Precedent and speech.

• Author: Kozel, Randy J.

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years, the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its positions on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways large and small. The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the context of expressive freedom, there has been no such presumption. When the Court concludes that a precedent reflects a cramped vision of expressive liberty, adherence to the past gives way. Unfettered speech, not legal continuity, is the touchstone.

This practice is understandable. After all, free expression is crucial to political and social life. Yet departures from precedent can compromise the notion of constitutional law as enduring and impersonal.

Responding to the tension between legal continuity and the undiluted protection of speech, this Article defends precedent as a tool for separating the content of constitutional law from contested matters of interpretive philosophy. The key premise is that a precedent's perceived harmfulness should generally be irrelevant to whether it is retained or overruled. Perspectives on harmfulness track underlying interpretive commitments that vary from judge to judge, creating a conceptual gulf that the doctrine of precedent is meant to bridge rather than widen.

As an alternative, the Article contends that even within the Court's existing framework, a renewed emphasis on principles of concreteness and content sensitivity would facilitate a more nuanced approach to precedent. Such a development would embrace the reality that not all speech is created equal--and not all limitations on speech are equally bad.

INTRODUCTION

False statements of fact possess intrinsic constitutional value. (1) Exceptions to First Amendment protection are based on historical practice rather than evaluation of costs and benefits. (2) Corporations enjoy an unfettered right to praise and criticize political candidates. (3) The government may not restrict citizens' total contributions to political campaigns during an election cycle. (4)

The common thread among these rules is that they were all established within the last ten years. Indeed, each of the rules conflicts with aspects of the Supreme Court's prior case law. Yet the Court saw fit to revise all of these areas of First Amendment doctrine.

There may be more to come. Several justices have questioned the Court's precedents regarding the First Amendment implications of public sector labor unions. (5) Some justices have also urged a fresh look at the Court's longstanding approach to broadcast indecency. (6) The Court's latest word on the line between content-based and content-neutral regulations likewise suggests a possible revision that could make many restrictions on speech more difficult to sustain. (7) And then there is the pivotal distinction between campaign contributions, which are subject to regulation, and independent political expenditures, which receive robust constitutional protection. The Court recently preserved that distinction without reaffirming it. A plurality of justices saw "no need" to reconsider existing doctrine, notwithstanding calls for its repudiation. (8) The uncertainty surrounding campaign finance law exemplifies the state of expressive liberty more broadly. As much as the Court has altered the First Amendment landscape over the past decade, the next few years could be equally dramatic--particularly as a new justice succeeds Justice Scalia and the possibility of retirements looms.

Among the most notable aspects of the Court's new principles of free expression is their genesis. In the opinions that announced the principles, the Court appeared to give little import to the doctrine of stare decisis, which generally counsels retaining precedents absent an exceptional basis for departure. (9) In some of the cases, the Court did not discuss stare decisis at all. In others, the Court endorsed fidelity to precedent as an abstract ideal but concluded that stare decisis should not stand in the way of correcting a constitutional mistake. Back in 2007, Justice Scalia noted that "[t]his Court has not hesitated to overrule decisions offensive to the First Amendment." (10) That observation has become more resonant with the Court's recent expansions of expressive freedom at the expense of legal continuity. (11)

The question is why deference to precedent--a feature the Court has described as foundational to the rule of law (12)--is so readily overcome in the First Amendment context. The answer, this Article contends, is that the Court has been applying an exceedingly weak version of stare decisis in First Amendment cases. First Amendment stare decisis stands in tension with the Court's more general statements that past decisions must be upheld absent a special justification for overruling them. (13) To the contrary, the Court has treated precedent as readily giving way to expressive rights. (14) In the battle between speech and stability, speech wins.

In one sense, it is difficult to find anything objectionable in such an approach. (15) Depriving a speaker of her liberty--and, at the same time, impoverishing the public discourse to the detriment of society at large--seems like a high price to pay for allowing the law to remain undisturbed. But the value of continuity cannot be dismissed so easily. The doctrine of stare decisis can accommodate different perspectives about how best to promote the free exchange of ideas. A useful illustration, which I will discuss at length below, is the Court's campaign finance jurisprudence. The justices are deeply divided about the lawfulness of governmental efforts to regulate campaign-related speech. But it is misleading to think of the disagreement as pitting justices who support unfettered expression against justices who would allow governments to pursue competing objectives, such as decreasing the amount of money in politics. Instead, the Court's campaign finance cases encompass dueling visions of robust political debate: one vision in which the government's job is to step aside, and another in which the government must take measures to ensure that everyone has a voice in the political process. (16)

Without meaningful deference to precedent, judicial interpretations of the First Amendment will fluctuate as these divergent visions compete for primacy. When there are five votes in favor of the former approach, public officials will be sharply restricted in their power to regulate campaign-related speech. If personnel changes on the Court lead to five votes in favor of the latter approach, public officials will have greater discretion to limit certain speech in pursuing a healthy and vibrant marketplace of ideas. As the balance of power on the Court ebbs and flows, so, too, will the First Amendment implications of campaign finance regulation.

Stare decisis reflects a different conception of the law, one in which constitutional rules survive changes in judicial personnel. In contexts such as campaign finance, deference to precedent lends stability to the Court's pronouncements about how to protect and promote robust expression. But even when that is not the case--even when, in other words, standing by precedent means permitting the restriction of speech in service of some other value--stare decisis has an important role to play. If the purpose of stare decisis is to promote the law's stability, predictability, and impersonality, the doctrine cannot wilt at the mention of free speech. Sometimes it is better for the law to remain settled despite its failure to protect expressive liberty as vigorously as today's Court may deem appropriate.

I begin in Part I by analyzing the doctrine of stare decisis as the Court customarily describes it. In Part II, I examine several recent fluctuations in First Amendment doctrine as well as the possibility of other potential revisions in the years ahead. Along the way, I pay particular attention to the Court's attitude toward legal continuity. Part III contends that the recent First Amendment innovations are best understood as reflecting a specialized, and diluted, version of stare decisis that applies to situations in which precedent threatens to interfere with expressive liberty. Part IV responds to the tension between precedent and expression by defending a second-best approach to stare decisis that is designed to operate in a world of interpretive disagreement among the justices. At the core of second-best stare decisis is the recognition that justices will tend to reach different conclusions about precedent when they hold different philosophies of constitutional interpretation. Determining whether a prior decision is so bad as to warrant overruling entails asking which of the decision's implications are constitutionally relevant and which are legally inapposite. That inquiry, in turn, requires an interpretive theory that distinguishes between relevant and irrelevant (legally speaking) consequences.

Yet we cannot assume that interpretive harmony will prevail at the Court. To the contrary, disagreement among the justices is a fact of life. Second-best stare decisis responds by reconceptualizing the criteria for overruling in order to break free from underlying disputes over interpretive philosophy. The theory I propose emphasizes considerations such as factual accuracy, procedural workability, and reliance expectations. Those factors take the same shape regardless of the interpretive philosophy that a particular justice applies. Second-best stare decisis also limits the role of a precedent's...