Church in Snyder was a tiny entity comprised mostly of the vitriolic preacher’s family members. In Brandenburg, the rally was organized under the auspices of a domestic terrorist organization, with a history of carrying out acts of violence, going back to the Second Klan’s founding on Thanksgiving Eve, 1915. In its heyday, the Klan’s popularity quickly spread throughout the nation, with several Klan members even winning political offices.370 The Ohio Syndicalism Statute was enacted in 1919 in response to the Klan’s vigilantism. It broadly prevented anyone from advocating or teaching “the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”371 Ohio overreached by arresting and trying an individual at a private event posing no risk of turning violent. Yet, there is reason to believe that the Klan had more power in that state than the Court let on. Urban and rural Ohio newspapers from January 1916 through 1919 were awash with reports of Klan violence. In such circumstances, the old adage holds true that “an utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force.”372 The organization had been publicly burning crosses in Ohio at least since 1923.373 Lawmakers had responded to popular outcry about the organization’s violent tactics by passing the Syndicalism Act of 1919.374 Newspapers in the 1960s regularly reported on Klan marches in the South and the violence they periodically instigated.375 In May 1963, the Circleville Herald reported an ex-Klan leader was being held on bail for shooting “into two Negro Homes,” and this came after a separate acquittal for burning a Freedom Riders’ bus.376 Four days before Mr. Brandenburg was indicted, in 1964, reports came of similar cross burnings throughout the state of Mississippi, where the Klan and black activists had clashed violently.377 The Ku Klux Klan continued to pose such a widespread problem in 1966, that the United States House Committee on Un-American Activities held weeks of hearings about the supremacist group’s violent conduct, mostly confined to the South.378 Groups, such as the White Knights of Mississippi, were

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condemned for using “a code of threats, violence and ‘extermination.’”379 That same year, Brandenburg’s trial commenced in Ohio for what he had said to a group of Klansmen gathered at a private property.380 The Brandenburg Court reviewed the Appellant’s statements, but neglected to similarly review the history of racist supremacy in Ohio. Such a historic oversight led the Court to strike the statute on its face rather than only as applied to Mr. Brandenburg’s conviction. Perhaps the lack of insight into Ohio’s experiences with the Klan should be attributed to the strange circumstances behind a lack of record from the Ohio Court of Appeals, where the judge who had been assigned to the case died before finishing his opinion.381 Neither did the Ohio Supreme Court issue an opinion. The State of Ohio’s historic experiences with the Klan should have been a factor in the US Supreme Court Per Curiam’s review of the facial challenge. Brandenburg established a seminal rule for the protection of deliberative rights. It required lower courts sitting in incitement cases to determine whether the incitement included intent to advocate an offense, that is imminent, and likely to occur. The emphasis of this test is on imminence and likelihood. A more proportional approach might account for a broader range of countervailing interests, including, but not limited to, imminence and likelihood of violence. Local incitement statutes should reflect the history where words calling for violence against an identifiable group were uttered. 6.2.2.2 True Threats Brandenburg places public debate, self-expression, and communication of ideas at the forefront of First Amendment coverage. It is within the realm of cases safeguarding the “American privilege to speak one’s mind.”382 However, where a speaker intentionally threatens another, the Court balances interests in favor of public safety. Unlike the racist, breast-beating statements at the Brandenburg rally held in a public forum, true threats are not mere sloganeering. The seminal case on true threats requires courts to evaluate the actual message and the circumstances under which it is uttered. Watts v. United States arose after the conviction of a defendant who told a crowd gathered to protest the Vietnam War draft at the Washington Monument, “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”383 The three letter acronym referred to then-president Lyndon Baines Johnson. The speaker was charged under a federal criminal statute for willfully and knowingly threatening the president.384 Watts sought acquittal, claiming that his statement was put conditionally – in the event that he were to be

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drafted – during the course of politically charged debate, and also as a joke to which the crowd responded with laughter. None of it, he intimated, was meant to be taken as an immediate threat. His comments were made at a public forum, unlike the private gathering of Brandenburg. Contextually the two cases differed. The Court found in favor of Watts, holding that under the circumstances, he exhibited no intent to commit the threatened harm to the President. Given that Watts overturned the conviction for threatening the president but confirmed the constitutionality of a statute that criminalized intentional intimidation, the Supreme Court’s opinion spawned uncertainty in lower courts about what constituted a true threat. The Second Circuit interpreted Watts to recognize only the constitutionality of true threats statutes, punishing instances of “unequivocal, unconditional, immediate and specific” personal threats.385 The Ninth Circuit, on the other hand, did not include the Brandenburg imminence formula in its definition of true threats. A true threat according to the latter circuit was decided by an “objective” test of “whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.”386 The two circuits further differed on whether the judicial analysis should focus on the speaker’s reasonable foresight that his words would be perceived as a realistic threat or that the object of the “threat” reasonably sensed being threatened.387 From both perspectives, assessment of the context of the statement is needed. Relevant details include the speaker’s intent and the setting in which the words were spoken. (Certainly one can say jokes with sexual or racial connotations in certain fora, such as comedy clubs, that would be actionable in an employment context, which is covered by such laws as Title VII of the 1964 Civil Rights Act.) Whether certain threatening language uses historically violent discrimination should also be a relevant judicial consideration. Despite claims to the contrary,388 the Court resolved the circuit split when it applied the true threats doctrine to a state cross burning statute in Virginia v. Black.389 Intent turned out to be a key component of the true threats doctrine, which recognizes that the criminalization of willful intimidation can be enforced to protect public safety.390 A majority of the justices in Black agreed with Justice O’Connor’s plurality opinion which established that intentionally threatening communications, such as cross burnings “carried out with the intent to intimidate,” are not protected by the First Amendment. The Court rejected both the Second and Ninth Circuits’ glosses, defining “true threats” to “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful

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violence to a particular individual or group of individuals.” Nothing in that definition requires any immediate risk of violence, and the Court does not use the reasonableness paradigm. The prosecution also need not prove that the speaker actually intended to carry out the threat. The burden is on the state to prove beyond a reasonable doubt that the defendant seriously expressed intent to commit violence against targeted individuals, whether or not the speaker planned to follow through with that threat. A trial court must evaluate whether the message was made up of words, symbols, or depictions that, under the circumstances, are meant to be intimidating. This requires a context-rich analysis. Perhaps the best exposition of how contextual analysis works in this field is found in a circuit case that sets out the following non-exhaustive list of factors: “whether the threat was conditional; whether the threat was communicated directly to its victim; whether the maker of the threat had made similar statements to the victim in the past; and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.”391 The key question, as the Supreme Court later explained, is not how a reasonable person would perceive a statement but whether the speaker intended to convey criminal intent against an individual or group of individuals.392 In his concurrence to Black, Justice Scalia agreed with the judgment that states can regulate cross burning, which seemed to contradict his majority opinion in R.A.V. v. City of St. Paul.393 The Court in that case struck down a local ordinance that prohibited individuals from placing Nazi swastikas or burning crosses on public property because they were both known to “arouse[] anger, alarm or resentment [in others] on the basis of race, color, creed, religion or gender.” The ordinance was clearly overbroad because it prohibited speech arousing anger and alarm, which are protected under Brandenburg. Rather than relying on a narrow interpretation, the Court chose to be formalistic in the scope of its decision. Writing for the majority in R.A.V., Justice Scalia found that the ordinance was a form of content discrimination that violated the First Amendment. He recognized that the City of St. Paul had a compelling interest in protecting the “members of groups that have historically been subjected to discrimination.” Nevertheless, he decided that the law was too subject-specific and therefore targeted a particular viewpoint, rather than banning the whole category of fighting words. In Black, however, Scalia found that the true threats doctrine permitted state action targeting a specific hate symbol, disfavoring that form of speech above others. Moreover, neither he nor the plurality subjected the Virginia

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statute to strict scrutiny despite its content-specific element, directed at the public display of the Ku Klux Klan’s menacing symbol. While a majority in Black asserted they were not overturning R.A.V., they upheld the constitutionality of a Virginia statute that singled out “burning a cross [as] a particularly virulent form of intimidation.” Black, therefore, shifted away from a categorical repudiation of content-based regulations. Nor did the Court subject the state cross burning statute to strict scrutiny, contrary to the claim in Town of Gilbert that all content-based regulations are to be reviewed through the lens of strict scrutiny. A majority of Justices on the Court in Black, including the dissent, reviewed the history of the Klan and its use of burning crosses to be intimidating. The plurality of the Court further found that states can prohibit the intimidating use of a hate symbols with a “pernicious history” without running afoul of the First Amendment. In dissent, Justice Thomas went into further detail about the sordid history of the Klan’s burning of crosses. He wrote that the Klan typically used burning crosses to terrorize, intimidate, and harass “racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan.” Both the plurality’s and Justice Thomas’s rationales were content-rich, relying on understandings of the threatening meaning of burning crosses. The plurality analogized Virginia’s ability to single out symbols with menacing messages to a state’s power to enforce obscenity law. Thomas asserted that cross burning was “the paradigmatic example” of “profane,” unprotected speech. Given its history, cross burning was not simply outrageous, as the Court had described the funeral protests in Snyder. In addition to allowing historic contextualization, the plurality of the Court found that to meet due process requirements the prosecution had to circumstantially or directly prove that the defendant’s cross burning was intended to threaten listeners. Contextualized distinction between the cases brings out the extent to which specific expression can be balanced against countervailing concerns to prevent historically charged symbols or expressions from instigating mob violence or conveying intentional threats.

6.3 critics of the true threats doctrine Among American scholars, the true threats doctrine is often given short shrift relative to its more studied analogue, that being Brandenburg’s imminent threat of harm incitement doctrine. Many of them overlook the relevance of the true threats doctrine for elucidating the balance between free speech safeguards and public safety, and tend to avoid thinking of how Virginia

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v. Black fits into the incitement doctrine. Even First Amendment experts, such as Professors David Strauss, Robert Post, and Eugene Volokh, usually neglect to reflect on how the true threats doctrine qualifies the applicability of Brandenburg. They tend to focus on discussions about regulations of political opinions that do or do not rise to the imminent threat of harm test of Brandenburg. This o is unfortunate because it fails to address how to reconcile the incitement jurisprudence with that of true threats. Brandenburg is often discussed out of context. Strauss follows the accepted narrative, not bothering to mention that there was no imminent risk of danger because the rally was a private affair. In his discussion of the earlier case, Strauss does not even mention the more recent decision on cross burning statutes, Black, nor how (or at least whether) its applicability involves details and circumstances different than those in Brandenburg.394 The same is true of Post’s otherwise fascinating take on hate speech. Despite being written six years after the Black decision, his chapter on the subject also fails to mention how that later holding affected or qualified our understanding of the circumstances under which racially charged displays can be restricted without violating the First Amendment.395 Likewise, Volokh, who often writes extensively on Brandenburg, only mentions Black peripherally.396 Taken together, the two cases provide analytical balance. The government can only prohibit advocacy to use force or to violate the law when such speech puts another into imminent fear of harm, with a likelihood that the incitement will produce lawlessness.397 True threats require intent to threaten a specific and identifiable person or group.398 An individual might use insidious language to issue a threat of future unlawful action, with no imminent intent to thereby instigate violence against a particular person or persons. In fact, as the Supreme Court put it, “the speaker need not actually intend to carry out the threat.”399 Sometimes threats are made to a specific person, while at other times a group is targeted. Actual violence often comes only after prolonged propagandizing campaigns coupled with threats made against outgroups. As the great psychologist of prejudice, Gordon W. Allport, describes, “prolonged and intense verbal hostility always precedes a riot.”400 He illustrates this point through a historical example: Although most barking (antilocution) does not lead to biting, yet there is never a bite without previous barking. Fully seventy years of political antiSemitism of the verbal order preceded the discriminatory Nu¨rnberg Laws passed by the Hitler regime. Soon after these laws were passed the violent program of extermination began. Here we see the not infrequent progression: antilocution –> discrimination –> . . . violence.401

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Other examples are too readily found, they include US proslavery pamphlets before the Civil War or Bahutu Manifesto issued decades before genocide was unleashed against the Tutsis.402 Black involved an odious symbol, the burning cross, that has often been adopted to intentionally threaten another and to incite others to commit hate crimes. In some situations, such as those that gave rise to the litigation in Black, the threatening symbol – be they a cross, swastika, Hezbollah flag, alQaeda symbol, or some other statutorily defined badge of hatred – might be actionable even though it poses no imminent threat of harm. Of course, the symbols themselves are not demonstrably, truly threatening. They are protected forms of communication unless a defendant intentionally uses them to make a serious threat against an individual or group. Black allows judges to understand certain symbols in the context of their historical use to terrorize others. True threats can be made through symbols or verbal statements. I therefore think Rebecca Tushnet to be mistaken that the Court regards images (such as the burning cross) to be more threatening than words.403 Threats can be directed orally or through the media of historically recognized imagery. Some scholars challenge Justice O’Connor’s plurality opinion in Black. The most studied and detailed critique comes from Professor Steven Gey, who calls the true threats category “the Court’s disturbing concession that governments may mete out overtly content-based sanctions on speech.”404 He argues that the true threats doctrine erodes some of the values in Brandenburg. Gey dubs O’Connor’s opinion as “confused and confusing.”405 This claim, however, seems to be merely vitriolic. His position is consistent with American libertarianism, but, unlike him, even the dissent in Black thought context and content mattered. Justice Souter refused to join the judgment of the Court, concurring and dissenting in part because he regarded the Virginia statute to be overbroad. Souter nevertheless acknowledged that the burning cross can sometimes intimidate because of its historic connection to “arson, beating, and lynching.”406 Gey believes O’Connor departed from Brandenburg’s iconic holding that government cannot disfavor groups, such as the Klan, from First Amendment protection because of their offensive messages.407 His argument fails to take seriously government’s interest in regulating intentional threats, rather than suppressing political opposition. It seems a gratuitous overkill for Gey to call the plurality’s opinion “schizophrenic.”408 Justice O’Connor differentiated “cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of threatening or intimidating a victim.”409 That is consistent with protections on associational rights.

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The holding in Black does not diminish constitutional protections of ideologically outrageous statements. As we saw, the Court later determined in Snyder v. Phelps that outrageous political statements are protected. But in Black, the Justices demonstrated that intentionally threatening messages are adjudicated differently under the First Amendment. Furthermore, intimidating uses of symbols whose content is linked to violence, such as burning crosses, are very different from the picketing in Snyder. Unlike Gey,410 I believe the Court’s reasoning in Black is consistent with Brandenburg’s. The two opinions qualify each other. Black lacks any imminence component in the definition of true threats, which are “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”411 This definition allows for laws against a narrow range of public disturbances created by the use of symbols or statements that intentionally place another into apprehension of physical danger. In Black, unlike the circumstances of Brandenburg, third persons witnessed the cross burning. None of the prosecution’s witnesses in Black had experienced an imminent sense of harm from the cross burning, but each perceived the threat. While Black involved only one type of intimidating symbol, the decision’s principle can readily be extended to others like swastikas, Hamas or ISIS flags, or Sri Lankan Tamil Tiger emblems. Context is important because it can reveal whether they are meant to inform, trigger angst, or seriously menace others. Political statements are not the same as those that seek to subvert democracy to fascism and communism.

6.4 european court of human rights and hate speech As in the previous chapter, examining applicable European Union law provides additional guidance and raises fresh questions about proportionality analysis. I include only an overview as a means of getting a firmer grasp of how countries dedicated to the democratic value of free speech weigh competing interests in cases of hate speech. The European Court of Human Rights (ECtHR) consistently finds that expressions of “racism, xenophobia, anti-Semitism, aggressive nationalism and discrimination against minorities and immigrants” offend the European Convention on Human Rights (ECHR). The ECtHR distinguishes between “genuine and serious incitement to extremism and the right of individuals to offend others.”412 This perspective requires judicial assessment of content, values, and situations. The challenge is to balance the right to free expression

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with norms against discrimination. The treatment of hate speech is guided by the European Convention of Human Rights’s protection of free expression in Article 10 and the limiting language of Article 17: Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

The US Constitution lacks similar limiting language, yet scholars like Cass Sunstein, Richard Delgado, and Owen Fiss argue that antidiscrimination principles require that free speech be balanced against the Equal Protection Clause.413 That is close to the approach relied on by the European model on hate speech. But we should peel the European onion to see its leaves in greater detail. The ECtHR recognizes that equal human dignity renders it necessary for the progress of democratic society to prevent expressions that promote incitement and justify intolerant hate.414 Rather than rely on outcomedeterminative categories, the ECtHR repeatedly asserts that freedom of expression is better safeguarded by proportional prohibitions against incitement to hatred. Its approach has the benefit of transparency, clarity, and fairness, but it leads to opinions open to criticism. Article 17 prohibits abuse of authority to undermine individuals rights and freedoms.415 A Spanish scholar explains, “The reason for being of Article 17 is to protect democracy itself from its own suicide, due to the fact that European history has shown that the existence of democratic constitutions is not sufficient to prevent the arrival to power of totalitarian regimes such as Nazism or communism.”416 Justice Jackson of the US Supreme Court said that “practical wisdom” was needed for judicial opinions lest “doctrinal logic is not a suicide pact.”417 Article 17 is included to prevent nefarious groups from exploiting Article 10 to incite hatred toward an identifiable group. Unlike their European counterparts, US courts regard proportional analyses of hate speech to violate First Amendment content neutral principles. It is helpful to examine the context of European Court hate speech cases to better understand whether and how proportionality can advance democratic institutions. The ECtHR has found that, consistent with Article 10 “[f]reedom of expression constitutes one of the foundations of [democratic] society, one of the basic conditions for its progress and for the development of man.”418 The ECtHR has often stated that the freedom of expression extends not only to the dissemination of ideas and information but also to statements that “offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which

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there is no ‘democratic society.’”419 In determining whether the interference is proportional to a legitimate government aim, the ECtHR evaluates the content of a remark and context in which it is made.420 The Court is particularly careful to balance in favor of a speaker’s right to express political thoughts, condemn government policies, and criticize state security forces without intending to incite others to commit violent actions. A criminal conviction under those circumstances “failed to give sufficient weight to the public’s right to be informed of a different perspective . . . irrespective of how unpalatable that perspective may be.”421 Proportionality analysis can also be taken too far to the side of autocracy. The Court makes clear that Article 10 protects a speaker’s right to encourage non-violent political actions.422 Where a court imposes its own preferences into a judgment, a judge can impermissibly obfuscate ideological predilections by invoking balancing language.423 But the same outcomedeterminative problem also haunts the US categorical method, which as we saw in Part I of this book, tends to favor libertarian ends, such as corporate political speech. Thus, this book recommends not a subjective balancing, but a contextual analysis of the speaker’s interests, countervailing public concerns, ends/means analysis, alternatives to regulation, and any relevant historical factors. The ECtHR provides a range of contextual concerns relevant to objective determination as to whether a statement is likely to spread armed conflict, violence, or bloody fighting.424 The social need under those circumstances is heightened because of the likely potential of violence, but other than that democracy must secure free rein to conversation. In Su¨rek v. Turkey (No. 1) the Court took content and context very seriously to find Article 10 was not violated. In that case, a person sympathetic to the PKK (Workers’ Party of Kurdistan) called opponents “the fascist Turkish army” and “the hired killers of imperialism,” during a bloody war when Kurds sought national independence. Under such circumstances, the communication “must be seen as capable of inciting to further violence in the region by instilling a deepseated and irrational hatred against those depicted as responsible for the alleged atrocities.”425 A more common phenomenon in the EU is racial hate speech against immigrants, Jews, Roma, and Muslims. In Feret v. Belgium, the ECtHR found no Article 10 violation to take firm measures against increased instances of “racisim, xenophobia, anti-Semitism, and intolerance.”426 Such actionable conversation was irresponsible use of speech “detrimental to dignity and safety” of the objects of hatred.427 Prohibiting Holocaust denial is also consistent with Article 17, as the Court explained in the 2003 ruling:

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Part II. Application The aim and the result of that approach are completely different, the real purpose being to rehabilitate the National-Socialist regime and, as a consequence, accuse the victims themselves of falsifying history. Denying crimes against humanity is therefore one of the most serious forms of racial defamation of Jews and of incitement to hatred of them. The denial or rewriting of this type of historical fact undermines the values on which the fight against racism and anti-Semitism are based and constitutes a serious threat to public order.428

Similarly inciting violence against Muslim communities living in France was found to not be protected speech.429 On the other hand, showing proportional judgment, the ECtHR found in a 2006 case that Article 10 protected a journalist accused of defaming Christianity for saying that a Papal encyclical was associated with antisemitism and Holocaust denial.430 Likewise the Court balanced press freedoms against popular sensitivities to find that a journalist can reprint xenophobic statements against immigrants and Denmark’s ethnic groups. The reporter neither espoused those views nor intended to advocate the racist content.431 In these cases, the Court distinguished between efforts to incite racial hatred and reportage. The ECtHR decisions can be further systematized by a consistent review of the speaker’s interests, countervailing government concerns, the fit between restrictive legislation and the social end it seeks to achieve, alternative avenues of speech, and historic lessons about the erosion of freedoms from censorship laws and the power of extremist ideologies to harbor destructive social movements. Its cases are contextual, content-based, and situational. Relying on judicially created categories or libertarian trust in the power of speech to advance democratic norms discounts the many historical instances in which extremist ideologies advanced antidemocratic political parties, as when the Bolshevik party successfully advanced its agenda during the Russian Provisional Government and the National Socialists gained control by manipulating the political levers of the Weimar Republic in Germany.

7 Terrorist Incitement on the Internet

This chapter applies contextual free speech theory to terrorist incitement, recruitment, and propaganda. It relies on the frameworks of the Supreme Court‘s fighting words, true threats, and material support for foreign terrorist’s doctrines. While political declaration and self-expression are protected by the First Amendment, the same cannot be said of calls to commit political acts of violence. Contrary to an absolutist school of thought from organizations like the American Civil Liberties Union (ACLU), whose counterarguments are reviewed at the end of this chapter, the First Amendment does not prohibit the federal government from punishing communications coordinated with a foreign terrorist group or those under its direct control. The government has a compelling duty to protect the public from acts of political violence through narrowly tailored laws that prohibit some extremist speech threatening actual violence. As Justices Goldberg and Justice Jackson separately put it, the Constitution “is not a suicide pact.”432 Terrorist organizations instigate, recruit, and indoctrinate. For them, the internet has been as much of a godsend as for people who use it innocuously to gain knowledge. Regulation of internet entities disseminating terrorist content is more reliable than the less restrictive, but ineffective, method of entrusting internet corporations to safeguard national security. Regulations of imminently dangerous incitement and truly threatening terrorist speech are not simply restraints on unpopular opinions or on controversial associations. The French Interior minister, in 2015, asserted that 90 percent of people recruited to terrorism are indoctrinated through internet content.433 By the summer of 2018, the European Union’s Security Commissioner, Julian King, told the bloc’s twenty-eight members that in the course of several years each terrorist attack in Europe “had a link with online terrorist content.”434 By itself the EU and its members can do little so long as 99

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digital media companies continue to house terrorist data in the United States, where free speech standards are more inflexible. Here, as in Europe, there is a compelling government reason to narrowly regulate incitement to commit terrorist acts, but that policy must be checked against government overreach to the abuse of civil liberties. The analysis in this chapter considers the balance between civil liberties and national efforts to combat real threats to public safety. There are significant speech-related concerns at stake, including whether terrorist communications fit into traditionally and historically low-value categories, but as in other areas of law a full range of considerations come into play requiring nuanced assessment of constitutional values and their application to specific cases. Sanctions against terrorist instigation must be drafted narrowly enough to protect the public while not interfering with the ability to make controversial statements. The definition of terrorist activity, according to the US State Department, includes a combination of incitement; preparation; solicitation of funds; provision of material support in organizing political kidnaping; murder; hijacking; assassination; missions involving biological, chemical, or nuclear agents or weapons violations.435 As important as this matter is for the preservation of public order, great care must be taken to preserve one’s ability to dissent from accepted norms and institutions, to engage in contrarian politics, while checking truly threatening calls to commit terrorism.

7.1 material support for foreign terrorist organizations As with the true threats doctrine, mens rea is a required element for finding a party culpable under the material support for terrorism statute. This is critical to prevent government overreach. In Holder v. Humanitarian Law Project (HLP), the Supreme Court upheld the constitutionality of a federal statute prohibiting anyone from providing “material support or resources” to organizations that the Secretary of State designates a foreign terrorist organization, requiring rigorous procedural protections.436 The statute contained a mental component, applying only to anyone who lent support with the “knowledge of the foreign group’s designation as a terrorist organization or the group’s commission of terrorist acts.”437 Several US nonprofit organizations, including the Humanitarian Law Project (HLP), brought facial First Amendment challenges to the statute because it criminalized providing “communications equipment” and “expert advice or assistance” to the designated terrorist organizations. The plaintiff sought to provide training in international law, political

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involvement, and negotiation strategies to the Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam, both of which are on the US State Department’s list of designated terrorist organizations. HLP’s advisory work certainly posed no imminent danger, and therefore the statements were protected speech under Brandenburg v. Ohio. Neither did HLP have any violent intentions, not did it threaten anyone, therefore, it was outside the context of Virginia v. Black. Instead, the Court used strict scrutiny to uphold federal authority to criminalize cooperation with foreign terrorist organizations. Supporting such organizations advances the terrorist activities of a third party. Some terrorist organizations, such as Hamas and Hezbollah, have terrorist and charity branches. Money flaws between the twain, therefore one cannot entirely contribute only to the benign elements of a terrorist organization. Civil libertarians attacked the HLP decision because they were concerned that it would empower government to restrict communications about such critically important communications as diplomacy. The material support statute prohibited anyone from advising foreign terrorist organizations or scientific, diplomatic, or technical projects. But culpability was not determined by words alone nor simply by association. To the contrary, the statute prohibited only the coordinating of speech with a foreign terrorist organization. The right to associate with groups on the State Department list was left untouched. This respects the Brandenburg recognition that political statements are generally entirely protected by the First Amendment. The problem arises when communication between organizations facilitates terrorism. Because the statute burdened speech, in his opinion to Humanitarian Law Project v. Holder the Chief Justice assessed the statute through a “demanding standard,” which he later clarified to mean “strict scrutiny,” ultimately finding the law to be constitutional.438 The government’s countervailing interest in stopping cooperative efforts between foreign terrorists and their apologists in the United States, outweighed the interest of an organization committed to helping terrorist organizations gain political legitimacy in international forums. No less narrow method could be found than stopping joint efforts between groups on the State Department list of designated terrorist organizations and persons working to advance their agendas. Alternative means for voicing support for those organizations were available; anyone could have spoken on their behalf and associated with like-minded parties. The law prohibited them only from doing so under a terrorist organization’s directions and with its involvement.

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7.2 international and foreign laws against incitement and terror As in the United States, free speech is a fundamental right in all democracies. At the international level, the Universal Declaration of Human Rights (UDHR), adopted in 1948 by the UN General Assembly, proclaims that “everyone has the right to freedom of opinion and expression.” Furthermore, since the adoption of the UDHR, freedom of speech provisions have been “included in all international human rights treaties.”439 Notably, the international community has taken a more aggressive stance than the United States to combat digital terrorist communications. There is broad international consensus in treaties, conventions, and protocols that in charged nationalistic and fanatical contexts, certain calls for political violence are likely to instigate a variety of crimes against humanity. Half a century before the internet age, the danger of dehumanizing discourse to instigate ideologically-driven violence, such as the Holocaust and Rwandan genocide, was well-studied and acknowledged by experts throughout the world. The UN Office on Drugs and Crime has defined online terrorist propaganda to include the sharing of extremist ideas; “recruitment, radicalization, and incitement to terrorism”; procuring financial support; disseminating misinformation; and spreading alarm and fear in the population. The cross-border context of social networks, group chats, and other electronic tools of communication also require domestic initiatives. A variety of the United Nations’ instruments require member states to prevent violent incitement. These were passed in the wake of world actors’ recognition of how essential Nazi propaganda was for consolidating power in Germany and perpetrating the attempted genocide of the Jews. In 1948, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, which prohibits “direct and public incitement to commit genocide.” Even more detailed terms appear in the International Covenant for Civil and Political Rights (ICCPR) of 1966. The latter advances the protection of speech while also calling for the enforcement of legal prohibitions against “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility or violence.” All these conventions balance speech against the terrible evils that can flow from genocidal calls against particular groups. Even more to the point, UN Security Council Resolution 1624 specifically calls for signatories to prevent and prohibit terrorist incitements. The Resolution was passed in response to terrorist attacks on a London subway in 2005. It calls on states to “adopt such measures as may be necessary and

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appropriate and in accordance with their obligations under international law to . . . [p]rohibit by law incitement to commit a terrorist act or acts.” Resolution 1624 requires country-by-country enactment. Danish Prime Minister Anders Rasmussen explained the pressing need for global action: “Freedom of speech and expression is the very foundation of any modern democratic society, but that must never be an excuse for inciting terrorism and fostering hatred.” For added clarity in 2008, the UN Secretary General provided an umbrella definition: “Incitement can be understood as a direct call to engage in terrorism, with the intention that this will promote terrorism, and in a context in which the call is directly causally responsible for increasing the actual likelihood of a terrorist act occurring.” Several provisions of the resolution call on member states to prohibit “public incitement to commit a terrorist offence, recruitment for terrorism and training for terrorism, when committed intentionally.”440 Like the material support statute in the United States, Resolution 1624 is drafted to allow for the criminalization of aiding and abetting terrorists by incitement, recruitment, and coordination. Various European democracies have enacted legislation to advance the proportional balance of speech and public safety restrictions of Resolution 1624. In an effort to bolster British security following the July 7, 2005 London terror attacks and in keeping with the terms of the European Convention on the Prevention of Terrorism, the United Kingdom passed the Terrorism Act of 2006. The Act criminalizes the intentional or reckless encouragement of others to commit terrorism, the purposeful distribution of terrorist publications, and the purposeful provision of services “to others that enables them to obtain, read, listen to or look at such a publication, or to acquire it by means of a gift, sale or loan.”441 Additionally, the UK Data Retention and Investigatory Powers Act 2014 requires public telecommunications operators, such as internet service providers (ISPs), to “retain relevant communications data” that the Secretary of State deems necessary to investigate allegations of terrorist activities.442 The French government has taken a similarly cooperative approach by entering into agreements that require French ISPs to filter materials containing “child pornography, terrorism, or hate speech.” While the “hate speech” label is unlikely to withstand US categorical scrutiny, videos of terrorism or pornography that exploits children are in keeping with US Supreme Court doctrines that it is difficult to deny are content-conscious.443 A new European initiative, led by France and joined by Britain and Germany, would require online companies to more quickly remove terrorist content.444 In 2018, the European Union proposed measures to set minimum “duties of care on [internet] hosting service providers, which include some specific rules and

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obligations” to address the challenges of terrorist content being hosted on and disseminated by their servers.445 Ministers from other European democracies – Austria, Germany, Sweden, Denmark, Italy, Spain, Latvia, Belgium, and Poland – have likewise agreed in principle to work with social media companies to effectively combat terrorism disseminated in cyberspace.446 Given the nature of the internet, multistate cooperation is most likely to significantly stunt the spread of terrorist ideology. Accordingly, the European Commission created a European Union Internet Referral Unit on July 1, 2015, for tracking terrorist materials online.447 In North America, Canada adopted a statute, C-51 (and at the time of writing this book the Senate was reviewing a more liberal modification, known as C-59), which empowers officials to apply for court warrants to seize terrorist propaganda and, after evidentiary hearings, to require terrorist materials to be removed from websites.448 The judiciary should remain vigilant to prevent such laws from being abused against disfavored groups; however, given the compelling nature of speech and national security the judiciary should not be dismissive of either but balance them in the context of specific cases. Critical to this balance is not only the substance of the laws but also measures securing procedural fairness for those charged under them.449

7.3 drafting a united states cyberspace terrorist statute The compelling nature of the case, the speech harms, and their likely effect all come into play in several examples of domestic terrorism linked to internet influences. The path to Tashfeen Malik and Syed Farook’s terrorist attacks in San Bernardino readily exemplifies how incitement is spread on the internet and later acted upon by devotees. The shooters, a husband and wife, listened to hours of terror imam Anwar al-Awlaki’s lectures and “por[ed] over directions on making explosives” found in Inspire, the al-Qaeda magazine created by alAwlaki and Samir Kahn.450 Al-Awlaki’s lectures are easily available through a basic search on YouTube; indeed, a search under his name in 2017 yielded more than 69,900 results. Many of those have been taken down as of the writing of this book. The incentive to diminish his digital presence came from European regulators. Those inciteful lectures have been repeatedly connected to persons who perpetrated terrorist attacks, including the Charlie Hebdo shooting, the Boston Marathon bombing, the assassination attempt on MP Stephen Timms, and others.451 Without adequate government initiative, civil rights activists have found it difficult to convince these websites to take down online content supporting terrorism. To be fair, some internet sites have made

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an earnest effort at combating terrorism on their websites, but the elusive nature of terror organizations and the commercial interests intrinsic to corporate-mindedness requires adequate government oversight to add elements of punishment and deterrence in cases of recalcitrance. Thus, the balance in the context of terrorist contact strongly tilts to allow narrowly tailored statutes empowering law enforcement to remove posts counseling proselytes to engage in terrorism. Legislators can draft a narrowly tailored law regulating terrorist communications on the internet that mandates internet sites to take down imminently dangerous, truly threatening, and materially supportive forms of terrorist digital content. Experts can be called as witnesses to help tease out the meaning of messages – including various inciteful phrases, words, and colloquialisms – for courts to better understand the historic role of propaganda in the provocation of violence against specific individuals and groups. Some instigations – for example, calls to lynch black men for raping white women, to persecute Jews for killing Christian children, or to commit violence against gays for pederasty – have historically been effective in inciting ideological violence. The intent of a speaker and the likelihood that his or her words will elicit such actions can only be identified contextually. Simple political support for terrorist organizations, without any intent to threaten or incite violence, are protected by the First Amendment’s values of free communication, self-expression, and dissemination of information. The terrorist “organizational context,” to borrow a term coined by criminal justice specialist Marilyn Peterson, is identifiable through semantics, collections of ethnic and personalized messages and social cues, collation of various sources, evaluation of memes and other linguistic clues, analysis and interpretation of stated propaganda, and task determinations.452 Terrorist speech is a call to violent criminal action, perpetrated to advance a political agenda.453 The intentionally affective aspect of terrorist propaganda can threaten public tranquility and national security, which under certain circumstances creates a compelling government incentive to enforce narrowly tailored laws carefully designed to prevent heinous acts from being committed against the public.454 A court’s role is to secure procedural rights and an appropriate legal framework, including rules of standing and ripeness, to assure a fair hearing on the merits. Moreover, the courts are the appropriate forum for determining whether Congress abused the fundamental right to express unpopular political ideas.455 That requires a case-by-case assessment rather than a rejection of material support law. Intelligence agencies, such as the Federal Bureau of Investigation, have identified terrorist groups’ “widespread reach through the internet and social

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media.”456 Strategies to combat terrorist groups should include policies for disrupting social media campaigns to recruit, indoctrinate, and instruct vulnerable individuals.457 Professor Gabriel Weimann writes that terrorists regularly use platforms like Facebook and Twitter to upload and download videos, send messages, recruit, instruct, and train. An example of this practice was the use of al-Qaeda publications available online to learn how to design bombs and then deploy them to kill and maim participants of the Boston Marathon of 2013.458 Self-policing by social networks has proven inadequate for identifying and removing terrorist posts. Rigorous legal rules, standards, and norms should regulate social media firms, rather than granting them exclusive authority to distinguish between terrorist incitement and offensive data. Public policy must thread the needle between the interests of speech and public safety by only prohibiting a narrow class of terrorist incitement that propagandizes and recruits persons to commit acts of violence against individuals or groups, without disrupting more speech than is necessary. Without regulations internet firms have not invested enough in combating this online menace. Through the years, Yahoo, Facebook, and Twitter have become excellent in screening out nudity and copyright violations but have allowed bomb-making instructions and terrorist manuals to stream through their servers.459 These companies are not transparent. Sifting through posts is done by anonymous employees, using ambiguous instructions, and not having enough manpower to understand all the native languages that populate websites.460 Internet businesses seek profits. They are not answerable to the public, especially because of statutory immunity. For legislation to be constitutional, it should balance the free speech interests at stake with other public safety concerns. By engaging in the difficult task of proportionate reasoning, courts should also be systematic in determining whether lawmakers adequately balanced the ability of persons to express views, even those that glorify but do not instigate or advance terror, while narrowly tailoring laws to protect the national defense. Here it is turning to the European Court of Human Rights for further guidance on advancing the compelling balance adopted by HLP. The role of the court is to assure that legislative effort is not a pretext to “encroach on the values of freedom, democracy, justice, the rule of law, human rights and humanitarian law.” Thus, “the fight against terrorism should not become a pretext under which racial discrimination was allowed to flourish.”461 Courts hearing as-applied challenges to those laws should evaluate the context of the utterance, its syntax, semantics, audience, speaker, surrounding events, intentionality, etc. For example, terrorist instructions stated by the

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leader of a terrorist organization to a follower, using phrases ordering action, at a charged rally, with historical allusions to violence, dehumanizing wording, calls for revenge, identification of individuals, and the like are contextually much different than abstract invective, insult, and name calling. Expert witnesses and amicus briefs can help judges and juries understand the nuances of speech. Ultimately, as in all areas of law, reasoned judgment is required.462 Proportionate methodology provides for systematic analysis rather than ad hoc balancing. The First Amendment’s protection of associational liberty does not extend to coordinating with violent terrorist groups. Brandenburg’s imminent threat of harm test does not apply to such cases. That test makes sense in private settings or when directed at a few participants. Terrorist videos, on the other hand, often recruit members and instruct the public at large, without calling for immediate action. Thus, those who would apply the Brandenburg imminent threat of harm test to postings advocating, indoctrinating, training, and planning violent ideologically driven actions463 would leave untouched many terrorist interactions on social media. Only the dissent to Holder v. HLP argues for relying on Brandenburg in reviewing national security prosecutions arising from the material support of terror. Terrorist threats are more closely characterized, as Martin Redish and Matthew Fisher have explained, as unprotected speech at the intersection of true threats and unlawful advocacy because they are intended to persuade audiences to commit acts of violence against specific individuals or groups.464 Speech protection is not absolute, and in the context of national security, democracies throughout the world have found that the balance does not weigh in favor of advocacy to wreak violent, political havoc against identified targets. Restrictions on truly threatening speech would not interfere with deliberative communications or abstract expressions of rage. But, given the risk of government abuse, judicial review is critical for determining whether surveillance efforts are narrowly tailored, overinclusive, or discriminatory in their applications. Terrorist organizations’ widespread use of the internet creates a compelling reason to regulate their advocacy for violence against individuals or groups. Much more complex is the question of whether without court supervision regulators could order websites to remove content intentionally inciting political violence internet sites could be ordered to be taken down. We might anticipate some emergency situations, such as where terrorists are conversing with each other on Twitter during the course of an attack. For instance in 2013, the al Shabaab terrorists Tweeted live as they systematically shot at innocent people at the Westgate Shopping Mall in Nairobe.465 The federal government should operate emergency courts to deal with matters like coordinated terrorist activities disseminated live over social

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media. These courts would empower law enforcement agencies to identify sources of imminent terrorist attacks asserted on Tweets or Snapchat posts, and immediately, albeit only temporarily, cut off internet services to the pinpointed location of an ongoing terrorist attack or immediate incitement. These sorts of emergency shutdowns should be very brief (between twentyfour and forty-eight hours) in order to preserve the right to speech, while also providing law enforcement adequate time to request an injunction or file criminal charges. An injunction to shut down communications should only be granted in rare circumstances, where the prosecution proves that there is an ongoing attack that is currently using social media to coordinate violence. And even during the course of an ongoing attack or imminent threat, a court must balance the government’s compelling interest of temporarily shutting down digital channels of communication against the foreseeable need of innocent parties trapped at the point of attack who make contact with police or loved ones through social media or email systems. Furthermore, the area where a digital signal is shut off should be limited to the precise point of attack, such as a building, with ongoing emergent monitoring to track whether the location expands or shifts. While internet postings rarely call for immediate attacks, terrorists can nevertheless rely on platforms like Snapchat or WhatsApp to coordinate followers’ actions. In 2008, for instance, terrorists organized and communicated with leaders during the Mumbai attack.466 More commonly, terrorist propaganda instructs followers to commit acts of violence against specific persons at some unspecified time.467 Under the right circumstances, presumably with intentional indoctrination and planning of violent acts, such speech acts could be prohibited without violating the First Amendment. As with any other criminal statute, the prosecution would bear the burden of proving the case beyond a reasonable doubt. As we saw earlier, in Virginia v. Black, the Court held that truly threatening speech, which is intended to seriously communicate plans to act violently against specific persons or groups, are not protected by the First Amendment. For instance, in the case of a YouTube video calling on people to attack specific others (persons who may be identified by name – as might be the case with the targeting of politicians, religious leaders, and so on – or by their religious, political, ethnic, racial, sex, or sexual orientation identities), the government has a compelling reason to secure public peace and safety by limiting a narrowly circumscribed set of menacing digital content. When it comes to truly threatening speech, the terrorist utterances would need to be deliberate, targeted at specific persons based on statutorily identified characteristics, and likely to occur given the historical context of the statement. Other factors should include the circumstances under which the

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statement is made, whether the statement was abstract or called for specific criminal acts against protected groups, prior history of the speaker or group with whom he coordinates, the consequences of the statement, whether the person making the menacing statement is a leader of a broader movement who is likely to influence listeners, the susceptibility of the audience to manipulation, severity of the punishment. Those considerations favoring restrictions, must, in turn, be balanced against safeguards for deliberation, self-assertion, the advancement of truth, artistic value, hyperbole, satire, and other free speech enforcing interests. Indicators of the likelihood of serious threat include whether the group appears on the State Department’s list of foreign terrorist organizations, whether the speaker is a leader or a functionary, whether there is any indication that the group regularly uses the internet for propagandizing its operations, and similarly relevant concerns for public safety and national security. In addition to the coordinated action, the Supreme Court recognized in Holder v. HLP that a compelling case may be made to indict anyone who purposefully posts terrorist communications, creates television programming, or disseminates videos or lectures with terrorist contents that is likely to increase the likelihood of attacks being carried out.468 Criminal prosecutions for truly threatening cyber posts would be complex, and the efforts would have to be narrowly tailored, rather than rely upon dragnet censorship. The meaning of the words or symbols cannot be taken for granted; instead, a prosecutor would need to convince the trier of fact beyond a reasonable doubt that the defendant is coordinating with terrorist ideologies or terrorist organizations. This high burden of proof aims to dissuade prosecutors from filing frivolous suits and empowers the judiciary to safeguard civil liberties against arbitrary law enforcement. There is no purely categorical way to identify whether calls to commit acts of terror are hyperbolic, meant to be truly threatening, or said to incite violence. The Department of Justice must prove actionable mens rea in cases charging individuals with material support for terror, true threat, and incitement. Such cases will inevitably pit speech interests against those of public safety. They require judicial assessment of law and fact, not merely identification of a select historical free speech category, when much more is at play. Some degree of deference is required given that the national security interests at stake deal with securing safety, which the Court has recognized to be a preeminent government duty under the Preamble to the Constitution.469 Terrorism is a national security issue, thus there is a compelling federal government interest to safeguard against terrorist incitement and true threats that are likely to endanger the public. National policymaking is

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therefore necessary, rather than the state-by-state version some scholars have suggested.470 A national statutory scheme is crucial for establishing uniform standards to monitor terrorist recruitment and incitement. The cross-border nature of the internet requires national enforcement. Alexander Hamilton long ago asserted, “The principal [sic] purposes to be answered by Union are these – The common defence of the members – the preservation of the public peace as well against internal convulsions as external attacks.”471 Under our system of federalism, the national government has broader discretion in matters with such substantial interstate significance.

