The First Amendment and the mind/body problem.

AuthorSamar, Vincent J.

    The purpose of this Article is to advance three propositions as worthy of consideration by courts when deciding cases involving a conflict between the First Amendment and the Fourteenth Amendment's Equal Protection Clause.

    The first proposition is that cases brought under the First Amendment should take as their core concern the inherently private nature of mental life, as distinguished from political and social interactions. This is a departure from the more traditional view that First Amendment protection is necessary to guarantee truth and democracy. (2) My goal is not to suggest that mental life is under some sort of direct attack, but rather to suggest a natural privacy essential to individual liberty that mental life affords. (3) In this sense, the purpose is to protect the a priori conditions of liberty as a precondition to the protection of liberty itself.

    The second proposition is that cases brought under the Fourteenth Amendment's Equal Protection Clause should focus on the status of individuals within society and should be concerned, at least in the first instance, with significant departures from legal equality or serious cultural impairments to full equality of opportunity that arise from the operations of government or the laws of the state. The use of the words "significant" and "serious" here is not only meant to avoid debates over issues properly designated as de minimus, but, more importantly, to suggest that not all impairments will affect individual life prospects to the same degree. In this sense, the Equal Protection Clause may operate more at the empirical level in the way society's institutions treat its citizens. (4)

    The third proposition is that in cases where the issue is to delimit the boundaries of protection between the First and Fourteenth Amendments, the pendulum of determination is whether the facts directly affect freedom of thought by altering the inward domain of consciousness, or whether they directly implicate the legal or social status of some individual or group to operate within or obtain opportunities from the official organs of society. The current line of United States Supreme Court cases regarding freedom of association--Roberts v. United States Jaycees, (5) Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston, (6) and Boy Scouts of America v. Dale(7)--do not provide clear boundaries on First Amendment values outside of which the state may promote equality concerns. The third proposition is meant to rectify this matter.

    Part I of this Article will make the tension between First Amendment liberty and Fourteenth Amendment equality more precise, including some indirect applications of promoting equality in employment, housing, and public accommodations through statutes. Part II will set out some very general background principles of the First Amendment and the mind/body problem as beginning the process of seeing speech acts as related to the ontology of mind, as distinct from equality as a status concern related to the ontology of the bodies that bear that status. Part III will then take up the issue of political speech and its relationship to the mind as already presupposing an equality of citizenship related to status. Part IV will discuss the three aforementioned cases to show that at least one holding was incorrect because the Supreme Court misstated material facts when distinguishing political from nonpolitical speech. Part V will then apply this analysis more broadly to other First Amendment cases to determine whether it makes sense within the current scheme of First Amendment jurisprudence. Finally, Part VI will set out a general conclusion suggesting a better view for the future of this area of the law. The goal of this Article is to move quickly from a partial description of what the Supreme Court has already done, to a set of criteria for how courts should decide future cases in this area of law. In this sense, the Article is meant to be not only descriptive, but also inferential.


    The difficulty in framing the issue arises from confusion over what exactly the First Amendment protects. Is it primarily speech and the associations that indirectly stem from such expressions that the First Amendment protects? If so, then why did the Court rule in Roberts that the Jaycees could not exclude women from membership where the organization's purpose was advocating careers for young men? Or, is it that speech stems from ideas alone while associations--even associations for the purpose of promoting a certain speech--require equality, at least when the perception is that membership affects the political, social, or economic status of persons? If the latter holds true, why was the Court willing to allow the Boy Scouts to exclude Dale as an assistant scoutmaster because he was a homosexual, when clearly such membership affords, at most, a neutral recognition of gays and lesbians participating in society's important social institutions? Was the Court simply acting on a prejudice against homosexuals as opposed to an equality of opportunity standard for all people? The Boy Scouts did not claim, let alone show, that the presence of lesbian, gay, bisexual, or transgender (LGBT) persons as scout leaders would directly harm the membership or scouting activities qua scouting.

    I want to suggest that part of the difficulty in making sense of the Court's reasoning is that we lack a principled way to distinguish concerns related to speech from those related to status. The two are intertwined, at least in part, because from a certain point of view, status can be thought of as an indicator of mental life. For example, the status of a seminarian seeking ordination into the Roman Catholic priesthood probably implies to the bishop who ordains him that he desires to affirm in actions or words the teachings of the Roman Catholic faith. And to the laity who he may then serve as a priest, his status implies a willingness to fulfill those functions expected of someone of his office, most likely including certain public behaviors, dress, and a willingness to attend spiritually to the sick and to perform certain rituals. And so there appears to be a link between what a person says, advocates, or promotes, and the position or office he or she holds.

    One recent political example concerned President Clinton's alleged perjury regarding the Monica Lewinsky scandal. As the highest executive officer of the country, it was required that "he shall take Care that the Laws be faithfully executed." (8) A problem arises, as in this case, when the message is less closely connected with the office and more connected to one's private life. In Clinton's case, the issue was whether he was defiling his oath of office as President of the United States when he allegedly lied under oath in a civil deposition proceeding. In Dale, the issue was whether Dale violated the Scout law or the Scout oath when he sought to be an assistant scoutmaster as an openly gay man where he had no intention of advocating for gay issues within the Scouts.

    Accordingly, I will argue that behind even the most robust First Amendment protections for political speech lies a principle of autonomy that delimits the mental and physical worlds. I will further claim that the Court's efforts to define this boundary in both Jaycees and Hurley, but not Dale, is related to its understanding that associations, like human beings, rarely fall exclusively to one side of the division, but instead often skirt the line, creating an ambiguity over where expression ends and concerns regarding status begin. Like human beings, associations may exploit this ambiguity not only to market their own ideas, but to control their membership as well. But associations encounter limitations when the agreements that define them, including who can become members of the association, take on a broader social status--either de jure or de facto--that effectively limits nonmembers from the opportunities of full participation because some in society privilege membership in allocating jobs and other benefits. In that instance, the issue is not in the first instance free expression, but rather equality, and where the Court should demark the boundary between the two.

    From its very inception, the First Amendment and the other nine amendments of the Bill of Rights were collectively an insurance policy to limit an all-too centralized and powerful national government from abusing individual liberty. (9) The Bill of Rights was the anti-federalist contribution to America's constitutional founding. (10) One such example of a possible abuse of individual liberty that the First Amendment addressed was state adoption and support of a national religion. (11) England established the Church of England as its national religion, which led many of the first Americans, or their close relatives, to settle in the new continent to avoid religious persecution. A related concern at the time of the Constitution's adoption was the desire to obtain a guarantee from the government for the free exercise of religion. (12) From the early period of the republic, Connecticut and Massachusetts continued to levy taxes for support of religion because the First Amendment had not yet been interpreted to restrict this activity; instead, it was viewed primarily as a limitation on the authority of the new central government the Constitution had created. (13) The Virginia Declaration of Rights had disestablished the Anglican Church of England, but never gave Baptists and other dissenters full recognition. (14) In Virginia, Patrick Henry proposed incorporating the Protestant Episcopal Church, which would have made them self-supporting by giving their vestries landed property. (15) Another bill proposed a "General Assessment" to support teachers of Christianity. (16) And so, the First Amendment may be seen, at least in part, as a guarantee against similar federal...

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