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

• Author: Collins, Ronald K.L.
• Position: Conclusion of Exceptional Freedom: Four Roberts Court Cases through A Few Tentative Conclusions, with footnotes, p.438-466

This chart, incomplete as it is, (223) does tell us something important, namely, that while Justice Kennedy, Chief Justice Roberts, and Justices Scalia and Sotomayor are most likely to lean towards a kind of near-absolutism, Justices Breyer and Alito are just as likely to move in the opposite direction. (224) Notice, too, how uncertain votes from Justices Thomas and Kagan's to affirm a First Amendment free speech claim can be. With this in mind, simply consider how conceptually divergent were the approaches outlined by Justice Kennedy in his plurality, Justice Breyer in his concurrence, and Justice Alito in his dissent. Let us begin with how Justice Kennedy viewed the matter:

The previous discussion suffices to show that the Act conflicts with free speech principles. But even when examined within its own narrow sphere of operation, the Act cannot survive. In assessing content-based restrictions on protected speech, the Court has not adopted a free-wheeling approach, but rather has applied the "most exacting scrutiny." Although the objectives the Government seeks to further by the statute are not without significance, the Court must, and now does, find the Act does not satisfy exacting scrutiny. (225) This approach smacks of the new absolutism, of the near absolute protection of free speech in certain cases. Contrast that with the approach urged by Justice Breyer:

I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis. Rather, I base that conclusion upon the fact that the statute works First Amendment harm, while the Government can achieve its legitimate objectives in less restrictive ways. Sometimes the Court has referred to this approach as "intermediate scrutiny," sometimes as "proportionality" review, sometimes as an examination of "fit," and sometimes it has avoided the application of any label at all. (226) At a certain level of generality, what we see here is reminiscent of the kind of First Amendment balancing once championed by Justices Frankfurter and Harlan (227) and contested by Justices Black and Douglas. (228) Finally, we come to Justice Alito, the Roberts Court's most consistent critic of expanding First Amendment free speech rights. With Chaplinsky-like fervor, Justice Alito (229) drew on precedents that referred to both prongs of Chaplinsky's dictum. To make the point, I have taken the liberty of quoting a wider swath of his opinion: "Time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value." (230)

What is, I think, significant about Justice Alito's line of string citations and quotations is that many of the very cases he cited discounted the Chaplinsky categorical dictum and allowed for a degree of First Amendment protection. (231) In fairness, Justice Alito might reply that there was a certain subset of false-speech cases that were categorically unprotected. But even on that score, and as evidenced by the bold plurality opinion and the timid concurring opinion, a majority of the Roberts Court would not yield.

Still, while the plurality opinion took yet another conceptual swipe at the Chaplinsky dictum, it nonetheless did something noteworthy--something that might be seen as adding a dollop of vigor to that infamous dictum. Unlike the five exceptions identified in Chaplinsky (lewd, obscene, profane, and defamatory speech along with fighting words), (232) or the five flagged in Stevens (obscenity, defamation, fraud, incitement and speech integral to criminal conduct), (233) or the three cited in Brown (obscenity, incitement, and fighting words), (234) Justice Kennedy's plurality opinion listed the following nine categories of unprotected expression, which he conceded were not all inclusive:

(1) incitement

(2) obscenity

(3) certain kinds of defamation

(4) speech integral to criminal conduct

(5) fighting words

(6) child pornography

(7) fraud

(8) true threats, and

(9) "speech presenting some grave and imminent threat the government has the power to prevent." (235)

Although the Alvarez plurality followed Stevens, Snyder, and Brown in applying a near-absolutist level of First Amendment protection at least where content-based restrictions were involved, it is noteworthy that its list of exceptions was longer than any identified in either Chaplinsky or the three cases mentioned immediately above. Still, it was far shorter than the list of forty-three exceptions identified earlier. (236)