7.4 social media platform liability I now turn to social media companies’ responsibility for increasingly effective terrorist manipulations of their platforms. While US internet information companies are themselves not purveyors of threats or incitement, the Supreme Court’s libertarian categorical approach leaves internet platforms free to give access to third party terrorist organizations prepared to indoctrinate, threaten, and provide operational instructions. Market forces alone, without adequate regulations, have not adequately curtailed terror recruitment. Self-policing has proven to be ineffective at decreasing the proliferation of terrorist websites. Internet intermediaries can run afoul of the material support statute if they are made aware that their servers are intermediaries for intentional threats directed at individuals or groups but fail to act. Internet platforms should be subject to appropriate criminal or injunctive remedies for providing material support to terrorist organizations engaged in incitement, true threats, or operational instructions. Vigorous protections against government overreaching include transparency, procedural safeguards, clearly defined designations, and judicial review. 7.4.1 International Guidance Before turning to US law a survey of international norms is in order. Better understanding of democratic states’ policies on this matter can help jumpstart congressional leaders’ task of sponsoring legislation that is reflective of proportional international norms in the context of terrorist incitement or material support for designated terrorist organizations. The United States is generally more tolerant of invectives than are most countries around the globe including those in North America, even those not rising to the danger

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of terrorist incitements and true threats. Canada’s prohibition against hate propaganda within its sovereign jurisdiction extends judicial powers also relevant to digital calls to terror online. The Canadian criminal code grants judges the power to “order the custodian of the computer system to (a) give an electronic copy of the material to the court; (b) ensure that the material is no longer stored on and made available through the computer system; and (c) provide the information necessary to identify and locate the person who posted the material.”472 The Canadian constitutional commitment to free speech is as vibrant as the most pluralistic democracies around the globe. The guarantee is secured by the Canadian Charter of Rights and Freedoms, and it goes hand-in-hand with the country’s prohibition against terrorist expressions. The Canadian Anti-Terrorism Act grants the judiciary authority to order the “custodian of the computer system to delete the material.”473 Deletion is not automatic; the data owner must first receive notice and the opportunity to be heard. Or, if a party controlling the data is located outside Canada, a judge can order the computer system’s custodian to post a notice of removal in the digital space where the document had previously been available.474 The Canadian Supreme Court has recognized that promoting violent terrorism is not speech needed to maintain deliberative democratic institutions; robust protections for creative expressions; or strong protections for philosophic, political, artistic, and scientific debate. The risk here is of a digital intermediary being liable for the “innocent dissemination” of terrorist posts. Safeguards against this possibility should be drawn from Canadian defamation law, which holds harmless anyone who, without “actual knowledge” of content, circulates false and harmful information.475 The scienter element of the offense extends to intermediaries that inadvertently host terrorist posts. Policy behind anti-terrorist legislation should be formulated to be narrowly tailored enough to continue providing effective protections against government intrusion into philosophical inquiry, entertainment, self-assertion, religion, science, civic deliberation, and the arts. Internet platforms’ actual knowledge cannot be presumed but proven through civil or criminal liability standards. The European Union also regulates terrorist speech distributed through ordinary social media. The EU’s enforcement arm, Europol, officially recognizes that terrorist organizations exploit social media to recruit, radicalize, and instruct their supporters.476 Terror attempts in 2017 also rose by 45 percent. The European Convention on the Prevention of Terrorism requires the fortyseven member states of the Council of Europe to criminalize the “public provocation to commit a terrorist offence.” The same convention further

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prohibits the “distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offense, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed.”477 The EU will need to coordinate with the United States because so many internet platforms are located there. The material support statute is one common ground where protocol drafters can begin to engage with what has become a worldwide menace. The US Supreme Court and ECtHR have found that the balance is compelling enough to warrant action where there is intent to coordinate with terror organizations. This is not to say that the European approach is entirely consistent with US free speech doctrine. In addition to true threats, the Convention also obligates members of the EU to criminalize apologetics of terrorism, which is also called the “glorification” of terrorism.478 The European provision goes beyond true threats, recognizing that public praise, support, and justification of terrorism also pose a danger to public order.479 Holder v. Humanitarian Law Project does not recognize statements supporting, praising, or glorifying terror to be per se actionable offenses. In HLP the Court found that the material support “statute does not penalize mere association with a foreign terrorist organization.”480 Thus glorification of even unsavory political thought falls within the ambit of protected speech. This distinction means that US judges cannot unreflectively follow European precedents interpreting the Convention but should use them as advisory opinions in those cases where the EU proportionality decisions at least overlap with US categorical holdings. 7.4.2 Communications Decency Act § 230 Immunity While section 230 of the Communication Decency Act immunizes social media platforms and internet service to most private lawsuits, they are subject to civil liabilities for child pornography, which is an explicit exception to cyber companies’ statutory immunity. The second exception to statutory immunity is the Fight Online Sex Trafficking Act, which was enacted in 2018 to allow victims to file civil suits against any social media company or internet service provider knowingly participating in human trafficking by providing services, such as advertising.481 True threats and material support for foreign terrorists should also be listed as exceptions to Section 230’s immunity. The record of indoctrination, recruitment, and propaganda through websites require narrow tailored remedies, including injunctions and take-down notices.

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7.5 counterarguments Perhaps the most cogent argument against the constitutionality of the law against material support of terrorist organizations is made by Professor David Cole, the legal director of the American Civil Liberties Union. Cole represented the Humanitarian Law Project during the Supreme Court hearing for HLP. He criticizes the criminalization of “training” or “expert advice or assistance” provided to designated foreign terrorist organizations.482 From Cole’s perspective, restrictions against advising terrorists silences political speech and interferes with associational rights.483 But the text of the statute belies Cole’s characterizations. The law prohibits conduct, not membership, nor is it an abridgement on constitutionally protected advocacy.484 It balances the constitutional value of speech against the government’s obligation to safeguard security through narrowly tailored law designed to prevent the intentional cooperation with foreign terrorist organizations. The statute’s rules of construction section prohibits the abridgement of free speech and recognizes governing First Amendment precedents.485 The policy behind the material support statute is to deter and penalize cooperation or coordination with international terrorist organizations. Passive statements of affinity to even heinous ideas, however, should remain protected.486 That is a narrow tailored approach to preserve associational rights while targeting direct involvement with foreign terrorist organizations and advancement of their causes. Professor Cole understands the holding very differently than I do, writing “For the first time in its history, the Court upheld the criminalization of speech advocating only nonviolent, lawful ends on the ground that such speech might unintentionally assist a third party in criminal wrongdoing.”487 Cole’s characterization of HLP is inaccurate. For one, parties to the case were not merely advocating nor solely associating with like-minded people, but seeking to strengthen the terrorist organizations’ standing in international forums, without the terrorist groups’ prior renunciation of politically driven violence. If a group renounces terror Congress can block or revoke the State Department’s the foreign terrorist designation of an organization,488 but the Humanitarian Law Project sought to materially assist organizations who were still actively engaged in violent political tactics. Raising terrorist organizations’ political profiles and helping them advance in the international arena is not merely an independent endorsement, it is coordination aimed at advancing the operations of foreign terror groups.489 Concerns of Professor Wadie Said are similar to Cole’s. Both of them downplay the national security threats posed by terror indoctrination and planning on

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the internet. Said inaccurately writes that laws prohibiting support of foreign terrorist organizations stigmatize speakers and remove “First Amendment protections to the point where mere speech on behalf of a group runs afoul” of the statute.490 Without any support, Said claims that the statute bans “pure speech.”491 Both he and Cole ignore the coordination component of material support that makes otherwise protected speech actionable, which is critical to the statute’s narrow tailoring. Said further argues that in HLP the Court’s deference to the State Department’s list of designated terrorist organizations grants the Executive Branch “seemingly limitless” authority to define “what constitutes terrorist activity.”492 He envisions a problem with a material support statute because it threatens to label as a foreign terrorist any “nonstate actor” who commits an act of “political violence.”493 This second argument sounds an important warning. Yet Said does not take into account existing safeguards of the Designation of Foreign Terrorist Organizations, including notice of the designation to Congress and judicial means for challenging the government’s designation.494 The law further recognizes the judicial authority to review whether the Department of State’s violated an organization’s First Amendment rights – or any other “constitutional right, power, privilege, or immunity.”495 Professors Cole and Jules Lobel, in a separate work, claim that the HLP majority’s unwillingness to second-guess the State Department’s prerogative to designate foreign terrorist organizations amounts to “black-list[ing] foreign groups and prosecut[ing] their domestic supporters.”496 Cole and Lobel’s concerns no doubt arise from sincere desires to prevent presidential overreach. But they offer no alternative to the Executive following objective State Department procedures to identify groups as dangerous to national security and to deal with the threat before calls to violence are set in motion. To assure courts have necessary information to determine whether the law is narrowly tailored, the Supreme Court relies on the US State Department list of foreign terrorist organizations that are “particularly dangerous and lawless foreign organizations.”497 Courts that have reviewed the State Department designation procedures have found that, “[g]iven the stringent requirements that must be met before a group is designated a foreign terrorist organization, Congress carefully limited its prohibition on funding as narrowly as possible in order to achieve the government’s interest in preventing terrorism.”498 By the terms of the statute, only groups that threaten US security through terrorist activities, which are defined as hijacking; kidnapping; or weaponized use of chemical, biological, nuclear, or other explosive agents, can be designated as terrorist organizations.499 Such rigorous criteria for designating groups and the prohibition to coordinate activities with them is not merely discretionary or ad hoc but carefully weighed to prevent political violence.

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Another critic of the holding in HLP, Professor Aziz Huq, asserts that the majority’s holding was inconsistent with prior doctrine.500 Specifically, he believes that in upholding the material support statute the majority deviated from Citizens United v. Federal Elections Commission,501 which found unconstitutional a federal restriction on corporate campaign financing. Huq obviously recognizes the cases dealt with different statutes: the Material Support for Foreign Terrorist Organization Statute502 and the Bipartisan Campaign Reform Act,503 respectively, but he believes both infringed on speech in the political marketplace of ideas.504 Hence, he argues that the Court should have reviewed both through the strict scrutiny lens. Huq analogizes campaign expenditures and coordinated aid given to foreign terrorist organizations. In Huq’s mind, a criminal statute prohibiting material support for foreign terrorists is analogous to one regulating political campaign financing. Huq, to the contrary, elevates political advice to groups committed to violent political conduct with political discourse and selfaffirmation, overlooking Justices Jackson’s and Goldberg’s warning that the Constitution is not a suicide pact.505 There is a compelling government interest to prohibit NGOs from working with organizations like Boko Haram in Nigeria and Cameroon, Hamas in the Gaza Strip, Hezbollah in Lebanon, and the Armed Islamic Group in Algeria. The law does not prohibit associating with the organizations’ members. Liability is narrowly tailored to coordinating efforts to legitimize foreign terrorist activities threatening US interests. Other authors address the protection of terrorist speech from a different perspective. They show unfailing adherence to the Brandenburg standard; according to this perspective, only imminently harmful terrorist speech is subject to censure.506 That argument ignores two critically important strands of judicial thought, the true threats and material support doctrines, neither of which requires government to prove imminence of criminality. A federal law against terrorist incitement, true threats, and material support is the most robust way to address the threat of terrorist propaganda on social media while staying true to free speech doctrine.

* Any law restricting the use of terrorist ideology on the internet must abide by constitutional standards. A narrowly tailored, multipronged law should be grounded on permissible restrictions against incitement, material support for terror, and true threats. These three separate doctrines can be used to stem the

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growing volume of terrorist recruitment, indoctrination, incitement, and coordination available on the internet. Anti-terrorist efforts should be undertaken at the federal level, providing adequate judicial oversight to issue warrants and injunctions. This proposal balances the public interest in deterring and punishing interstate threats, while remaining vigilant against abuses to free speech and associational rights.

8 First Amendment on Campus

Universities are centers of culture, self-expression, and civil activism. As the Court explained in Tinker v. Des Moines Independent Community School District, “The Court has recognized that the campus of a public university, at least for its students, possesses many of the characteristics of a public forum At the same time, however, our cases have recognized that First Amendment rights must be analyzed ‘in light of the special characteristics of the school environment.’”507 They are places to clear away cobwebs of falsehood and to identify kernels of truth. The educational value of speech is determined by its context and content.508 While campuses are hives of intellectual activity, educational needs require structure and incidental time, place, and manner restrictions in order to impart and advance knowledge without unnecessary disruptions. Educational goals must be consistent with the dissemination of accurate knowledge. Institutions of higher education retain standards for advancing truth about various disciplines, but they also provide opportunities for dissent and disagreement.509 Accordingly, controversies are inevitable, given the many views represented by members of the faculty and student bodies. The rights of speakers should therefore be balanced with administrative requirements for maintaining pedagogical and scholarly standards, while warding off harassment. Reasonable restrictions can be placed on content without intruding on students’ constitutionally protected interactions. Grades are but one means of legitimate content-based, educational judgments. Student evaluations are based on work quality, which can only be evaluated by its contents. The Supreme Court in Widmar v. Vincent recognized that institutions of higher education operate in a unique context: A university differs in significant respects from public forums such as streets or parks or even municipal theaters. A university’s mission is education, and 117

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decisions of this Court have never denied a university’s authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities. We have not held, for example, that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings.510

Assessments, probation, and even suspension are additional methods for achieving pedagogical goals. There is no First Amendment restriction nor strict scrutiny requirement in the assessment of student work. Neither do faculty tenure reviews, promotions, or compensations, all of which take expressive content into account, raise any constitutional free speech concerns. They are rather based on educational standards for competent scholarship and pedagogy. University committees are required under those circumstances to determine the extent to which faculty members are contributing to public debate and scholarly conversation. Those disciplinary areas are evaluated by closely studying researchers’ methodologies, styles, voice, and arguments. So too, as Professor Robert Post has pointed out, an instructor whose teaching is misleading can be removed from the classroom.511 The United States v. Stevens categorical approach, discussed extensively in Chapter 1, lacks an adequate framework for discussing speech in a university setting. A richer balancing of interests is called for as is an assessment of means for achieving educational goals. Systematic and methodological decision-making will enable an appellate court to fully review a lower court’s reasoning without resorting to inaccurate historical claims. Review of the history of education and of any particular discipline is very much in order, but the methodology should not be used to justify an outcome-determinative category. Rather, judicial review of rigorous methods of scholarship and teaching should be part of a weighted assessment of a speaker’s interest, countervailing educational concerns, alternative channels for expression, and whether the chosen standard meets effective achievement goals. In addition to general principles of education, administrators must formulate neutral criteria for student organizations to reserve spaces on campus for special activities. Limits can be placed on duration, topic, and format of students’ and educators’ speech. For example, instructors can prevent students from monopolizing classroom time to speak about subjects unrelated to the course of study or to the topic of a conference. They are free to express orthodox or fringe viewpoints, but not to harass or defame others. Moreover, teachers must provide expert lectures and instructions. The need for judicial assessment of content is self-evident in cases where a faculty member files a grievance for dismissal or academic sanction, the administration terminates

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a faculty contract for cause, and the faculty member challenges the firing in court.

8.1 contemporary campus speech issues Speech controversies on campus produce reactions ranging from tolerance, emotional discomfort, and outright harassment. The university is a locus for open airing of ideas, where safety is critical to unfettered exploration. Welcoming and safe environments on college campuses conduce to constructive debates, disagreements, discoveries, and realizations. Campuses serve as incubators of learning, knowledge, and wisdom. But at times in US history, dark social forces, such as proslavery movements and racial segregationists, have also found niches of higher education welcoming to their intolerance.512 As at every other time in the nation’s history, students’ lives are filled with conversations, lectures, and assignments. However, conflicts are inevitable between young persons who come from diverse backgrounds, races and ethnicities, communities, regions, and political leanings. College administrations, whether they operate private or public institutions, are charged with achieving the ends of campus safety, educational standards, and professional norms. Some student groups have demanded extra protections against “microaggressions,” which are slights that make minority group members uncomfortable. The demand is two-edged. A professor’s verbal warnings about graphic literature can make for a safe learning environment or it can stifle discussion about topics. They have also sought to convince administrators to create safe spaces, exclusively for designated groups, and to require instructors to issue trigger warnings when covering curricular materials that might offend students.513 Safe spaces can offer an environment conducive to education. Groups, such as black student associations or women’s organizations, create welcoming and social environments. But they can also be exclusionary. Private areas such as dormitory rooms and doors, lockers, and mailboxes are settings where verbal attacks are particularly unwelcome. So too, special interest groups – such as black student associations or women’s organizations – run programs that offer participants welcoming social environments for comradery. Providing students with common backgrounds or ideas with spaces to share ideas is a reasonable accommodation for advancing discussions and social gatherings. University runs afoul of the First Amendment if it suppresses viewpoints or discriminates against organizations with which it disagrees.514 Neither can it use federal entitlement money from Title VI funding to organize a discriminatory organization. One conflict that arises around the

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country involves membership in student organizations that are partly or wholly funded from public university funds. These cannot discriminate in their membership. Dilemmas arise when student organizations seek to limit their membership. The Supreme Court has determined that public universities can require that student organizations receiving student-activity-fee funding accept all interested groups, rather than limiting membership based on status. Thus, it was within administrators’ legitimate authority to deny a student organization official recognition because it discriminated against gays and lesbians.515 Efforts to provide comfortable environments for student interaction can, however, take on intolerant forms that are not protected by the right of association. In the most extreme cases, the benign effort to find comradery have turned into demands for segregation. The countervailing need of universities to be open fora for discourse and equal protection antidiscrimination principles counterbalance student demands for segregated group membership. Some student groups have demanded universities provide them with racially homogenous locations that smack of demands for segregation contrary to the Equal Protection jurisprudence. The UCLA Afrikan Student Union demanded a dormitory floor exclusively for black students.516 There was also disorderly protest in the San Francisco Bay area: An intimidating cohort at the University of California-Berkeley demanded safe spaces be set aside for students of color and other minorities. At one point, the raucous group blocked sidewalks and then barricaded a facility at the edge of campus, demanding the occupant vacate the space to make way for a center to house the alliance of students of color and LGBTQIIA.517 Students have also made demands for racially, sexually, and ethnically segregated spaces at Amherst College; California State University, East Bay; California State University, Los Angeles; Clemson University; New York University; and at several other universities in the United States.518 Such demands are exclusionary. Persons can individually associate with whomever they want, but the university must remain integrated according to the antidiscriminatory educational provisions in Title VI of the Civil Rights Act of 1964. The Supreme Court has found that universities are within their constitutional rights to require students to be inclusive in their organizations. For instance, student organizations can lose university funding for denying membership to gays or lesbians.519 Moreover, a public university or a private university receiving federal funds is prohibited from racially discriminating without providing compelling reason for preferring inclusive organizations nor narrowly tailoring campus regulations. Given the nation’s woeful history of racism, xenophobia, and bigotry, it is unimaginable for

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a court to find that an institution of higher learning could justify a segregationist policy in its facilities, including classrooms, dorms, and performance halls. The trigger warnings movement goes beyond simply advocating that professors include statements, in syllabi or orally, that some emotive topics may offend sensitive students. Indeed, there are no empirical studies to demonstrate there is any educational value to trigger warnings.520 In fact, where a university administration shields students from shocking materials, rather than simply allowing professors to provide warnings of its content, is likely to have a detrimental effect on learning. Topic requirements are the norm – a person doesn’t take an engineering class to study literature nor Holocaust denial.521 Where mandates are placed on teaching, the public university compels speech, which interferes with the autonomy of the speaker without any proven learning results. It is impossible to envision teaching criminal law, for instance, much less literature, without some disturbing content. Indeed, the function of world class literature is often to shock the conscience through close studies of heinous acts and dysfunctional characters, such as Fyodor Dostoyefsky’s Crime and Punishment, Homer’s Iliad, Richard Wright’s Native Son, Ken Kesey’s One Flew over the Cuckoo’s Nest, and Pearl Buck’s The Good Earth. That is not to downplay just how vital it is for instructors who teach from a race-conscious perspective. But it is the instructor who must find the appropriate pedagogical opportunity to present subjects in syllabi and lectures. Professional standards dictate norms, but nothing requires the professor to cater to arbitrary demands of interest groups. Moreover, as a matter of empathy, professors will still want to be explicit that some lessons may trouble students. Requiring professors to carry certain statements about the potential of course material to emotionally alarm some students raises a cost of First Amendment concerns about content restrictions522 and compelled speech.523 There is a difference between common sense and forced speech: In the former case, we have a tolerant university; in the latter, something that begins to resemble the Inquisition. Professor Robert Post elaborates that faculty members do not simply transmit university administrators’ ideas but “expand knowledge” and apply “independent professional, disciplinary standards” to advance students’ competence.524 Students on a mission but with a novice knowledge of literature have demanded professors issue prior warnings before undertaking study of works perceived to be associated with sexism, racism, or similar discriminations. At one of the world’s powerhouses of classical literature, Columbia University, a student group in 2014 insisted that teachers issue trigger

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warnings about rape scenes, such as those that appear in Ovid’s Metamorphoses. At Oberlin College, the administration temporarily adopted a directive requiring faculty to issue trigger warnings on literature containing suicide scenes, including Chinua Achebe’s classic depiction of precolonial Nigeria in Things Fall Apart.525 Students were allowed to leave classrooms when sensitive subjects were discussed, such as battery, rape, murder, and patricide. Faculty effectively protested and forced reversal of the Oberlin policy. Universities around the country have grappled with how to respond to students demanding that faculties issue warnings about content that reminds them of historical prejudices and discriminations. At Rutgers University, a group of students demanded faculty to issue trigger warnings about Virginia Woolf’s Mrs. Dalloway because it deals with “suicidal inclinations” and F. Scott Fitzgerald’s The Great Gatsby because it had “a variety of scenes that reference gory, abusive and misogynistic violence.”526 At the University of California, Santa Barbara, the student senate issued “A Resolution to Mandate Warnings for Triggering Content in Academic Settings.” The document demanded instructors to indicate on syllabi any assignments that might cause students emotional trauma.527 Not only would those recommendations limit pedagogical flexibility about how to present materials, but they would likely be unenforceable. Any restrictions of the type would interfere with a professor’s ability to express controversial viewpoints, and would therefore place prior restraints on free speech. Such restrictions on speakers are not tied to any overarching pedagogical needs, nor are they narrowly tailored. Robert Shibley, a campus speech specialist, writes that trigger warnings put up “roadblock after roadblock in front of students’ ability to learn.”528 There is broad consensus in academic writings. In a 2017 article, Heidi Kitrosser published a comprehensive study of “trigger warnings” or “triggering” and found that “each reference was negative in tone.”529 The First Amendment protects ideas, even obnoxious ones that drive people out of their comfort zones. At the university, the advocates of trigger warnings would need to show not only that certain materials set off emotional responses but also that their importance outweighs learning goals. As Justice Brennan put it in a majority opinion, the First Amendment safeguards academic freedoms and “does not tolerate laws that cast a pall of orthodoxy over the classroom.”530 The Bill of Rights’ commitment to individual liberties includes the right of students and professors to express heterodoxical ideas.531 This conclusion does not gainsay universities’ obligations to maintain safe environments free from intimidation, but repressing affective statements at school

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events would likely chill education because professors, especially those who are untenured, would likely be wary of introducing controversial materials into their seminars, lecture halls, and public events. Students should expect to experience some degree of apprehension when grappling with unfamiliar points of view. In the words of the American Association of University Professors: Some discomfort is inevitable in classrooms if the goal is to expose students to new ideas, have them question beliefs they have taken for granted, grapple with ethical problems they have never considered, and, more generally, expand their horizons so as to become informed and responsible democratic citizens. Trigger warnings suggest that classrooms should offer protection and comfort rather than an intellectually challenging education.532

There is clearly a distinction between the study of disturbing materials and repeated harassment, with only the latter being an unprotected type of discourse. Educational materials at public universities are treated differently than statements made at public employment settings. Ordinary, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”533 On the other hand, Justices recognized in dictum that “[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.”534

8.2 doctrinal, statutory, and judicial considerations on the enforcement of campus codes University codes of conduct that restrict speech must be consistent with First Amendment principles and doctrine. The interests of speakers should be balanced against the university’s mission to inform, increase professional knowledge, support scientific learning, study philosophical questions, and pursue fields tending to expand knowledge through the free exchange of ideas. In addition to their intellectual place in society, universities are nurseries of democracy, which should also be taken into account when constructing campus codes. Students function in a milieu that also resembles Justice Brandeis’s statement that free speech is not only safeguarded for the ascertainment of truth; it is also essential for exercising representative governance and for the enjoyment of personal happiness.535 Speech is an essential component of the Declaration of Independence’s guarantee of safety and happiness.

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Universities are the incubators of originality and wisdom. Disputes in the academic realm are inevitable because the subjects of study touch upon so many contentious issues of politics, culture, and history. While academic pursuits seek to uncover broad truths and granular subjects, inaccurate and exaggerated statements are inevitable, especially when examining political questions. Tolerance on campus requires leadership ready to countenance different perspectives, even ones that are farfetched and immoral to some members of the student and faculty population. The desire for college authorities or students to step in and prevent statements arousing outrage or hurt, better known as the heckler’s veto, cannot gainsay First Amendment values of debate, discussion, and the dissemination of ideas.536 Nevertheless, federal antidiscrimination law renders university administrators responsible for preventing harassment on campus and at university events. To a certain degree, therefore, universities receiving public funding are by default obligated to punish certain types of severe speech acts. 8.2.1 Campus Codes and Constitutional Doctrine Universities can certainly prohibit words that intentionally incite imminent violence.537 However, hyperbolic or obnoxious statements are entirely protected under the First Amendment.538 Hecklers cannot shut down speech, but universities can rely on ordinary noise and security rules. Clearly a university can prohibit speakers from intentionally instigating imminent disorder that is likely to happen.539 Additionally, the threatened “substantive evil must be extremely serious and the degree of imminence extremely high.”540 Remote or speculative possibilities that a student’s or organization’s statements might be dangerous is insufficient basis for university sanction.541 Codes of conduct have to be consistent with doctrine applied in the context of educational institutions. Debates at universities, like anywhere else in a pluralistic society, are sometimes filled with vituperation and even opprobrium. Those are protected forms of expression, but not so with true threats. The true threats doctrine sets a constitutional norm for campus regulation, derived from Virginia v. Black, that provides the rule that universities can set their own standard against “serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”542 Crude jokes, which are every bit as common on campus as ribald ones, are protected. Neither does Supreme Court doctrine give universities any latitude to sanction harsh or unpleasant over-generalizations. Likewise assigning a book to students or articulating a subject that sensitive listeners perceive as microaggressions or trigger warnings are protected against state suppression.

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Disciplinary committees can assess whether the speaker sought to menace a group or an individual. Whether there was any plan to carry out the threat is irrelevant. What matters is whether the communication is willfully made to put a person or group into fear of violent harm.543 Justice Alito put it inconcurrence, true threats are not covered by the First Amendment because they “inflict great harm and have little if any social value.”544 That principle is just as true in public places as on university campuses. Someone making a serious threat “may cause serious emotional stress for the person threatened” and thereby disrupt studies.545 Like the incitement and true threats doctrines, administrators can also bar fighting words on campus. As the seminal Chaplinsky v. New Hampshire case articulated about fighting words, there are certain utterances that, on balance, “any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”546 Campus policies against fighting words cannot, however, target students based on their viewpoints; rather, neutral regulations can be drafted to deter and prevent verbal altercations that, given the right set of circumstances, are likely to instigate physical altercations.547 Public universities’ campus speech codes that contain provisions that prohibit fighting words are likely survive constitutional challenge. As a general rule, however, campus speech should leave speakers, listeners, educators, and visitors free to share divergent perspectives on a breadth of subjects. 8.2.2 Hostile Campus Environment: Title VI Litigation In addition to constitutional doctrines, statutory interpretation of harassment should inform college administrators in their efforts to enforce effective and legally justifiable campus speech codes. Federal law requires educational institutions to maintain nondiscriminatory environments. Title VI was first promulgated as part of the omnibus Civil Rights Act of 1964. “Any program or activity receiving federal assistance” is required to enforce policies against racial or national origin harassments.548 Additionally, the Office of Civil Rights (OCR) “protects students of any religion from discrimination, including harassment, based on a student’s actual or perceived: shared ancestry or ethnic characteristics, or citizenship or residency in a country with a dominant religion or distinct religious identity.” OCR can investigate slurs against groups with shared ethnic and ancestral characteristics such as Hindus, Jews, Muslims, and Sikhs.549 Congress passed Title VI pursuant to its Spending Clause powers.550 The Department of Education explains the statutory purpose behind the law, “this kind of conduct can jeopardize students’ ability to learn, undermine their physical and emotional well-being,

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provoke retaliatory acts, and exacerbate community conflicts.”551 The law applies to both private and public university recipients of federal funds. The Supreme Court recognized in 1979 that Congress had intended to create such a civil remedy.552 For decades, the Department of Education has required universities to create policies designed to police hostile environments, which are defined as places where “harassing conduct (e.g., physical, verbal, graphic, or written) . . . is sufficiently severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities or privileges provided by a recipient.”553 Legally cognizable claims arise when the institution fails to resolve disparate treatment of and disparate effect on protected categories of students. The Department of Education finds that liability attaches when an agent[] or employee[], acting within the scope of his or her official duties, has treated a student differently on the basis of race, color, or national origin in the context of an educational program or activity without a legitimate, nondiscriminatory reason so as to interfere with or limit the ability of the student to participate in or benefit from the services, activities or privileges provided by the recipient.554

Under this federal guidance, institutions that receive federal funding must take reasonable measures to investigate notifications of a hostile environment. The Department of Education’s Office of Civil Rights mandate that educational institutions “apply their rules in a manner that respects the legal rights of students and faculty, including those court precedents interpreting the concept of free speech.” Its guidelines contrast harassment from “offensive speech regarding sex, disability, race or other classifications.” Providing greater clarity about universities’ responsibility to promote free discourse, the OCR goes on to assert that “the mere expression of views, words, symbols or thoughts that some person finds offensive” is not actionable. Communications are actionable harassment only when they are so abusive as to “limit a student’s ability to participate in or benefit from the educational program.”555 Another OCR directive further elaborates on how harassment harms students’ abilities to achieve academic excellence. It defines harassment as a form of conduct that can take on expressive characteristics, including name calling; “graphic and written statements” sent by digital technology, such as cell phones and the internet; or violent, harmful, or humiliating acts. Unlike true threats and incitement, harassment has no scienter element. It is instead proved by evidence of behavior that severely, pervasively, or persistently interferes with students’ abilities “to participate in or benefit from the services,

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activities, or opportunities offered by a school.” The policy gives notice to universities of the OCR’s power to enforce various civil rights laws protecting members of the university community against racial, national origin, sex, and disability harassments.556 It is a balance between the free expression of ideas on campus and the obligation of universities receiving federal funds to maintain a civil environment conducive to the advancement of knowledge. Harassment is one form of conduct where the content of the communication of a message is actionable.557 As in other areas of law, such as those involving low-value speech, including child pornography and obscenity and certain economic regulations, such as securities and antitrust statutes,558 the education and work harassment prohibitions are legitimate regulations regulating low-value content. In these areas, the interest of the speaker can sometimes be gainsaid by countervailing public policies, so long as the laws are carefully drafted to achieve a narrow sets of goals. Justice White pointed out in his concurrence to R.A.V. v. St. Paul, the regulation of verbal harassment in the workplace – found in Title VII of the Civil Rights Act of 1964 and various other state and local laws – is a contentbased proscription.559 As Professor Richard Fallon first pointed out, the Supreme Court found it a nonstarter to argue that workplace harassment and hostile environment laws violate free speech principles so much so that the Justices refused to address the issue, even when both sides briefed it in Harris v. Forklift Systems, Inc.560 As in the workplace, harassing, intimidating, threatening, and hostile environments unreasonably interferes with others’ work.561 In fact, workplace harassment laws and their application in settings of higher education further demonstrate that the First Amendment has never barred all content-based speech regulations.562 A district court case, Robinson v. Jacksonville Shipyards, Inc., contains a particularly lucid account of differences between harassment and protected speech.563 While the case deals with Title VII harassment, rather than the Title VI grants portion of the Civil Rights Act of 1964, the opinion contains a broadly influential distinction between protected speech and harassment.564 District and appellate courts have often relied on its factors for reviewing harassment claims. In Robinson, the trial court found that the First Amendment’s guarantee of free speech did not preclude litigants from obtaining redress for harassment. The court recognized that employers can prohibit sexual harassment in order to maintain workplace discipline. At campuses, anti-harassment policies set disciplinary standards to enable students to enjoy equal educational access without needing to clear the hurdles of racism or xenophobia.565 At a minimum, universities rely on disciplinary standards in formal settings such as classrooms,

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libraries, and auditoriums. But some universities go further, as I will catalogue at the end of this chapter, extending anti-harassment codes to other campus spaces. The Robinson court first found employers do not violate the First Amendment by maintaining a hostile-free environment.566 Faculties and universities administrations likewise must maintain discipline, whether in classrooms, events, and common areas of dormitories. Professors must teach specific subjects, students must submit assignments, and scholars must write. Title VI requires universities to abide by and enforce antidiscrimination policies, without which those activities would be severely impeded. Narrowly tailored antiharassment policies provide a balance for recognizing the salience of campus disciplinary norms to advancing robust and open debates, without alienating vulnerable student groups. Second, the district court in Robinson defined hostile communications as conduct, which was therefore unprotected by the Free Speech Clause. To support that perspective, the court asserted that “potentially expressive activities that produce special harms” are “distinct from their communicative impact” and are therefore not entitled to any constitutional protection.567 This analysis also applies when those activities occur in the educational context. An environment of pervasively degrading and humiliating messages on campus are likely to interfere with free and open exchange of philosophical, historical, scientific, or artistic learning. The third judicial heuristic of Robinson evaluates restrictions on harassment in the context of time, place, and manner restrictions.568 These three factors are relevant in classrooms and other educational spaces. The point is easy to grasp: Students’ experiences are negatively impacted by pervasive, severe, or persistent slurs made during classes, orientations, townhalls, alumni functions, campus tours, and dorm visits. Robinson’s fourth insight, that captive audiences are present at the workplace,569 is likewise true in the campus setting. In both scenarios, victims might be unable to leave their desks, to complete assignments, or to avoid belligerent situations. Workers and students alike are required to be at assigned locations – be they computer terminals, lecture halls, or laboratories – or risk receiving negative evaluations. University rules can likewise sanction verbal harassment in common areas, student unions, and especially in dormitories without offending the First Amendment. An institution of higher learning receiving notice of such belligerent abuse has an obligation to investigate and, in some cases of disruption, to remove offending parties. It should be noted that restraint on the content of speech in classrooms is not a true time, place, and manner restriction, which ordinarily refers to content-neutral regulations.570 The professor is required to teach a particular

