Virtue, freedom, and the First Amendment.

• Author: DeGirolami, Marc O.
• Position: II. The Revised Account of the First Amendment B. The American State's Responses to the Problem of Freedom Under the First Amendment Are Not Neutral as to the Virtuous Political Life through Conclusion, with footnotes, p. 1490-1516 - Religious Liberty and the Free Society: Celebrating 50 Years of 'Dignitatis Humanae'

2. The American State's Responses to the Problem of Freedom Under the First Amendment Are Not Neutral as to the Virtuous Political Life.

   The second revised thesis follows naturally from the first: the American state's, and in particular the Supreme Court's, responses to the problem of freedom discussed in the first thesis are not and never have been neutral as to the virtuous political life. They have instead reflected distinctive views and attitudes about virtuous and vicious expression and religious exercise, and they have served not only to protect the American state from civic vice but also to instruct it as to civic virtue.

   Perhaps the most obvious evidence of the state's non-neutrality in the fashioning of First Amendment freedom are the limits that it has always imposed with respect to content-based expression and religious exercise. "Whether," as Berns said, "bad speech is denominated 'fighting words,' obscenity, or incitations to breaches of the peace, it constitutes an authoritative definition of what is not to be permitted." (127) Those limits have not disappeared since Berns wrote, though several have been modified, others have been added, and still others weakened. The point applies with equal force to those "time, place, and manner" restrictions that receive more forgiving constitutional scrutiny than the ordinary case of the content-based regulation: Why should "keeping the sidewalks free from obstructions" or the channels of traffic moving efficiently be self-evidently more important interests in public order than upholding other "conventions of decency"? (128) Some non-neutral theory of political governance lurks beneath the Court's doctrinal categories. And the same has been true whenever the Court has held that certain religious exercises are simply not the sort that should enjoy First Amendment protection, as in the case at one time of polygamy (129) or in cases involving children whose welfare or physical safety may come into conflict with the religious exercise of their parents. (130) These exclusions may have been crafted on the basis of crude ideas of virtue and vice, but the Justices who made them and continue to abide by them must have had, and must still have, in mind at least some such conceptions.

   Yet beyond the bare fact that there is some significant subset of speech and religious exercise that is simply deemed beyond the pale of constitutional protection, there is an additional conceptual puzzle. As Berns put it, "different speeches have different consequences and different speakers aim at different ends," so that the only polity that actually could foster speech without any discrimination whatsoever is Babel. (131) Which, then, are the ends aimed at by the Supreme Court's approach toward First Amendment free speech? Berns believed that they were those of a polity "without a public good" and if this were true, it might tell in favor of the thesis that the American state remains neutral as to any particular view of the virtuous life. But there are reasons to doubt that he was right about this.

   Consider the second arch-justification for free speech of the conventional account: its truth-seeking function. The very idea that hard-won truths are accorded no respect at all, no deference whatsoever, but are thrown right back into ceaseless competition with new ideas in the "market," itself reflects a distinctive view of political and moral virtue. It is not a neutral perspective on truth. It either means that whatever ideas are accepted by the market are simply labeled "truth" or that truth has some sort of intrinsic advantage over falsehood that allows it to prevail under free market conditions. If the latter, then, as Berns observed, "persecution is illogical because it is unnecessary." (132) And if the former, the assumption must be that the only truths are relative and ephemeral, since these are the only sort that can capture market preferences as consumer desires change. As a general civic approach to the question of truth, this is hardly the same as "keeping an open mind" to new ideas. It is active disrespect of all existing truths. The idea of truth in such a society recedes into the background. Or perhaps it is more accurate to say that the only truth--and it is one held to with supreme tenacity--is the impermanence of any truth obtained and the relentless imperative of change at the prompting of individual choice and consumer taste. As Gerhart Niemeyer once observed:

   It seems good and desirable to keep talking, while the result of the talk becomes something of secondary importance, a by-product which is destined to be discarded as soon as it has been obtained. In this way, the quest for truth is turned into an exciting game rather than a serious and exacting endeavor, a game in which, like the Caucus Race in "Alice," all are winners and receive the prize of official recognition. (133) "Recognition" is indeed an apt general description of the virtues toward which the Supreme Court reoriented the First Amendment during the twentieth century. Berns traces the development of free speech doctrine in precisely this direction in discussing two mid-century decisions, Beauharnais v. Illinois (134) and Terminiello v. Chicago- (135) In Beauharnais, the president of the White Circle League of America was convicted of distributing pamphlets calling on the City of Chicago to devote resources to stopping the "rapes, robberies, knives, guns and marijuana of the negro" and to prevent the "mongreliz[ation]" of the white race. (136) The Illinois statute, Berns argued, needed to be understood and evaluated in light of the factual conditions in Chicago, which had experienced the evil of massive racial strife in the years preceding the statute's enactment. (137) Beauharnais, moreover, was not punished for any criticism of the government or its public officials; he was not punished, as the conventional account's first justification has it, for calling the government to account for its misconduct; rather, he was punished for advocating illegal action against fellow citizens and for disturbing the peace of those citizens (that is to say, their liberty). There may be prudential reasons to tolerate Beauharnais's speech but the question at least merited a thorough discussion of the competing private and civic interests at stake. Yet to hear the dissenting Justices, one would think that the decision to uphold the conviction was the act of an unabashedly tyrannical government. (138) The commitment to freedom takes no cognizance of social facts; any restriction on individual expression, no matter the context, is anathema for "all legislation of this type [is] the act[ ] of tyrants." (139) The only political problem in view--the only one thought to be important in evaluating these disputes--is the state's authority as against the individual's, and the state's denial to the individual of his "say in matters of public concern." (140) To deny a person his "say" is nothing less than an act of tyranny.

   Terminiello represents one bright bloom in the flowering of this approach to speech protection under the First Amendment. In a 5-4 decision authored by Justice Douglas, the Court overturned the conviction for breaching the peace of a Catholic priest whose expression was intended to whip up a crowd inside an auditorium into a frenzy against a second crowd pressing to enter the auditorium and hurling bricks, rocks, bottles, and icepicks. (141) The speech was clearly intended to incite the disturbance of a mob and was laced with fascist epithets of hate and vilification aimed at particular classes and races of people. In characterizing the nature of the free speech interest at stake in Terminiello, Justice Douglas offered this:

   The vitality of civil and political institutions in our society depends on free discussion.... [I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly, a function of free speech under our system of government is to invite dispute.... Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. (142) The passage is remarkable. First, Douglas says that Chicago was wrong to punish Terminiello not merely because "his speech did not produce a danger of substantive evil" (143) but because it was positively civically healthful--it was precisely the sort of speech that lies at the heart of the First Amendment. Second, the path from the neutrality of toleration to the non-neutrality of promotion was thereby illuminated: the ideal society actually ought to promote and celebrate speech like Terminiello's because of the crucial civic function it performs. This is full-bloodedly virtuous speech, not the sort of ineffectually vicious speech (or what Justice Frankfurter at one time called "[w]holly neutral futilities") (144) that should not be regulated. Third, there may even be a possibility that Terminiello's advocacy of race and class hatred and massive bloodletting in the streets actually will persuade market actors of its truth and of the falsity of their contrary "prejudices and preconceptions." Since such a possibility exists, the state is powerless to restrict Terminiello's speech. The implication is that it is better to be governed by fascist ideas than to regulate the market consumer's taste for them. Finally, if "inviting dispute" even in this manner is the central function of free speech protection, then it seems to have far more to do with Terminiello's own authority to do so in the manner he chooses as measured against the state's authority to regulate it--and the extent to which, as Niemeyer put it, the...