Eight Post-Chaplinsky Observations

It is difficult to deny: All legal doctrines, if they are to have staying power, must have a limiting principle. Otherwise, they become senseless pap or, worse still, reckless excuses for injustice. To be sure, unchecked absolutism wars with any and all limiting principles, including those grounded in the sober soil of contextualism. In meaningful measure, that is the lesson of legal realism. All of which brings us back to Professor Smolla's comment quoted at the outset of this Foreword: "Absolutism may have a place in a sensible theory of freedom of speech, but not as the comprehensive methodology." (237) All right. That seems reasonable enough (note Smolla's use of the adjective "sensible"). Absolutism cannot be categorical; if it is to garner any respect it must yield some sensible room. Fair enough. So that rules out Justice Hugo Black's bold First Amendment absolutism, qualified as it was for his own peculiar purposes. (238) But what of absolutism that is not comprehensive and broad but rather comprehensive within a narrow realm? Here, I am reminded of Alexander Meiklejohn's absolute protection for a narrow category of speech, namely, political speech. (239) Unlike Justice Black's absolutism, which was seen by some as granting too much constitutional protection, Meiklejohn's absolutism was often criticized as granting too little protection. (240) And then a categorical rule, such as that of Miranda v. Arizona, (241) can be riddled over time by a bevy of exceptions that can render the original rule almost meaningless. (242) Such are the downsides of a categorical (or should I say non-nuanced categorical) approach to constitutional decision-making.

What then about balancing? Ad hoc balancing of the kind once espoused by Justices Felix Frankfurter (243) and John Marshall Harlan II, (244) or today embraced by Justice Stephen Breyer (245) often tends to diminish the domain of free speech rights. When there is too much play in the doctrinal joints the temptation to be risk adverse, even to hypothetical lengths, is often too great to shun. Moreover, as Stephen Feldman has duly noted, ad hoc balancing all too easily becomes a form of judicial decision-making "without principles, without law." (246)

Looking back seventy years after the case came down, what have we learned from Justice Frank Murphy's constitutional handiwork in Chaplinsky v. New Hampshire? What lessons does it teach us in our modern First Amendment era governed, for now, by the rule and reason of a majority of the Roberts Court? There are, of course, many lessons, but here are a few I believe to be worthy of special consideration.

First, just as Chaplinsky dismissed the absolutism of runaway liberality, it ushered in its own brand of absolutism, an absolutism of categorical denial. That is, Chaplinsky, at least at its outset, was a one-way form of absolutism that automatically ratcheted downwards to deny free speech rights rather than upwards to affirm them. This was a theory devoid of nuance. To change the metaphor, it performed its jurisprudential operations with a saw rather than with a scalpel.

Second, if there was a historically demonstrable basis for Chaplinsky's categorical exceptions to the First Amendment, reliable evidence of such a record was never fully tendered. For that matter, are we even sure of the jurisprudential methodology that would be invoked to identify such exceptions? For example, where do we look to for historical evidence? Do we look to:

* The text of the First Amendment, confined as it is to "Congress"? (247)

* The records of the debates on the Amendment? (248)

* The evidence in the state ratifying conventions? (249)

* The evidence in contemporaneously published newspapers and elsewhere? (250)

* The law as found in criminal laws and in the common law of the states at the time near ratification? (251)

* The evidence set out in private correspondence and diaries? (252)

* The record of what appears in treaties from the time?, (253) or

* The record gleaned from the actual practice of the press and the people in exercising free speech rights? (254)

How much determinative weight do we give to such materials? And what if the early historical records (255) are largely barren or vague so far as a purported historical exception is concerned? (256)

Third, Chaplinsky's five enumerated exceptions might be seen as under-inclusive when measured against Alvarez's nine exceptions, which in turn seem grossly under-inclusive when considered against the forty-three exceptions listed above. This tells us something about the enterprise of absolute exceptions--that is, their currency as a jurisprudential theory depends on a specified, limited number of exceptions. When you have some forty-three exceptions to a rule, the core of protected speech constricts considerably. With that many exceptions, is it even reasonable to argue that there is a rule in the first place? (257) In such a world, might it not make more sense to view the rule as the exception and vice-versa? Perhaps that explains why the Court has been deliberately modest in listing the number of exceptions it concedes at any one time. (258) Or as Justice Kennedy put it in 1991: The list consists of only "a few legal categories." (259) Justice Scalia made precisely the same point a year later when he proclaimed that the list of exceptions pertains only to "a few...