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subject relevant to some body of knowledge that the student studies. If a professor in a public university does not teach that subject, then the administration can terminate his teaching of it. Thus, the context of the university requires some content-based regulations of the classroom, but each professor must be granted full discretion to teach an individual viewpoint. Teaching has professional standards that the university can regulate by course offerings and course assignments. There are departments within the university. Those departments are subject to the norms of specific disciplines. Public universities can also prohibit offensive statements that disrupt mandatory university events and lectures open to the public.571 Hecklers interfering with presentations, discussions, and sessions can be removed from events if their belligerence makes lectures or discourse impossible. The risk of university overreach at student-run political rallies and other public protests, however, cannot be overlooked. When the purported harassment is part of a political backlash against students or faculty, the strict scrutiny standard is the appropriate level of review to avoid censorship based on viewpoint discrimination. University debates are so central to the cultural marketplace of ideas that only if there is a compelling reason, such as an imminent threat of harm or an intentionally true threat, should hateful political speech be suppressed on campuses. Universities may well have a compelling reason to keep supremacist groups off campus. The most difficult puzzle is whether a narrowly tailored means can be found to keep them out of university property. Preliminarily, at least, there should be some way to prevent a national socialist or KKK public meetings because of the imminent threat of violence they pose. Moreover, such groups offend the dignity of identifiable groups, pandering a harassing message, even when there is no imminent threat of harm. University administrators deciding between the free speech rights of speakers and countervailing educational concerns should consider least restrictive means for achieving educational outcomes. Such a narrow concern over the potential of violence from a speaker on campus has led the University of Virginia in 2018 to ban Richard Spencer, a violent neo-Nazi, from its campus.572 Universities with histories of slavery or segregation have a special obligation to groom an atmosphere on campus conducive to tolerant educational opportunities. Harassment interferes with the college mission to gain knowledge, express ideas, or celebrate artistic accomplishments. 8.2.3 Lower Court Findings on Campus Codes Universities can advance anti-harassment policies through narrowly tailored campus codes, but restrictions on students’ communications can go too far

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and chill free expression. Several lower court opinions that struck limits on campus speech offer guidance on how universities can avoid First Amendment pitfalls. In a 1989 decision, Doe v. University of Michigan, a district court held a university’s antidiscrimination policy to be an overbroad violation of students’ First Amendment rights.573 The court rejected administrators’ reliance on “some exogenous value system” of meaning to sanction specific content-based restrictions against “stigmatizing or victimizing” others based on “race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status.” The trial judge put no serious effort into identifying why these particular groups had been chosen to determine whether the categories were arbitrary or narrowly tailored. Supreme Court precedents demonstrate the constitutional legitimacy of the state basing antidiscrimination efforts on historical analysis of how communications have fueled hatred and violence.574 Without ever examining any or all of the categories the university had included in its policy, the judge asserted they were too vague to be narrowly tailored. It may have been that the University had reason to include some but not all the categories; but such a finding would have required closer judicial scrutiny. The judges ignored the regular and consistent use of some of those classifications in the civil rights realm, including laws on employment and academic discriminations. The court also expressed concern that the policy empowered officials to suppress controversial and unorthodox ideas. And here the Eastern District Court appears to be on point as to the as applied issue of university engaging viewpoint discrimination. It was particularly critical of an administrative hearing that investigated a graduate social work student’s assertion that therapists should try to “chang[e] gay clients to straight.”575 The judge in Doe v. University of Michigan was no absolutist, however, recognizing that “[u]nder certain circumstances racial and ethnic epithets, slurs, and insults might fall within this description and could constitutionally be prohibited by the university.” Thus, the university could rely on low-value categories to sanction obscene, libelous, and the insulting or fighting words.576 The judge nevertheless rightly rejected silencing speakers for ideological reasons. But to only stick to those categories would be a mistake that could compromise the educational experience of persons targeted for being members of a protected class. Categories are rules of thumb for evaluating the totality of the circumstances of how campus codes are enacted and administrated. Rather than rigidly limiting itself to judicially created categories, courts should review challenges to university enforcement of campus codes by considering the

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circumstances under which the challenged statement was uttered, the location of the utterance, university policies, the proximity of speakers and listeners, whether there had been previous altercations between them, whether conduct involved merely words or threatening actions, the speaker’s mental state, whether alternative venues existed for communications, whether administrators opposed the message or act to check harassment or to stifle ideas, and whether speakers were afforded a venue for discussion. Of course, the way a law is applied might not be the only question at stake. And categories are good starting points for evaluating policies. They are good rules of thumb, the University of Michigan code certainly contained portions that were constitutional. For example, the provision that explicitly prohibited verbal or physical behavior was constitutional in prohibiting any “express or implied threat to an individual’s academic efforts, employment, participation in University sponsored extra-curricular activities or personal safety.”577 That provision was surely justifiable under the true threats doctrine, as long as the university only applied it to speakers who had the requisite intent. A speaker’s mind-frame might be discerned from the words used, from the circumstances under which they were uttered, or both. Categories are good starting points, but contextual analysis is essential to fairness, accuracy, and proportionality. Another district court found that a University of Wisconsin code of conduct was also overbroad for prohibiting more speech than fighting words.578 In UWM Post, Inc. v. Board of Regents of University of Wisconsin, the judge struck down a campus rule that prohibited the use of racist or discriminatory comments to demean others based on “race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age.” The university policy further prohibited students from creating “an intimidating, hostile or demeaning environment for education, university-related work, or other universityauthorized activity.” The court found the regulation to be vague despite its containing an intent component, as required by the true threats doctrine, which the judge neglected to even consider.579 Oddly enough, though the court in UWM Post struck the University’s antiharassment policy, the case does not discuss Title VI’s anti-harassment guidelines. The judge might have relied on the Department of Education definition of hostile environment to be one that is “severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities or privileges provided by a recipient” of federal funds, such as the University of Wisconsin.580 Instead, the judge mistakenly defined “hostile environment” through Brandenburg v. Ohio’s imminent threat of harm standard. As we will see later in this chapter, in response to

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this ruling, the University of Wisconsin has subsequently narrowed its code of conduct, which continues to prohibit harassment. An oft-cited Circuit Court case critical of campus codes is Dambrot v. Central Michigan University.581 This case involved a university disciplinary action against a sports coach who called his players “niggers” in a callous attempt to instill esprit de corps and confidence in his players. His use of that racist epithet triggered an investigation under the university’s policy against “intentional, unintentional, physical, verbal, or nonverbal behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment by . . . (c) demeaning or slurring individuals through . . . written literature because of their racial or ethnic affiliation.” The Sixth Circuit found the Central Michigan University policy to be unconstitutionally vague as punishment for the terms “negative” and “offensive” did not survive First Amendment rigor. As written, the policy allowed university officials to engage in ad hoc interpretation against disfavored viewpoints. While the coach’s use of the pejorative term was offensive, it was constitutionally protected. Nevertheless, the court found that the university was within its powers as an employer to terminate the coach. Taking into account the “content, form and context” of his statement, the court should have gone further than its fighting words analysis, reflecting also on Title VI’s prohibition against harassment.

8.3 current university policies In the years following these lower court opinions, most universities have continued enforcing codes of conduct that contain restrictions on speech, this is not universally true. Some institutions of higher education, such as the Ohio State University (OSU), have debated whether to enact formal prohibitions against harassment and have thus far decided to demur. OSU’s code of conduct only restricts speech insofar as it directly violates educational norms – such as plagiarism or cheating on an exam.582 Other universities – including the University of Wisconsin,583 University of Michigan,584 and Central Michigan University585 – spell out enforceable standards and rules in an effort to deter and punish various threatening and hostile forms of communications. Universities across the United States have created university codes in an effort to be compliant with anti-harassment policy of Title VI and with First Amendment principles. The University of Chicago received national recognition in 2015 for issuing a narrowly tailored statement of campus speech. The statement recognizes civility to be important in the context of education but

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rejects student demands to sanction microaggressions or trigger warnings.586 While the University describes itself as an institution with “a climate of mutual respect,” its administration refuses to shield students from hearing “disagreeable, or even deeply offensive” views. This stance is commensurate with the educational mission to be a forum for open dialogue. It is consistent with First Amendment jurisprudence to maintain that education at times touches upon emotionally unpleasant and discomfiting topics that nevertheless redound to students’ growth, research, knowledge, and wisdom. Administrations at other universities have sought to walk a fine line between serious speech harms and mere offences. At the University of Idaho, for example, the student code of conduct avoids chilling speech by making actionable only “[p]ersistent or severe, verbal abuse, threats, intimidation, harassment, coercion, bullying, derogatory comments, vandalism, or other conduct that threatens or endangers the mental or physical health or safety of any person or causes reasonable apprehension of such harm.”587 On its face, this Idaho policy is consistent with the Title VI policy of granting universities authority to take disciplinary actions in response to pervasive, severe, and persistent harassments. The Idaho Code further states that even “a single instance” of such conduct “may be considered severe enough to merit sanctions.” Whether the latter provision would withstand judicial scrutiny requires an assessment of the university’s educational goals, the means used to achieve them, and available alternatives to discipline. We may here look to another area of law for guidance, given the dearth of Title VI cases, to better understand the university’s balance between speech and discipline. In cases of sexual harassment, brought under Title IX, courts generally do not find one act to be enough to meet the harassment requirement. However, the balance is situational, and at times, the countervailing considerations will require university action. Certainly, a single act can be so horrible as to violate sexual harassment codes, as when a university reacts inadequately to a single instance of violent rape or assault.588 So too, advancement of educational norms will require narrowly tailored actions even when there is one act of verbal harassment; for instance, a professor can demand a student leave a lecture hall for just one instance of yelling degrading racial, ethnocentric, or homophobic epithets in class. Alternative avenues for resolution, such as mandatory or voluntary workshops, must be explored but there are times when nothing short of sanctions will be adequate to eliminate a hostile environment. The University of Washington also includes a provision in its conduct code prohibiting verbal and physical discriminatory harassment based on “race,

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color, creed, religion, national origin, citizenship, sex, age, pregnancy, marital status, sexual orientation, gender identity or expression, disability, or veteran status.” The balance here is between the speaker’s desire for self-expression and the university’s mission to safeguard the learning environments against deleterious verbal or physical conduct that are very likely to negatively impact “an individual’s academic or work performance, ability to participate in or benefit from the university’s programs, services, opportunities, or activities, or the receipt of legitimately requested services.”589 This content-based regulation says nothing about single acts of severe harassment, but its Idaho cousin makes effort to narrowly tailor restrictions against disruption and obstruction, “through words or conduct, the teaching or learning environment of any university educational setting.”590 On its face, such a policy allows for contextual nuance that is not stilted by a categorically mechanical application of a content-neutral requirement. The wide variations in campus codes put in doubt sweeping condemnations of them, such as that advanced by former US Representative Henry Hyde and his legislative aide, who called such efforts at educational decency to be “anathema to a university.”591 This reliance on First Amendment libertarianism is a bit like deploying a battering ram where a rapier is needed. More nuance is required. The balance is more complex, requiring considerations of speakers’ rights and university mission. Fleshing out the mind frames of campus officials would be particularly helpful. Inexplicably, the University of Florida’s Student Conduct and Honor Code has removed the scienter requirement. In 2012, its code specifically required proof “verbal and written threats . . . that by design, intent or recklessness” put another “in reasonable fear of physical harm.”592 That provision would pass the true threat definition of Virginia v. Black. But the 2018 code removes the scienter language and replaces it with a more generic provision: “Harassment. Threats, intimidation, coercion, or any other conduct that places a reasonable person in fear of physical harm, through words or actions, or objectively disrupts a person’s daily activities, including education and employment. Harassment does not include conduct protected by the First Amendment.” Despite the final saving clause, this new approach would require less proof and reduces the likelihood of passing First Amendment review, unless the university would defend it as a Title VI-inspired provision. One example of an effective use of Title VI’s injunctions is the University of Indiana’s Code of Student Rights, Responsibilities, & Conduct: Discriminatory harassment is defined as conduct that targets an individual based upon age, color, religion, disability, race, ethnicity, national origin, sex,

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gender, gender identity, sexual orientation, marital status, or veteran’s status and that adversely affects a term or condition of an individual’s education, housing, or participation in a university activity; or has the purpose or effect of unreasonably creating an intimidating, hostile, or offensive environment for academic pursuits, housing, or participation in university activities.593

Unreasonableness is not as rigorous a standard as the one the Supreme Court defined in Black and Elonis v. United States. The University of Wisconsin (UW) Regents’ Discrimination, Harassment, and Retaliation policy goes further. UW’s approach is broader in scope but also objective in referencing legal norms of civil behavior. It narrowly defines discriminatory harassment “based upon an individual’s characteristics as protected under state law or federal law (‘protected status’) or university policy are prohibited.” The Regents have a substantial interest in maintaining learning and teaching without students, faculty, and visitors dealing with a hostile environment. The Wisconsin policy also gives “due consideration . . . to the protection of individual First Amendment rights to freedom of speech, expression, and academic freedom.” Furthermore, consistent with the contextual balancing approach throughout this book – considering speaker choice, countervailing interests, ends/means assessment, alternative channels, and history or tradition – the term of the UW policy are narrowly tailored, rather than being open-ended, toward educational goals. Along with other provisions, it provides procedural rules for bringing a complaint, receiving allegations, investigating details, and resolving matters.594 The University of California Regents have drafted an even more rigorously constructed measure. It prohibits “terrorizing conduct” with a scienter element requiring proof of “intent to terrorize, or acts in reckless disregard of the risk of terrorizing.”595 Judicial review of the provision should rely on the Virginia v. Black definition of “true threats,” being “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”596 The “intent” and “reckless disregard” portions of the UC-Berkeley code speaks to the intent component of the constitutional doctrine.597 In order for the university system to take action, in such an event, the “speaker need not actually intend to carry out the threat.”598 As with the Emory harassment policy, intent must be interpreted into the University of California’s provision: Harassment is defined as conduct that is so severe and/or pervasive, and objectively offensive, and that so substantially impairs a person’s access to University programs or activities, that the person is effectively denied equal access to the University’s resources and opportunities on the basis of the

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person’s race, color, national or ethnic origin, alienage, sex, religion, age, sexual orientation, gender identity, marital status, veteran status, physical or mental disability, or perceived membership in any of these classifications.

In addition, the University of California addresses the growing number of antisemitic incidents on campus. This problem is often downplayed. As the former United States Secretary of the Treasury Lawrence Summers points out, “[W]ith very few exceptions, university leaders who are so quick to stand up against microaggressions against other groups remain silent in the face of antisemitism.”599 Of late, the University of California Board of Regents adopted a provision condemning antisemitism on campus that immediately drew the ire of free speech libertarians. The contested language reads: “AntiSemitism, anti-semitic forms of anti-Zionism and other forms of discrimination have no place at the University of California.”600 The Board of Regents recognized that while blatant antisemitism is no longer common, persons can frame “policy positions” in ways that invoke stereotypes and can be prejudicial and intolerant toward Jews. Besides speech, the University of California Regents recognized the countervailing pedagogical fact that “historical biases, stereotypes, or prejudice can undermine the equal and welcoming learning environment.” The latter statement is a holistic observation about education. For their definition of “anti-semitic forms of anti-Zionism,” the Regents relied on the US State Department definition, which finds that “hatred toward Jews” manifests itself either by overt acts, such as violence, or by group defamation alleging Jews to be “mendacious” or by “dehumanizing, demonizing” or making “stereotypical allegations” about them. Recognizing what has been called the “new-antisemitism,” analogous to “new racism,”601 the State Department recognizes that antisemitism can also manifest itself as an accusation of the Jewish people, “or Israel as a state, of inventing or exaggerating the Holocaust.”602 Perhaps the strongest opposition to the University of California’s definition has been voiced by Professor Eugene Volokh. He asserts support for the country of Israel, but argues that the “Regents are flat wrong to say that ‘antiZionism’ has ‘no place at the University of California’ this debate must remain free, regardless of what the regents or I think is the right position in the debate.”603 He claims the Regents’ policy stifles any debate about “[w]hether the Jewish people should have an independent state,” which he writes, “is a perfectly legitimate question to discuss–just as it’s perfectly legitimate to discuss whether Basques, Kurds, Taiwanese, Tibetans, Northern Cypriots, Flemish Belgians, Walloon Belgians, Faroese, Northern Italians, Kosovars, Abkhazians, South Ossetians, Transnistrians, Chechens, Catalonians, Eastern

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Ukranians and so on should have a right to have independent states.” Volokh has created a strawman argument, and one that he rightly condemns on First Amendment grounds: The problem is that he misstates the University of California Regent’s policy and thereby misses the point of its underlying purpose, text, and meaning. Contrary to Volokh’s claim, the Regents did not prohibit criticism of Israel. Nothing in the Regents’ policy against intolerance prohibits debate about the legitimacy of a sovereign Jewish state. The Regents’ statement is unambiguous and not at all vague on this point, as it explicitly condemns “anti-semitic forms of anti-Zionism.” This is a narrow category, albeit one that can only be defined through close contextual analysis, that does not prevent students, faculty, or staff from generally debating the validity of the Zionist political movement or for that matter any Israeli policies. What it does is condemn the use of antiZionism as a means of stereotyping and demonizing Jews. Professor Shannon Gilreath has pointed out, “One common tactic is to use criticism of Israel as a tool to target and marginalize Jewish students.”604 The University of California’s effort is part of a broader policy to prevent severe and pervasive hostile environments from impeding Jewish students’ education. Codes of student conduct should be drafted to better advance the dissemination and acquisition of knowledge in university settings. Prohibitions against antisemitic, racist, chauvinistic, homophobic and otherwise discriminatory forms of harassment can be narrowly tailored consistently with the stated goals of Title VI of the Civil Rights Act of 1964. Imminently harmful speech or truly threatening statements are likewise within a university’s power to sanction. Such a code should have provisions requiring university administrators to consider the speakers’ interests, countervailing educational concerns, the provision’s likelihood of advancing stated academic goals, availability of alternative channels of communication, and pertinent First Amendment principles.

9 High Schooler Speech in the Age of the Internet

Supreme Court cases treat students as citizens who retain free speech rights, but the Justices also recognize disciplinary discretion is necessary to run elementary school and high school programs and courses. Categorical analysis is as insufficient here as it is in college campus settings for adjudicating the suppression of student voices. High school students are in the period of life, straddling childhood and adulthood, when special considerations about their blooming maturity and educational needs offer context to resolution. Over the last three decades, the Supreme Court showed increased deference to school administrators. This trend comes at the expense of students’ self-expression, artistic acumen, and political insight. The censorship of topics such as teen pregnancy and drug policy, have been found to not violate high schoolers’ free speech rights. In several precedents, the Justices were deferential to school disciplinarians without engaging in heightened scrutiny. Often, cases in this area do not even rely on intermediate scrutiny to review challenges to disciplinary measures at public schools, thereby leaving a gap in constitutional guidance. Several prominent cases involve the suppression of student government speech. Even when faced with messages expressed offcampus, over the internet, some circuit and district courts upheld disciplinary actions imposed for the content of student speech. Discipline at schools is critical to education, which counterbalances speech concerns. This chapter turns to proportional consideration of free speech at public schools.

9.1 student speech doctrine Early Supreme Court precedents robustly protected students who wished to express controversial viewpoints. The 1969 seminal case, Tinker v. Des Moines Independent School District, continues to be the controlling precedent in this area. Several adults and children met privately to criticize the buildup of US 138

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military forces in Vietnam. Several students decided to join in by wearing black armbands to show their opposition to President Johnson’s Administration’s expanded involvement in the armed conflict. The students aimed to engage with the public debate in order to express their disagreement over US foreign policy and call for a military truce. School district principals issued a policy against students to wear black armbands in protest. For violating the regulation, a thirteen-year-old junior high student, Mary Beth Tinker; fifteen-year-old John Tinker, Mary’s brother; and their sixteen-year-old friend Christopher Eckhardt were suspended. The majority in Tinker held that the students’ suspensions violated their right to speak freely.605 Writing for the majority, Justice Abe Fortas stated that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The students’ symbolic protest against continued military action in Vietnam and their efforts to influence others’ thinking were therefore protected by the Free Speech Clause. Although students retain their free speech and expression rights, school officials are generally allowed to enforce time, place, and manner restrictions on speech in and around the school during the academic day.606 They can also assign limited public forums, such as classrooms, to specific groups to articulate their perspectives on topics of interest.607 But peaceful political protest is protected against censorship by public officials, including school principals. The Court laid out a narrow situation in which school administrators can order students to desist from expressive behavior that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” This rule, which has been the law ever since, establishes a generally hands-off approach to students’ expression of opinions. Nevertheless, later cases have eroded the protections K-12 students enjoy to speak their minds. The Tinker Court gave much consideration to the context of school and the importance of meaningful instruction and self-expression. School suppression of speech can only be undertaken if the school is able to meet its burden to prove that the student “substantially interfere[d] with the work of the school or impinge[d] upon the rights of other students.” Merely creating audience “discomfort and unpleasantness” by expressing unpopular views is not enough for school authorities to interfere with the fundamental liberty of speech. School officials in that case failed to demonstrate that wearing armbands as statements of protest had materially and substantially disrupted school activities. The Des Moines School District could not prove that “school authorities had reason to anticipate” that students wearing politically symbolic armbands would substantially interfere with learning.

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Students retain their free speech rights at school because the marketplace of ideas requires “vigilant protection . . . in the community of American schools.” The social benefit of education Fortas had in mind is in line with Chief Justice Earl Warren’s unanimous opinion in Brown v. Board of Education that public schools awaken “the child to cultural values.”608 Expression of those values is protected against overbearing public school officials. Students accordingly retain the right to express contrarian opinions, even against school policies. Edgy and difficult conversations are standard to educational and ordinary childhood development. Furthermore, the lifelong search for meaning includes the need to stake out positions about world events. In a 1986 case, Bethel School District No. 403 v. Fraser,609 the Court began to chip away at the free speech moorings of Tinker. The membership of the Court had shifted in a direction more accepting of school authorities’ decision making. Fraser involved a high school student’s use of “an elaborate, graphic, and explicit sexual metaphor” as part of a nominating speech for a student representative. The youngest members of the audience were fourteen. Prior to the event, teachers had warned the student that if he went through with it, disciplinary actions would follow. Chief Justice Burger for the majority acknowledged the “undoubted freedom to advocate unpopular and controversial views in schools and classrooms,” but found it had to be “balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior.”610 Unfortunately, Burger provided no explanation of how the Tinker material disruption test would fit into this framework. Nor did he examine whether the two-day student suspension was needed to achieve the school’s objectives, or whether alternative disciplinary measures could have been taken. Instead, the Chief Justice recognized high schools’ broad discretion to inculcate “habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation.”611 Burger differentiated the students’ political expression in Tinker and the vulgarities used in the student’s nomination speech. The Fraser majority adopted the school’s framing of the issue but failed to take seriously the speech rights intrinsic to student government. The perfunctory acceptance of the school’s explanation on the record overlooked key evidence indicating that the means used to punish the student did not target materially disruptive behavior. Prior to landing on the Supreme Court’s docket, the court of appeals had found that, out of an assembly of six hundred students, only three reacted to the provocative gesture. What is more, a school counselor had testified at trial

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that the degree of student response was not abnormal for high school assemblies. The district court, “applying the variable test for obscenity as to high school students,” had therefore found that the speech was “not obscene” for the high school audience.612 While the Court’s apprehension at becoming an overseer of school boards is commendable, constitutional interpretation is necessary as a check against school boards’ and principals’ overstepping their role as educators. Claims of free speech infringement that survive motions to dismiss at the outset of the case, should receive heightened scrutiny evaluating both sides’ interests, the school’s punishment to achieve an educational need, and pedagogical alternatives. To provide more guidance to schools and lower court judges, the Fraser Court might have more clearly limited the holding to vulgar statements at public assemblies or at school functions with young children present; thereby, the majority might have provided nuanced recognition that not all sexual innuendo used by high school students are actionable. Following Fraser, the Court doubled down on its deference to schools in Hazelwood School District v. Kuhlmeier, where it approved pre-publication censorship of two controversial newspaper articles written by students.613 One of the stories the principal banned dealt with teenage pregnancy in the student body and the other with children of divorces. The Court’s reasoning in the case treated high school control of student speech as if it were coextensive with its control over school premises. Had the case involved an ordinary newspaper, any state prohibition against publishing them would not have passed the prior restraints of the press. Given American opposition against ideological censorship one might have expected some examination of the case through some heightened review of Tinker’s material disruption standard. Kuhlmeier was thus about whether a state entity in charge of high school students’ learning could prohibit publishing general interest stories. The holding gave principals powers to suppress investigative student journalism. The Court emphasized that “what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board,” but alongside that proposition it should have given greater weight to the student journalist’s concerns. There is good reason to believe the school’s complete censure was an overbroad response. The punishments were not narrowly tailored. The stories could have been edited and rewritten to meet the school’s objectives. The principal wanted to avoid harming the reputation of the people mentioned in the story, whom he believed were not adequately anonymized. But evidence showed that the pregnant students were not identified by name. On the other

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hand, the story dealing with divorce contained the name of a student who was upset at his parents breakup. The principal could have simply crossed it out to avoid libel liability and allowed the newspaper to go ahead with its edited publication. Kuhlmeier did quote Tinker for the proposition that students do not forfeit free speech rights at the schoolhouse gate. Indeed, perhaps contrary to Tinker, the Kuhlmeier Court gave broad discretion to schools, finding that students’ speech rights “are not automatically coextensive with the rights of adults in other settings.”614 The Kuhlmeier case failed to adequately account for the context of high schoolers’ self-expression and its balance with adolescent education. No space was given by the majority to assess the writers’ interests against the school’s countervailing concerns. The Kuhlmeier Court’s reasoning expanded the powers of schools to engage in content and viewpoint discrimination without needing to demonstrate anything more than reasonable concerns about educational environments. The majority treated student speech in school-created fora as if it were a separate lower value category of First Amendment doctrine. A succeeding case, Morse v. Frederick, was even more deferential to school administrators than Kuhlmeier. Principal Deborah Morse suspended high school senior Joseph Frederick for unfurling and displaying a large banner with, “BONG HiTS 4 JESUS.”615 Frederick had timed the stunt to coincide with the Olympic torch passing by his public high school in Alaska, knowing he’d thereby garner media coverage. Rather than displaying the sign at school, he held it up on the sidewalk across the street. When the principal ordered him to take the banner down, Frederick refused. She subsequently suspended the student for advocating the use of illegal drugs. Her administrative action punished Frederick for expressing his viewpoint on drugs. But there was a problem with her action because Frederick was not at school but on a sidewalk when he unfurled the banner. Since the time of the nation’s founding, sidewalks have been considered to be traditional public forums where, unlike on school grounds, people can freely express themselves without government interference. Based on precedent, the Court therefore might have been expected to employ strict scrutiny to analyze whether Morse had violated Frederick’s right to express a controversial perspective. That level of review would have placed the highest burden of proof on the school. Even accepting the school’s position that Frederick had displayed the sign during a school-sponsored activity, the Court might have investigated whether he had caused a material disruption at school. Absent that contextual finding, Tinker protects public commentary, parody, and public commentary.616 After all, his banner was meant in jest, rather than direct advocacy of marijuana

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consumption. Moreover, as Justice Souter pointed out during oral argument, he might have been making a political statement in favor of legalizing marijuana, but not for its use by students. Justice Stevens warned in dissent that allowing a principal to suspend the student for an “obtuse reference to marijuana,” the advocacy of which “was at best subtle and ambiguous,” was overbroad, with “no stopping point” to prevent schools from further encroaching on otherwise protected speech. Writing for the majority in Morse, Chief Justice Roberts relied on the principal’s explanation of the event rather than subjecting her official actions to heightened scrutiny. He treated the student’s statement on drugs as if it were a lower level of speech, giving little or no weight to Frederick’s interests. Moreover, the Court did not give consideration to whether there was a less restrictive alternative to suspension. Neither was there any showing of actual or even of likely material disruption at school resulting from his antic. While the Court has not overruled Tinker, the Morse case shows that it has expanded school authority to curtail student speech on politically controversial matters.

9.2 lower court review of schools In Fraser, Kuhlmeier, and Morse, the Supreme Court ruled in favor of school disciplinarians without rigorously weighing whether the adolescents had been punished for materially disrupting classwork or being involved in substantial disorder. The post-Tinker treatments of student vulgarity, school journalism, and drug advocacy are categorical rather than rigorously contextual. Each of the three treated students’ speech as it would have any other low-value categories. The categorical method of interpretation oversimplifies complex balances between speech rights and pedagogical interests. In the case of K-12 students, it resolves the conflict by deferring to school administrators, rather than weighing the value of the message and examining whether the punishment was proportional to the infraction. Some lower courts do not even offer special protection for political and social views expressed in high school. As a consequence of this trend, schools are now more at ease with doling out punishments for expressive infractions, having little reason for concern about the vindication of students’ rights. A few examples will help illustrate the fallout of the Court’s departure from Tinker’s free speech protections. In 2014, officials at the Clear Fork High School in Ohio suspended a high school senior, Jakob, for re-tweeting a message in support of an individual suing the district to decriminalize marijuana. The suspension impacted Jakob’s prospects for college scholarship, leaving a negative mark on his otherwise stellar academic and athletic records. He was the second highest scorer on his high

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school soccer team and had an A grade point average. In Staten Island, New York, a high school suspended a student for tweeting a photo of a teacher’s automobile parked by a “No Parking” traffic sign.617 Elsewhere, an eighth grader received a suspension for wearing a t-shirt supporting Army veterans, containing images of boots, helmet, and a gun, which officials found to be “violence related references.”618 Suspension at another high school was imposed on a student who wore a shirt with the “Redskins” football team name.619 Similar ad hoc administrative decisions could be multiplied, many times over, because the Supreme Court now treats some instances of student speech as being of low-value, contrary to the Tinker perspective of adolescent expression being intrinsic to the marketplace of deliberative democracy. As the doctrine stands after Fraser, Kuhlmeier, and Morse, schools can punish students for openly discussing controversial and pertinent subjects such as whether certain drugs should be legalized. And some circuits even find offcampus speech to be actionable. 9.2.1 On-Campus Speech The Supreme Court’s doctrinal shift from Tinker has loosened standards on when student administrators can restrict students’ free speech. Illustrative of this trend is Dariano v. Morgan Hill Unified School District.620 This case arose when, during a Cinco de Mayo celebration at a Northern California high school, the principal directed students not to wear certain expressive symbols on their clothes. In particular, the school prohibited students from prominently displaying the US flag on their clothes. His directive was based on past experience at the same school of interracial violence, and the principal sought to prevent new altercations between Caucasian and Hispanic students at the celebration of the Mexican holiday. During the previous six years, thirty fights between those two racial groups had occurred at the high school. A small group of students in Dariano had arrived at school wearing t-shirts, shorts, and shoes with images of the American flag. Dariano joined in on the flag protest. No fights nor incitements took place. Dariano had only been the object of mild verbal taunting about the flag decal. Upon the administrators’ requests, some students turned their shirts inside out and were allowed to go back to class. Those who refused were asked to leave school with an excused absence. Dariano’s mother decided to pull him from school that day. The question at stake was much bigger than the isolated problem before the court. The case required the circuit court to determine whether a school principal’s authority extends to suppressing student speech because of its content.

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The Ninth Circuit, which decided the case, should have applied a more contextual analysis. Instead it left the censorship of student’s symbolic expression up to the school without engaging in a heightened scrutiny analysis. The fact that the speech was political makes its limitation suspect, requiring caseby-case balancing of policy and specific context (the Cinco de Mayo celebration happening at a high school with both Latino and Caucasian students).621 A student sought to express his affinity for the United States by wearing a patriotic symbol. That by no means reduced the importance of commemorating Cinco de Mayo. But where no school disruption or likelihood of a fight materialized (much less any real fighting), the Circuit Court should have weighed the circumstances more closely, given that both groups of students had incompatible speech rights; the principal had a countervailing interest in order; the means chosen offered students a choice of action. Turning their shirts inside out or going home, however, would have effectively silenced the protestors’ message, leaving them with no alternative for expression. There appeared very low likelihood of any physical confrontation, given the very limited history of such disruption at the school. While the Tinker Court recognized that students’ political voices could not be silenced by their colleagues’ taunting behaviors, the circuit court in Dariano effectively allowed hecklers to shut down a disfavored message.622 The flag displays were treated as having low value, despite their containing an obvious political message that did not incite any material disruption. The Morgan Hill School District could only muster other students’ critical comments, such as “Why are you wearing that? Do you not like Mexicans?”623 This was similar to the scenario in Tinker, where the Supreme Court noted, “Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.”624 School is a unique context, but there too First Amendment limits prohibit administrators from adopting the heckler’s veto.625 Nonetheless, the Ninth Circuit deferred to this censorship. A heightened scrutiny standard, rather than simple rational basis review, should apply when students are silenced for expressing political messages. Yet the principal lacked any proof to show a student wearing an American flag undermined educational goals; to the contrary, the protester used counterspeech.626 In a case heard in a different appellate circuit, the trial court likewise treated student commentary about a public issue as if it were low value. J. A. v. Fort Wayne Community School,627 like Dariano, is consistent with the categorical student speech cases discussed in Part 9.1 of this chapter. In that case, a female high school student, J. A., wore a bracelet with the message “I ♡ boobies. (Keep a Breast).” Keep a Breast Foundation had created the slogan to advocate

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for women’s health. However, the school administration determined that, by wearing it at school, J. A. violated the district’s policy against student displays of terminology “offensive to women and inappropriate for school wear.” The punishment was meted out of the context of the student’s declaration of support for women’s health. Moreover, even the judge recognized that the bracelet contained “commentary [about] social or political issues.”628 The district court nevertheless discounted the context of the symbol, giving undue weight to the school’s abstract interest. In fact, close scrutiny would have shown that the bracelet was not inappropriate. J. A. had worn the bracelet because her mother was a breast cancer survivor and the message was meant to spread awareness. The punishment suppressed content through a categorical rule. The school’s decision was a form of viewpoint discrimination, which should have triggered a Tinker analysis had it not been for Fraser’s categorical gloss. The student had tried to raise awareness for what is the highest cause of death for women, but her message warranted only rational basis review.629 Rather than rigorously examining the school’s policy and whether suspending J. A. advanced the effort to curb vulgarity at school, the judge accepted the administrators’ rendition of the material evidence. This allowed to stand the school’s suspect interpretation of J. A.’s message, “I ♡ boobies. (Keep a Breast),” as being lewd, despite its being so clearly linked to the treatment of a life-threatening disease. With First Amendment rights at stake, the district court’s approach shifted the duty to interpret the Constitution from the judiciary to school administrators. 9.2.2 Off-Campus Speech Before the digital age, the boundaries between home and school were selfevident. Today the internet has enabled students to create messages at home and direct them to the entire student body. With internet being almost ubiquitous in US primary and secondary schools, courts have had to grapple with how to address adverse school actions punishing digital postings students make from home or anywhere outside school property. Several circuit courts have extended school officials’ authority beyond the actionable student drug advocacy in Morse, empowering school administrators to punish students for off-campus statements that school officials find to be inappropriate. A case out of the Second Circuit, Doninger v. Niehoff, reflects some of the complexities courts face when balancing student First Amendment rights with school disciplinary decisions.630 The dispute arose when a senior, Avery Doninger and fellow students initiated a group email to their peers from a computer at the high school. She expressed upset at the Lewis Mills High

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School administration’s decision to delay an upcoming high school music event called Jamfest. When the school principal became aware of the email, she asked Doninger to clarify to her peers misleading statements in the email. Instead, the adolescent posted an anti-administration blogpost from home – on an independent, private website – calling on fellow students to convince the school principal and superintendent to host the event without excessive delay. Nevertheless, the court ruled the school could quell this type of offcampus protest if it is likely to reach the school community. The Second Circuit affirmed the district court’s denial of an injunction, finding that Doninger was unlikely to prevail in her First Amendment claim because she had used a vulgar statement, thereby acting contrary to the high school’s policy. Yet, the only statements approaching vulgarity were the student’s provocatively telling readers “to piss [the principal] off more” and calling women at the central office “douchebags.”631 The circuit court deferred to the Lewis Mills administrators, even though the offending statements were uploaded from a private computer, called for collective action, and dealt with a matter that impacted students’ lives. The principal, “disqualif[ied] her from running for senior class secretary as punishment for a blog entry that Ms. Doninger posted on livejournal.com.” The appeal affirmed denial of her mother’s First Amendment request for a preliminary injunction. While the Second Circuit examined the case in light of Tinker, it overlooked the simple point that most of the communication occurred off-campus. The opinion overextends a school’s interests anywhere a student makes an obnoxious comment, overbroadly expanding the school’s authority in the digital age. While Doninger’s wording was inappropriate in the context of the classroom, on balance the utterance in question was part of a broader communication that was relevant to the student body that occurred off-campus, was a form of private catharsis, and is common in high school settings, albeit usually ineffective.632 The Fourth Circuit similarly accepted school regulations of student speech made off-campus through a private internet website in Kowalski v. Berkeley County School.633 Kara Kowalski, a high school student, created a private Myspace website message board called “S.A.S.H.,” which stood for “Students Against Sluts Herpes.” Her aim was to create a space for invited guests to insult fellow student, Shay N., whom she claimed suffered from genital herpes. While the court found the “hate website” created a substantial disruption, it identified only one case of a separate student accessing the page from a school computer. Moreover, Shay N. decided not to attend school for a time to avoid the embarrassment. The circuit court upheld Kowalski’s suspension.

