Exceptional freedom - the Roberts Court, the First Amendment, and the new absolutism.

• Author: Collins, Ronald K.L.
• Position: Abstract into Exceptional Freedom: Four Roberts Court Cases, p.408-437

Abstract

Yesterday we had one view of the First Amendment; today we have another. Yesterday liberals hailed the First Amendment; today it is conservatives. Yesterday the First Amendment was the rallying cry of anti-federalists, abolitionists, Bolsheviks, Communists, and antiwar demonstrators; today it is the banner flown by corporations, big-money political PACs, tobacco companies, and advertising agents along with a motley crew of crackpots. Yesterday the liberty principle of the First Amendment coexisted with the equality principle of the Fourteenth Amendment; today they often war. Yesterday lofty free speech theories reigned," today various and varying judicial doctrines rule the roost. Yesterday the First Amendment was a treasured freedom; today many deem it to be an amendment in need of amending. And so it has come to pass.

"Nothing endures but change." Heraclitus's maxim takes on new meaning in modernity. Change is here; modernity has arrived. The era of the Roberts Court and the First Amendment is well into the groove of its constitutional mark. To date, the work-product of the Court has produced twenty-nine First Amendment free expression opinions. Constitutional claims were sustained in 14% of those cases. While a notable portion of the cases in which claims were denied were rendered by a unanimous or near-unanimous vote, the Roberts Court has nonetheless been badly divided (and ideologically so) on several key issues such as student speech, government employee speech, and expression related to support for so-called antiterrorism groups. In that cluster of cases the Court has diminished the staying power of the First Amendment. But in another class of cases involving certain kinds of content-discrimination, the Court has been quite vigorous in its defense of free speech freedom. What emerges from the latter is a new kind of First Amendment absolutism largely premised on the maxim that expression is protected unless it clearly falls within one of the traditional categories of unprotected speech. This "exceptional freedom" is the main focus of what follows in this Foreword. While it represents a new high water mark of constitutional protection for speech, it also signals a stark point of demarcation, on the other side of which certain kinds of speech receive little meaningful protection.

Absolutism may have a place in a sensible theory of freedom of speech, but not as the comprehensive methodology. --Rodney Smolla (1)

What a Court Term it was, what with the health care (2) and immigration (3) cases and all the fanfare afterwards. For the First Amendment community, the 2011-2012 Term was also quite significant: there were the Court's rulings in the indecency case, (4) the criticism of the Vice President Cheney immunity case, (5) the copyright extension case, (6) the public sector union fee case, (7) the Stolen Valor case, (8) and the Court's 5-4 refusal to revisit (9) the Citizens United v. Federal Election Commission (10) issue. In one way or another, four of the six free expression claims prevailed in the Court this past Term, this to the partial dismay of liberals who took exception to the Court's "anti-labor" ruling and its sub silentio reaffirmation of Citizens United, (11) while conservatives took exception to the Court's ruling in the lying about military medals case. (12)

Such First Amendment cases, and yet others by the Roberts Court, inform several of the articles in this Symposium. Simply consider some of the questions explored in this issue: to what extent and in what ways does the Alvarez ruling shape the future of false speech, particularly in the case of lying about military medals? (13) In light of the Court's most recent ruling concerning the law of broadcast regulation, what posture should the Federal Communications Commission take concerning indecency? (14) To what extent does the First Amendment protect corporate speech insofar as commercial expression is concerned, particularly in the case of the regulation of tobacco product-image advertising? (15) What about restrictions on online advertising? (16) Mindful of the Court's ruling in Snyder v. Phelps (17) and other cases, (18) to what extent can the government outlaw race-hate speech? (19) What about certain forms of political dissent or communications with people whom our government deems dangerous to national security? (20) And how does current First Amendment law affect the way we think about the question of academic freedom (21)--a question that has received renewed attention in the scholarly literature recently. (22) Finally, two of the contributors return to an old question that retains currency; it was one raised in Schenck v. United States, (23) namely, how does the law of conspiracy interact with the law of the First Amendment? (24) Such questions illustrate the scope and complexity of the contributions to this issue of the Albany Law Review.

Though its free speech jurisprudence is still developing, the twenty-nine First Amendment free expression cases handed down by the Roberts Court (25) tell us much about how the Court would view the questions raised by the contributors in this symposium. One tenet of that jurisprudence is especially important and worthy of treatment in its own right. In that regard, in what follows I outline a few preliminary ideas regarding that tenet of the Roberts Court's jurisprudence and what it may portend for the future of our free speech law, or at least parts of it. I refer to that tenet as the new absolutism, (26) by which I mean that line of cases in which the Court has extended near absolute protection to expression for a particular reason, about which I will say more shortly. To be sure, and as I discuss in the conclusion, there are other cases in which the Roberts Court has been quite parsimonious in its protection of free speech. (27) Even granting that, there is nonetheless something remarkable in how the Roberts Court has re-conceptualized the way we think about certain free speech issues and has likewise reinvigorated a measure of free speech liberty, albeit to the consternation of many.

How did this come to be? Well, the answer is a strange one: the new absolutism has its roots in an old dictum designed to limit First Amendment protection. Strange how the doctrinal phoenix rises and reshapes itself, but such is the way of law in our times. Permit me to explain.

AN OLD DICTUM IN NEW CLOTHES

It's a true story, but who would have believed it? Absolutism is coming back into vogue, though not the old, battered and purportedly comprehensive absolutism once touted by Justice Hugo Black. (28) This new absolutism came about, by and large, (29) by lawyers and jurists looking back in time to something said by a largely forgotten jurist (Justice Frank W. Murphy) (30) in an opinion he wrote, one that was long frowned upon in the First Amendment community. (31) I refer, of course, to Justice Murphy's seminal opinion in Chaplinsky v. New Hampshire, (32) wherein the Court rejected First Amendment absolutism) (33) Here (yet again) is the infamous passage from Murphy's 1942 opinion for the Court:

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any...