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The problem with the opinion is a lack of proportionality in the punishment. What would certainly be educational disruption had the statement been made at school or directly to the other student, should be treated differently when stated on fora with limited access to a small number of students. This is a critically important issue because of the corrosive nature of cyberbullying. However, Kowalski’s holding is so broadly stated as to expose student speakers to punishments for any digital posts accessible from a school computer, which encompasses practically all internet posts, including emails, that are not password-protected. That result would allow principals to punish private conversations asserted and meant to be kept to a few discrete interlocutors. The question of whether high school students who create external webpages can be held liable for online data was also reviewed by the Third Circuit, in J.S. v. Blue Mountain School District.634 In J.S., the court was not deferential about the school’s claim to be able to predict whether an offsite internet posting was likely to create substantial educational disruption. The legal dispute arose when two students used a parent’s personal computer to create a scandalous MySpace profile. It contained “nonsense and juvenile humor,” as the Third Circuit put it, including highly offensive sexual vulgarity and profanity. The students’ most offensive claim was that their principal engaged in child abuse and bestiality. The first day the profile was public, but thereafter J. S. made it privately accessible to only twenty-two friends. The principal subsequently suspended J. S. for ten days for the foul screed. There was a common law alternative; the principal could have sued the offending parties for defamation. The question in such a case might have been whether the vulgarities could have been reasonably understood to be factual, and therefore actionable, or hyperbolic, and therefore protected by the First Amendment. By categorizing the posted statements as vulgarity, rather than defamation, the principal had sought to reduce his burden of proof and augment his discretion. The Third Circuit held that “rumblings” on the internet never rose to a predictable or substantial disruption of a school activity. The court contrasted the facts before it to those in Tinker, where the Supreme Court had found the students were within their free expression rights to wear an armband to make a political statement against the Vietnam War. J. S.’s crass profile was not even made at school, nor did it name the principal or the location of his school. Arguably, the post nevertheless caused disruption because others were likely to know the principal’s identity and were briefly able to access it in public. The Third Circuit’s reliance on Tinker provides doctrinal criteria. Nevertheless, the court should have also examined the fit between the

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punishment and purpose. A message posted outside of school on the internet should ordinarily not become the object of punishment.

9.3 conflicting constitutional values in schools: the case of confederate symbols The Supreme Court doctrine first developed in Tinker established some of the predicates for contextualization. On the other hand, later cases – Fraser, Kuhlmeier, and Morse – were based on categorical reasoning without granting adequate weight to high school speakers’ First Amendment interests. As in other areas of free speech, added depth of analysis could have gotten to the heart of whether speech interests or countervailing concerns should be given precedence in the resolution of the case. The severity of punishments schools impose to achieve pedagogical goals is also relevant to determining whether schools infringed students’ speech rights. The categorical approach takes for granted that certain values, such as those against vulgarity or drug use, are the school administration’s exclusive domain. But such a cut-and-dry perspective overlooks the many contexts in which students converse, meet, organize, and learn. Heightened scrutiny is necessary for courts to better reflect on whether administrative action is a form of impermissible censorship. Given the importance representative democracy places on political speech,635 courts should review school limitations placed on student activists involved in school politics, as in Doninger, or vocal about broader political topics, as in Tinker. Yet, accountability requires effective teachers to enforce pedagogical rules. That does not gainsay the vibrancy of student expression, within and without the school house gate. This proportional recognition of school interest and student rights relies on intermediate judicial scrutiny in matters of traditionally protected speech. Student interests, on the other hand, are at their highest when they exercise core First Amendment values, such as politicking for the student counsel, artistry, or informativeness. Special concerns about adolescents’ sensitivities and the needs of education indicate that even political speech on speech should receive something analogous to intermediate scrutiny balancing. That is not to say judicial deference to rational school decisions is inappropriate in setting neutral time, place, and manner restrictions on classes or where the school is punishing a student for conduct rather than expression. And students make mistakes, so false speech certainly could not be made actionable. Some student speech, on the other hand, such as defamation and fraud, is unprotected at schools, just as it is in the wider society. There are also certain forms of regulations on which the efficiency of education operates, such as maintaining discipline and choosing lesson plans about which, short

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of explicit constitutional issue, courts lack expertise. School interests are at their apogee when the punished conduct falls outside the purview of the First Amendment, such as incitement, copyright violation, or defamation. A rational burden of proof also applies to threats, bullying, or slurs hurled at schools and school activities. Classroom environments especially require educators to retain control against unnecessary disruptions and mischievous behaviors. There is also a necessary, traditional hierarchy for teachers to impart knowledge, principals to administer rules, and students to learn.636 The need to maintain classroom discipline does not, however, gainsay the natural desire for students to question authority, challenge accepted ideas, and articulate controversial points of view. Exercising their expressive urges can manifest as youthful challenges to the legal order, such as it did in Morse v. Frederick, where a principal suspended a student for humorously questioning the illegality of marijuana. In that case, the Supreme Court did not even bother to reflect on whether the political nature of drug-related protest should have been handled through some intermediate balancing formula involving student speech and school drug policy. The very fact that the speech occurred across the street from the school, on a sidewalk, should have warranted strict judicial scrutiny against school censure. Instead, the Court justified viewpoint discrimination outside school but between a principal and student. A secondary school student stating a controversial view in a classroom should also be given time; although there, reasonable time, place, and manner restriction is appropriate based on school mission and educational tradition. Likewise, student events pose their own context-specific issues. In such cases, not only is a student’s desire to express herself relevant to the proportionality analysis, but judgment about the student’s age and maturity also come into play. Teachers retain discretion to exercise educational order. Effective primary school education requires rules against disruptions in the classroom. However, the further a student is from that setting the less control the school has over his or her selfexpression. Adolescents have First Amendment rights that educators can regulate according to neutral time, place, and manner rules. Each class and grade level requires a curriculum. Teacher-led instructions help children develop character, civility, and tolerance. As Professor Amy Gutmann points out, “The aim of cultivating good character authorizes teachers to respect only a limited range of values professed . . . by children. Indiscriminate respect for children’s values cannot be defended either as an ultimate end or as a tenable means to cultivating good character.”637 Nevertheless, when students express controversial views, whether about something at the level of national politics or about their own school, students’ differences with the administration should not be stymied, suppressed, or punished, but engaged, answered, and appraised.

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The school setting most resembles a limited public forum, where the Supreme Court has found restrictions have to be reasonable and viewpoint neutral.638 It is reasonable for teachers or administrators to require students to stay on topic in class, rather than disrupting fellow students. However, the First Amendment prohibits administrators from censoring students communicating unorthodox views to teachers, principals, and classmates. Yet, it was this form of censorship that the Court surprisingly found justifiable in Morse. Likewise in Kuhlmeier, the majority countenanced a principal’s decision to entirely reject news articles on pregnancy and divorce, rather than allowing students to edit the pieces and resubmit them with better anonymized content. Instead, as an expert on the law of student publications put it, the Justices have afforded “extraordinary deference . . . to administrators in managing school affairs” and demonstrated “relatively low value afforded to the speech of young people.”639 Proportionality in the treatment of student autonomy and discipline should recognize adolescents’ expressive vibrancy as they evolve into adults during the high school years.640 Educational disruption from threats made on playgrounds641 are distinct from the communication of controversial sociopolitical subjects.642 Speculation about the possibility of disruption or even advocacy for the legalization of drugs are insufficient reasons to abridge speech in settings meant to expose high schoolers to democratic deliberation, tolerance, information, free thought, wisdom, and alternative perspectives. The judicial trend is to overemphasize the need for school authority over the value of student free expression. In cases where pedagogical needs and student speech conflict, courts should balance them in the context of specific facts, educational efforts to avoid material disruptions, effective efforts not aimed at stifling perspectives, and alternatives for communications.

9.4 conflicting constitutional values in schools: the case of confederate symbols The controversy over confederate symbols in schools offers a case study in balancing constitutional principles. Schools in the United States sometimes confront tensions of how to address students wearing Confederate logos or symbols from other racist regimes. These cases involve two competing constitutional claims based on the First and Thirteenth Amendments. At other times, the balance is between free expression and anti-harassment norms. In those circumstances, the nation’s post-slavery experience with reconstruction can be a determining factor.

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Confederate era symbols can refer to the effort to secede from the union during the US Civil War in order to preserve slavery and involuntary servitude. When displayed in the marketplace of ideas, the symbol can be historically valuable. However, when worn by students, its message can be highly offensive and legally harassing. Cases dealing with the issue involve school prohibitions against students wearing logos with the Confederate flag.643 The Confederate battle flag communicates a variety of meanings, including support for Southern hospitality, state rights, southern secession, and slave culture. Segregationists of the mid-twentieth century waived the Confederate flag at demonstrations to express violent opposition to implementing Brown v. Board of Education’s holding that separate-but-equal public school education violates the Equal Protection Clause.644 School staff exercise their authority to determine whether a Confederate display in particular context is likely to harass others. The Confederate Constitution explicitly guaranteed slavery.645 Student advocacy of slavery, involuntary servitude, and its connected oppressions is likely to create an environment that is substantially disruptive to educational programs.646 Several circuit courts have upheld public school decisions to punish or suspend students who wore Confederate symbols.647 Courts hearing these cases typically demonstrated sensitive comprehension of how such historically loaded symbols can cause educational disruptions. But litigants and judges consistently miss the relevance of the Thirteenth Amendment to their resolution. For instance, the Sixth Circuit Court of Appeals in Defoe v. Spiva upheld a Tennessee school board’s ban against wearing the Confederate flag at school.648 The majority reviewed the board’s determination that a school with decades of racial tensions had valid reason for prohibiting disruption and material interference with school activities from the display of “controversial racial and political symbol.”649 Yet the decision failed to identify that the public school’s countervailing Thirteenth Amendment obligation was implicated in addition to the student’s First Amendment rights. In Defoe, the Sixth Circuit should have clarified how schools, their boards, and teachers can create narrowly tailored methods for distinguishing students’ use of Confederate symbols for advocacy as opposed to historical content. The opinion’s argument is framed only in terms of existing exigencies at a particular school. A more comprehensive rationale should have explained that Confederate symbols are part of a discriminatory culture, where slavery and racism were the social, political, and legal norm. The school’s duty stems fundamentally from the Thirteenth Amendment. Furthermore, Title VI obligated it to prevent the severe harassments of hostile expressions directly

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referring to a badge of slavery. If a case made it to the free Court it would be good for the Supreme Court to unequivocally identify the Confederate flag with its racist past. Given the constitutional basis for restricting Confederate symbolism, this is one of those rare cases in which government may have a compelling reason to design a narrowly tailored rule for children in primary schools. School decisions to prohibit the wearing of other symbols of systematic oppression and slavery, such as the Nazi swastika or the Soviet hammer and sickle, also carry profoundly harassing messages, but are beyond the scope of this chapter.650 A restriction against otherwise political content, say support for the antebellum South and its pro-slave ideology, is often linked to advocacy of discrimination, oppression, and violence. A totality of circumstance assessment should work to recognize the content of its message. The Confederate battle flag trumpeted a call to arms, to protect the institution of slavery and racial subordination.651 Human bondage was not the only evil of slavery. In the Old South, blacks were also denied an education and even prohibited from learning to read.652 The Confederate flag, therefore, is also a statement against equal, desegregated education.653 The Thirteenth Amendment applies to public and private actions.654 The Supreme Court has found the Amendment relevant to school cases;655 however, the Justices have never balanced its principles against those of the First Amendment. In an effort to advance racial tolerance and inculcate the antidiscrimination values of the Thirteenth Amendment,656 school administrators may find that putting the Reconstruction ideals into practice requires prohibiting students from wearing Confederate t-shirts or flying Confederate flags on school grounds or during school activities.657 Rather than directly address the constitutional issues Confederate symbols in schools raise, however, lower courts tend to rely on neutral criteria, presumably seeking to avoid finding that bans on Confederate symbol are viewpoint discriminatory. The Fourth Circuit, for instance in Hardwick v. Heyward, heard a challenge to a South Carolina school district’s dress code. Its provisions prohibited wearing “anything . . . deemed to be offensive,” such as drug advocacy or alcohol advertisements.658 The policy did not list Confederate symbols, but school officials nevertheless understood it to cover them.659 Following an inschool suspension for wearing a t-shirt with a Confederate symbol, a student’s parents brought suit on First Amendment and Equal Protection grounds.660 School officials answered that the policy and disciplinary measures were needed because of the symbol’s likelihood to disrupt learning in light of past

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racial conflicts at school. As with Defoe, the Hardwick circuit court relied on Tinker, finding that “school officials could reasonably forecast that all of these Confederate flag shirts” the student had worn “would materially and substantially disrupt the work and discipline of the school.”661 Officials were not required to wait until there was an actual disruption but could “reasonably forecast” its likelihood and act accordingly. The court did not treat the school regulation as a categorical limitation on low-value statements, as in Dariano and J.A. v. Fort Wayne Community School; instead, the Fourth Circuit used a version of contextual analysis proposed throughout this book. The Hardwick court acknowledged that school officials can apply historical knowledge of the meaning of the Confederate symbols to create a policy fit for the educational environment. This was not an ad hoc method, but one rooted in constitutional history. The court in Hardwick was on the right track to review conflicting speech and educational reasons by relying on circumstantial and historical reasoning. The Supreme Court of the United States has since the late-nineteenth century held that Thirteenth Amendment authority extends to badges of slavery and involuntary servitude.662 The Hardwick circuit court opinion might have gone further to more fully lay out the history of the Confederate flag and its likely effect on the general welfare of a student body being taught to interact with a racially pluralistic world. This would have been consistent with Virginia v. Black’s discussion of cross burning. A clearer historical analysis would have allowed the Hardwick court to find the school’s dress code policy neither overbroad nor vague. But the Court entirely overlooked the relevance of the Thirteenth Amendment in ascertaining the validity of the school’s arguments for restricting student’s speech. Interracial tranquility from the badges of slavery arguably is a compelling interest to enforce at schools. Contextual balancing of constitutional interests can help schools maintain educational environments where such a powerful symbol of slave power in America will not denigrate students. Elsewhere the Supreme Court has found history to be relevant to interpretation of anti-discrimination laws.663 Some scholars have warned against the banning of Confederate symbolism at schools. Professor Catherine Ross, for example, believes Confederate flag displays should be treated as any other political speech under the Tinker standard. From her perspective, “What the Confederate flag meant to those who waved it in the late 1860s might not be what it means to individuals who display it have a century later.”664 Ross brings to mind the importance of context, as not all Confederate displays are likely to be harassing. Some may, for instance, appear in history text books. Tinker – coupled with means/ends

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analysis, historical perspective, and alternative modes of communications – set a proportional model for analysis that can be tested against facts at the school. Thus, the material disruption standard here, as elsewhere, helps prevent the heckler’s veto restriction from empowering hypersensitive students from shutting down debate, while allowing school administrators to maintain discipline.665 Where we differ is in her suggestion that Confederate flags should be protected at schools without reflecting on their cultural content. Having been an ensign to those who fought to maintain and spread slavery, its pedigree is inextricably tied to a war fought to maintain a racist system of labor and social hierarchy. It was, after all, the battle standard of those who fought against the Union to maintain racial subordination and slavery. Even its political connection to the states’ rights movement is one that has historical ties to those who defended the institution of slavery and segregation that followed. Confederate symbols are protected when displayed in school textbooks, historical posters, or presented or incorporated into some other educational setting. But displaying the Confederate Battle Flag for non-historical purposes can cross into harassment and should be reviewed on a case-by-case basis. Children of secondary school age are captive audiences to symbolism; they have no choice but to roam hallways with fellow students and to attend assigned classrooms. Therefore, public school administrators have reason to prohibit symbols depicting a badge of slavery or involuntary servitude. The Thirteenth Amendment problem arises when Confederate symbols appear on t-shirts, are drawn or hung on lockers, are printed in school newspapers, and used to advocate racist ideologies. It is then that constitutional balancing should weigh school interests against those of speakers to glorify a symbol of racist slavery.

* Rather than engaging in proportionality analysis, recent Supreme Court decisions have been deferential to school authorities in cases challenging punishments of students who made controversial social and political comments. This deference has increasingly extended to suspensions for statements made outside school hours and premises. This reduced judicial protection of First Amendment rights diminishes the rigor of judicial review in censorship adjudications. Post-Tinker the Supreme Court has found unworthy of First Amendment protections the advocacy of marijuana, discussions about divorces and pregnancies in a school newspaper, or stray vulgar remarks. Many schools have taken the Court’s repressive lead further, into the realm of digital social messages that students send

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from off-campus computers. These methods all tend to chill student communications about matters rich in First Amendment concerns, such as those expressing critical views about student government, school events, community needs, and self-maturation. A contextual review would minimize that chilling effect.

10 On the Campaign Trail Money and Politics

Corporations and wealthy individuals exert disproportionate influence on US federal and state politics. Four decades of precedents have eroded campaign financing regulations. High-end donors expect invitations to join politicians at dinners, fundraisers, and meet-and-greet events. Money, as a means to access the halls of power, dominates US campaigns at all levels of politics, from national to local elections. And the rush to reap financial support is not confined to either of the major political parties. Relying on a categorical approach in the campaign financing area and being unwilling to weigh competing legislative interests and their effectiveness, the Supreme Court has steadily overturned expenditure and contribution limits. A series of cases have relied on strict scrutiny analysis to stymy legislative efforts to advance limits on money in politics. In the 1976 Buckley v. Valeo case, 666 the Court prevented federal and state governments from passing laws restricting personal campaign expenditures. That opened a path, in 2016, for Donald Trump to use his personal and family largess to successfully run for presidential office. Here, as throughout free speech law, the rights of speakers, countervailing government concerns, means/ends analysis, alternatives for regulation, and history and tradition should play proportionate roles in court analyses. The Court’s current methodology, which equates speech and money, has struck legislators’ carefully crafted efforts to secure fair campaigns, where ordinary voters dominate elections rather than corporations and especially wealthy individuals. Lack of adequate deference to legislative actions advancing civic participation leads to outcomes that in recent years have been fatal to federal policies crafted to limit plutocratic wealth from overtaking representative democracy. Even accepting the need to closely scrutinize laws that limit campaign contributions and expenditures, compelling legislative interests exist for regulating the fair and equal administration of elections. Other scholars, such as Burt 157

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Neuborne, have said that, “[F]ostering equal political participation is a sufficiently compelling interest to justify some regulation of campaign spending.”667 Balancing is “constant across the board” in free speech doctrine.668 Yet, for over four decades, the Court has steadily and categorically overturned federal and state statutes that had been crafted to prevent corruption, the appearance of corruption, or wealth inequalities from eroding ordinary voters’ confidence, participation, and engagement in elections. As Justice Stone long ago recognized, in his famous fourth note to United States v. Carolene Products Company, both claims to vindicate speech and to protect representative democracy require close judicial scrutiny.669 Where these interests conflict, a proportional balancing of interests is necessary. The Court’s increasingly absolutist interpretations of the Free Speech Clause favor spenders and contributors over the policies designed for the fair administration of elections. This is a classic form of Lochnerizing: Relying on judicial supremacy to limit democratic governance for the general welfare. Wealthy individuals can now contribute an unlimited aggregate amount to unlimited numbers of candidates so long as they do not exceed maximum dollar amounts per office seeker. Ordinary voters have no way to keep up with the spending to curry political influence. Not only does the Court’s absolutism amplify the political voices of a few elites, it does so at the expense of ordinary citizens who can neither compete with the scale nor breadth of influence enjoyed by major campaign contributors. The integrity of the electoral system rides on the principle that each voter is as valuable as the next.670 With a thriving market of campaign contributions, wealth has fed public fears of influence-buying of politicians. Plutocracy and oligarchy have likewise made notable gains under the Court’s formalistic and libertarian interpretation of the First Amendment. Candidates set contribution minimums for persons seeking special access at meet-and-greet receptions, fundraising dinners, and other special access events.671 In the most recent decisions on this issue, Justice Kennedy took the majority position that these exclusive events are ordinary and healthy for the running of democratic elections. On the other hand are commentators, like Professor Ganesh Sitaraman, who argue that special access to candidates runs afoul of the essential conditions necessary to a vibrant constitutional democracy. In the United States, wealth plays a disproportionate role in politics, with corporations and wealthy individuals expending vast amounts of money for political gain. Affluent contributors disproportionately shape public policymaking by having more access to politicians because of how much they contribute to political campaigns. Sitaraman goes so far as to argue that “a government pervasively captured by wealthy elites is not

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a constitutional democracy or a republic. It is better described as an oligarchy or plutocracy.”672 Supreme Court jurisprudence has placed significant barriers to passing campaign financing laws aiming to advance equal participation and voter confidence in popular elections.673 Majorities consistently champion the need for information, thereby invoking the First Amendment value of the marketplace of political ideas. Following the holding in Buckley, the Court repeatedly downplayed countervailing values embedded in the Fifteenth and Nineteenth Amendments.674 Moreover, it has become settled doctrine that efforts to equalize campaign funding is ab initio unconstitutional, a nonstarter.

10.1 campaign financing law: burger court The Supreme Court set in motion the categorical approach to campaign financing laws in Buckley v. Valeo.675 The case reviewed the constitutionality of various portions of the Federal Election Campaign Act of 1971 (FECA), as it had been amended in 1974.676 The case distinguished between independent expenditures by candidates and contributions to them. 10.1.1 Unlimited Expenditure First, the Court recognized that campaign financing laws implicate “fundamental First Amendment interests” of communicating political views. It then took a less obvious step, equating a person’s ability to use money to voice opinions with the general freedom to express them. Specifically, the per curiam Court found that because “expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.”677 Thereafter, Congress could not limit the amount of money people spent on their own campaigns or spreading support for issues helpful to others’ candidacies. The need to protect political speech is the dominant theme from Buckley, which ruled that persons have the liberty right to express their ideas by expending funds, without government interference. The Buckley opinion equated political speech with money spent to disseminate it. Contrary to that opinion, several commentators argued that “money . . . is not speech,” analogous to property, draft card burning, or camping on federal property.678 The Court gave no serious consideration to Congress’s counter purpose of seeking to diminish the influence of plutocratic and oligarchic politics. “Virtually every means of communicating ideas,” the

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majority found, involved “the expenditure of money” in modern “mass society.” Therefore, limits on expenditures intruded into an actor’s right to engage in political expression and thereby “restrict[ed] the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Thus, the Court held that limits on expenditures exert “substantial rather than merely theoretical restraints on the quantity and diversity of political speech.”679 Because of this, the Court subjected the expenditure limitations to the exacting scrutiny applicable to core First Amendment review. The Buckley Court did not give adequate weight to the government’s constitutional obligation to maintain political parity, in which each person’s vote counts as one among a nation of equals. Other democracies are not as categorical in regulating expenditures. France, for one, has placed an expenditure cap of “€16,166,000.00 for the first ballot, and €21,594,000.00 for each of the two candidates present at the second ballot.”680 French courts have historically deferred to legislatively enacted expenditure limits. Unlike the unlimited independent spending allowed in the United States following the Buckley decision, “French law has the power to significantly limit campaign expenditures to prevent the appearance of corruption.”681 Israel, the United Kingdom, and Belgium also place ceilings on election expenditures, while Germany and Australia do not.682 The British Parliament caps expenditures whether they promote “the success of an individual candidate or the success of the party itself.”683 Campaign limits also exist outside the EU in places as diverse as Chile and South Korea, which, unlike the United States, have found the benefits to fair elections outweigh the interests furthered when unlimited campaign expenditure is permissible.684 The resilience of democracies around the world with campaign expenditure limits call into doubt the United States Supreme Court’s conclusions that expenditure limits undermine electoral interests in obtaining meaningful information. On balance, many democratic countries prefer fair elections to unrestrained expenditures, recognizing the corrosive power of unlimited money in politics. The Buckley Court erred in categorically relying on exacting scrutiny to elevate speech above campaign fairness, without adequately weighing the compelling reasons behind Congress’s countervailing determination that political expenditures have, from the nation’s founding, had a corrupting effect in American politics. The suggestion to use proportional analysis to assure equitable campaign limits is consistent with democratic practices around the world.685 In his partial concurrence and dissent to Buckley, Justice Marshall appealed to the common sense that “the wealthy candidate’s immediate access to

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a substantial personal fortune may give him an initial advantage that his less wealthy opponent can never overcome.” In a separate partial concurrence and dissent, Justice White was more expositive. He believed the Court should have been deferential to Congress’s finding that expenditure limits also prevent “corruptive potential.” White believed the Court overstepped its authority in striking down a provision passed by legislators, among whom were “many seasoned professionals who have been deeply involved in elective processes and who have viewed them at close range over many years,” in order to “equalize access to the political arena.” The statutory intent was to advance electoral justice by preventing an “overpowering advantage” going to candidates with disproportionately large campaign coffers. As White explained, when a supporter contributed or expended large amounts of money to directly support a campaign, “the candidate could scarcely help knowing about and appreciating the expensive favor.” Hence, he believed, scrutiny should be limited to whether expenditure limits “serve . . . legitimate and sufficiently substantial” statutory purposes.686 Without any limits on expenditures, he continued, the public would tend to think money was the primary driver of election outcomes.687 10.1.2 Contributions by People and Corporations In contrast to its holding on expenditures, the Buckley Court found that contributing money did not signal support for any particularized message because it is candidates and their campaigns who convert general contributions into specific messages. Thus, donations do not constitute core speech and some limits on giving to candidates and their campaigns are valid. Therefore, rather than exacting scrutiny through which it viewed regulations of expenditures, the majority used “closest scrutiny” to decide that restrictions on large financial contributions can “limit actual and appearance of corruption.”688 While the Supreme Court determined that excessive spending limits can severely curtail candidates’ abilities to effectively advocate for their positions, the limits on contributions did not similarly impact political speakers and associations. In passing, the majority in Buckley also acknowledged the legitimacy of protecting democratic institutions by outlawing quid pro quo abuses. Bribery is only the “most blatant and specific attempt” to exploit “money to influence government action,” but certainly not the only means of corrupting politics. Buckley relied on mechanical formalism to categorize the case as dealing only with speech, rather than balancing it with the government’s interest in advancing electoral integrity by regulating the uses of property. Subsequent

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cases focused on free speech, without giving close scrutiny to how narrowly tailored campaign financing laws promote self-government concerns.689 In First National Bank of Boston v. Bellotti, the Court rejected a state’s ability to treat corporations differently than natural persons.690 The majority opinion, written by Justice Powell, a longtime advocate for corporate interests, asserted that by preferring natural speakers over an incorporated speaker Congress gave “one side of a debatable public question an advantage in expressing its views to the people.” The majority went on to create an almost insurmountable standard for evaluating whether corporations exerted an “undue influence” on the political process. It would require demonstrating that “corporate advocacy” will “imminently . . . undermine democratic processes.”691 As Professor Carl Schneider points out, by reflecting on campaign financing exclusively through the lens of the First Amendment, Bellotti overlooked “other elements of constitutional jurisprudence which speak to the place of corporate power in a democracy.”692 Corporate speech is not simply political but asserted to advance a corporation’s business aims; without proportional limits those interests may corrupt the nation’s republican government.693

10.2 campaign financing law: roberts court 10.2.1 Corporate Expenditures Bellotti’s expansion of Buckley’s principles as applied to corporate interests gained momentum in 2010, when the Court issued its landmark Citizens United v. Federal Election Commission decision.694 The Court’s opinion in the latter case was formalistic, treating all speech alike, whether it came from citizens or incorporated businesses. The Court refused to adopt an “interpretation that requires intricate case-by-case determinations to verify whether political speech is banned.” Instead, it treated corporate statements about politics the same as that of natural persons expressing views in favor of a candidate or party. The majority boldly asserted “the First Amendment stands against distinguishing among different speakers, allowing speech by some but not others.”695 That claim overlooks cases where the Court takes very seriously differences between litigants such as libel cases – New York Times Co. v. Sullivan,696 Gertz v. Robert Welch, Inc.,697 and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.698 – that differentiate public and private figures. Rather than undertaking a nuanced analysis of corporations and how they differ from voters, the Court was satisfied with a categorical statement. Moreover, rather than closely scrutinizing the record to determine whether the distinction between corporate and natural citizens matters for

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administering fair elections, the opinion, written by Justice Kennedy, took for granted the parity between artificial and real people, reminiscent of Lochner era judicial supremacy. Citizens United reviewed the constitutionality of the Bipartisan Campaign Reform Act of 2002 (BCRA), containing amendments to FECA. It found the law’s different treatment of human and corporate speakers to be unconstitutional. The updated statute barred corporations and unions “from using their general treasury funds for express advocacy or electioneering communications.”699 The Kennedy majority held that Congress lacked a compelling interest for that restriction. This decision reversed a 1990 Rehnquist Court ruling that had found the government did, in fact, have a compelling reason to prevent “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.”700 Instead, the Citizens United opinion prioritized the importance of disseminating information – even when the speaker’s primary motive was profit–ahead of Congress’s reasons to differentiate between artificial persons and voters. The Court concluded that for First Amendment purposes it does not matter whether campaign expenditures come from individuals, associations, or corporations. For the majority, at stake was the universal liberty to communicate ideas about elections. As the Citizens United Court put it, “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”701 In addition to considering policy regarding the free flow of information in the marketplace of ideas, the Court should have identified and weighed the distinction between corporate entities and natural persons. Only the latter can vote in a democracy, run for political office, and associate as equals under the law, and so, the logical conclusion, is that humans and corporations should be treated distinctly by campaign financing laws. The majority’s formalistic use of the speech category to the exclusion of other constitutional considerations led to strict scrutiny only for First Amendment concerns, whereas the majority entirely ignored the exclusively human interest in politics.702 Access to information is not only a political right, but it is also personally meaningful. It is essential to self-governance that public discourse include divergent views. But natural people have long been treated differently than corporations. For one, the people are the source of governmental power.703 Chief Justice Marshall’s maxim in M’Culloch v. Maryland deals with natural born citizens, not legally created corporations: “The government of the Union is a government of the people; it emanates from them; its powers are granted by them; and are to be exercised directly on them, and for their benefit.”704 Corporations enjoy the privileges of limited

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liability. But they lack basic political rights: They cannot hold political offices, vote in general elections, nor participate in juries. Legislatures can therefore regulate them in ways that they cannot regulate private citizens.705 Unlike many nonprofit associations, for-profit corporations are formed to amass capital and earn profits, rather than “formed to disseminate political ideas” of likeminded voters.706 Justice Kennedy’s formalism makes his opinion inadequately nuanced as to the effects of corporate spending on representative democracy. His opinion in Citizens United fails to mention that for-profit corporate form is made for wealth acquisition, not politics. The majority’s focus on voters receiving unfettered information ignores the difference in political statuses of natural persons who can exercise the franchise and artificial ones that cannot. The majority in Citizens United relied on strict scrutiny to second-guess Congress’s decision to prevent the appearance of electoral corruption by limiting spending of unions and forprofit corporations. Unions are in fact expressive organizations with natural person associates, but for-profit businesses are wealth-maximizing, artificial entities. Judicial supremacy, practiced in this instance under the guise of strict judicial scrutiny, beat back bipartisan legislative policy. Justice Kennedy’s opinion was categorically libertarian in its approach to the First Amendment. Kennedy was formalistic and made no effort to evaluate the legislative trade-offs between the First Amendment and free and open election campaigns. Not differentiating corporations from natural people, he championed an enlightened and self-governed audience capable of thinking for itself, without giving any credence to arguments of unfairness resulting from the vastly larger treasuries businesses can tap to sway voters.707 The legislation, the majority wrote, disadvantaged classes of persons wanting to exercise their right to free speech. The Court might have, instead, weighed evidence as to whether the chosen rules were likely to prevent corruption and its appearance in politics. It might have looked to other representative democracies for advice. To the contrary, the justices ordered a hearing on the constitutional issue, even though the original complaint only presented a statutory claim.708 Citizens United had dropped the constitutional claim even before the district court’s final judgment, and its petition for certiorari was silent about it.709 Itching to review the constitutionality of the statute – some might say seeking an opportunity to champion the corporation’s interests against the statute – the Court itself ordered litigants to brief the First Amendment issue.710 Congress passed the BCRA to advance the Buckley Court’s insight, “not to abridge, restrict, or censor speech,” but “to facilitate and enlarge public

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discussion and participation in the electoral process, goals vital to a selfgoverning people.”711 The Citizens United majority focused on corporations’ facility to disseminate information and audiences’ benefit from it. But the majority turned aside weighty considerations about how corporate structure, mission, and immunity can taint the fairness of elections. In an earlier holding, Austin v. Michigan Chamber of Commerce, the Court had been more comprehensive in its evaluation, finding that Congress’s constitutional power to safeguard federal elections extends to legislation against “the corrosive and distorting effects of immense aggregations of [corporate] wealth . . . that have little or no correlation to the public’s support for the corporation’s political ideas.”712 An additional Supreme Court case held, along the same lines, that a statute could limit corporate expenditures from general treasury funds, which were amassed for economic successes rather than for public benefit.713 This applies to for-profit corporations, but not to nonprofit organizations, like political organizations or labor unions, incorporated to express policy concerns and to influence voters and legislators.714 In Citizens United, casting aside the stabilizing principles of stare decisis, the majority held that government restrictions on corporate political speech was not narrowly tailored. Justice Kennedy’s decision refused to defer to Congress, despite the extensive congressional findings that corporate expenditures from general treasury funds distort eligible voters’ abilities to influence the political process.715 The Court might have found that the BCRA already vindicated the informational interest it rightly emphasized as the statute did not bar corporations from free and open political speech; instead, it required that such advocacy be paid from funds separate from the general treasury.716 Under that scheme, shareholders and corporate officers could contribute to political action committees (PACs), created to express political views. But the amount then available for the business to engage in political advocacy was only a fraction of its general budget.717 By treating expenditures of corporate and individual voters alike, the Supreme Court shielded a system of electioneering where multibillion dollar, artificial persons can outspend ordinary people.718 In the partial concurrence and partial dissent to Citizens United, Justice Stevens argued that Congress passed the BCRA to minimize corporate speech that would otherwise “conflict with shareholders’ personal convictions.” Most importantly, Stevens wrote, the regulation diminished the danger of corporations distorting the public debate by “drowning out . . . noncorporate voices” and, thereby “diminish[ing] citizens’ willingness and capacity to participate in the democratic process.”719 In his dissent to a different case, Justice Stevens asserted:

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It is quite wrong to assume that the net effect of limits on contributions and expenditures—which tend to protect equal access to the political arena, to free candidates and their staffs from the interminable burden of fund-raising, and to diminish the importance of repetitive 30-second commercials – will be adverse to the interest in informed debate protected by the First Amendment.720

As Justice Stevens put it in a book published after his retirement, “Unlimited expenditures by nonvoters in election campaigns . . . impairs the process of democratic self-government by making successful candidates more beholden to the nonvoters who supported them than to the voters who elected them.”721 Stevens was ready to countenance limits on corporate campaign speech because he did not believe such regulations targeted content or viewpoint. Moreover, he pointed out that even requiring government to prove it has a compelling interest would suffice to uphold the BCRA’s corporate expenditure limits, just as it had been enough in a previous case that upheld a state’s compelling interest to limit how close to polling stations persons could canvas for votes on the date of elections.722 Limits on corporate spending are also consistent with judicial recognition of the government’s power to restrict foreign citizens from “mak[ing] expenditures expressly advocating for and against the election of candidates in US elections.”723 Businesses incorporated in any of the United States could be (and many are) managed by foreigners. The Court in Citizens United rejected the balance between the “problem of large campaign contributions . . . where the actuality and potential for corruption have been identified” and the First Amendment’s guarantee that government will leave “persons free to engage in independent political expression.”724 The Court’s categorical approach to free speech, which relies on strict scrutiny to analyze all expressions, including corporate statements, except when they fall into a few judicially defined categories, gives insufficient weight to Congress’s aim to advance electoral integrity. For the Court, Citizens United was a cut-and-dried case that vindicated a for-profit associational entity’s right to assert political perspectives to the public by expending funds from its general treasury funds. The Court gave no serious consideration into the enormous spending inequalities Congress had sought to curtail. The majority narrowed Congress’s ability to root out corruption and the appearance of corruption in politics just as readily as the Lochner Court limited legislators’ powers over safety and welfare.725 Thereafter, the Court has deployed its libertarian approach to prevent states’ from setting campaign expenditure limits. Two years after deciding Citizens United, the Roberts Court found unconstitutional a state’s restrictions on

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corporate spending. In American Tradition Partnership, Inc. v. Bullock, the Court struck down a Montana regulation against corporate “expenditures in connection with a candidate or a political committee that supports or opposes a candidate or a political party.”726 The per curiam opinion of six out of nine justices, found that the statute violated a corporation’s First Amendment right by enforcing the law in the absence of a compelling state reason. At oral argument, Justice Sonia Sotomayor, who later joined the dissent, pointed out that “the Court imbued a creature of State law with human characteristics.”727 The Court, on the other hand, was adamant that corporate spending was as indispensable to electoral politics as real people’s expenditures on selfgovernment. The majority’s analysis in American Tradition Partnership was disappointingly formalistic because the State’s countervailing concern for electoral fairness hardly registered with the majority. The unwillingness to consider the difference between the political worth of for-profit and natural human speech ignored an ancient intellectual tradition, without so much as recognizing its insights. The difference existed already in Plato’s time, who in the Symposium has Socrates state: [T]o speak or to hear others speak of philosophy always gives me the greatest pleasure, to say nothing of profit. But when I hear another strain, especially that of you rich men and traders, such conversation displeases me; and I pity you who are my companions, because you think that you are doing something when in reality you are doing nothing. And I dare say that you pity me in return.728

Self-expression differs from advertisement by “rich men and traders.” The Court is so libertarian in striking campaign contribution limits that it does not closely balance government’s compelling interest in enacting laws to check corruption and its appearance from harming equal representative selfgovernance. Rather than keeping intact compelling congressional policy to narrowly limit corporate campaign expenditures, the majority acted like a Platonic guardian. Its Article III review authority was stretched to striking representative government’s collective decision to limit money in politics. Intrinsic to the notion of civic personhood and equality, which are arguably inalienable rights under the Declaration of Independence, is a notion that governance is for the people, the natural, living people, not artificial corporations. A government created by consent of the people, as it is set out in that penumbral constitutional document of 1776, created a federal nation with the purpose of securing a more perfect union for individuals to pursue happiness and advance their inalienable rights. The nation was founded by and through

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natural people. Corporations have no inalienable rights, but only those granted by state statutes. Chief Justice Marshall made the same point two centuries ago in the Dartmouth College Case, “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence.”729 And almost a half a century ago, Chief Justice Rehnquist, added that a government setting limits on corporations’ contributions unrelated to their property interests do not infringe on their Fourteenth Amendment liberties. The nation declared independence to empower a new government whose primary purpose was to represent the people; for-profit corporations, on the other hand, are created for wealth maximization and are therefore subject to reasonable restrictions. Corporations enjoy the advantage of “perpetual life,” unmatched by the Declaration of Independence’s principle that “all men are created equal.” No for-profit corporation is endowed with the innate natural rights that informed the framers of the Declaration. Thus, corporations are entitled to fewer constitutional protections. Unlike corporations, private citizens can vote, exercise political offices, and serve on juries. In short, humans enjoy the full panoply of constitutional rights, but not so corporations. The latter do not, for example, have the Fifth Amendment privilege against self-incrimination.730 Neither can corporations represent themselves pro se in court, as can natural persons, but must appear through an attorney.731 Furthermore, a corporation’s Fourth Amendment rights do not extend to requests for relevant documents necessary for material court evidence in the exercise of judicial732 or administrative proceedings.733 Prior to Citizens United corporations were not treated as individual humans, nor even association of individuals, but as unique entities that did not enjoy the free speech rights of their shareholders. Persons and entities invest in for-profit corporations to maximize their returns, not because of a desire to join their voices in political causes. The profit maximization purpose also distinguishes for-profits from unions, whose aims are both political and strategic, or nonprofits, which are often formed for expressive purposes.734 Looking beyond corporate form, within the sphere of campaign financing, the marketplace of ideas model overlooks other values of self-governance. Corporate spending has an outsized effect on elections. In this context, policymakers have found that private actors can dominate the internet, airwaves, and telecommunication services enough to stifle ordinary people’s voices. Professor Owen Fiss points out that when power is unevenly distributed, the Court’s claim of protecting an “uninhibited, robust, and wide-open” market

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for debate often benefits the wealthy at the cost of effective, representative democracy.735 With corporate spending, market forces drive much of the public dialogue, not the natural people whose government it is.736 10.2.2 Aggregation of Contributions The most recent casualty of the Roberts Court’s free speech libertarianism was the BCRA’s cumulative aggregation limit in McCutcheon v. Federal Election Commission.737 The plurality struck down, on First Amendment grounds, congressional limits on the total aggregate amount an individual can contribute to all federal political campaigns. The BCRA already set a monetary limit unreachable for persons of average means: A person could contribute up to $123,200 each election cycle. Although the Court left untouched the monetary cap on the amount contributors could give each individual federal candidate, upending the total aggregate contributions is likely to have far-reaching consequences. Wealthy individuals are now empowered to use even more money to curry favor with an increasing number of politicians. Persons able to reach such a high aggregate contribution are likely to gain special attention from political parties and politicians. This extra attention consequently limits other constituents’ ability to contact and influence politicians and their staffs. Such grossly unequal access is likely to skew the marketplace of political ideas in the direction of a few very wealthy individuals and corporations. The McCutcheon plurality regarded the limit to aggregation to be an unfair restriction on free speech, but disregarded the countervailing public interest in preventing the appearance of corruption. The plurality, in fact, narrowly defined political corruption, recognizing the constitutionality of only those regulations that specifically target quid pro quo contributions for something specific in return. While it is impossible for all constituents to have identical access to politicians, legislation should be analyzed through rigorous contextual, balancing analyses. Although aggregate contributions do not directly affect individuals’ voting rights, nor are they a direct form of bribery, unlimited aggregation advantages wealthy donors and curries favor for their pet projects. Moreover, the greater the disparity of contributions, the more difficult it is for minority, disempowered, and indigent citizens to engage with public officials.738 Another constitutional right, intertwined with speech in the context of campaign financing, is government’s obligation to guarantee a republican form of government. Contribution limits, then, should be assessed both by how they affect speech and how they advance civic equality. In a government structured by and for equal representation,739 meaningful participation is

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indispensable. By restricting Congress’s power to passing laws against quid pro quo contributions,740 McCutcheon hamstrung the people’s representatives from experimenting with policies for securing electoral integrity. In his dissent, Justice Breyer argued that Congress could regulate any corruption that “cuts the link between political thought and political action.” The aggregation cap, he wrote, was consistent with “the integrity of our public governmental institutions.” The balancing test entered Breyer’s thinking. Unlike the majority, he did not find restraints on content to conclusively trigger strict scrutiny analysis, but to be a relevant factor in a proportional examination of speech interests and congressional aims. Facial challenges to a statute should be reviewed through a totality of the record, rather than through the fixed lens of formalism. “[A]n evidentiary record can help us determine whether or the extent to which we should defer to Congress’ own judgments, particularly those reflecting a balance of the countervailing First Amendment interests.” Congress, not the Court, he believed, was “better suited to resolve” such material issues as the extent to which “unrestricted giving lead[s] to corruption or its appearance,” how corruption manifests itself in legislative activities, how a lack of campaign financing regulation will affect “public confidence in the democratic system,” and the extent to which regulations can restore people’s trust in fair elections.741 Historical, structural, and normative concerns about corruption and the appearance of corruption make the weighing of speakers’ free speech rights against the legislative efforts to advance political integrity in elections particularly meaningful to proportional adjudication. Aggregation limits had provided “opportunity for free political discussion,” while incentivizing politicians to be responsive to the people’s general will, rather than the pet agendas of a few wealthy donors.742 The Roberts Court has continued to upend campaign finance legislation. In 2011, the Chief Justice wrote the Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett opinion, striking a state law that granted matching public funds to those office seekers running against privately financed candidates whose campaign spending exceeded a statutorily defined amount. Writing for the majority, the Chief Justice held that Arizona lacked a compelling interest to equalize campaign expenditures. The case was consistent with the previous decisions that rejected state’s efforts to level the playing field between candidates and minimize the appearance that wealthy candidates dominate elections by their money rather than the persuasiveness of their messages.743 It represents the continued erosion of legislative powers to prevent corruption and the appearance of corruption in US elections that could be better allayed by proportional judicial analysis.

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10.3 representative democracy and market priorities The Roberts Court’s jurisprudence has increasingly moved in a categorical direction, discarding nuanced policies meant to advance representative government. Upon reaching the free speech issue, the Roberts Court’s campaign funding decisions have leaned strongly in favor of audiences receiving more information without counterbalancing electoral fairness. A nation of political equals requires meaningful access to elected officials. As doctrine stands, the judiciary favors its subjective sensibilities instead of valuing legislators’ insights about the desirability and functionality of personal or corporate expenditures, aggregate contributions, and matching funds. And this comes at a time in the Court when not one of the nine sitting Justices has held legislative office. Much of this doctrine’s narrow focus comes down to a formalistic rejection of contextual considerations. And the libertarian leaning in American campaign financing impacts democratic participation. The dominant function of the Constitution, as I sought to demonstrate in a previous book, is to create a government that advances liberal equality for the common good.744 This overall aim of representative governance derives from the Declaration of Independence and the Preamble, as the nation’s primary statements of governmental purpose. Representation is critical for core, communicative public engagement. Wealth continues to play a disproportionately large role in gaining and establishing political influence over matters that inevitably affect persons of all economic classes. Stratification undermines the equality of political citizenship. Especially game-changing is the Supreme Court’s treatment of all spending alike, which has, inevitably, augmented corporate and affluent influences in a system where politicians spend much of their energies seeking contributions and channeling expenditures. Money in politics changes the focus of solicitous politicians who are under pressure to back their major donors’ concerns. Benefits disproportionately flow to wealthy contributors, whose support politicians have a special interest in obtaining. Even when money does not directly buy a vote for a specific issue through bribery, financial support in elections nudges political choices.745 Congressional agenda thereby become increasingly tied to the aims of wealthy entrepreneurs and corporate executives.746 The time politicians spend courting wealthy contributors and spenders impacts the campaign marketplace of ideas to disadvantage ordinary people, who lack the disposable income to fund a candidate, much less many candidates. Politicians are then more likely to turn their attention to corporate and affluent interests and away from average voters, who cannot be expected to provide substantial financial support.747 Thus, in claiming to be categorical in its speech interpretation, the Court has

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actually given greater weight to the concerns of persons able to infuse more money into a system, that is built less on ideas for the collective good, and more on furthering the interests of wealthy and corporate persons.748 By weakening the Federal Elections Campaign Act, the Court in Buckley, Citizens United, and McCutcheon put its thumb on the scale in favor of large spenders. In campaign financing cases, the Court’s hobbyhorse is the Free Speech Clause, but its practical effect is to handicap Congress and state legislatures, weakening their abilities to enforce policies against corruption, and its appearance, in all campaigns for public offices. The real victims of the Court’s inflexible formalism are American voters.

Conclusion

Communication is neither simply an individual interest nor an associational right. Cases in the free speech area of law are a tangle of personal and group values. Each case, as Justice Brennan wrote in his opinion in a flag burning case, Texas v. Johnson, requires “careful consideration of the actual circumstances surrounding such expression.” 749 The reach of First Amendment protections is not defined through categories in existence when the nation ratified the Bill of Rights in 1791, but through proportional analyses of speech interests, countervailing government concerns, likelihood that the regulations will accomplish the stated policies, less restrictive regulatory alternatives, doctrines relevant to adjudication, and the aspirations of a free and equal people. Instead, the Roberts Court has relied on overly-simplified categories in decisions like Citizens United v. Federal Election Commission, McCutcheon v. Federal Election Commission, National Institute for Life Advocates v. Becerra, and United States v. Stevens rather than going through a complex analysis of all private and public values relevant to the resolution of conflicting legal claims. These judicial holdings are political in substance and limit legislative initiatives through cramped understandings of federalism, privacy, audiences, public health, and harm. The Roberts Court majority, as Justice Kagan has pointed out, has turned the First Amendment into a judicial weapon against legislative efforts to protect individual rights and advance general welfare through economic and regulatory policy.750 The Court aggressively wields the First Amendment to strike legislative priorities, in a manner reminiscent of the Lochner era’s preference for personal autonomy above social policy. A balance of values – speech rights, government purposes, and narrowly tailored laws – must provide the context for interpreting cases challenging restrictions on communications. Instead, the Court repeatedly demonstrates preference for commercial vendors over government regulators, by 173

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automatically elevating the value of speech above other public policy concerns – such as the Court’s rejection of consumer privacy law in Sorrell v. IMS Health, Inc. in favor of corporate free trade in personal data about health. “Speech,” as Kagan went on to say, “is everywhere – a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices.” In another opinion favorable to business, Janus v. AFSCME, the Roberts Court struck collective bargaining, labor laws. More comprehensively reasoned are cases, like Carpenter v. United States, that balance the need for information, risks posed by its disclosure, the statutory scheme used to limit communications, and other methods available to the authorities. In Carpenter, the Court held that the Fourth Amendment requires a state to get a search warrant before gaining access to seven days’ worth of cell phone site data that law enforcement agents had used for a criminal investigation. The Court balanced the interests of law enforcement and those of individuals, finding that “allowing government access to cell-site records contravenes that expectation [of privacy].” The Court was keenly conscious of evidence that “seismic shifts in digital technology” required some limit on government’s ability to clearly surveil an individual to so great an extent as to breach their “reasonable expectation of privacy in the whole of his physical movements.” The case signaled the willingness to go beyond the framers’ understanding in 1791 to a more holistic reflection on data distributed through a digital marketplace of ideas where “memory is nearly infallible.” The contextual method this book calls for is not novel. Proportional analysis of constitutional values is the staple of democracies throughout the world. As Professor Vicki Jackson has pointed out, proportionality offers “some hope for more careful, and open, reasoning about constitutional values.”751 The contextual approach to balancing that seems foreign in the United States is used for constitutional review in Israel and is also the governing standard of the European Union.752 Proportional analysis is also regularly used in countries as diverse as Canada, New Zealand, South Africa, Estonia, Iceland, Monaco, and Germany. Canadian judges, for example, rely on proportional analysis “to enforce the ‘reasonable limits’ prescription of Article 1 of the Constitution Act.” And in South Africa, the Constitutional Court adopted proportionality “as an overarching principle of rights adjudication.”753 Proportionality is also the method suggested by Justice Breyer’s concurrence in Reed v. Town of Gilbert. His statement came in opposition to the majority’s categorical statement on content regulations that has been critiqued throughout

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this book. Yet, any explicit resort to balancing rarely appears in US free speech opinions. This is unfortunate because it diminishes the transparency necessary for understanding why certain content discrimination is not barred in laws such as those prohibiting harassments in the workplace754 or at publicly funded institutions.755 Judicial reasoning must identify the totality of the material circumstances of a case, but “traditions and the conscience of the people” also play a significant role in free speech jurisprudence.756 Justice Breyer’s proportionality test lacks that component of free speech analysis. Historical analysis can further enrich his approach to the First Amendment. Elaboration is needed for understanding why there has never been an absolute bar against restrictions on communications, despite the centrality of free speech to the efficient functioning of representative government. Tests identifying whether a government interest is compelling or substantial are important starting points, but they are ambiguous unless fleshed out in the context of facts, doctrines, personal concerns, and the general welfare. Take for example, the Court’s use of strict scrutiny in Citizens United v. Federal Election Commission, which protected voters’ access to pertinent information but virtually ignored the specific nature of the association challenging the law, stare decisis, and the appearance of corruption of corporations campaigning with funds from for-profit corporations. Likewise, Sorrell recognized the need for information about pharmaceutical products, but out-of-hand rejected public concerns for deanonymization of sensitive, health information; integrity of pharmaceutical profession; and the public need for consumer data protection. The proposal for contextualization requires no ad hoc balancing. The Court’s increasingly absolutist-sounding free speech reasoning appeared in National Institute of Family and Life Advocates v. Becerra, which found unconstitutional a state statute that required public health information to be posted by licensed and unlicensed agencies that engaged in pregnancy counseling.757 Licensed facilities were required to post notices informing clients of available public programs that provided abortion-related services, pregnancy diagnoses, contraception counseling, or prenatal care. Unlicensed pregnancy clinics were required to post a written notification to patients that they lacked a license to provide medical services. Both notices were neutral about advisability of obtaining abortions. Relying on strict scrutiny, the Court struck them for intruding on private entities’ speech interests. Becerra threatens to bring a vast array of government regulations under the rubric of free speech, subject to review under the strict scrutiny standard. The opinion is not in line with a variety of other requirements for medical information that do not require strict scrutiny. Historically, courts have deferred to the reasonable judgments of medical professionals and health

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officials to set safety and health standards.758 Government has discretion over prescription drug labeling and “clinics that screen for breast cancer must post a sign” about “‘alternative efficacious methods of treatment.’”759 The Court’s categorical claim that all government limits on content should receive strict scrutiny review runs against the long-recognized regulations on commercial content in areas such as securities documentation, corporate proxy statements, insider information, and contractual accuracy.760 The range of recognized content-based restrictions extends also to fraud and “fighting words,” each of which implies a social balancing between speech, public concerns, means and ends, considerations of alternatives, and tradition. So too, regulations of persons who speak professionally – including lawyers, physicians, and public school teachers – are within the powers of the state.761 Despite the many ways cases have weighed speech and regulatory concerns, the Roberts Court has relied on categories rather than transparent adjudications. Even a transactional regulatory requirement to post information about payment by credit or cash was deemed, in Expressions Hair Designs v. Schneiderman, to warrant First Amendment review.762 When judges choose whether any lower-value category of the Stevens progeny applies to the case at hand, they have already engaged in some degree of contextualization involving justifiable reasoning. The choice is important because the First Amendment doctrine a judge picks will affect what level of scrutiny and test applies to the resolution of a controversy. The same is true of the judicial choice of whether to proceed with strict scrutiny or intermediate scrutiny; that decision can be value-oriented and resultdirected. Decisions that fail to carefully parse all relevant constitutional considerations – including federalism, equal protection, and due process – decisions appear to be outcome-determinative. In recent times, corporate interests have enjoyed special regulatory immunities from the Court, at the expense of consumer confidence. In Sorrell, the Court continued a pattern of striking consumer protections when it found unconstitutional a state law against profiting from the private information of physicians’ medicine prescriptions. Citizens United empowered corporations to spend an unlimited amount of general funds to expend on supporting favorable candidates, defining restrictions based on corporate identity to be automatically suspect under the First Amendment. In refusing to weigh the proportionate value of speech against countervailing government policies, analyzing the fit of legislation and the ends sought, as well as less restrictive alternatives, some of the Roberts Court’s opinions have moved in a Lochner-like direction. A majority on the court has become the guardian of corporate and commercial interests against

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ordinary regulations for the benefit of natural people. While proclaiming an objective preference for the Free Speech Clause, the Court has too often used the First Amendment to cast aside laws on matters from health, privacy, representative democracy, historic incitement, and educational liberty. First Amendment doctrine has evolved from silently countenancing seditious libel laws to finding them repugnant to political discourse,763 from praising mandatory flag salutes to recognizing such laws to undermine religious liberties,764 from upholding law prohibiting American flag desecration to recognizing that conduct to be an expression of ideas,765 and from strict liability for all forms of libel to complex analysis of libel against public officials engaged in official conduct.766 The categories of low-value speech – including incitement, true threats, obscenity, child pornography, and fighting words – themselves reflect balancing between social order and individual freedom. Constitutionally protected expressive liberty is not simply defined by history and tradition but through complex analyses within the context of representative democracy committed to safeguarding liberal equality for the general welfare.

Notes

preface 1. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1936 (2019) (“When a person alleges a violation of the right to free speech, courts generally must consider not only what was said but also in what context it was said.”). 2. Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). 3. Iancu v. Brunetti, 139 S. Ct. 2294, 2304 (2019) (Breyer, J., concurring in part and dissenting in part) (“I would place less emphasis on trying to decide whether the statute at issue should be categorized as an example of ‘viewpoint discrimination,’ ‘content discrimination,’ ‘commercial speech,’ ‘government speech,’ or the like.”). 4. Matal v. Tam, 137 S.Ct. 1744 (2017). 5. Frederick Schauer, The Politics and Incentives of First Amendment Coverage, 56 Wm. & Mary L. Rev. 1613, 1624 (2015). 6. See, e.g., Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983). 7. Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245, 264.

formalism and categorical doctrine 8. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2228 (2015) (quoting Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993)). 9. United States v. Stevens, 559 U.S. 460, 472 (2010). 10. Snyder v. Phelps, 562 U.S. 443, 452 (2011) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988)). 11. Genevieve Lakier, The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2169, 2212 (2015). 12. Toni M. Massaro, Tread on Me!, 17 U. Pa. J. Const. L. 365, 399–401 (2014). 178

Notes to Pages 3–9

13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

23. 24. 25. 26. 27. 28. 29. 30.

31. 32. 33. 34. 35. 36. 37. 38.

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Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942). Stevens, 559 U.S. at 470. Holder v. Humanitarian Law Project, 561 U.S. 1, 28–33 (2010). Burson v. Freeman, 504 U.S. 191, 206 (1992) (plurality opinion). 559 U.S. at 468–72 (2010). See, e.g., R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992). Mccullum, Punishing Depictions of Animal Cruelty, H.R. Rep. No. 106–397, at 2–4 (1999). Stevens, 559 U.S. at 466. Brief for United States at 8, 12, Stevens, 559 U.S. 460 (No. 05–2497), quoted in Stevens, 559 U.S. at 470. Stevens, 559 U.S. at 468–69 (alteration in original) (citations omitted) (first quoting R.A.V., 505 U.S. at 382–83; then quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J., concurring in judgment); and then quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942)). Stevens, 559 U.S. at 493 (Alito, J. dissenting). Id. at 482. Chaplinsky, 315 U.S. at 571–72. Stevens, 559 U.S. at 486. United States v. Williams, 553 U.S. 285, 292 (2008). Id. 18 U.S.C.A. § 48(b) (2009), Pub. L. No. 106–152, invalidated by United States v. Stevens, 559 U.S. 460 (2010). Stevens, 559 U.S. at 488 (Alito, J., dissenting) (“[I]t is widely thought that hunting has ‘scientific’ value in that it promotes conservation, ‘historical’ value in that it provides a link to past times when hunting played a critical role in daily life, and ‘educational’ value in that it furthers the understanding and appreciation of nature and our country’s past and instills valuable character traits. And if hunting itself is widely thought to serve these values, then it takes but a small additional step to conclude that depictions of hunting make a non-trivial contribution to the exchange of ideas.”). Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 803 (2011). Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989) (referring to himself as “a faint-hearted originalist”). Entm’t Merchs. Ass’n, 564 U.S. at 804 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942)). Id. at 792 (alteration in original) (quoting Stevens, 559 U.S. at 470). 567 U.S. 709 (2012). 18 U.S.C. § 704 (2012), Pub. L. No. 109–437, invalidated by United States v. Alvarez, 567 U.S. 709 (2012). Alvarez, 567 U.S. at 715. Id. at 717.

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39. 40. 41. 42. 43. 44. 45. 46. 47.

48. 49. 50.

51. 52. 53.

54. 55. 56. 57. 58.

59. 60.

Notes to Pages 9–13

458 U.S. 747 (1982). Watts v. United States, 394 U.S. 705, 708 (1969). Brandenburg v. Ohio, 395 U.S. 444 (1969). R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); Stevens, 559 U.S. at 468; Entm’t Merchants Ass’n, 564 U.S. at 791. Alvarez, 567 U.S. at 730–31 (Breyer, J., concurring) . Tom Hickman, Proportionality: Comparative Law Lessons, 12 Judicial Rev. 31, 31 (2007). T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943, 944 n.2, 972 (1987). Alec Stone Sweet and Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 Colum. J. Transnat’l L. 160, 160 (2008). Alexander Tsesis, The Empirical Shortcomings of First Amendment Jurisprudence: A Historical Perspective on the Power of Hate Speech, 40 Santa Clara L. Rev. 729, 741–42 (2000), (discussing, quoting, and critiquing 47 Martin Luther, On the Jews and Their Lies, In Luther’s Works: The Christian in Society IV 268 (Helmut T. Lehmann & Franklin Sherman eds., Martin H. Bertram trans., Concordia Publ’g House 1971) (1543)). Lakier, supra, at 2227 (2015). Dun & Bradstreet, 472 U.S. 749, 761 (1985). William D. Araiza, Citizens United, Stevens, and Humanitarian Law Project: First Amendment Rules and Standards in Three Acts, 40 Stetson L. Rev. 821, 836–37 (2011). Steven H. Shiffrin, The Dark Side of the First Amendment, 61 UCLA L. Rev. 1480, 1490 (2014). Massaro, supra, at 400; Gitlow v. New York, 268 U.S. 652, 666 (1925) (incorporating First Amendment freedom of speech and press). Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 564 (1980) (setting the intermediate scrutiny test for commercial advertisement); Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (“A government entity has the right to ‘speak for itself.’” (quoting Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000))). Stevens, 559 U.S. at 468; Entm’t Merchants Ass’n, 564 U.S. at 791; Alvarez, 567 U.S. at 717. 472 U.S. 491, 497 (1985). 383 U.S. 413 (1966). 413 U.S. 15 (1973). Id. at 489 (defining obscenity as material that “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest”). Roth, 354 U.S. at 484. Roth, 354 U.S. at 484–85.

Notes to Pages 14–17

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61. 413 U.S. 15, 24 (1973). 62. Id. 63. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 473 (1996). 64. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2237 (2015) (Kagan, J., concurring). 65. Id. at 2238. 66. 343 U.S. 250, 252, 258, 261, 263, 266–67 (1952). 67. See Donald A. Downs, Skokie Revisited: Hate Group Speech and the First Amendment, 60 Notre Dame L. Rev. 629, 662–63 (1985). 68. Beauharnais, 343 U.S. at 258. 69. Id. at 261. 70. See, e.g., United States v. Alvarez, 567 U.S. 709, 746–48 (2012) (plurality opinion); United States v. Stevens, 559 U.S. 460, 468 (2010); R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992); Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 504 (1984). I have written extensively against the commonly accepted notion that Beauharnais is no longer good law. See Alexander Tsesis, Burning Crosses on Campus: University Hate Speech Codes, 43 Conn. L. Rev. 617, 635–40 (2010); Alexander Tsesis, Inflammatory Speech: Offense Versus Incitement, 97 Minn. L. Rev. 1145, 1179–87 (2013). 71. See notes at note 66, infra. 72. Eugene Volokh, Freedom of Speech and the Constitutional Tension Method, 3 U. Chi. L. Sch. Roundtable 223, 238 n.87 (1996); see also Rodney A. Smolla, Words “Which by Their Very Utterance Inflict Injury”: The Evolving Treatment of Inherently Dangerous Speech in Free Speech Law and Theory, 36 Pepp. L. Rev. 317, 351–52 (2009) (“Beauharnais is flatly inconsistent with modern First Amendment doctrines restraining content-based and view-point based discrimination.”). 73. Beauharnais, 343 U.S. at 261. 74. 571 U.S. 237, 250 (2014). Justice Jackson, writing in a dissent to Kunz v. New York, pointed out that scurrilous religious attacks are not protected in the First Amendment, 340 U.S. 290, 313 (1951) (rhetorically asking “Is it not reasonable that the City protect the dignity of these persons against fanatics who take possession of its streets to hurl into its crowds defamatory epithets that hurt like rocks?”). 75. Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974) (“The First amendment requires that we protect some falsehood in order to protect speech that matters. The need to avoid self-censorship.. . . however, [is] not the only societal value at issue The legitimate state interest underlying the law of libel [w]e would not lightly require the State to abandon.”). 76. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964). 77. 425 U.S. 748, 763 (1976).

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Notes to Pages 17–20

78. Id. at 771. 79. Id. at 763 (discussing consumers’ interest in obtaining pricing information on prescription drugs). 80. Id. 81. Snyder v. Phelps, 562 U.S. 443 (2011). 82. Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). 83. Lane v. Franks, 573 U.S. 228 (2014).

dominant academic approaches to free speech 84. Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1787 (2004). 85. See Neil M. Richards, The Dangers of Surveillance, 126 Harv. L. Rev. 1934, 1950 (2013) (describing surveillance as an infringement of selfconstruction); Rogers M. Smith, The Constitution and Autonomy, 60 Tex. L. Rev. 175, 185 (1982) (“The infusion of autonomy into constitutional thought was most easily accomplished in the area of free speech.”). 86. Rodney Smolla, Speech Overview, in Fred D. White & Simone J. Billings, A Well-Crafted Argument 493 (6th ed. 2017). 87. Rodney A. Smolla, Academic Freedom, Hate Speech, and the Idea of a University, 53 Law & Contemp. Probs. 195, 200 n.22 (1990); see also Rodney A. Smolla, 1 Smolla and Nimmer on Freedom of Speech § 2:21 (2010) (“[F]ree speech is also an end itself, an end intimately intertwined with human autonomy and dignity.”). 88. See Cohen v. California, 403 U.S. 15, 24 (1971) (“The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.”). 89. Seana Valentine Shiffrin, Speech, Death, and Double Effect, 78 N.Y. U. L. Rev. 1135, 1159 (2003). 90. C. Edwin Baker, Unreasoned Reasonableness: Mandatory Parade Permits and Time, Place, and Manner Regulations, 78 Nw. U. L. Rev. 937, 972–73 (1983). 91. Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 879 (1963).

Notes to Pages 20–5

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92. C. Edwin Baker, The Process of Change and the Liberty Theory of the First Amendment, 55 S. Cal. L. Rev. 293, 314–5, 333 (1982) [herein after, The Process of Change]. 93. Id. 94. C. Edwin Baker, Autonomy and Free Speech, 27 Const. Comment. 251, 254 (2011). 95. Id. at 252. 96. Id. at 272. 97. C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 966 (1978) 98. Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95–96 (1972). 99. Id. 100. Cohen, 403 U.S. at 24. 101. Baker, The Process of Change, supra, at 330–31 (“Although the liberty theory of the first amendment is premised on respect for autonomy rather than on the societal need for an adequate process of change, one of its merits is that it protects a process of legitimate and progressive change through political action much better than does the generally accepted marketplace of ideas theory.”). 102. Martin H. Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591, 593, 611, 615–18 (1982). 103. David A. J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. Pa. L. Rev. 45, 62 (1974). 104. Michael J. Perry, Noninterpretive Review in Human Rights Cases: A Functional Justification, 56 N.Y.U. L. Rev. 278, 314–15 (1981). 105. See Guy E. Carmi, Dignity-The Enemy from Within: A Theoretical and Comparative Analysis of Human Dignity as a Free Speech Justification, 9 U. Pa. J. Const. L. 957, 958 (2007). 106. Frederick Schauer, Speaking of Dignity, in The Constitution of Rights: Human Dignity and American Values 178 (Michael J. Meyer & William A. Parent eds., 1992). 107. Warren E. Burger, The Interdependence of Our Freedoms, 9 Akron L. Rev. 403, 408 (1976). 108. Herbert v. Lando, 441 U.S. 153, 183 n.1 (1979) (Brennan, J., dissenting in part). 109. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 787 (1985) (Brennan, J., dissenting). 110. The Scourge, No. VI. London, Saturday, March 4, 1730, Providence Gazette & Country J., Sept. 9, 1780, at 3. 111. Communication, Greenleaf’s N.Y. J. & Patriotic Reg., July 18, 1798, at 1; see also Goshen, August 14, Vt. Gazette, Sept 8, 1798, at 2 (“Therefore, Resolved, that the liberty of speech and the press these unalienable rights, we never will part with but with our lives.”).

184

Notes to Pages 25–7

112. Philadelphia, Pa. Ledger, Mar. 25, 1778, at 3. 113. See, e.g., Journal of the House of Representatives. At a Great and General Court or Assembly of His Majesty’s Province of the Massachusetts-Bay in New-England 39 (1724). 114. 1 The Works of William Smith, D.D., Late Provost of the College and Academy of Philadelphia 56 (1803). 115. For an extensive discussions of the role of free speech to the successes of these movements see Stephen m. Feldman, Free Expression and Democracy in America: A History 46–69, 153–208, 291–348 (2008). 116. C. Edwin Baker, Michelman on Constitutional Democracy, 39 Tulsa L. Rev. 511, 533 (2004). 117. Id. at 541–43. 118. C. Edwin Baker, Media, Markets and Democracy 305 (2002). 119. C. Edwin Baker, First Amendment Limits on Copyright, 55 Vand. L. Rev. 891, 951 (2002) (“the best interpretation, which elsewhere I defend both descriptively and normatively, sees protection of individual liberty at the heart of the Speech Clause and protection of democratic communications structures at the heart of the Press Clause. Relying on this constitutional understanding, this Essay argues that copyright generally cannot be applied to limit noncommercial copying.”). 120. Julie E. Cohen, Creativity and Culture in Copyright Theory, 40 U.C. Davis L. Rev. 1151, 1197 (2007). 121. 17 U.S.C. § 102(a) (2012) (“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression.”). 122. See, e.g., Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. Rev. 1180, 1184–93 (1970) (arguing for a balanced approach to define speech protected by the First Amendment or protected by copyright). 123. Shyamkrishna Balganesh, The Normativity of Copying in Copyright Law, 62 Duke L.J. 203, 242–43 (2012) (“[A]uthors’ rights-based conceptions of the copyright entitlement are perhaps the most dominant, according to which copyright law serves a set of autonomy-related purposes internal to the author, and often independent of the institution’s overall utilitarian ideals”). Balganesh goes on to state that “copyright law and scholarship have struggled to develop a coherent mechanism by which to achieve the reasonable accommodation of these nonutilitarian goals and values with the institution’s core utilitarian foundation. This failure has in turn resulted in copyright’s nonutilitarian ideals either receding into the backdrop and diminishing in significance or, alternatively, in their being reconceptualized in distinctly utilitarian terms in order to achieve their accommodation (through a direct tradeoff) with the institution’s widely

Notes to Pages 27–31

124. 125.

126. 127. 128. 129. 130. 131.

132.

133. 134. 135. 136. 137. 138.

139. 140. 141. 142. 143.

185

accepted utilitarian tenets.”; compare Jeanne C. Fromer, Expressive Incentives in Intellectual Property, 98 Va. L. Rev. 1745, 1756 (2012) (“Despite the dominance of the utilitarian framework in American intellectual property protection, scholars acknowledge historical and rhetorical uses of moral rights in copyright law.”). 565 U.S. 302, 326–28 (2012). Id. at 32 (quoting Eldred v. Ashcroft, 537 U.S. 186, 219 (2003), for the proposition that the idea/expression dichotomy and fair use provisions are “built-in First Amendment accommodations”). Neil W. Netanel, Copyright’s Paradox 178–79 (2008). Eldred, 537 U.S. at 223 (Stevens, J., dissenting). Miscellanies, New-Haven Gazette & Conn. Mag., Mar. 1, 1787, at 9. American Intelligence, Freeman’s J.; or, N.-Am. Intelligencer (Phila.), Aug. 24, 1791, at 3. See 1 George Brown Tindall, America: A Narrative History 176, 193 (1984). James J. Brudney, Congressional Accountability and Denial: Speech or Debate Clause and Conflict of Interest Challenges to Unionization of Congressional Employees, 36 Harv. J. on Legis. 1, 23–24 (1999). Alexander Tsesis, For Liberty and Equality: The Life and Times of the Declaration of Independence 79–81, 153–58 (2012). Snyder v. Phelps, 562 U.S. 443 (2011); N. Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 19 (1948). Alexander Meiklejohn, Political Freedom 24–26 (1960). Id. at 161. Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 25 (1948). See Martin H. Redish, Tobacco Advertising and the First Amendment, 81 Iowa L. Rev. 589, 636 (1996); C. Edwin Baker, Of Course, More Than Words, 61 U. Chi. L. Rev. 1181, 1202 (1994) (reviewing Catherine A. MacKinnon, Only Words (1993)). Frederick Schauer, Free Speech: A Philosophical Inquiry 38–39 (1982). Cass R. Sunstein, Democracy and the Problem of Free Speech 121–24 (1993). Id. at 155. Harry Kalven, Jr., The Metaphysics of the Law of Obscenity, 1960 Sup. Ct. Rev. 1, 15–16. Kalven makes the same point referring to John Keats’s poetry and William Shakespeare’s plays. Id. at 16.

186

Notes to Pages 31–4

144. Zechariah Chafee, Jr., Book Review, 62 Harv. L. Rev. 891, 899 (1949). 145. Archibald MacLeish, Ars Poetica (1926), available at www.poetryfounda tion.org/poetrymagazine/poems/17168/ars-poetica. 146. Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 Sup. Ct. Rev. 245, 256–57. 147. Lewis Carroll, Jabberwocky, available at www.poetryfoundation.org/po ems/42916/jabberwocky. 148. Alexander M. Bickel, The Morality of Consent 62 (1975). 149. Alexander m. Bickel, The Supreme Court and the Idea of Progress 36 (1970). 150. Id. 151. Lauren Fox et al., Senate Passes Sweeping GOP Tax Plan in Early Hours of Saturday Morning, CNN, www.cnn.com/2017/12/01/politics/senate-tax -bill-vote-uncertainty/index.html (“Democrats sharply criticiz[ed] Republicans for not giving members enough time to read the sweeping legislation that would overhaul the US tax system”); GOP Nearing Vote on Tax Bill Nobody Has Read, MSNBC (Nov 30, 2017), www.msnbc .com/all-in/watch/gop-nearing-vote-on-tax-bill-nobody-has-read-1107270 2115 59; Jonah Goldberg, Will Tax Reform be the GOP’s Obamacare?, L.A. Times, Dec. 12, 2017, www.latimes.com/opinion/op-ed/la-oegoldberg-gop-taxes-20171212-story.html. 152. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at The Bar of Politics 239 (1962). 153. Id. at 20, 24. 154. 403 U.S. 15 (1971). 155. Alexander M. Bickel, The Morality of Consent 72 (1975). 156. Robert C. Post, The Constitutional Concept of Public Discourse, 103 Harv. L. Rev. 601, 632 (1990). 157. Robert C. Post, Participatory Democracy and Free Speech, 97 Va. L. Rev. 477, 484 (2011) (hereinafter Participatory Democracy). 158. Robert C. Post, Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse, 64 U. Colo. L. Rev. 1109, 1114–18 (1993); Robert Post, Constitutional Domains: Democracy, Community, Management 4, 11 (1995). 159. Robert C. Post, Viewpoint Discrimination and Commercial Speech, 41 Loy. L.A. L. Rev. 169, 175–76 (2007). 160. Tabatha Abu El-Haj, “Live Free or Die”-Liberty and the First Amendment, 78 Ohio St. L.J. 917, 919, 919, 920, 924, 927 (2017). 161. Martin H. Redish & Abby Marie Mollen, Understanding Post’s and Meiklejohn’s Mistakes: The Central Role of Adversary Democracy in the Theory of Free Expression, 103 Nw. U. L. Rev. 1303, 1309–10 (2009).

Notes to Pages 34–7

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162. Post, Participatory Democracy, supra, at 479. 163. Id. 164. Ashutosh Bhagwat, When Speech Is Not “Speech”, 78 Ohio St. L.J. 839, 874 (2017). 165. Id. at 876. 166. Neil M. Richards, The Puzzle of Brandeis, Privacy, and Speech, 63Vand. L. Rev. 1295, 1347 (2010). 167. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980) (“Free speech carries with it some freedom to listen.”). 168. Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 193 (1973) (Brennan, J., dissenting) (“[T]he First Amendment must . . . safeguard not only the right of the public to hear debate, but also the right of individuals to participate in that debate and to attempt to persuade others to their points of view.”). 169. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. at 761 n.7 (“[T]he State’s interest is outweighed by even the reduced First Amendment interest in private speech.”). 170. 250 U.S. 616, 629 (1919) (Holmes, J., dissenting). 171. Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965) (Brennan, J., concurring). 172. Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 Sup. Ct. Rev. 1, 14. 173. Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting) (“Every idea is an incitement.”). 174. John C. Ford, The Fundamentals of Holmes’ Juristic Philosophy, 11 Fordham L. Rev. 255, 264 (1942) (examining Holmes’s views and concluding that for him “the essence of law is physical force, that might makes legal right”). 175. Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969). 176. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52, 57 (1988). 177. Andrew Koppelman, Veil of Ignorance: Tunnel Constructivism in Free Speech Theory, 107 Nw. U. L. Rev. 647, 681 (2013). 178. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776 (1984) (“False statements of fact harm both the subject of the falsehood and the readers of the statement There is no constitutional value in false statements of fact.”) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)); Sullivan, 376 U.S. at 271 (“Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth – whether administered by judges, juries, or administrative officials – and especially one that puts the burden of proving truth on the speaker.”). 179. 567 U.S. 709, 721–30 (2012) (plurality opinion) (holding the Stolen Valor Act to be unconstitutional for criminalizing falsely claiming to have

188

180.

181.

182. 183. 184.

Notes to Pages 37–42

received military honors); see also Lyrissa Barnett Lidsky, Where’s the Harm?: Free Speech and the Regulation of Lies, 65 Wash. & Lee L. Rev. 1091, 1091 n.2 (2008) (“The State may only punish deliberate falsehoods when they cause significant harms to individuals.”). Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991) (plurality opinion) (“[N]ude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.”); Miller v. California, 413 U.S. 15, 24–25 (1973) (establishing threepart test for legitimate government regulations of obscene materials). See Cass R. Sunstein, Pornography and the First Amendment, 1986 Duke L.J. 589, 617 (stating that depictions of sexual violence can produce harm that is not easily “countered by more speech because it bypasses the process of public consideration and debate that underlies the concept of the marketplace of ideas”). Frederick Schauer, Response, Pornography and the First Amendment, 40 U. Pitt. L. Rev. 605, 608 n.14 (1979). Owen M. Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power 16–27 (1996). Alexander Tsesis, Constitutional Ethos: Liberal Equality for the Common Good (2017).

free speech and proportionality 185. Tushnet, Taking the Constitution Away from the Courts 14 (1999). 186. The Fla. Star v. B.J.F., 491 U.S. 524, 533 (1989). 187. Schenck v. United States, 249 U.S. 47, 52 (1919). 188. United States v. Alvarez, 567 U.S. 709, 730 (2012) (Breyer, J., concurring). 189. Iancu v. Brunetti, No. 18–302, 2019 WL 2570622, at *7 (U.S. 2019) (Breyer, J., concurring in part and dissenting in part). 190. Alcoholic Beverage Labeling Act, 27 U.S.C. §§ 213–15. 191. Exemptions and Consideration for Certain Drugs, Devices, and Biological Products, 21 U.S.C. § 353(b)(4)(A). 192. 21 C.F.R. § 201.56. 193. See, e.g., 29 U.S.C. §158(d) (2012) (requiring that employers negotiate in “good faith”); NLRB v. Katz, 369 U.S. 736, 743 (1962). 194. Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. 16901 et seq. 195. Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1333. 196. 18 U.S.C 709. 197. 12 U.S.C. § 1828(a)(1)(B) (2006) (“Each sign required under subparagraph (A) shall include a statement that insured deposits are backed by the full faith and credit of the United States Government.”).

Notes to Pages 42–3

189

198. Jamal Greene, Trump as a Constitutional Failure, 93 Ind. L.J. 93, 107–08 (2018). See also Jamal Greene, A Private Law Court in A Public Law System, 12 Law & Ethics Hum. Rts. 37 (2018) (summing up in the abstract: “The U.S. Supreme Court’s approach to human rights is a global outlier. In conceiving of rights adjudication in categorical terms rather than embracing proportionality analysis, the Court limits its ability to make the kinds of qualitative judgments about rights application”). 199. Reed, 135 S. Ct. at 2231–32. 200. See Janus v. Am. Fed’n of State, Cty., & Mun. Employees, Council 31, 138 S. Ct. 2448, 2501–02 (2018). 201. Stevens, 559 U.S. 460, 470 (2010). 202. Id. 203. Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1303–04, 1306, 1308 (2007) (finding that the court sometimes uses strict scrutiny like a balancing test, at other times as a nearly categorical prohibition, and in other cases as a “a test of illicit motives”); Ashutosh Bhagwat, Hard Cases and the (D)Evolution of Constitutional Doctrine, 30 Conn. L. Rev. 961, 964 (1998) (“a court applying ‘strict’ scrutiny will ‘tilt the balance’ in favor of the individual rights claimant, while a court using ‘rational basis review’ will tilt the balance in favor of the government.”). 204. Stevens, 559 U.S. at 470. 205. See, e.g., Davis v. Fed. Election Comm’n, 554 U.S. 724 (2008). 206. Post & Siegel, Democratic Constitutionalism, National Constitution Center, https://constitutioncenter.org/interactiveconstitution/white-pages/democratic-constitutionalism. 207. See Jud Campbell, Natural Rights and the First Amendment, 127 Yale L. J. 246 (2017) (discussing the indeterminacy of the Framers’ views on contemporary free speech issues). 208. A Serious Address to the People of Pennsylvania, Pennsylvania Packet, Dec. 5, 1778, at 2. 209. See, e.g., Substance of the Charge, Salem Mercury, Nov. 18, 1786, at 1. 210. Alexander Moultrie, An Appeal to the People, on the Conduct of a Certain Public Body in South-Carolina 19 (1794). 211. The Perpetual Laws of the State of New-Hampshire, From the Session of the General-Court, July 1776, To the Session in December 1788, Continued Into the Present Year 1789, at 13. 212. Mass. Const. 1780, para. XIXA, reprinted in The Constitutions of the Several Independent States of America; The Declaration of Independence, and the Articles of Confederation 22 (1786).

190

Notes to Pages 44–8

213. N. H. Const., para. XXXII, www.nlnrac.org/american/founding-eraconstitution-making/documents/new-hampshire-bill. 214. Gregory P. Magarian, Substantive Due Process as a Source of Constitutional Protection for Nonpolitical Speech, 90 Minn. L. Rev. 247, 251–55 (2005). 215. For a complete discussion of principles underlying the US Constitution see Alexander Tsesis, Constitutional Ethos (2017). 216. Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). 217. Timothy Zick, Rights Dynamism, 19U. Pa. J. Const. L. 791, 793–94 (2017). 218. Harry Kalven, Jr., Upon Rereading Mr. Justice Black on the First Amendment, 14 UCLA L. Rev. 428, 432 (1967); Charles A. Reich, Mr. Justice Black and the Living Constitution, 76 Harv. L. Rev. 673, 695–98 (1963). 219. Smith v. California, 361 U.S. 147, 157 (1959) (Black, J., concurring). 220. One section of the Sedition Act created a criminal offense against any person who: shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States. Sedition Act, 1 Stat. 596 ch. 74 § 2 (1798). 221. Alexander Addison, A Charge to the Grand Juries of the County Courts of the Fifth Circuit, of the State of Pennsylvania 14 (1799). 222. A Lengthy Address to the Citizens of the United States, Providence Gazette, Aug. 17, 1793, at 1. 223. Cleanthes, For the Commercial Advertiser, Commercial Advertiser (New York, N.Y.), Mar. 30, 1799, at 2. 224. Juhani Rudanko, Discourses of Freedom of Speech 5 (2012). 225. N.Y. Times v. Sullivan, 376 U.S. 254, 274 (1964); Geoffrey R. Stone, Free Speech and National Security, 84 Ind. L.J. 939, 941–42 (2009); Martin

Notes to Pages 48–52

226.

227. 228. 229. 230. 231. 232. 233. 234. 235. 236. 237. 238.

239. 240. 241. 242. 243. 244.

245. 246.

191

H. Redish, Judicial Discipline, Judicial Independence, and the Constitution: A Textual and Structural Analysis, 72 S. Cal. L. Rev. 673, 687 (1999). Contrast the Sedition Act Annals of Congress, 6th Cong., 2d Sess 931 (statement of Rep. John Rutledge, Jr., Federalist, S.C.) (Jan. 21, 1801) from Elizabeth Priestley, On the Propriety and Expedience of Unlimited Enquiry, in Thomas Cooper, Political Essays 62, 62 (1800), quoted in Campbell, supra, at 278. Campbell, supra, at 310. See, e.g., Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 877 (1963). Iancu v. Brunetti, No. 18–302, 2019 WL 2570622, at *7 (U.S. S/C 2019) (Breyer, J., concurring in part and dissenting in part). Alexander Tsesis, Maxim Constitutionalism: Liberal Equality for the Common Good, 91 Tex. L. Rev. 1609 (2013). 427 U.S. 539, 570 (1976). City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54–55 (1986). Id. Burson v. Freeman, 504 U.S. 191, 206, 211 (1992). Friedman v. Rogers, 440 U.S. 1, 15 (1979). United States v. O’Brien, 391 U.S. 367, 376–77 (1968). Miller v. California, 413 U.S. 15, 23–24 (1973). Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (listing “utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”); see also Time, Inc. v. Firestone, 424 U.S. 448, 456 (1976) (citing Chaplinsky to determine the appropriate way to identify “a more appropriate accommodation between the public’s interest in an uninhibited press and its equally compelling need for judicial redress of libelous utterances”). McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 205 (2014). Kevin W. Saunders, Free Expression and Democracy: A Comparative Analysis 30 (2017). Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015). See, e.g., Einarsson v. Iceland, 2017 (Application no. 24703/15). Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 854 (1992). Frederick Schauer, Not Just About License Plates: Walker v. Sons of Confederate Veterans, Government Speech, and Doctrinal Overlap in the First Amendment, 2015 Sup. Ct. Rev. 265. Joseph Raz, Practical Reasons and Norms 39–40, 46–47 (1990) (discussing first-order and second-order reasons). Walker v. Tex. Div. Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015).

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Notes to Pages 52–9

247. 559 U.S. 460 (2010). 248. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995). 249. Alexander Tsesis, The Problem of Confederate Symbols: A Thirteenth Amendment Approach, 75 Temp. L. Rev. 539 (2002). 250. Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). 251. Janus v. Am. Fed’n of State, Cty., & Mun. Employees, Council 31, 138 S. Ct. 2448 (2018). 252. Alexander Tsesis, Undermining Inalienable Rights: From Dred Scott to the Rehnquist Court, 39 Ariz. St. L.J. 1179 (2007). 253. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991). 254. 134 S. Ct. 2518, 2524 (2014). 255. Id.; Brief for the Defendants-Appellees, McCullen v. Coakley, 708 F.3d1 (2013) (No. 05–1631), 2012 WL 2872265. 256. See Barnes, 501 U.S. at 569 (“The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation.”). 257. Ohralik v. Ohio State Bar Assoc’n, 436 U.S. 447, 464–65 (1978). 258. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 627–30 (1995). 259. Alexander Tsesis, Marketplace of Ideas, Privacy, and the Digital Audience, 94 Notre Dame L. Rev. 1585, 1588 (2019). 260. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2666 (2011). 261. Brief for Petitioners at 3–4, Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) (No. 10–779) 2011 WL 661712, at *3–4 (Brief for Petitioners in S. Ct.). 262. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965).

civic community and social context 263. For an exposition of the underlying function of government see Alexander Tsesis, Constitutional Ethos (2017). 264. Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1787 (2004). 265. Id. 266. These and other examples of how plaintiffs rely on the First Amendment in litigation challenges to social regulation efforts to rely on the First Amendment as a trump to social regulations are cited in Frederick Schauer, The Politics and Incentives of First Amendment Coverage, 56 Wm. & Mary L. Rev. 1613, 1614–15 (2015). 267. J. M. Balkin, Some Realism about Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 384. 268. Petitioner’s Brief at 10, Brown v. Entm’t Merchs. Ass’n, 2010 WL 2787546, at *3, 10 (California’s brief to Supreme Court); Appellants’

Notes to Pages 60–6

269.

270. 271. 272.

273. 274. 275.

276. 277. 278.

279.

280. 281. 282.

283.

193

Opening Brief, Video Software Dealers Ass’n and Entm’t Software Ass’n v. Schwartenegger, 556 F.3d 950 (9th Cir. Ct. App. 2008) (No. 07–16620), 2008 WL 412514 (California’s brief to Court of Appeals). See Lee Epstein, Christopher M. Parker, & Jeffrey A. Segal, Do Justices Defend the Speech They Hate?, APSA 2013 Annual Meeting Paper, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2300572. For a critique of the study’s methodology see Todd E. Pettys, Free Expression, In-Group Bias, and The Court’s Conservatives: A Critique of the Epstein-Parker-Segal Study, 63 Buff. L. Rev. 1 (2015). For a short discussion of both of the above pieces see Carolyn Shapiro, Numbers, Motivated Reasoning, and Empirical Legal Scholarship, 63 Buff. L. Rev. 385 (2015). Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 877 (1963). Whitney v. California, 274 U.S. 357, 372–80 (1927) (Brandeis, J., concurring) overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969). Vincent Blasi, The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California, 29 Wm. & Mary L. Rev. 653, 671–73 (1988). Brandenburg, 395 U.S. at 447. Whitney, 274 U.S. at 373 (Brandeis, J., concurring). Id. at 377 (Brandies, J., concurring) (“Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.”). Felix Frankfurter, Some Reflections on the Reading of Statutes 47 Colum. L. Rev. 527, 544 (1947). Pamela S. Karlan, Undue Burdens and Potential Opportunities in Voting Rights and Abortion Law, 93 Ind. L.J. 139, 139 (2018). The Court narrowed federal and state governments’ abilities to regulate speech to categories that existed in 1791 in United States v. Stevens, 559 U.S. 460, 468 (2010). Frederick Schauer, Not Just About License Plates: Walker v. Sons of Confederate Veterans, Government Speech, and Doctrinal Overlap in the First Amendment, 2015 Sup. Ct. Rev. 265. See, e.g., Stanley v. Georgia, 394 U.S. 557 (1969). See, e.g., Mosley, 408 U.S. 92. Lawrence v. Texas, 539 U.S. 558, 578–79 (2003) (holding that the Due Process Clause protects an individual’s right to engage in sexual acts in private). Moore v. City of E. Cleveland, 431 U.S. 494, 503–06 (1977) (upholding the right of extended family members to live together and striking

194

284. 285.

286. 287. 288. 289. 290. 291. 292. 293. 294. 295. 296. 297.

298. 299. 300.

301.

Notes to Pages 67–71

a zoning ordinance that prohibited their cohabitation at a grandmother’s house). See Brown v. Hartlage, 456 U.S. 45, 52 (1982). Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 308 (2012) (citing Brown v. Hartlage, 456 U.S. 45, 52 (1982); Buckley v. Valeo, 424 U.S. 1, 93 n.127 (1976); Cox v. Louisiana, 379 U.S. 536, 552 (1965); Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring); Patterson v. Colorado ex rel. Attorney Gen. of Colo., 205 U.S. 454 (1907)). Romer v. Evans, 517 U.S. 620 (1996). Jack M. Balkin, Living Originalism 254 (2011); see also id. at 249. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com’n, 138 S.Ct. 1719 (2018). Lawrence, 539 U.S. at 562. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2228 (2015). 42 U.S.C. § 2000e-2(a)(1) (2012)). Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). E.E.O.C. v. Int’l Profit Assocs., Inc., 654 F. Supp. 2d 767, 784 (N.D. Ill. 2009). R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 409 (1992) (White, J., concurring). Harrison v. Se. Radiology, 2013 WL 633584, at *4 (M.D.N.C. 2013). Marasco v. Arizona Bd. of Regents, No. CV-12–01750-PHX-FJM, 2013 WL 4029167, at *3 (D. Ariz. 2013) (quoting Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002)). Blankenship v. Parke Care Ctrs., Ind., 123 F.3d 868, 873 (6th Cir.1997). Jackson v. Quanex Corp., 191 F.3d 647, 653, 659 (6th Cir. 1999). Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015) (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 395 (1992); Simon & Shuster, Inc. v. Member of N.Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991)). Compare Brief for Respondent at 31, Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (No. 92–1168), 1993 WL 302223 (briefing First Amendment implications), and Reply Brief of Petitioner at 10, 510 U.S. 17 (1993) (No. 92–1168), 1993 WL 632335 (same), with Harris, 510 U.S. 17 (1993) (not discussing First Amendment concerns). Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn’t Bark, 1994 Sup. Ct. Rev. 1, 13 (“[T]he Supreme Court’s failure to notice a First Amendment question would signal its unanimous view that there was no question to be noticed – a judgment that the prohibited category was so clearly unrelated to the First Amendment’s purposes that it should not be dignified with an explanation as to why it constituted an ‘exception.’”).

Notes to Pages 71–8

195

R.A.V., 505 U.S. at 389–90. Harris, 510 U.S. at 21. R.A.V., 505 U.S. at 409–10 (1992) (White, J., concurring). Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–82 (1998). Id. at 81–82. United States v. Lopez, 514 U.S. 549 (1995). Alan Brownstein, How Rights Are Infringed: The Role of Undue Burden Analysis in Constitutional Doctrine, 45 Hastings L.J. 867, 909 n.171 (1994). 309. David S. Han, Transparency in First Amendment Doctrine, 65 Emory L. J. 359, 396 (2015). 310. Burson v. Freeman, 504 U.S. 191, 206, 211 (1992) (finding that a state statute survived strict scrutiny, in part, based on a “widespread and time tested consensus” and “simple common sense”). 302. 303. 304. 305. 306. 307. 308.

us formalism and eu proportionality alternative 311. James Weinstein, Participatory Democracy As the Central Value of American Free Speech Doctrine, 97 Va. L. Rev. 491, 511 (2011). 312. Int’l Longshoremen’s Ass’n, AFL-CIO v. Allied Int’l, Inc., 456 U.S. 212, 218 (1982). 313. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 912 (1982). 314. Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970). 315. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). 316. City of Ladue v. Gilleo, 512 U.S. 43, 60 (1994) (O’Connor, J., concurring). 317. See, e.g., Konigsberg v. State Bar of California, 366 U.S. 36, 56 (1961) (Black, J., dissenting); Roth v. United States, 354 U.S. 476, 508–13 (1957) (Douglas, J., dissenting). 318. Pamela S. Karlan, “Pricking the Lines”: The Due Process Clause, Punitive Damages, and Criminal Punishment, 88 Minn. L. Rev. 880, 882–83 (2004). 319. David Cole, The Poverty of Posner’s Pragmatism: Balancing Away Liberty After 9/11, 59 STAN. L. REV. 1735, 1751 (2007). 320. David Cole, The Value of Seeing Things Differently: Boerne v Flores and Congressional Enforcement of the Bill of Rights, 1997 Sup. Ct. Rev. 31, 47. 321. John Hart Ely, Democracy and Distrust 109–10, 115 (1980). 322. Martin H. Redish, Freedom of Expression: A Critical Analysis 187–88, 226 (1984). 323. Dennis v. United States, 341 U.S. 494, 525 (1951) (Frankfurter, J., concurring). 324. Konigsberg v. State Bar of California, 366 U.S. 36 (1961). 325. Regan v. Time, Inc., 468 U.S. 641, 696 (1984) (Stevens, J., concurring) (“a statute which implicates a particularly strong governmental interest

196

326. 327. 328.

329.

330. 331. 332. 333. 334. 335. 336. 337. 338. 339. 340. 341. 342. 343. 344.

345.

346.

Notes to Pages 78–83

need not serve that interest to the same degree to withstand constitutional scrutiny as it would if the interest were weaker”). Su¨rek v. Turkey (No. 1), 26682/95, at ¶62 (Eur. Ct. H.R. 1999). Robert Alexy, Balancing, Constitutional Review, and Representation, 3 I-CON 572, 572 (2005). Mattias Kumm, Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice 2 Int’l J. of Const. L. 574, 595 (2004). Matthias Klatt & Moritz Meister, The Constitutional Structure of Proportionality 8–9 (2012); Benedikt Pirker, Proportionality Analysis and Models of Judicial Review: A Theoretical and Comparative Study 15–39 (2013). See, e.g., Lawrence v. Texas, 539 U.S. 558, 376 (2003) (privacy); Roper v. Simmons, 543 U.S. 551, 575 (2005) (death penalty). See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003). Case of Von Hannover, 59320/00 (Eur. Ct. H.R. 2004). Id. at 76. Case of Von Hannover v. Germany (No. 2), 406660/08, at ¶¶59–60 (Eur. Ct. H.R. 2012). Id. at ¶¶ 108–13. Delfi AS v. Estonia, App. No. 64569/09 (Eur. Ct. H.R. 2013). Id. at ¶ 83. Case of Egill Einarsson v. Iceland, App. No. 24703/15 (Eur. Ct. H.R. 2018). Id. at ¶ 39. Case of M.L. and W.W. v. Germany, App. No. 60798/10 (Eur. Ct. H.R. 2018). Tamiz v. United Kingdom, App. No. 3877/14 (Eur. Ct. H.R. 2017). Id. at ¶ 80. Iancu v. Brunetti, No. 18–302, 2019 WL 2570622, at *7 (2019) (Breyer, J., concurring in part and dissenting in part) . Ronald J. Krotoszynski, Jr., Reconciling Privacy and Speech in the Era of Big Data: A Comparative Legal Analysis, 56 Wm. & Mary L. Rev. 1279, 1326 (2015). Compare Hustler Magazine v. Falwell, Inc., 485 U.S. 46, 57 (1988) with Steel and Morris v. The United Kingdom, App. No. 68416/01, ¶90 (Eur. Ct. H.R. 2005). Lingens v. Austria, App. No. 9815/82 (Eur. Ct. H.R. 1986).

offense, incitement, true threats, and hate speech 347. See Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2234 (2015) (Breyer, J., concurring) (“In my view, the category ‘content discrimination’ is better

Notes to Pages 83–5

348. 349.

350.

351. 352. 353. 354. 355.

356.

357.

358.

359. 360. 361.

197

considered in many contexts, including here, as a rule of thumb, rather than as an automatic ‘strict scrutiny’ trigger, leading to almost certain legal condemnation.”). Reed v. Town of Gilbert, 135 S. Ct. 2218, 2232–33 (2015) (majority opinion). See, e.g., Doe v. Pulaski Cty. Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002); United States v. Dinwiddie, 76 F.3d 913 (8th Cir. 1996); Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1075 (9th Cir. 2002), as amended (July 10, 2002) (“threats should be considered in light of their entire factual context, including the surrounding events and the reaction of the listeners”). For similar factors created by experts who made recommendation for implementing Article 20(2) International Covenant on Civil and Political Rights, which obligates states to legally prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” see Article 19, Austria Responding to “Hate Speech,” 11, www.article19.org/wp-content /uploads/2018/09/Austria-Responding-to-Hate-Speech-.pdf (2018). 485 U.S. 46, 56 (1988). 562 U.S. 443 (2011). Snyder v. Phelps, 580 F.3d 206, 226 (4th Cir. 2009). Snyder, 562 U.S. at 457. See, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 574 (1995) (“[T]he point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.”). See Buckley v. Valeo, 424 U.S. 1, 48–49 (1976) (per curiam) (stating that government cannot restrict speech in order to raise the profile of more favored points of view). The Court sparingly applies the captive audience doctrine. Snyder, 562 U.S. at 459; Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975) (describing circumstances in which the government can selectively censor offensive expression because “the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure”). See Danielle Keats Citron & Helen Norton, Intermediaries and Hate Speech: Fostering Digital Citizenship for Our Information Age, 91 B. U. L. Rev. 1435, 1463 (2011) (describing a context-specific analysis for evaluating whether outrageous, humiliating, and intrusive speech can be said to result in the intentional infliction of emotional distress). 249 U.S. 47, 48 (1919). 249 U.S. 204, 205 (1919). 249 U.S. 211, 212 (1919).

198

Notes to Pages 86–8

362. Schenck, 249 U.S. at 52 (“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”). 363. Hand’s model of the clear and present danger test requires courts to “ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” See, e.g., United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950). 364. Frohwerk, 249 U.S. at 209. 365. See, e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513–14 (1969) (holding that the First Amendment barred the suspension of students who wore antiwar armbands to express their opposition to the Vietnam War without causing any “substantial disruption of or material interference with school activities”); James Weinstein, Participatory Democracy as the Basis of American Free Speech Doctrine: A Reply, 97 Va. L. Rev. 633, 666 (2011) (“[A]n antiwar protest in a public forum is afforded a much stronger presumption of protection than most other forms of expression.”). 366. For contemporary accounts of Frohwerk’s journalism for the Missouri Staats Zeitung and Kansas Staats Zeitung that led to his conviction, see German Americans Sought to Stop Allies’ Munitions, Evening Indep. (Massillon, Ohio), Mar. 5, 1918, at 14; Threaten Boycott Against Ellinwood Democratic Editor Because He’s for Hughes but He Stands Firm and Scorns Democratic Leaders Who Make Threats Against Him, Hutchinson News (Hutchinson, Kan.), Oct. 28, 1916, at 16. 367. Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam); Hess v. Indiana, 414 U.S. 105, 107–09 (1973) (per curiam). 368. Cincinnati Klan Chieftain Held in Cross Burning, Circleville Herald (Circleville, Oh.), AP News, Aug. 7, 1964, Aug. 7, 1964, at 10. Brandenburg denied that he had anything to do with the cross burning and blamed the arrest on “Jewism and Communism.” Id. 369. Brief of Appellees in Opposition to Jurisdiction, Brandenburg v. Ohio, 1968 WL 112736 (U.S.), at 3 (U.S., 2004). 370. Alexander Tsesis, We Shall Overcome: A History of Civil Rights and the Law 169–72 (2008); Ku Klux Klan Is Revived in South, Goshen Daily Democrat (Goshen, Ind.), Nov. 20, 1918, at 3. 371. Ohio Revised Code ¶2923.13, quoted in Brief for the Appellant, Brandenburg v. Ohio, 1969 WL 136813 (U.S.), at 2 (U.S., 1969). 372. Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 293 (1941). 373. Let’s Reminisce: News of 1913–23–33–43, Cambridge Daily Jeffersonian (Cambridge, Oh.), Jan. 14, 1963, at 4.

Notes to Pages 88–90

199

374. See, e.g., Misrepresents Negroes, Cleveland Gazette (Cleveland, Oh.), January 29, 1916, at 2; Opinion, Portsmouth Daily Times (Portsmouth, Oh.), Mar. 15, 1916, at 17 (writing of the Klansmen as “disgraceful” and “murderers”); Hate Smolders in Kentucky Mountains as War on Ku Klux Klan Ends, Canton Daily News (Canton, OH), June 25, 1916, at 8; “The Birth of a Nation” to Have a Clear Field in Ohio Unless the Governor Interferes, Cleveland Gazette, Feb. 24, 1917, at 1; Ku Klux Klan is Revived in South: “Invisible Empire” Organized in Many Localities to Deal with Idlers and Slackers, Elyria Evening Telegram (Elyria, Oh.) Nov. 18, 1918, at 6; Pledge to Work Together, Canton Daily News (Canton, Ohio), Oct. 7, 1919, at 10. 375. See, e.g., Drew Pearson, Opinion, Kennedy, Wallace Have Little in Common, Elyria Chronicle Telegram (Elyria, Oh.), May 18, 1963, at 2. 376. Racial Attack, Circleville Herald (Circleville, Oh.), May 27, 1963, at 14. 377. Dudley Lehew, Laws May Curb Mississippi Riots, Evening Independent (Massillon, Oh.), June 24, 1964, at 23; Brief of Appellees in Opposition to Jurisdiction, Brandenburg v. Ohio, 1968 WL 112736 (U.S.), supra, at 4. 378. To Resume Ku Klux Klan Probe, New Philadelphia Daily Times (New Philadelphia, Oh.), AP News, Jan. 3, 1966, at 9; Klan Probers Want Contempt Citations, Steubenville Herald Star (Steubenville, Oh.), AP News, Jan. 7, 1966, at 13; Inez Robb, Opinion, Haven’t Rumpled Any Sheets in KKK Probe, Defiance Crescent News (Defiance, Oh.), Jan, 11, 1966, at 4. 379. Klan Probing Is Continuing, Defiance Crescent News (Defiance, Oh.), Jan. 13, 1966, at 3. 380. Brief of Appellees in Opposition to Jurisdiction, Brandenburg v. Ohio, 1968 WL 112736, (U.S.), supra, at 4. 381. Brief for Appellant, Brandenburg v. Ohio, supra, (U.S.), at 1. 382. N. Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964). 383. Watts v. United States, 394 U.S. 705, 706 (1969) (per curiam); id. at 707–08 (deciding that a willful threat against the president of the United States is an unprotected form of expression). 384. In relevant part, the statute created a criminal cause of action against anyone who “knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect.” 18 U.S.C. § 871(a) (2012). 385. United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir. 1976). 386. Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1074 (9th Cir. 2002) (quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990)).

200

Notes to Pages 90–4

387. Doe v. Pulaski Cty. Special Sch. Dist., 306 F.3d 616, 622 (8th Cir. 2002) (describing the difference between the Ninth and Second Circuits’ interpretations of the true threats doctrine). 388. See, e.g., #I ?? U: Considering the Context of Online Threats, 106 Cal. L. Rev. 1885 (2018). 389. 538 U.S. 343 (2003). 390. Cf. Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 342 (2008) (stating that civic responsibilities include the protection of health, safety, and the advancement of citizens’ welfare). 391. United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996) (citations omitted). 392. Elonis v. United States, 135 S. Ct. 2001, 2011 (2015). 393. 505 U.S. 377, 395–96 (1992). 394. David a. Strauss, The Living Constitution 54 (2010). 395. Robert Post, Hate Speech, in Hate Speech, In Extreme Speech and Democracy 123 (Ivan Hare & James Weinstein eds., 2009). 396. See, e.g., Eugene Volokh, The Freedom of Speech and Bad Purposes, 63 UCLA L. Rev. 1366, 1381 (2016); Eugene Volokh, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095, 1135–36 (2005). 397. Brandenburg, 395 U.S. at 447–49. 398. Black, 538 U.S. at 359–60. 399. Id. at 360. 400. Gordon w. Allport, The Nature of Prejudice 60 (1979). 401. Id. at 57. 402. See, e.g., Alexander Tsesis, Destructive Messages: How Hate Speech Paves the way for Harmful Social Movements (2002); Alexander Tsesis, Campus Speech and Harassment, 101 Minn. L. Rev. 1863, 1884–85 (2017); Joseph W. Bendersky, A Concise History of Nazi Germany 141 (3d ed. 2007) (describing Nazi exploitation of traditional European antisemitism); Richard J. Evans, The Coming of the Third Reich 27 (1st ed. 2003) (describing the interrelatedness of historical and modern antisemitism in Germany); Saul Friedlander, Nazi Germany and the Jews: the Years of Persecution, 1933–1939, at 3–4, 110, 324 (1997) (discussing the integration of European antisemitism in Nazi propaganda and its indoctrinating effect in Germany and Austria). On the evident effect of destructive messages in the Hutu genocide perpetrated against the Tutsis in Rwanda see Jean Hatzfeld, Machete Season: The Killers in Rwanda Speak 55 (Linda Coverdale trans., 2005) (describing radio broadcasts openly calling for Tutsi destruction prior to the 1994 genocide in Rwanda); Mahmood Mamdani, When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda 212 (2001) (quoting from the Hutu-power Kangura newspaper, which

Notes to Pages 94–6

403. 404. 405.

406. 407. 408. 409. 410.

411. 412.

413.

414. 415. 416. 417.

201

dehumanized the Tutsis and called for their destruction); Josias Semujanga, Origins of Rwandan Genocide 171–72 (2003) (providing an account of how racist ideology of the 1950s took root in Hutu politics and permeated the popular view of Tutsis). Rebecca Tushnet, Worth a Thousand Words: The Images of Copyright, 125 Harv. L. REV. 683, 697–98 (2012). Steven G. Gey, A Few Questions about Cross Burning, 80 Notre Dame L. Rev. 1287, 1324 (2005). Steven G. Gey, The Brandenburg Paradigm and Other First Amendments, 12 U. Pa. J. Const. L. 971, 1006 (2010) [hereinafter Gey, The Brandenburg Paradigm]. Virginia v. Black, 538 U.S. 343, 381–82 (Souter, J., concurring in the judgment in part and dissenting in part). Gey, The Brandenburg Paradigm, supra, at 1007. Id. Black, 538 U.S. at 366. See, e.g., Daniel A. Farber, The Categorical Approach to Protect Speech in American Constitutional Law, 84 Indiana L. J. 917, 925 (2009) (“Although Virginia v. Black represents the Court’s official recognition of true threats as unprotected and its first definition of the category’s boundaries, it can hardly be viewed as a surprise that the government is entitled to prevent individuals from threatening an individual or the public with immediate violence.”). Black, 538 U.S. at 359. Council of Europe, Say No to Racism, Mar. 16, 2015, www .coe.int/en/web/portal/full-news/-/asset%5Fpublisher/Dgh51iCGvfbg/co ntent/say-no-to-racism?inheritRedirect=false&redirect=https%3A%2F% 2Fwww.coe.int%2Fen%2Fweb%2Fport al%2Ffull-news%3Fp_p_id%3 D101_INSTANCE_Dgh51iCGvfbg%26p_p_lifecycle%3D0%26p _p_st ate%3Dnormal%26p_p_mode%3Dview%26p_p_col_id%3Dcolumn-4 %26p_p_col_count%3D1. Cass R. Sunstein, Words, Conduct, Caste, 60 U. Chi. L. Rev. 795, 798–802 (1993); Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, 85 Nw. U. L. Rev. 343, 381 (1991); Owen M. Fiss, Why the State?, 100 Harv. L. Rev. 781, 784–87 (1987). Erbakan, at ¶ 56. Lawless (no. 3) v. Ireland, App. No. 332/57, at ¶ 7 (ECtHR 1961). Marı´a Elo´segui, Chapter 3 Denial or Justification of Genocide As a Criminal Offence in European Law, 60 IUS Gentium 49, 80 (2017). Terminiello v. Chicago, 337 U.S. 1, 5, 37 (1949) (Jackson, J., dissenting) (dissenting from an opinion in which the majority held unconstitutional an ordinance that criminalized speech that “stirred people to anger, invited public dispute, or brought about a condition of unrest”).

202

Notes to Pages 96–101

418. Handyside v. United Kingdom, App. No. 5493/72, at ¶ 49 (Eur. Ct. H.R. 1976). 419. Id. 420. In the case of Balsyte-Lideikiene v. Lithuania, App. No. 72596/01, at ¶ 77 (Eur. Ct. H.R. 2008). 421. Sener v. Turkey, App. No. 26680/95, at ¶ 45 (Eur. Ct. H.R. 2000). 422. Dicle v. Turkey, App. No. 46733/99, at ¶33 (Eur. Ct. H.R. 2006). 423. Vejdeland v. Sweden, App. No. 1813/07, at ¶ 2 (Eur. Ct. H.R. 2012) (Jg. Spielmann, concurring). Judge Andra´s Sajo´, dissenting to Fe´ret v. Belgium, App. No. 15615/07 (Eur. Ct. H.R. 2009) (“Content regulation and content-based restrictions on speech are based on the assumption that certain expressions go ‘against the spirit’ of the Convention. But ‘spirits’ do not offer clear standards and are open to abuse. Humans, including judges, are inclined to label positions with which they disagree as palpably unacceptable and therefore beyond the realm of protected expression. However, it is precisely where we face ideas that we abhor or despise that we have to be most careful in our judgment, as our personal convictions can influence our ideas about what is actually dangerous.”). 424. Zana v. Turkey, App. No. 18954/91, at ¶¶ 52–62 (Eu. Ct. H.R. 1997). 425. Su¨rek v. Turkey (No. 1), App. No. 26682/95, at ¶ 62 (Eu. Ct. H.R. 1999). 426. Fe´ret, at ¶ 72. 427. Id. at ¶ 73. 428. Roger Garaudy v. France, App. No. 65831/01 (Eu. Ct. H.R. 2003). 429. Soulas and Others v. France, 15948/03 (Eu. Ct. H.R. 2008). 430. Giniewski v. France, App. No. 64016/00, at ¶ 24, 56 (Eu. Ct. H.R. 2006). 431. Jersild v. Denmark, App. No. 15890/89, ¶ 31 (Eu. Ct. H.R. 1994).

terrorist incitement on the internet 432. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 164–65 (1963) (Goldberg, J., majority); Terminiello v. Chicago, 337 U.S. 1, 5, 37 (1949) (Jackson, J., dissenting). 433. Fre´de´ric Donck, EU Issues Overview–14–20 February 2015, ISOC Eur. Regional Bureau Newsl. (Internet Soc’y), Feb. 23 2015, at 3. 434. EU Security Chief: “Far Too Much” Online Extremist Content, July 17, 2018, AP News, www.apnews.com/56d118af9c514e4f960f67dcef669bc0. 435. 8 U.S.C. §§ 1182(a)(3)(B)(iii)–(v). 436. 8 U.S.C. § 1189 (setting out conditions and duration for designating a foreign terrorist organizations). 437. Holder v. Humanitarian Law Project, 561 U.S. 1, 40, 12 (2010). 438. Id. at 28; Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1666 (2015).

Notes to Pages 102–5

203

439. Wibke K. Timmermann, Incitement in International Law 54 (2014). 440. Council Framework Decision 2008/919/JHA of 28 November 2008, amending Framework Decision 2002/475/JHA on Combating Terrorism, 2008 O.J. (L 330/21) 8–11. 441. Terrorism Act 2006, c. 2, § 2 (U.K.). 442. Data Retention and Investigatory Powers Act 2014, c. 1, § 1 (U.K.), amended by Counter-Terrorism and Security Act 2015, ch. 3, § 21 (U.K.). 443. New York v. Ferber, 458 U.S. 747, 763 (1982); HLP, 561 U.S. at 40. 444. Catherine Stupp, France Eyes EU Law to Crack Down on Terrorists’ Use of Social Media, EURACTIV.com, Feb. 16, 2018 (updated: Feb. 19, 2018), www.euractiv.com/section/digital/news/france-eyes-eu-law-to-cra ck-down-on-terrorists-use-of-social-media/. 445. European Commission, Proposal for a Regulation of the European Parliament and the Council on Preventing the Dissemination of Terrorist Content Online, (2018), https://ec.europa.eu/commission/sites/ beta-political/files/soteu2018-preventing-terrorist-content-online-regula tion-640_en.pdf. 446. Sam Trendall, Politicians Across Europe Call on ISP “Partnerships” To Help Fight Terror, Channelnomics (Jan. 12, 2015) https://perma.cc /NU7 R-KC74. 447. European Commission, Press Release, Implementing the European Agenda on Security – New Measures to Combat Terrorism and Illicit Trafficking of Firearms and Use of Explosives (Dec. 2, 2015), https://per ma.cc/D2GC-FM2J. 448. C-51 § 83.222 www.parl.ca/DocumentViewer/en/41–2/bill/C-51/royalassent/page-4; Bill C-59, Sponsored by Ralph Goodale, Liberal, https:// openparliament.ca/bills/42–1/C-59/; Senate Government Representative Office (Canada), See Bill C-59 in the Senate: Enhancing National Security and Protecting Our Rights, Sept. 13, 2018, https://senate-gro.ca /news/bill-c59-senator-gold/. 449. Alex Boutilier, Spy Agencies Anxious for Senate to Pass National Security Reforms, Feb. 26, 2019, www.thestar.com/politics/federal/2019/02/25/spy-ag encies-anxious-for-senate-to-pass-national-security-reforms.html; Canadian Civil Liberties Association, The Relationship Between Bill C-59 and Bill C-51, Canadian C.L. Ass’n Sept. 12, 2017, https://ccla.org/relationshipbill-c-59-bill-c-51/. 450. Scott Shane, Internet Firms Urged to Limit Work of Anwar al-Awlaki, N.Y. Times (Dec. 18, 2015). 451. Woman Jailed for Life for Attack on MP Stephen Timms, BBC (Nov. 3, 2010). 452. Marilyn B. Peterson, The Context of Analysis-From Analysis to Synthesis, in Criminal Intelligence Analysis (P.P. Andrews,

204

453. 454. 455. 456.

457.

458. 459. 460. 461. 462.

463.

464.

465.

466. 467.

Notes to Pages 105–8

Jr. and M.B. Peterson eds., 1990), cited in Pedrag Doje`inoviæ, Word Scene Investigations, in Propaganda, War Crimes Trials and International Law 71 (Pedrag Doje`inoviæ ed., 2012). J. L. Austin, How to Do Things with Words 5–6 (J. O. Urmson & Marina Sbisa´, eds., 1962). Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). Cf. Karaahmed v.Bulgaria, App. No., 30587/13 ¶¶ 93–94 (Eur. Ct. H.R. 2015). Fifteen Years After 9/11: Threats to the Homeland: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. 2 (2015) (statement of James B. Comey, Director, Federal Bureau of Investigation). See Jihad 2.0: Social Media in the Next Evolution of Terrorist Recruitment: Hearing Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th Cong. 1 (2015) (statement of Daveed Gartenstein-Ross, Senior Fellow, Foundation for Defense of Democracies). Gabriel Weimann, Terrorism in Cyberspace, Fathom (2015). Khari Johnson, Zuckerberg: It’s Easier to Detect a Nipple than Hate Speech with AI, 2018 WLNR 12632295. Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, 131 Harv. L. Rev. 1598, 1632–33 (2018). A. and Other v. United Kingdom, App. No. 3455/05 ¶ 108 (Eur. Ct. of H. R. 2009). Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 849 (1992) (“The inescapable fact is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgment.”). See, e.g., Ashutosh Bhagwat, Terrorism and Associations, 63 Emory L.J. 581, 622 (2014); Alan K. Chen, Free Speech and the Confluence of National Security and Internet Exceptionalism, 86 Fordham L. Rev. 379, 398 (2017). Martin H. Redish & Matthew Fisher, Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity, 86 Fordham L. Rev. 565 (2017). See, e.g., Peter Do¨rrie, Casual Killers, Reluctant Cops: Inside the Terror Attack at Kenya’s Westgate Mall, War Is Boring, Oct. 20, 2013, https:// warisboring.com/casual-killers-reluctant-cops-inside-the-terror-attack-atkenya-s-westgate-mall/ (the “Al Shabaab Twitter account, during the attack, claim[ed] to relay first-hand information from the scene”). Jeremy Kahn, Mumbai Terrorists Relied on New Technology for Attacks, N.Y. Times (Dec. 8, 2008), https://perma.cc/7DS9-SKK5. Eric Geller, France Blames Facebook and Twitter for Terrorism, Daily Dot (Dec. 11, 2015, 9:45 AM), https://perma.cc/8S8X-YTHE; Alroy

Notes to Pages 109–13

468. 469. 470.

471. 472.

473.

474. 475.

476. 477. 478.

479. 480. 481. 482.

483. 484.

205

Menezes, Aqsa Mahmood from Scotland Joined Islamic State to Become “Martyr,” Int’l Bus. Times (Sept. 6, 2014, 10:21 AM), www.ibtimes.com /aqsa-mahmood-scotland-joined-islamic-state-become-martyr-1680588. Id. at 35 (asserting that the material terrorist statute permits government to criminalize conduct making imminent harms more likely to occur). Id. at 40. See, e.g., Samuel J. Rascoff, Counterterrorism and New Deterrence, 89 N. Y.U. L. Rev. 830, 830 (2014); Benjamin S. Mishkin, Note, Filling the Oversight Gap: The Case for Local Intelligence Oversight, 88 N.Y. U. L. Rev. 1414, 1448 (2013). The Federalist No. 23, at 146–47 (Alexander Hamilton) (Jacob E. Cooke ed., Wesleyan Univ. Press 1961). Canada Criminal Code, R.S.C. 1985, c C-46, § 320.1; see also About the Anti-terrorism Act, Can. Dep’t Just. (July 26, 2017), https://justice.gc.ca/ eng/cj-jp/ns-sn/act-loi.html. Anti-terrorism Act, S.C. 2015, c 20, § 16.83.223 (1) (Can.), https://lawslois.justice.gc.ca/eng/AnnualStatutes/2015_20/page-3.html?txthl=custo dian+system%E2%80%99s+material+deletion+computer+deleted+sys tem+delete#s-16. Anti-terrorism Act, S.C. 2001, c 41, § 320.1(2) (Can.). Crookes v. Newton, [2011] 3 S.C.R. 269, 283 (Can.); June M. Besek & Philippa S. Loengard, Maintaining the Integrity of Digital Archives, 31 Colum. J.L. & Arts 267, 311–12 (2008). EUROPOL, The Internet Organised Crime Threat Assessment (IOCTA) 49–50 (2016). Council of Europe Convention on the Prevention of Terrorism art. 5, May 16, 2005, C.E.T.S. 196. Eric De Brabande`re, The Regulation of Incitement to Terrorism, in International Law, in Balancing Liberty and Security: The Human Rights Pendulum 233–34 (Ludovic Hennebel & Helene Tigroudja eds., 2011). Id. at 232–34. Holder v. Humanitarian Law Project, 561 U.S. 1, 39 (2010). 47 U.S. Code § 230. David Cole, The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine, 6 Harv. L. & Pol’y Rev. 147, 151 (2012) [hereinafter, “The First Amendment’s Borders”]. David Cole, Where Liberty Lies: Civil Society and Individual Rights After 9/ 11, 57 Wayne L. Rev. 1203, 1263 (2011) [hereinafter, “Where Liberty Lies”]. HLP, 561 U.S. at 28 (“The law here may be described as directed at conduct, as the law in Cohen was directed at breaches of the peace, but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.”).

206

Notes to Pages 113–7

485. 18 U.S.C. § 2339B(i) (2012). 486. HLP, 561 U.S. at 24 (“[A]ny independent advocacy in which plaintiffs wish to engage is not prohibited by § 2339B. On the other hand, a person of ordinary intelligence would understand the term ‘service’ to cover advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.”). 487. Cole, The First Amendment’s Borders, supra, at 149. 483. 8 U.S.C. § 1189 (a)(5). 488. 8 U.S.C. § 1189(a)(5). 489. HLP, 561 U.S. at 39 (clarifying that the Court “in no way suggest[s] that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations”). 490. Wadie E. Said, Humanitarian Law Project and the Supreme Court’s Construction of Terrorism, 2011 BYU L. Rev. 1455, 1508. 491. Wadie E. Said, Sentencing Terrorist Crimes, 75 Ohio St. L.J. 477, 505 (2014). 492. Wadie E. Said, The Material Support Prosecution and Foreign Policy, 86 Ind. L.J. 543, 571 (2011). 493. Id. at 570. 494. 8 U.S.C. § 1189(a)(2)(A)(I); id. at (a)(4)(B); id. at (b)(4); id. at (c). 495. Id. at § 1189(c)(3)(B). 496. David Cole & Jules Lobel, Less Safe, Less Free: Why America Is Losing the War on Terror 54 (2007). 497. Holder v. Humanitarian Law Project, 561 U.S. 1, 40 (2010). 498. Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1027 (7th Cir. 2002). 499. 8 U.S.C. § 1182(a)(3)(B)(iii). 500. Aziz Z. Huq, Preserving Political Speech from Ourselves and Others, 112 Colum. L. Rev. Sidebar 16 (2012). 501. 558 U.S. 310 (2010). 502. 18 U.S.C. § 2339A(b)(1) (2006). 503. 52 U.S.C. § 30118 (2016). 504. Huq, supra, at 22. 505. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963); Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting). 506. See, e.g., Michal Buchhandler-Raphael, Overcriminalizing Speech, 36 Cardozo L. Rev. 1667, 1685 (2015); Thomas Healy, Brandenburg in a Time of Terror, 84 Notre Dame L. Rev. 655, 712 (2009).

first amendment on campus 507. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 506 (1969). 508. See Snyder v. Phelps, 562 U.S. 443, 453 (2011).

Notes to Pages 117–21

207

509. See Brandenburg v. Ohio, 395 U.S. 444, 449 (1969). 510. Widmar v. Vincent, 454 U.S. 263, 268 n.5 (1981). 511. Robert Post, Campus Speech Debate Continues: Prof. Post Responds to FIRE’s Creeley, https://concurringopinions.com/archives/2017/10/fan-167– 2-first-amendment-law-campus-speech-debate-continues-prof-post-responds -to-fires-creeley.html. 512. Alfred L. Brophy, The Republics of Liberty and Letters: Progress, Union, and Constitutionalism in Graduation Addresses at the Antebellum University of North Carolina, 89 N.C. L. Rev. 1879, 1958 (2011); Paul Finkelman, Thomas R.R. Cobb and the Law of Negro Slavery, 5 Roger Williams U. L. Rev. 75, 89 (1999). 513. Meera E. Deo, Two Sides of a Coin: Safe Space & Segregation in Race/ Ethnic-Specific Law Student Organizations, 42 Wash. U. J.L. & Pol’y 83, 123 (2013). 514. Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819 (1995). 515. Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the Law v. Martinez, 561 U.S. 661 (2010). 516. Afrikan Student Union at UCLA Releases Demands, Nommo (Oct. 23, 2015), http://nommomagazine.com/?p=2580. 517. Lukas Mikelionis, Berkeley Protesters Demand “Spaces of Color,” Fox News U.S. (Oct. 24, 2016). 518. Our Demands, Black Liberation Collective, www.blackliberationcollective .org/our-demands (last visited Sept. 9, 2018). 519. See Christian Legal Soc’y Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 697 (2010) (finding a university could reasonably require a religious student organization to comply with its nondiscrimination policy imposed on officially recognized student organizations). 520. Lorna Veraldi & Donna M. Veraldi, Is There a Research Basis for Requiring Trigger Warnings? 1, 6–7, www.forensicpsychology.org/Veral diVeraldiTriggerWarningsHandout.pdf (prepared for 31st Annual Symposium in Forensic Psychology, Mar. 26, 2015). 521. See Arthur R. Butz, The Hoax of the Twentieth Century 6–8 (1976) (engineering professor arguing in book form that the Holocaust is the greatest hoax of the twentieth century and exploited to justify US support of Israel). 522. Carey v. Brown, 447 U.S. 455, 471 (1980); Police Dep’t v. Mosley, 408 U.S. 92, 101–02 (1972). 523. Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 4, 20–21 (1986) (plurality opinion); Wooley v. Maynard, 430 U.S. 705, 706–07, 717 (1977). 524. Robert C. Post, Democracy, Expertise, and Academic Freedom 92 (2012).

208

Notes to Pages 122–4

525. Colleen Flaherty, Trigger Unhappy, Inside Higher Ed (Apr. 14, 2014), www.insidehighered.com/news/2014/04/14/oberlin-backs-down-triggerwarnings-professors-who-teach-sensitive-material. 526. Tony Allen-Mills, “Gory” Gatsby Is Too Violent for US Students, Sunday Times (Apr. 27, 2014); Valerie Strauss, What “Trigger Warning” Would the Bible Get?, Wash. Post (May 23, 2014). 527. Bailey Loverin, Opinion, Trigger Warnings at UCSB, Daily Nexus (Mar. 11, 2014). 528. Robert Shibley, Current Threats to Free Speech on Campus, 14 First Amend. L. Rev. 239, 262 (2016). 529. Heidi Kitrosser, Free Speech, Higher Education, and the PC Narrative, 101 Minn. L. Rev. 1987, 2015 (2017). 530. Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967). 531. City of Hous. v. Hill, 482 U.S. 451, 472 (1987). 532. On Trigger Warnings, Am. Ass’n Univ. Professors (Aug. 2014), www .aaup.org/report/trigger-warnings. 533. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). 534. Id. at 425. 535. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring and dissenting) (“Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.”), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969). 536. See Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (“[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”). 537. Brandenburg, 395 U.S. at 447 (“The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action.”). 538. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (applying actual malice standard to political satire about public figures). 539. Hess v. Indiana, 414 U.S. 105, 109 (1973). 540. Landmark Commc’ns, Inc. v. Virginia, 435 U.S. 829, 845 (1978) (quoting Bridges v. California, 314 U.S. 252, 263 (1941)). 541. Frederick Schauer, Is It Better to Be Safe than Sorry?: Free Speech and the Precautionary Principle, 36 Pepp. L. Rev. 301, 306 n.26 (2009) (“By insisting that potentially danger-causing speech not be restricted unless

Notes to Pages 124–7

542. 543. 544. 545. 546. 547.

548. 549. 550.

551. 552. 553.

554. 555.

556.

557.

209

the danger is likely, the danger truly grave, the advocacy explicit, and the temporal connection imminent, Brandenburg demands that we accept that causal speech whose serious causal consequences are, for example, likely but temporally remote, immediate but unlikely, and perhaps most seriously, both likely and non-remote, but produced by something other than speech explicitly urging the consequences.”). Virginia v. Black, 538 U.S. 343, 359 (2003). Id. at 349. Elonis v. United States, 135 S. Ct. 2001, 2016 (2015) (Alito, J., concurring in part and dissenting in part). Id. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). NAACP v. Claiborne Hardware Co., 458 U.S. 886, 927–28 (1982) (distinguishing between “advocacy” and “provo[cation]” of violence); Gooding v. Wilson, 405 U.S. 518, 522–25, 528 (1972) (rejecting interpretations of an incitement statute which construed the fighting words doctrine too broadly). Pub. L. No. 88–352, 78 Stat. 252 (codified at 42 U.S.C. § 2000d (2012)). U.S. Dept. of Ed., Religious Discrimination, www2.ed.gov/about/offices/ list/ocr/religion.html. Barnes v. Gorman, 536 U.S. 181, 185 (2002) (“Title VI invokes Congress’s power under the Spending Clause.”); Guardians Ass’n v. Civil Serv. Comm’n of N.Y., 463 U.S. 582, 598 (1983) (“I note . . . that Title VI is spending-power legislation.”). U.S. Dept. of Ed., Religious Discrimination, supra. Cannon v. Univ. of Chicago, 441 U.S. 677, 703 (1979). Racial Incidents and Harassment Against Students at Educational Institutions; Investigative Guidance, 59 Fed. Reg. 11448, 11449 (Mar. 10, 1994). Id. at 11,448. Office for Civil Rights, Dear Colleague Letter from Assistant Secretary, U.S. Dep’t Educ. (July 28, 2003), www2.ed.gov/about/offices/list/ocr/first amend.html. Office for Civil Rights, Dear Colleague Letter from Assistant Secretary for Civil Rights, U.S. Dep’t Educ. (Oct. 26, 2010), www2.ed.gov/about/ offices/list/ocr/letters/colleague-201010.pdf. Cf. Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2380 (2018) (Breyer, J., dissenting) (“Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation.”).

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Notes to Page 127

558. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61 (1973) (discussing incidental restrictions on associational rights of antitrust and securities laws). 559. The majority’s claim that Title VII harassment falls under the secondary effects test in disingenuous. R.A.V. v. City of St. Paul, 505 U.S. 377, 389–90 (1992). As Justice White pointed out in his concurrence, “[T]he hostile work environment regulation is not keyed to the presence or absence of an economic quid pro quo, but to the impact of the speech on the victimized worker. Consequently, the regulation would no more fall within a secondary effects exception than does the St. Paul ordinance.” R.A.V. 505 U.S. at 410 (White, J., concurring). 560. See Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn’t Bark, 1994 Sup. Ct. Rev. 1, 13 (“[T]he Supreme Court’s failure to notice a First Amendment question would signal its unanimous view that there was no question to be noticed – a judgment that the prohibited category was so clearly unrelated to the First Amendment’s purposes that it should not be dignified with an explanation as to why it constituted an ‘exception.”’). Compare Brief for Respondent at 31, Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) (No. 92–1168), 1993 WL 302223 (briefing First Amendment implications), and Reply Brief of Petitioner at 10, Harris, 510 U.S. 17 (No. 92–1168), 1993 WL 632335 (same), with Harris, 510 U.S. 17 (not discussing First Amendment concerns). 561. Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001). 562. A variety of limitations on the content of speech are constitutional. These limitations include the power of states to zone the secondary effects of adult theaters, as in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54–55 (1986); to restrict electioneering within 100 feet of a polling place on election day, which was addressed in Burson v. Freeman, 504 U.S. 191, 206, 211 (1992); to prohibit deceptive and misleading uses of trade names, like in Friedman v. Rogers, 440 U.S. 1, 15 (1979); to prohibit willful or destructive conduct even when communicative in nature, such as the burning of draft cards during an anti-war protest, as was the case in United States v. O’Brien, 391 U.S. 367, 376–77 (1968); and to outlaw distribution of obscene material that “appeal[s] to the prurient interest in sex which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value,” as in Miller v. California, 413 U.S. 15, 23–24 (1973). 563. Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991). 564. I do not here address the Robinson court’s assertion, “No first amendment concern arises when the employer has no intention to

Notes to Pages 127–31

565.

566.

567. 568. 569. 570. 571.

572.

573. 574. 575. 576.

577. 578. 579.

211

express itself.” Id. at 1534–35. Nor do I think relevant to my discussion the court’s adoption of the public employee analogy, id. at 1536, because students are not in the same relationship to the university. Caroline Mala Corbin, The First Amendment Right against Compelled Listening, 89 B.U. L. Rev. 939, 961–62 (2009) (“Just as a hostile environment can prevent full participation in the workplace, a hostile environment can prevent full participation in the educational process.”). Robinson, 760 F. Supp. at 1536 (“When an employee’s exercise of free expression undermines the morale of the workforce, the employer may discipline or discharge the employee without violating the first amendment.”). Id. at 1535 (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 628 (1984)). Id. Id. at 1535–36. On content-neutral time, place, and manner restrictions see Ward v. Rock Against Racism, 491 U.S. 781, 791, 802 (1989). See Frisby v. Schultz, 487 U.S. 474, 487 (1988) (“The First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech.”). Chris Mills Rodrigo, UVA Bans Richard Spencer and Others from Campus, The Hill, Oct. 26, 2018, https://thehill.com/homenews/new s/413367-uva-bans-richard-spencer-and-others-from-campus. 721 F. Supp. 852, 856 (E.D. Mich. 1989). See, e.g., Virginia v. Black, 538 U.S. 343, 352 (2003) (plurality opinion); Beauharnais v. Illinois, 343 U.S. 250 (1952). Univ. of Mich., 721 F. Supp. at 856. All of these are categories the Supreme Court has determined to be outside First Amendment protection, except insults. It is unlikely that the latter would pass constitutional muster in light of the general prohibition in Snyder v. Phelps, R.A.V. v. St. Paul, and elsewhere that outrageous statements made in public are generally protected forms of expression. Univ. of Mich., 721 F. Supp. at 856. UWM Post, Inc. v. Bd. of Regents of Univ. of Wisconsin, 774 F. Supp. 1163 (E.D. Wis. 1991). UWM Post, Inc. v. Bd. of Regents of Univ. of Wisconsin Sys., 774 F. Supp. 1163, 1165–66 (E.D. Wis. 1991) (“A student would be in violation if: a. He or she intentionally made demeaning remarks to an individual based on that person’s ethnicity, such as name calling, racial slurs, or “jokes”; and b. His or her purpose in uttering the remarks was to make the educational environment hostile for the person to whom the demeaning remark was addressed.”).

212

Notes to Pages 131–4

580. Racial Incidents and Harassment Against Students at Educational Institutions; Investigative Guidance, 59 Fed. Reg. 11449. 581. Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995). 582. Board of Trustees, Prohibited Conduct, Ohio St. U., https://trustees .osu.edu/rules/code-of-student-conduct/3335–23-04.html. 583. See infra. 584. Office of Student Conflict Resolution, Statement of Student Rights and Responsibilities, Violations, U. Mich. (2016), https://oscr.umich.edu/Vi olations (prohibiting “[h]arassing or bullying another person – physically, verbally, or through other means”). 585. Among limitations on harmful speech is a provision against threats commensurate with the true threats holding in Black. See Office of Student Affairs, Code of Student Rights, Responsibilities and Disciplinary Procedures, Cent. Mich. U. para. 3.2.7 (2014), www.cmich.edu/ess/studen taffairs/Pages/Responsibilities-of-Students.aspx (“A student shall take no action that threatens or endangers the safety, health, or life, or impairs the freedom of any person, nor shall a student make any verbal threat of such action. This includes actions commonly understood to constitute assault or battery.”). This provision lacks an intent component, which should be inferred into the general prohibition against threats. Cf. Elonis, 135 S. Ct. at 2009 (“The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that ‘mere omission from a criminal enactment of any mention of criminal intent’ should not be read ‘as dispensing with it.’”) (quoting Morissette v. United States, 342 U.S. 246, 250 (1952)). 586. Free Speech on Campus: A Report from the University Faculty Committee, U. Chi. L. Sch. (Jan. 6, 2015), www.law.uchicago.edu/news/free-speechcampus-report-university-faculty-committee. The statement continues by explicitly rejecting the limiting of speech in which an audience may find that concern about civility, and affirms it “can never” be used as an excuse for restricting speech. 587. Faculty Staff Handbook: Student Affairs Policies, Student Code of Conduct, Univ. Idaho, www.webpages.uidaho.edu/fsh/2300.html. 588. See, e.g., Montoya v. New Mexico Inst. of Mining & Tech. Bd. of Regents, 2:16-cv-00386-MCA-SMV, 2017 WL 3405561, at *6 (D.N.M. Mar. 21, 2017). 589. Student Conduct Code for the University of Washington, Wash. Admin. Code, § 478–121-123 (2017), http://apps.leg.wa.gov/WAC/defa ult.aspx?cite=478–121&full=true. 590. Id. § 478–121-125. 591. Henry J. Hyde & George M. Fishman, The Collegiate Speech Protection Act of 1991: A Response to the New Intolerance in the Academy, 37 Wayne L.Rev. 1469, 1486 (1991).

Notes to Pages 134–40

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592. Univ. of Fl., Student Conduct Code § 6C1-4.041, http://regulations .ufl.edu/wp-content/uploads/2012/09/4041.pdf. 593. Code of Student Rights, Responsibilities, & Conduct, Ind. U., http:// studentcode.iu.edu/rights/harassment.html. 594. Discrimination, Harassment, and Retaliation, U. Wisc. Sys., www .wisconsin.edu/regents/policies/discrimination-harassment-and-reta liation/. 595. Code of Conduct-Jurisdiction, U. Cal., Berkeley § 102.24 http://sa .berkeley.edu/student-code-of-conduct-section5. 596. Black, 538 U.S. at 360. 597. The Model Penal Code defines intentional culpability as purpose, knowledge, recklessness, or negligence. Model Penal Code § 2.02 (Am. Law Inst. 1962). 598. Black, 538 U.S. at 359–60. 599. Larry Summers: Colleges Have Become Hypersensitive to Racial Prejudice. Why Not Anti-Semitism?, Wash. Post (Mar. 31, 2016). 600. For a definition of antisemitism and connection with some forms of antiZionism, see Comm’n on Educ. Policy, Adoption of the Report of the Regents Working Group on Principles Against Intolerance 2, 6, 10 (2016), http://regents.universityofcalifornia.edu/aar/mare.pdf. 601. Kenneth L. Marcus, The Definition of Anti-Semitism 68 (2016). 602. Defining Anti-Semitism, U.S. Dep’t of St. (June 8, 2010), https://2009– 2017.state.gov/j/drl/rls/fs/2010/122352.htm. 603. Eugene Volokh, University of California Board of Regents Is Wrong About “Anti-Zionism” on Campus, Wash. Post: Volokh Conspiracy (Mar. 16, 2016). 604. Shannon Gilreath, Freedom of Speech and the Anti-Semitism Awareness Act on College Campuses, The Hill (Jan. 20, 2017).

high schooler speech in the age of the internet 605. 393 U.S. 503 (1969). 606. Grayned v. City of Rockford, 408 U.S. 104, 116–19 (1972) (upholding, under the First Amendment, an anti-noise regulation, tailored for the particular needs of an educational institution, creating neutral restrictions for protests conducted on sidewalks adjacent to a school). 607. Good News Club v. Milford Cent. Sch., 533 U.S. 98, 111–12 (2001) (holding “that speech discussing otherwise permissible subjects cannot be excluded from a limited public forum on the ground that the subject is discussed from a religious viewpoint”). 608. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954). 609. 478 U.S. 675 (1986).

214

Notes to Pages 140–5

610. Id. at 681. 611. Id., quoting C. Beard & M. Beard, New Basic History of the United States 228 (1968). 612. Brief for Respondents, E.L. Fraser at 12, 478 U.S. 675 (1986) (No. 84–1667), Fraser, 1985 WL 670006, at *29; see also Fraser v. Bethel Sch. Dist. No. 403, 755 F.2d 1356, 1359–60 (9th Cir. 1985). 613. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271, 276 (1988). 614. Id. at 266. 615. Morse v. Frederick, 551 U.S. 393, 396–98 (2007). Additional facts can be found at Frederick v. Morse, No. J02-008 CV (JWS), J 02–008 CV(JWS), 2003 WL 25274689 (D. Alaska Mar. 29, 2003). 616. Transcript of Oral Argument at 6–7, Frederick v. Morse, 551 U.S. 393 (2007) (No. 06–278), www.supremecourt.gov/oral_arguments/argu ment_transcripts/2006/06–278.pdf; Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 57 (1988) (finding that the First Amendment protects parody); Bigelow v. Virginia, 421 U.S. 809, 829 (1975) (asserting that “[t]he policy of the First Amendment favors dissemination of information and opinion” on public matters). 617. Daniel Leddy, Advance Legal Columnist: The Issue of Students’ FreeSpeech Rights Is a Murky Area, Staten Island Advance (Feb. 26, 2013). 618. Eugene Volokh, Eighth-Grader Suspended for Not Removing Patriotic T-Shirt Depicting a Fallen Soldier’s Rifle, Wash. Post (Oct. 12, 2015). 619. When Educators Become Censors, Students Are Marginalized: Editorial, NJ.Com (Oct. 12. 2014). 620. Dariano v. Morgan Hill Unified Sch. Dist., 767 F.3d 764 (9th Cir. 2014). 621. I am borrowing from the symbolic speech test of United States v. O’Brien, 391 U.S. 367, 377 (1968). The intermediate scrutiny test applies here because the case is in an educational context, rather than in the context of offensive adult speech, which receives strict scrutiny when it occurs in public places. Cohen v. California, 403 U.S. 15, 26 (1971). 622. Dariano, 767 F.3d at 772 (9th Cir. 2014) (O’Scannlain, dissenting from the denial of rehearing en banc). 623. Dariano, 767 F.3d at 767 (O’Scannlian, J., dissenting). 624. Tinker, 393 U.S. at 508. 625. C.f. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 880 (1997) (rejecting the use of a heckler’s veto to censor expression). 626. See Dariano, 767 F.3d at 779 (“Here, both the specific events . . . and the pattern of which those events were a part made it reasonable for school officials to proceed as though the threat of a potentially violent disturbance was real”); Dariano v. Unified Sch. Dist., 822 F. Supp. 2d 1037, 1045 (N.D. Cal. 2011) (“[T]he Court finds that based on these undisputed facts, the school officials reasonably forecast that Plaintiffs’ clothing could cause a substantial disruption with school activities.”).

Notes to Pages 145–51

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627. J.A. v. Fort Wayne Cmty. Schs., No. 1:12-CV-155JVB, 2013 WL 4479229, at *2 (N.D. Ind. Aug. 20, 2013). 628. Id. at *5. 629. Id. at *3 (“Giving appropriate deference to schools requires courts to review school determinations by asking whether an objective observer could reasonably interpret the slogan as lewd, vulgar, obscene, or plainly offensive.”). 630. Doninger v. Niehoff, 527 F.3d 41, 43 (2d Cir. 2008). 631. Id. at 45–46. 632. Nicoletta Cavazza & Margherita Guidetti, Swearing in Political Discourse: Why Vulgarity Works, 33 J. Language & Soc. Psych. 537 (2014). 633. Kowalski v. Berkeley Cty. Schs., 652 F.3d 565, 567 (4th Cir. 2011). 634. J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 920–21, 928 (3d Cir. 2011). 635. Virginia v. Black, 538 U.S. 343, 365 (2003) (asserting that “lawful political speech” is “at the core of what the First Amendment is designed to protect”). 636. Without such disciplinary order, as the brutality of the Red Guard movement during the Chinese cultural revolution illustrates, nihilism can reign on campus and chaos can lead to violence against established order. The Red Guards were originally composed of university and middle school students, but the group soon expanded to include industrial workers. See generally Frank Diko¨ tter, The Cultural Revolution: A People’s History, 1962–1976 (2017); Guobin Yang, The Red Guard Generation and Political Activism in China (2016); Yuan Gao, Born Red: A Chronicle of the Cultural Revolution (1987). 637. Amy Gutmann, Democratic Education 56 (1987). 638. Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 679 (2010) (stating that “restrictions on access to a limited public forum . . . must be reasonable and viewpoint neutral”). 639. Frank D. LoMonte, Shrinking Tinker: Students Are “Persons” Under Our Constitution–Except When They Aren’t, 58 Am. U. L. Rev. 1323, 1348 (2009). 640. Amy Gutmann, What Is the Value of Free Speech for Students?, 29 Ariz. St. L.J. 519, 523 (1997) (“[L]aws governing free speech in schools should increasingly respect the free speech rights of students varied by age.”). 641. S.G. ex rel. A.G. v. Sayreville Bd. of Educ., 333 F.3d 417, 423 (3rd Cir. 2003) (declining to differentiate under what circumstances a school may violate an elementary school student’s freedom of speech rights).

216

Notes to Pages 151–3

642. Baxter v. Vigo Cty. Sch. Corp., 26 F.3d 728, 736–38 (7th Cir. 1994) (upholding a principal’s qualified immunity against a law suit challenging the punishment of a student for wearing a t-shirt to protest grades and racism), superseded by statute as recognized in Holmes v. Marion Cty. Office of Family & Children, 349 F.3d 914, 918–19 (7th Cir. 2003). 643. Alexander Tsesis, The Problem of Confederate Symbols: A Thirteenth Amendment Approach, 75 Temp. L. Rev. 539 (2002). 644. See generally Lawrence Blum, “I’m Not a Racist, But . . . ”: The Moral Quandary of Race (2002); William A. Pencak, Contested Commonwealths: Essays in American History 334 (2011) (recounting that in the 1950s and 1970s “the state flags of Georgia (1956) and South Carolina (1963) incorporated the Confederate Battle Flag . . . an action taken by their legislature explicitly to support segregation as well as to honor the Confederacy”); John Walker Davis, An Air of Defiance: Georgia’s State Flag Change of 1956, 82 Ga. Hist. Q. 305, 317 (1998) (relating the uses of Confederate flag in Georgia as a rallying symbol against desegregation); Chris Springer, The Troubled Resurgence of T h e C o n f e d e r a t e F l a g , H i s t o r y T o d a y (1 9 9 3) w w w .historytoday.com/chris-springer/troubled-resurgence-confederateflag (discussing symbolic features of the Confederate flag). 645. The Confederate Constitution, which was adopted in 1861, is reprinted in Emory M. Thomas, The Confederate Nation, 1861–1865, at 307–22 (1979). Confederate Const. art. I, § 9, cl. 4; Id. at art. IV, § 2, cl. 1; Id. at art. IV, § 2, cl. 3; Id. at art. IV, § 3, cl. 3. 646. Alexander Tsesis, Constitutional Ethos (2017). 647. See, e.g., A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 223 (5th Cir. 2009) (“[T]he racially inflammatory meaning associated with the Confederate flag and the evidence of racial tension at BHS establish that defendants reasonably forecast that the proscribed speech might cause substantial disruption of school activities.”); B.W.A. v. Farmington R-7 Sch. Dist., 554 F.3d 734, 741 (8th Cir. 2009) (holding that evidence of prior “raciallymotivated violence, racial tension, and other altercations directly related to adverse race relations in the community and the school” justified school district’s ban on Confederate symbols in school). 648. Defoe ex rel. Defoe v. Spiva, 625 F.3d 324, 334 (6th Cir. 2010). 649. Id. at 336 (quoting Castorina v. Madison Cnty. Sch. Bd., 246 F.3d 536, 542 (6th Cir. 2001)). 650. The Supreme Court has found that the Thirteenth Amendment is not only tied to U.S. slavery but to other extreme forms of oppression, such as “Mexican peonage and the Chinese coolie labor system.” Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 72 (1873). Furthermore,

Notes to Page 153

651.

652.

653.

654.

217

in Shaare Tefila Congregation v. Cobb, a case arising from the private desecration of a synagogue, the Court found held that the Civil Rights Act of 1866, which Congress enacted pursuant to its Thirteenth Amendment power, was a legitimate exercise of Section Two’s grant of congressional authority. 481 U.S. 615, 617–18 (1987); see also St. Francis Coll. v. Al-Khazraji, 481 U.S. 604,611 (1987). See James Forman, Jr., Note, Driving Dixie Down: Removing the Confederate Flag from Southern State Capitols, 101 Yale L.J. 505, 513 (1991) (describing how the Confederate Flag was meant to rally soldiers to battle). Theodore Weld, in 1839, exclaimed that enslaved parents had “as little control over [their children] as have domestic animals over the disposal of their young.” Theodore D. Weld, American Slavery as It Is 56 (Arno Press 1968) (1839). Slave parents were particularly restrained from educating their children. Indeed, many states forbade slaves from receiving any form of education, even though some blacks learned clandestinely with the help of sympathetic or self-interested whites. Concerning African American resourcefulness in using linguistic skills to elevate themselves from slavery and cultural prejudices, see Kimberly Rae Connor, To Disembark: The Slave Narrative Tradition, 30 Afr. Am. Rev. 35, 36 (1996); Joyce E. Williams & Ron Ladd, On the Relevance of Education for Black Liberation, 47 J. Negro Educ. 266 (1978). In the South, general education for blacks began only in 1861 in Fortress Monroe, Virginia. Ellis O. Knox, A Historical Sketch of Secondary Education for Negroes, 9 J. Negro Educ. 440, 445 (1940). Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2262 (2015) (asserting that some wave the Confederate battle flag “to evoke the memory of their ancestors and other soldiers who fought for the South in the Civil War,” while “[t]o others, it symbolizes slavery, segregation, and hatred”). Admittedly, many people refer to Confederate symbols as symbols of hospitable Southern culture, and at least in historical but that does not negate their being badges of slavery and involuntary servitude in a post-Reconstruction educational requirement. The classic case on the Thirteenth Amendment’s applicability to private actions is Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). On the other hand, the Fourteenth Amendment’s state action requirement limits causes of action to such matters as public school. United States v. Morrison, 529 U.S. 598 (2000). On the Thirteenth Amendment side, private schools are also subject to constitutional challenges. Runyon v. McCrary, 427 U.S. 160, 168–75 (1976) (finding that 42 U.S.C. §1981, which Congress passed pursuant to its Thirteenth Amendment authority, prohibits schools from excluding potential students based on race).

218

Notes to Pages 153–8

655. Runyon, 427 U.S. 160. 656. The Supreme Court of the United States has drawn attention to the farreaching legislative powers implied by Section 2: “[T]his Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery – its ‘burdens and disabilities’ – included restraints upon ‘those fundamental rights which are the essence of civil freedom, namely, the same right … to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.’” Jones v. Alfred H. Mayer, 392 U.S. 409, 441 (1968) (quoting The Civil Rights Cases, 109 U.S. 3, 22 (1883)). 657. See Denno v. Sch. Bd., 218 F.3d 1267, 1273 (11th Cir. 2000). 658. Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 444 (4th Cir. 2013). 659. Hardwick ex rel. Hardwick v. Heyward, 674 F. Supp. 2d 725, 729 (D.S.C. 2009). 660. Hardwick ex rel. Hardwick, 711 F.3d at 430–32. 661. Id. at 438. 662. Civil Rights Cases, 109 U.S. 3, 25 (1883). 663. See, e.g., Va. v. Black, 538 U.S. 343 (2003). 664. Catherine J. Ross, Lessons in Censorship: How Schools and Courts Subvert Students’ First Amendment Rights 183–84 (2015). 665. See Whitfield v. Notre Dame Middle Sch., 412 F. App’x 517, 521 (3rd Cir. 2011).

on the campaign trail 666. Buckley v. Valeo, 424 U.S. 1, 58–59 (1976) (holding that statutory limits on a candidate’s use of personal funds for independent expenditures or a campaign’s overall expenditures are “substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.”). 667. Burt Neuborne, Buckley’s Analytical Flaws, 6 J.L. & Pol’y 111, 117 (1997). 668. Burt Neuborne, The Supreme Court and Free Speech: Love and a Question, 42 St. Louis U. L.J. 789, 799 (1998). 669. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938); see also John Hart Ely, Democracy And Distrust (1980). 670. See Reynolds v. Sims, 377 U.S. 533, 559 (1964) (explaining the principle that “one man’s vote … is to be worth as much as another’s”) (quoting Wesberry v. Sanders, 376 U.S. 1, 14 (1964)). 671. See McConnell v. Fed. Election Comm’n, 540 U.S. 93, 129–30 (2003) (describing methods of providing special access to politicians for high

Notes to Pages 159–60

672.

673.

674.

675. 676.

677. 678.

679. 680. 681.

682.

683.

684.

685.

219

contributors), overruled by Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010); Richard H. Pildes, The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 29, 151–52 (2004). Ganesh Sitaraman, Economic Inequality and Constitutional Democracy, in Constitutional Democracy in Crisis? 533, 537–38 (Mark A. Graber, Sanford Levinson, Mark Tushnet eds., 2018). Buckley, 424 U.S. at 48–49 (“the concept that government may restrict the speech of some. in order to enhance the relative voice of others is wholly foreign to the First Amendment”). Gray v. Sanders, 372 U.S. 368, 381 (1963) (“The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing – one person, one vote.”). 424 U.S. 1 (1976). Federal Election Campaign Act of 1971, Pub. L. No. 92–225, 86 Stat. 3; Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93–443, 88 Stat. 1263. Buckley, 424 U.S., at 23. See, e.g., Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 398 (2000) (Stevens, J., concurring) (“Money is property; it is not speech.”); McConnell, 540 U.S. at 250, overruled by Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) (Scalia, J., dissenting in part) (listing some arguments of persons who argued that money is not speech). Buckley, 424 U.S. at 19. Campaign Finance: France, Library of Congress, www.loc.gov/law/ help/campaign-finance/france.php#t28. Vladyslav Dembitskiy, Where Else Is the Appearance of Corruption Protected by the Constitution?, 43 Hastings Const. L.Q. 885, 902 (2016) . Library of Congress, Campaign Finance: Comparative Summary, www .loc.gov/law/help/campaign-finance/comparative-summary.php#ceil ings; Library of Congress, Campaign Finance: France, www.loc.gov/law/ help/campaign-finance/france.php#t28. Kathleen Hunker, Elections Across the Pond: Comparing Campaign Finance Regimes in the United States and United Kingdom, 36 Harv. J. L. & Pub. Pol’y 1099, 1123 (2013). Eric Avis et al., Money and Politics: The Effects of Campaign Spending Limits on Political Competition and Incumbency Advantage 1 (NBER Working Paper No. 23508 (2017)), www .nber.org/papers/w23508.pdf. For example, the Supreme Court of Canada applies proportionality analysis to campaign finance cases. See, e.g., Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569 (Canada).

220

Notes to Pages 161–3

686. Buckley v. Valeo, 424 U.S. 1, 261–64 (White, J., concurring)); id. at 288 (Marshall, J., concurring). 687. See FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 510–11 (1985) (White, J., dissenting) (“The distinction is not tenable [T]he reasons underlying limits on contributions equally underly [sic] limits on such ‘independent’ expenditures. The credulous acceptance of the formal distinction between coordinated and independent expenditures blinks political reality. That the PACs’ expenditures are not formally ‘coordinated’ is too slender a reed on which to distinguish them from actual contributions to the campaign. The candidate cannot help but know of the extensive efforts ‘independently’ undertaken on his behalf. In this realm of possible tacit understandings and implied agreements, I see no reason not to accept the congressional judgment that so-called independent expenditures must be closely regulated.”). 688. Buckley, 424 U.S. at 24–25. 689. Spencer A. Overton, Mistaken Identity: Unveiling the Property Characteristics of Political Money, 53 Vand. L. Rev. 1235, 1257 (2000). 690. First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765 (1978). 691. Id. at 789. 692. Carl E. Schneider, Free Speech and Corporate Freedom: A Comment on First National Bank of Boston v. Bellotti, 59 S. Calif. L. Rev. 1227, 1234 (1986). 693. C. Edwin Baker, Realizing Self-Realization: Corporate Political Expenditures and Redish’s the Value of Free Speech, 130 U. Pa. L. Rev. 646, 655 (1982) (“[T]he business corporation is not chartered to engage in politics. Restrictions on its political speech would be merely one of many ways in which the law sets the parameters of the corporation’s permissible business conduct.”). 694. Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). 695. Id. at 340. 696. 376 U.S. 254 (1964). 697. 418 U.S. 323 (1974). 698. 472 U.S. 749 (1985). 699. Citizens United, 558 U.S. at 321. Both types of organizations were, however, permitted to “establish … a ‘separate segregated fund’ (known as a political action committee, or PAC) for these purposes.” Id. 700. Id. at 348 (quoting Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 660 (1990)). 701. Id. at 339. 702. For a list of election-related constitutional clauses see Franita Tolson, The Spectrum of Congressional Authority over Elections, 99 B.U. L. Rev. 317, 321 n.9 (2019).

Notes to Pages 163–5

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703. See Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (“Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts.”); Barnes v. District of Columbia, 91 U.S. 540, 546 (1875) (“[t]he people are the recognized source of all authority, state and municipal”). 704. M’Culloch v. Maryland, 17 U.S. 316 (1819). 705. Citizens United, 558 U.S. at 465 (Stevens, J., concurring in part and dissenting in part) (“Unlike voters in U.S. elections, corporations may be foreign controlled.”); Sanford A. Schane, Corporation Is a Person: The Language of a Legal Fiction, 61 Tul. L. Rev. 563, 563 (1987) (“Corporations cannot hold public office, vote in elections, or spend the night in jail.”); Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 658–59 (1990) (unlike ordinary people, “[s]tate law grants corporations special advantages–such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets– that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments”), overruled, by Citizens United, 558 U.S. 310; Larry E. Ribstein, The Constitutional Conception of the Corporation, 4 Sup. Ct. Econ. Rev. 95, 124 (1995) (explaining that if corporations are viewed as people, then “corporate speech is produced by artificial legal entities, and therefore should not be accorded the same First Amendment protection as speech by individuals”). 706. Fed. Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 239 (1986). 707. Citizens United, 558 U.S. at 340–41, 354, 356, 339. 708. Citizens United sought injunctive and declaratory relief to distribute an electioneering movie within thirty days of primary elections, which would have subjected the corporation to civil and criminal penalties. Id. at 321. The corporation argued that “(1) § 441b is unconstitutional as applied to Hillary; and (2) BCRA’s disclaimer and disclosure requirements, BCRA §§ 201 and 311, are unconstitutional as applied to Hillary and to the three ads for the movie.” Id. at 321–24 (citations omitted). 709. Id. at 397 n.3 (Stevens, J., concurring in part and dissenting in part). 710. Citizens United v. Fd. Election Comm’n, 557 U.S. 932, 932 (2009) (mem.). 711. Buckley, 424 U.S. at 92–93. 712. Austin, 494 U.S. at 660. 713. FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 259 (1986). 714. Id. at 264–65.

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Notes to Pages 165–9

715. Citizens United, 558 U.S. at 400 (Stevens, J., concurring in part and dissenting in part) (“Congress crafted BCRA in response to a virtual mountain of research on the corruption that previous legislation had failed to avert.”). 716. See id. at 337–39 (finding the PAC exemption from § 441b was inadequate to save the statute from First Amendment scrutiny). 717. Id. at 321. 718. See John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution 59 (2014). 719. Citizens United, 558 U.S. at 467, 469–72 (Stevens, J., concurring in part and dissenting in part). 720. Colo. Republican Fed. Campaign Comm. v. Federal Election Comm’n (Republican I), 518 U.S. 604, 649–50 (1996) (Stevens, J., dissenting). 721. Stevens, supra, at 78. 722. Burson v. Freeman, 504 U.S. 191 (1992). 723. Bluman v. Federal Election Comm’n, 565 S. Ct. 1104 (2012) (565 U.S. 1104 mem.), aff’g & quoting 800 F. Supp. 2d 281, 282–83 (D.D.C. 2011). 724. Buckley, 424 U.S. at 28. 725. See Lochner v. New York, 198 U.S. 45, 64 (1905) (striking a state maximum hours law because it violated the fundamental right to contract). 726. Am. Tradition P’ship, Inc. v. Bullock, 567 U.S. 516, 516 (2012) (quoting Mont. Code Ann. § 13–35-227(1)). 727. Transcript of Oral Argument at 33, Citizens United v. FEC, 558 U.S. 310 (2010) (No. 08-205), www.supremecourt.gov/oral_arguments/argument_ transcript/2008. 728. Plato, Symposium 301, 302 (B. Jowett trans., Random House 1937). 729. Dartmouth College v. Woodward, 4 Wheat. 518, 636, 4 L. Ed. 629 (1819). 730. Hale v. Henkel, 201 U.S. 43 (1906), overruled in part on other grounds by Murphy v. Waterfront Comm’n of N. Y. Harbor, 378 U.S. 52 (1964). 731. Osborn v. Bank of the United States, 22 U.S. 738, 830 (1824); Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 477 (2006). 732. Id. 733. Donovan v. Lone Steer, Inc., 464 U.S. 408 (1984). 734. See Jonathan Macey & Leo E. Strine, Jr., Citizens United As Bad Corporate Law, 2019 Wis. L. Rev. 451, 477, 480, 487, 506–14, 521–25 (2019). 735. Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405, 1407, 1410 (1986) (quoting New York Times v. Sullivan, 376 U.S. 254, 270 (1964)). 736. Id. at 1417. 737. McCutcheon v. Fed. Election Comm’n, 572 U.S. 185 (2014). 738. See Dollars and Sense: How Undisclosed Money and Post-McCutcheon Campaign Finance Will Affect the 2014 Election and Beyond: Hearing

Notes to Pages 169–73

739.

740. 741. 742. 743. 744. 745.

746.

747.

748.

223

Before the S. Comm. on Rules and Admin., 113th Cong. 476–91 (2014) (statement of Liz Kennedy, Counsel, Demos); Robert Reich, The Most Brazen Invitation to Oligarchy in Supreme Court History, Berkeley Blog. Pol. & L. (Apr. 2, 2014), http://blogs.berkeley.edu/2014/04/02/robe rt-reich-the-most-brazen-invitation-to-oligarchy-in-supreme-court-history/ comment-page-1/. Cf. Mobile v. Bolden, 446 U.S. 55, 77 (1980) (plurality opinion) (“[T]he Equal Protection Clause confers a substantive right to participate in elections on an equal basis with other qualified voters.”). McCutcheon, 572 U.S. at 207 (“Congress may target only a specific type of corruption – ‘quid pro quo’ corruption”). McCutcheon, 572 U.S. at 259 (Breyer, J. dissenting) (emphasis added). Walker, 135 S. Ct. at 2246; Stromberg v. California, 283 U.S. 359, 369 (1931). Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S. 721, 727–28, 749 (2011). See generally Alexander Tsesis, Constitutional Ethos (2017). John M. de Figueiredo & Elizabeth Garrett, Paying for Politics, 78 S. Cal. L. Rev. 591, 611 (2005) (explaining the role of money in directing political activities). This chapter has not fully discussed union speech. That differs from for-profit corporations, as they are associations for expression. In that way, a union’s speech rights represent those of its members. The capital value of for-profit corporations, on the other hand, is directed at further wealth maximization. As for the Citizens United organization, it was a communicative association, but some of its funding came from for-profit sources. Heather Gerken, Lobbying as the New Campaign Finance, 27 Ga. St. U. L. Rev. 1155, 1156 (2011); Michael Jones, Comment, The New Supreme Court: Its Potential Ruling on the Constitutionality of Arizona’s Campaign Contribution Limits, 40 Ariz. St. L.J. 1057, 1057 (2008). Kate Andrias, Separations of Wealth: Inequality and the Erosion of Checks and Balances, 18 U. Pa. J. Const. L. 419, 422 (2015) (“The dominance of organized wealth matters for how power is, or is not, diffused and checked throughout our government; for how ambition does, or does not, counter ambition; and ultimately for the extent of government’s democratic responsiveness to the citizenry as a whole, rather than to a particular faction.”).

conclusion 749. Texas v. Johnson, 491 U.S. 397, 409 (1989). 750. Janus v. Am. Fed’n of State, Cty., & Mun. Employees, Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J. dissenting) (“most alarming, the

224

751. 752. 753. 754. 755. 756. 757. 758. 759. 760. 761. 762. 763. 764. 765. 766.

Notes to Pages 174–7

majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy”). Vicki C. Jackson, Being Proportional About Proportionality, 21 Const. Comment. 803, 834 (2004) (book review). Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global Constitutionalism, 47 Colum. J. Transnat’l L. 72, 74 (2008). Id. at 91. Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., (Title VII). Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., (Title VI). Cf. Rochin v. California, 342 U.S. 165, 169 (1952) (referring to the Due Process context of Fourth Amendment incorporation). Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018). Williamson v. Lee Optical, 348 U.S. 483 (1955). Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2386 (2018) (Breyer, J., dissenting). Ohralik v. Ohio State Bar Asso’n, 436 U.S. 447, 456–57 (1978). Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 US. 749, 759 (1985). Expressions Hair Design v. Schneiderman, 137 S.Ct. 1144 (2017). Compare Sedition Act, ch. 74, 1 Stat. 596 (1798), overruled by New York Times Co. v. Sullivan, 376 U.S. 254, 273 (1964). Compare Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 599–600 (1940), overruled by W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Compare Halter v. Nebraska, 205 U.S. 34, 45–46 (1907), overruled by Texas v. Johnson, 491 U.S. 397 (1989). Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 586 (1st Cir. 1980) (“Before New York Times v. Sullivan, supra, defamation law strongly favored the state’s interest in protecting reputation, approached strict liability, and gave little room to First Amendment considerations.”).

Index

individual self-fulfillment, 21 public interest and, 22 true threats doctrine and, 22 self-expression as element of, 24–25 as subvalue, 22 self-governance and as element of democratic participation, 33 personal autonomy and, 33–35 political autonomy, 33–34 subvalues, 21–22 of self-expression, 22 autonomy theory, 20–22 dignity-based justifications in, 22–23 evaluation of, 22–25 liberal democracy and, 25–26 al-Awlaki, Anwar, 104

Abrams v. United States, 35–36 ACVA. See Animal Crush Video Act Adams, John, 48 Air Wisconsin Airlines Corp. v. Hoeper, 17 Aleinikoff, Alexander, 9 Alexy, Robert, 79 Alien and Sedition Act, US (1798), 25, 47, 190 Alito, Samuel (Justice), 6–7 Allport, Gordon W., 93–94 American Tradition Partnership, Inc. v. Bullock, 166–167 Animal Crush Video Act (ACVA), 4–8 federalism elements of, 4–5 antisemitism, 200–201 on universities and colleges, First Amendment rights and, 136–137 Anti-Terrorism Act, Canada, 111 Araiza, William, 11 Arizona Free Enterprise Club’s Freedom Club Pac v. Bennett, 170 artistic works Brown v. Entertainment Merchants Ass’n, 7, 8, 59 censorship of, 31 communications through, 62 violence in, 59 Austin v. Michigan Chamber of Commerce, 165 author’s rights, under copyright law, 26–27, 184–185 autonomy, personal, 20–28. See also copyright law; self-governance autonomy theory, 20–22 dignity-based justifications in, 22–23 evaluation of, 22–25 liberal democracy and, 25–26 definition of, 20–21

Baker, C. Edwin, 20–21, 26 Balkin, Jack, 59 Beauharnais v. Illinois, 15–17, 181 Belgium, campaign financing laws in, 160 Bethel School District No. 403 v. Fraser, 140–141 Bhagwat, Ashutosh, 35 bias, ideological, of US Supreme Court, 77 Bickel, Alexander, 31, 32–33 Bill of Rights, US, 5, 12 states’ Bill of Rights, 43–44 Bipartisan Campaign Reform Act (BRCA), US (2002), 163, 164–166 Black, Hugo (Justice), 46, 78 Blasi, Vincent, 36, 61 Brandeis, Louis (Justice), 36, 61–63 Brandenburg, Clarence, 87 Brandenburg v. Ohio, 87–89, 92–95 Ohio Criminal Syndicalism Act and, 87–88 BRCA. See Bipartisan Campaign Reform Act

225

226

Index

Breyer, Stephen, 41, 45 Brockett v. Spokane Arcades, Inc., 13 Brown v. Board of Education, 140, 152 Brown v. Entertainment Merchants Ass’n, 7, 8, 59 Brownstein, Alan, 72 Buckley v. Valeo, 157, 159–162, 218 Burger, Warren (Chief Justice), 23 campaign financing law and, 159–162 for corporate contributions, 161–162 for personal contributions, 161–162 unlimited expenditures and, 159–161 Burson v. Freeman, 72–73, 195 campaign finance laws. See political campaigns Campbell, Jud, 48 Canada Anti-Terrorism Act, 111 Charter of Rights and Freedoms, 111 defamation laws in, 111 proportionality approach in, for freedom of speech, 50–51 social media platforms in, terrorist incitement on, 111 Capitol Square Review & Advisory Bd. v. Pinette, 52–53 Carpenter v. United States, 174 Carroll, Lewis, 31 Case of Delphi AS v. Estonia, 80 Case of M.L. and W.W. v. Germany, 81 categorical speech doctrine, 3–4 for free speech categories, 4–12. See also freedom of speech; specific cases censorship, 9–10 defamation, 15–17 fraud, 17–18 low-value categories, 12–18 obscenity, 12–15 prevention of harm, 10 censorship of artistic works, 31 Dun & Bradstreet, 180, 183 as free speech category, 9–10 Gertz v. Robert Welch, Inc., 181 New York Times v. Sullivan, 11–12, 47, 162, 224 Chafee, Zechariah, 31 Chaplinsky v. New Hampshire, 50, 125, 191 Charlie Hebdo shooting, 104 Charter of Rights and Freedoms, Canada, 111 Chile, campaign financing laws in, 160

Chinese Cultural Revolution, lack of freedom of speech during, 215 Citizens United v. Federal Election Commission, 44–45, 53, 115, 162–169, 175, 221 Bipartisan Campaign Reform Act and, 163, 164–166 citizenship, self-governance and, 33 civic community, First Amendment and, 57–73 Civil Rights Act, US (1964), 65, 70 Title VI, on universities and colleges, 125–129, 132–133, 134–135 Cohen, Julie, 26 Cohen v. California, 32, 182 Cole, David, 78, 113–114 colleges. See universities and colleges commercial speech proportionality approach to, 55–56 Sorrell v. IMS Health, Inc., 55 Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 17–18 communications through artistic works, 62 First Amendment for, 60–61 grammatical structure as factor in, 60 language as factor in, 60 Whitney v. California, 61–63 conceptual forms of speech, 9–10 Confederate symbols, freedom of speech and, in high schools, 151–155, 216 Constitution, US. See also First Amendment Fifteenth Amendment, 65 Fourteenth Amendment, 65, 67 proportionality approach to freedom of speech, 43–46, 48–49 Third Amendment, 65 Thirteenth Amendment, 65 contextual interpretation, of First Amendment, 42, 46 contract rights, Lochner v. New York, 58–59 copyright law, 25–28 author’s rights, 26–27, 184–185 under Copyright Term Extension Act, 27 Eldred v. Ashcroft, 27 Golan v. Holder, 27 of intellectual property law, 26 non-commercial restrictions on, 26, 184 non-utilitarian goals and values, 184–185 proportional interests in, 27–28 purposes of, 28

Index trade-offs and, 26 under Uruguay Round Agreements Act, 27 Copyright Term Extension Act (CTEA), US (1998), 27 corporate contributions, to political campaigns, 223 in Burger court, 161–162 in Roberts court, 162–169 counterspeech, 37 CTEA. See Copyright Term Extension Act cyberspace terrorist statutes, in US, 104–110 balancing of interests in, 106 drafting of, 105–106 First Amendment protections and, 107 identification of terrorist groups, 105–106 judicial review of, 107–109 organizational contexts as factor in, 105 Dambrot v. Central Michigan University, 132 Dariano v. Morgan Hill Unified School District, 144–145, 152 Data Retention and Investigatory Powers Act, UK (2014), 103 Debs v. United States, 85 Declaration of Independence, US Inalienable Rights Clause, 23 Petition Clause, 23–24 self-governance under, 29 defamation Air Wisconsin Airlines Corp. v. Hoeper, 17 Beauharnais v. Illinois, 15–17, 181 as free speech category, 15–17 Gertz v. Robert Welch, Inc., 181 Kunz v. New York, 181 libel laws and, 15–16 of religion, 181 defamation laws, in Canada, 111 Defoe v. Spiva, 152–153 Delgado, Richard, 96 democracy campaign finance as influence on, 171–172 free speech as element of, 61–63 liberal, autonomy theory and, 25–26 participatory. See also liberal democracy autonomy as element of, 33 citizenship as element of, 33 self-governance through, 28, 35 discrimination. See antisemitism; racism Doe v. University of Michigan, 130 Doninger, Avery, 146–147

227

Doninger v. Niehoff, 146–147 Douglas, William O., 78 Due Process Clause, First Amendment, 68–69 ECHR. See European Convention on Human Rights Eckhardt, Christopher, 139 ECtHR. See European Court of Human Rights Einarsson, Egill, 80–81 Einarsson v. Iceland, 80–81 Eldred v. Ashcroft, 27 Elonis v. United States, 135 Ely, John Hart, 78 Emerson, Thomas, 20, 61 emotional trauma, trigger warnings movement and, 122 Equal Protection Clause in First Amendment, 68–69 in Thirteenth Amendment, 65, 67 Espionage Act, US (1917), 85–87 Estonia, 174 European Convention on Human Rights (ECHR) Article, 10, 96–98 Article, 17, 96–98 freedom of expression under, 79 hate speech and, definition of, 95–96 European Convention on the Prevention of Terror, 103, 111–112 European Court of Human Rights (ECtHR), 79. See also specific cases hate speech and, 95–98 definition of, 95–96 proportionality approach, 97 scope of victims of, 97–98 European Union (EU) constitutional courts in. See also European Court of Human Rights proportionality approach in, 79 proportionality approach in, 50–51 in constitutional courts, 79 terrorist incitement in, 99–100 European Convention on the Prevention of Terror, 111–112 international laws against, 104 on social media platforms, 111–112 expression. See freedom of expression; selfexpression Fallon, Richard, 42, 127 Farook, Syed, 104

228

Index

FEC v. National Conservative Political Action Committee, 220 Federal Elections Campaign Act (FECA), US (1971), 159, 172 federalism, ACVA and, 4–5 Feret v. Belgium, 97–98, 202 Fifteenth Amendment, US Constitution, 65 First Amendment, US Constitution. See also freedom of speech; specific cases autonomy and. See autonomy; copyright law balancing of content under, 70–73 neutrality standards, 71–72 public employee expression, 70–71 categorical interpretation of, 42, 189 civic community and, 57–60 for communications, forms of, 60–61 grammatical structure as factor in, 60 language as factor in, 60 constitutional ethos of, 44–45 constitutional values and, 63–66 as American tradition, 63 contextual interpretation of, 42, 46 cyberspace terrorist statutes and, 107 Due Process Clause, 68–69 Equal Protection Clause, 68–69 features of, 24 Free Exercise Clause, 68–69 Free Speech Clause, 43, 46, 65 political campaign financing under, 158 libertarian perspective on, 42–43 liberty theory of, 183 New York Times v. Sullivan, 11–12 normative value of, 44 purpose-based theory of, 11 quest-for-truth explanation of, 35–38 in Abrams v. United States, 35–36 marketplace for ideas doctrine and, 35–38 self-governance through, 28 for personal and private speech, 30–31 for political speech, 30–31 public and social value of free speech, 31–33 sexual harassment and, 71, 194 social context for, 57–60 in Supreme Court cases, 3–4. See also specific cases overview of, 173–177 terrorist incitement and, 108–109 counterarguments for limitations on free speech and, 113–115

in cyberspace terrorist statutes, 107 First National Bank of Boston v. Bellotti, 162 first-order judgments, proportionality approach through, 51–52, 55–56 Fisher, Matthew, 107 Fiss, Owen, 37, 96, 168–169 formalism, legal, of US Supreme Court, 3–4 Fourteenth Amendment, US Constitution, 65, 67 France campaign finance laws in, 160 terrorist incitement laws in, 103–104 Frankfurter, Felix, 78 Franklin, Benjamin, 25 fraud as free speech category, 17–18 Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 17–18 Frederick, Joseph, 142–143 Free Exercise Clause, First Amendment, 68–69 Free Speech Clause, in First Amendment, 43, 46, 65 political campaign financing under, 158 freedom of expression. See also freedom of speech; hate speech; incitement; selfexpression; terrorist incitement under European Convention on Human Rights, 79 public employee expression, 70–71 of racism, 87–89 freedom of religion defamation of religion and, 181 freedom of speech and, 69 Masterpiece Cakeshop v. Colorado Civil Rights Commission, 69 offensive speech and, 84–85 Snyder v. Phelps, 84–85, 86 freedom of speech. See also high schools; incitement; terrorist incitement under Alien and Sedition Act, 25 categorization of. See also specific categories theoretical approach to, 83–84 for conceptual forms of speech, 9–10 conflicting constitutional values, 18 consensus and, 26 contextual theory of, 61–63 counterspeech, 37 democracy and, 61–63 pluralism and, 67 as element of personality, 20

Index for ideological forms of speech, 9–10 individual value of, 25 legal restrictions against, 41–42 moral growth from, 22–23 pluralistic, 66–70 competing values and, 69–70 democracy and, 67 pornography and, 37 privacy and, self-governance through, 30–31 proportionality approach to, 9 public employee expression, 70–71 public value of, 25, 31–33 purpose-based theory for, 11 reasoned balancing for, 18 social meaning of, context of, 40–41 social value of, 31–33 synthetic approach to, 57–58 US Supreme Court and. See also specific cases categorical approach to, 44 Frohwerk, Jacob, 86 Frohwerk v. United States, 85–87 Germany campaign financing laws in, 160 proportionality approach in, 50–51 Gertz v. Robert Welch, Inc., 181 Gey, Steven, 94–95 Gilreath, Shannon, 137 Gitlow v. New York, 36 Golan v. Holder, 27 Greene, Jamal, 42 Gutmann, Amy, 150 El-Haj, Tabatha Abu, 33 Hamilton, Alexander, 110 Han, David, 72 harassment, on universities and colleges, enforcement considerations for, 127–129, 210 Hardwick v. Heyward, 153–154 Harris v. Forklift Systems, Inc., 127, 210 hate speech European Convention on Human Rights and, definition of, 95–96 European Court of Human Rights and, 95–98 definition of, 95–96 proportionality approach of, 97 scope of victims for, 97–98

229

Hazelwood School District v. Kuhlmeier, 141–142 high schools, freedom of speech in during Chinese Cultural Revolution, 215 for Confederate symbols, 151–155, 216 under Thirteenth Amendment, 153, 216–217 constitutional values in, conflicts between, 151–155 lower court reviews of, 143–149, 152–155. See also specific cases for off-campus speech, 146–149 for on-campus speech, 144–146 under student speech doctrine, 138–143 contextualization of, 149–151 in US Supreme Court cases, legal deference in, 138–143, 149–150, 218. See also specific cases higher education. See universities and colleges HLP. See Humanitarian Law Project Holder v. Humanitarian Law Project (HLP), 100, 101, 107, 109, 112, 113–114 Holmes, Oliver Wendell, 35–36, 85 Humanitarian Law Project (HLP), 100–101, 113–114 Huq, Aziz, 115 Hustler Magazine v. Falwell, Inc., 36, 84 Hyde, Henry, 134 Iancu v. Brunetti, 8–9, 41, 81 ICCPR. See International Covenant for Civil and Political Rights Iceland, 174 ideological forms of speech, 9–10 Inalienable Rights Clause, in Declaration of Independence, 23 incitement, 85–92. See also terrorist incitement historical dimensions of, 85–87 modern test of, 87–92 at universities and colleges, 208–209 true threats doctrine and, 89–92 R.A.V v. St. Paul, 91–92 Virginia v. Black, 90–91 Watts v. United States, 89–90 on universities and colleges, 208–209 inflammatory speech. See incitement intellectual property law, 26 International Covenant for Civil and Political Rights (ICCPR), 102 Internet. See high schools; social media platforms

230

Index

interpretive pluralism, 38–39 Israel, campaign finance laws in, 160, proportionality analysis, 174 J.A. v. Fort Wayne Community School, 145–146 Jackson, Vicki, 174 Janus v. AFSCME, 173–174 Jefferson, Thomas, 48 J.S. v. Blue Mountain School District, 148 Kagan, Elena, 15 Kahn, Samir, 104 Kalven, Harry, 31 Karlan, Pamela, 64 Keeton v. Hustler Magazine, 187 Kennedy, Anthony (Justice), 8–9 Kitrosser, Heidi, 122 Koppelman, Andrew, 37 Kowalski, Kara, 147–148 Kowalski v. Berkeley County School, 147–148 Krotoszynski, Ronald, 81 Ku Klux Klan, 87–89, 90–91, 92 Kunz v. New York, 181 language, communications and, 60 Lawrence v. Texas, 193 libel laws defamation and, 15–16 New York Times v. Sullivan, 11–12, 47–48 liberal democracy, autonomy theory and, 25–26 libertarianism First Amendment and, 42–43 in proportionality approach to freedom of speech, 42–43, 44, 56 US Supreme Court influenced by, 77–82 liberty theory, of First Amendment, 183 Lobel, Jules, 114 Lochner v. New York, 58–59 low-value categories, of free speech, 12–18 Luther, Martin, 10 MacLeish, Archibald, 31 Malik, Tashfeen, 104 marketplace for ideas doctrine interpretive pluralism and, 38–39 methodologies for, 38–39 quest-for-truth explanation and, 35–38 Marshall, Thurgood (Justice), 40 Massaro, Toni, 12

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 69 McCullen v. Coakley, 53, 54–55 McCutcheon v. Federal Election Commission, 169–170 Meiklejohn, Alexander, 30, 31 Memoirs v. Massachusetts, 13 mens rea requirements, for terrorist incitement, 100 “microaggressions,” 119–120 Miller v. California, 13, 14 Monoco, 174 Moore v. City of E. Cleveland, 193–194 morality, freedom of speech and, 22–23 Morse, Deborah, 142–143 Morse v. Frederick, 142–143, 150 My Heart Leaps Up (Wordsworth), 31 National Institute of Family and Life Advocates v. Becerra, 175–176 Nebraska Press Ass’n v. Stuart, 49 Netanel, Neil, 27 Neuborne, Burt, 157–158 neutrality standards, under First Amendment, 71–72 New York Times v. Sullivan, 11–12, 47–48 New York v. Ferber, 9 New Zealand, 174 obscenity Brockett v. Spokane Arcades, Inc., 13 Memoirs v. Massachusetts, 13 Miller v. California, 13, 14 Reed v. Town of Gilbert, 15 Roth v. United States, 13–14 social value of, 13–14 community standards of, 14 OCR. See Office of Civil Rights offensive speech, 84–85 Brandenburg v. Ohio, 87–89, 92–95 Ohio Criminal Syndicalism Act and, 87–88 Hustler Magazine v. Falwell, Inc., 36, 84 Snyder v. Phelps, 84–85, 86 Office of Civil Rights (OCR), US Department of Education, 125–127 Ohio Criminal Syndicalism Act, 87–88 Ohralik v. Ohio State Bar Association, 54 participatory democracy. See democracy personal autonomy. See autonomy

Index personal speech. See freedom of expression personality, freedom of speech as element of, 20 Peterson, Marilyn, 105 Petition Clause, in Declaration of Independence, 23–24 Pickering v. Board of Education, 69 The Picture of Dorian Gray (Wilde), 31 pluralism. See interpretive pluralism political autonomy, 33–34 political campaigns, financing of, laws for. See also specific cases in Belgium, 160 in Burger court, 159–162 for corporate contributions, 161–162 for personal contributions, 161–162 unlimited expenditures and, 159–161 categorical approach to, 157 in Chile, 160 through corporate contributions, 223 in Burger court, 161–162 in Roberts court, 162–169 under Federal Elections Campaign Act, 159 in France, 160 Free Speech clause interpretations, 158 in Germany, 160 in Israel, 160 market priorities and, 171–172 representative democracy influenced by, 171–172 in Roberts court, 162–170 for aggregation of contributions, 169–170 for corporate contributions, 162–169 in South Korea, 160 in UK, 160 union speech and, 223 political speech, 30–31 pornography, as free speech, 37 Post, Robert, 32–33, 43, 93, 121 Princess Caroline case, 79–80 privacy in EU, 81–82 in European Court of Human Rights cases, 79–80. See also specific cases freedom of speech and, self-governance through, 30–31 proportionality approach to, 55–56 proportionality approach, to freedom of speech for abortion, 53–55 in Canada, 50–51 for commercial speech, 55–56

231

in EU, 50–51 in constitutional courts, 79 in Germany, 50–51 methodology in, 50–51 primary issues with, 51–56 through first-order judgments, 51–52, 55–56 secondary issues with, 51–56 privacy as, 55–56 through second-order judgments, 51–52 as theory, 42–51 constitutional elements in, 43–46, 48–49 libertarian perspectives, 42–43, 44, 56 for true threats doctrine, 52–53 in US Supreme Court, 9. See also specific cases opposition to proportionality, 77–82 public employee expression, 70–71 public interest, autonomy and, 22 true threats doctrine and, 22 purpose-based theory, of First Amendment, 11 quest-for-truth explanation, of First Amendment, 35–38 in Abrams v. United States, 35–36 marketplace for ideas doctrine and, 35–38 racism Brandenburg v. Ohio, 87–89, 92–95 Ohio Criminal Syndicalism Act and, 87–88 freedom of expression of, 87–89 under Ohio Criminal Syndicalism Act, 87–88 R.A.V v. St. Paul, 11, 71, 91–92 in trigger warnings movement, 121 Virginia v. Black, 52, 90–91, 92–95, 108–109, 124 Rasmussen, Anders, 103 R.A.V v. St. Paul, 11, 71, 91–92, 127 Reconstruction Amendments. See Fifteenth Amendment; Fourteenth Amendment; Thirteenth Amendment Redish, Martin, 21–22, 78, 107 Reed v. Town of Gilbert, 3, 15, 42, 56, 70, 77, 174–175 religion. See freedom of religion Richards, David A. J., 22 right to contract. See contract rights rights of association, 120–121

232

Index

Roberts, John (Chief Justice) campaign financing law and, 162–170 for aggregation of contributions, 169–170 for corporate contributions, 162–169 categorical doctrine and, 3–4 First Amendment cases and, 3–4. See also specific cases legal formalism of, 3–4 Robinson v. Jacksonville Shipyards, Inc., 127–129 Roe v. Wade, 54 Romer v. Evans, 67 Ross, Catherine, 154–155 Roth v. United States, 13–14 Said, Wadie, 113–114 Schauer, Frederick, 19, 51, 58 Schenck, Charles, 86 Schenck v. United States, 85–87 Schneider, Carl, 162 second-order judgments, proportionality approach through, 51–52 self-expression autonomy and, 24–25 as a value, 22 as entitlement of natural persons, 50 self-governance, 28–35 autonomy and as element of democratic participation, 33 individual and personal, 33–35 political, 33–34 under Declaration of Independence, 29 through democratic participation, 28, 35 autonomy as element of, 33 citizenship as element of, 33 through dissemination of opinions, 30 through First Amendment, 28 for personal and private speech, 30–31 for political speech, 30–31 public and social value of free speech, 31–33 sexual harassment, 71, 194 sexual violence, trigger warnings movement and, 121–122 Shibley, Robert, 122 Shiffrin, Seana, 20 Shiffrin, Steven, 12 Siegel, Reva, 43 Sitaraman, Ganesh, 158–159 Smolla, Rodney, 20 Snyder v. Phelps, 84–85, 86

social context, for First Amendment, 57–60 Social Darwinism, 36 social media platforms terrorist incitement on, 106, 108 in Canada, 111 in EU, 111–112 international norms of, 110–112 liability of, 110–112 in US, 110–111, 112 in US. See cyberspace terrorist statutes social value, of obscenity, 13–14 community standards of, 14 Sorrell v. IMS Health, Inc., 55, 173–174 South Africa, 174 South Korea, campaign finance laws in, 160 speech. See conceptual forms of speech; freedom of speech; ideological forms of speech Spencer, Richard, 129 Stamp Act, US (1765), 63 Stolen Valor Act, US, 8–9 Strauss, David, 93 student speech doctrine, in high schools, 138–143 contextualization of, 149–151 Summers, Lawrence, 136 Sunstein, Cass, 30–31, 96 Supreme Court, US. See also Burger, Warren; Roberts, John First Amendment and, 3–4. See also First Amendment; specific cases overview of, 173–177 freedom of speech. See also freedom of speech; specific cases categorical approach to, 44 high schools and, freedom of speech in, 138–143, 149–150, 218. See also specific cases ideological bias of, 77 libertarian influences on, 77–82 proportionality approach and, 9 opposition to, 77–82 on Thirteenth Amendment, 153, 216–217 Su¨rek v. Turkey (No. 1), 97 Tamiz v. United Kingdom, 81 Terrorism Act, UK (2006), 103 terrorist incitement. See also specific cases counterarguments against limitations on, 113–115

Index terrorist organizations and, definitions of, 114 cyberspace terrorist statutes against, in US, 104–110 balancing of interests in, 106 drafting of, 105–106 First Amendment protections and, 107 identification of terrorist groups, 105–106 judicial review of, 107–109 organizational contexts as factor in, 105 in EU, 99–100 European Convention on the Prevention of Terror, 103, 111–112 international laws against, 104 on social media platforms, 111–112 First Amendment protections of, 108–109 counterarguments for, 113–115 in US cyberspace terrorist statutes, 107 foreign laws against, 102–104 in France, 103–104 in UK, 103 government protections from, 99 through regulations, 99–100 Humanitarian Law Project and, 100–101, 113–114 international laws against, 102–104 throughout EU, 104 European Convention on the Prevention of Terrorism, 103 International Covenant for Civil and Political Rights, 102 UN Security Council Resolutions, 102–103 Universal Declaration of Human Rights and, 102 material support for, 100–101 mens rea requirements, 100 on social media platforms, 106, 108 in Canada, 111 in EU, 111–112 international norms of, 110–112 liability of, 110–112 in US, 110–111, 112. See also cyberspace terrorist statutes by terrorist organizations, definitions of in counterarguments against free speech limitations, 114 under US cyberspace terrorist statutes, 105–106 in US under Communication Decency Act, Section, 230, 112

233

on social media platforms, 110–111. See also cyberspace terrorist statutes terrorist organizations, definitions of in counterarguments against free speech limitations, 114 under US cyberspace terrorist statutes, 105–106 Texas v. Johnson, 173 theoretical forms of speech, 9–10 Third Amendment, US Constitution, 65, 216–217 Thirteenth Amendment, US Constitution, 65 Through the Looking-Glass, and What Alice Found There (Carroll), 31 Timms, Stephen, 104 Tinker, John, 139 Tinker, Mary Beth, 139 Tinker v. Des Moines Independent Community School, 69, 117, 138–140 Title VI (Civil Rights Act of 1964), on universities and colleges, 125–129, 132–133, 134–135 trigger warnings movement, at universities and colleges, 121–123 critical arguments against, 122–123 emotional trauma topics, 122 environmental context arguments, 122–123 race topics in, 121 sexual violence topics, 121–122 true threats doctrine autonomy and, 22 criticism of, 92–95 incitement and, 89–92 R.A.V. v. St. Paul, 91–92 Virginia v. Black, 90–91 Watts v. United States, 89–90 proportionality approach for, 52–53 public interest and, 22 Virginia v. Black, 52, 90–91, 92–95, 108–109, 124 Walker v. Tex. Div. Sons of Confederate Veterans, Inc., 52 Tushnet, Mark, 40 Tushnet, Rebecca, 94 UDHR. See Universal Declaration of Human Rights UK. See United Kingdom UN. See United Nations union speech, 223

234

Index

United Kingdom (UK) campaign finance laws in, 160 Data Retention and Investigatory Powers Act, 103 Terrorism Act, 103 terrorist incitement laws in, 103 United Nations (UN), Security Council Resolutions, against terrorist incitement, 102–103 United States (US). See also Constitution; First Amendment; Supreme Court Alien and Sedition Act, 25, 47, 190 Animal Crush Video Act, 4–8 Bill of Rights, 5, 12 Bipartisan Campaign Reform Act, 163, 164–166 Civil Rights Act, 65, 70 Title VI, 125–129, 132–133, 134–135 Copyright Term Extension Act, 27 cyberspace terrorism. See cyberspace terrorist statutes Declaration of Independence Inalienable Rights Clause, 23 Petition Clause, 23–24 self-governance under, 29 Espionage Act, 85–87 Federal Elections Campaign Act, 159, 172 Office of Civil Rights, mandates on First Amendment rights in universities and colleges, 125–127 Stamp Act, 63 Stolen Valor Act, 8–9 terrorist incitement and under Communication Decency Act, Section, 230, 112 on social media platforms, 110–111 Voting Rights Act, 65 United States v. Alvarez, 8–9, 41 United States v. Carolene Products Company, 158 United States v. Stevens, 18, 40–41, 52, 118, 179 Alito as lone dissent, 6–7 Animal Crush Video Act, 4–8 Bill of Rights and, 5, 12 United States v. Williams, 7 Universal Declaration of Human Rights (UDHR), 102 universities and colleges, First Amendment rights on. See also specific cases antisemitism and, 136–137 contemporary speech controversies, 119–123 “microaggressions,” 119–120

rights of association and, 120–121 current policies on, 132–137 enforcement considerations for, 123–132 environmental context arguments in, 124 for harassment, 127–129, 210 in lower court findings, 129–132 under OCR mandates, 125–127 under specific campus codes, 124–125, 129–132 under Title VI (Civil Rights Act of 1964), 125–129, 132–133, 134–135 environmental context arguments for in enforcement considerations, 124 in trigger warnings movement, 122–123 for inciting speech, 208–209 for public events, 129 theoretical approach to, 117–119 trigger warnings movement, 121–123 critical arguments against, 122–123 emotional trauma topics, 122 environmental context arguments, 122–123 race topics in, 121 sexual violence topics, 121–122 Uruguay Round Agreements Act, 27 US. See United States UWM Post, Inc. v. Board of Regents of University of Wisconsin, 131, 211 violence in artistic works, 7, 8, 59 Brandenburg v. Ohio, 87–89, 92–95 Ohio Criminal Syndicalism Act and, 87–88 sexual, 121–122 Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, 17–18 Virginia v. Black, 52, 90–91, 92–95, 108–109, 124, 134 Volokh, Eugene, 16, 93, 136–137 Voting Rights Act, US (1965), 65 Walker v. Tex. Div. Sons of Confederate Veterans, Inc., 52 Weimann, Gabriel, 106 Weinstein, James, 77 Whitney v. California, 61–63 Widmar v. Vincent, 117–118 Wilde, Oscar, 31 Wilson, James, 29 Wordsworth, William, 31 Zick, Timothy, 45