April 16, 2015

"When I began as a young lawyer in the 1960s, text was an interesting jumping-off point."

"It was sometimes even read from beginning to end. But it was rarely dispositive…. One of the great triumphs of Justice Scalia’s work on the Court over the years — with help from a number of the other justices — was to remind us that text does play an important role, and that we should be spending more time with the text."

Said NYU lawprof Burt Neuborne, talking about his new book, "Madison's Music: On Reading the First Amendment." Alongside him was Justice Sonia Sotomayor, whom he thanked for "her human voice." Is that a compliment? Is this a compliment: "It’s a fun book for someone who's not immersed in the law"? That's what she said about his book.

I got to that NYU page via email that promotes NYU School of Law things to the school's graduates (which include me). I hesitated to link to it, however, because I'm ashamed of the inaccuracy of this sentence:

Turning to the justice’s question, Neuborne referred to an exchange between Chief Justice John Roberts and Justice Stephen Breyer in McCutcheon v. Federal Election Commission, which invalidated federal campaign contribution limits for individual donors on First Amendment grounds.
McCutcheon invalidated aggregate contributions. The base limits on contributions remain intact. The next sentence is awful too:
In Breyer’s dissent, he argued the ruling was a blow to democracy, while Roberts responded that the Court’s business was merely to enforce the First Amendment, and better democracy could be obtained through amending the Constitution.
Here's McCutcheon. From the Roberts' opinion:
The dissent [by Justice Breyer] faults this focus on “the individual’s right to engage in political speech,” saying that it fails to take into account “the public’s interest” in “collective speech.” This “collective” interest is said to promote “a government where laws reflect the very thoughts, views, ideas, and sentiments, the expression of which the First Amendment protects.”

But there are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good. First, the dissent’s “collective speech” reflected in laws is of course the will of the majority, and plainly can include laws that restrict free speech. The whole point of the First Amendment is to afford individuals protection against such infringements. The First Amendment does not protect the government, even when the government purports to act through legislation reflecting “collective speech.” Cf. United States v. Alvarez, 567 U. S. ___ (2012); Wooley v. Maynard, 430 U. S. 705 (1977) ; West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) .

Second, the degree to which speech is protected cannot turn on a legislative or judicial determination that particular speech is useful to the democratic process. The First Amendment does not contemplate such “ad hoc balancing of relative social costs and benefits.” United States v. Stevens, 559 U. S. 460, 470 (2010) ; see also United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000) (“What the Constitution says is that” value judgments “are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority”).

Third, our established First Amendment analysis already takes account of any “collective” interest that may justify restrictions on individual speech. Under that accepted analysis, such restrictions are measured against the asserted public interest (usually framed as an important or compelling governmental interest). As explained below, we do not doubt the compelling nature of the “collective” interest in preventing corruption in the electoral process. But we permit Congress to pursue that interest only so long as it does not unnecessarily infringe an individual’s right to freedom of speech; we do not truncate this tailoring test at the outset.

34 comments:

campy said...

I always knew the Wise Latina was not immersed in the law. Nice that she admits it.

Ignorance is Bliss said...
This comment has been removed by the author.
Ignorance is Bliss said...

...On Reading the First Amendment...

...It was sometimes even read from beginning to end.


Wow. It's like 45 words long. What dedication.

David said...

Pathetic. And I refer to Breyer, not NYU.

Ignorance is Bliss said...

Neuborne, a leading civil liberties lawyer... soon determined that the First Amendment should not be read literally...

There's a surprise.

HoodlumDoodlum said...

Breyer: “the public’s interest” in “collective speech.”

Roberts: "The whole point of the First Amendment is to afford individuals protection against such infringements. The First Amendment does not protect the government"

Which conception of rights do you understand the Constitution to be upholding? Do you think the government should enforce what it sees as collective public rights against the interests or wishes of individuals--is that the point of the Constitution generally? Did anyone (or any substantial number of people) understand the Constitution to have that intent from the time of the signing through, say, FDR? What percentage of the population thinks that way now?
When I was younger I genuinely didn't understand how smart people (on the Left) could hold the positions they did about fundamental rights issues. I now understand (at least somewhat) why they hold those positions (belief in collective rights, belief that the Constitution is designed to promote a specific social vision and not protect individual's rights, valuing result over process, etc) but I still find their arguments-when they bother to make them-unpersuasive both for a lack of historical grounding and for what they would mean for the future.

Sebastian said...

Pretty good smackdown by Roberts.

Is Breyer still your favorite?

For him and other Progs, text is still "an interesting jumping-off point." One more vote, and they won't even need that.

traditionalguy said...

Limiting free political speech donations is the same as limiting the bearing of arms.

Both only affect law abiding individuals. The way to get it done secretly. Is still open to the politicians as wide as ever.

Ignorance is Bliss said...

Now that I have the snark out of my system, I should mention that I agree that the First Amendment should not be read literally. There are way the government can abridge freedom of speech ( no yelling fire in a crowded theater ) and many ways that the first amendment should be extended to cover speech-adjacent activity ( such as paying for the distribution of that speech ).

But the text should be read as far more than an interesting jumping-off point, and the presumption should be in favor of more freedom for the individual and more restriction of the government.

FleetUSA said...

Good to have our ace Constitution Professor AA correcting the record from sloppy grammar and Con Law jurisprudence.

Thank you

rhhardin said...

Richard Epstein another civil rights and discrimination laws podcast.

There's a contrast of the Epstein legal interest in what the Supreme Court screwed up and the eternal confrontation guaranteed by the screwup, and the traditional interest in precedent as the truth of the matter.

Not Epstein's best analysis of the temper of the times in the 60s, a temper which was much more pro-black than anybody wants to remember. He had that in some other podcast. It helps his argument that the market takes care of discrimination.

rhhardin said...

The value of the text is not that it was there when the founding fathers wrote it, but that it's there for a reason, usually inherited from legal systems found to work historically.

The key is understanding the principles that put the things in old legal systems.

Which is what Epstein is always trying to do, and why makes sense of things.

Sebastian said...

"Is this a compliment: "It’s a fun book for someone who's not immersed in the law"? That's what she said about his book."

If it is a compliment, I hope it's meant as very faint praise.

Following the link, here's what I found in the text: Professor Neuborne laments the ""arbitrary constitutional jurisprudence that has left us with a dysfunctional, judge-built "democracy" that is owned lock, stock, and barrel by five thousand wealthy oligarchs" (2), thinks Republican justices “don’t worry much about what goes on in the vacated space, as long as it doesn’t interfere with their parallel commitment to stable hierarchies” (10), and, whaddayaknow, appreciates that “Justice Breyer has begun to root his aspirational reading of the Constitution in respect for democratic governance” (11).

A lot of "fun." So much fun, it should be required reading in Hillary!'s Fun Adult Day Camps.

robother said...

A text is like the Golden Gate Bridge: it was crafted to be followed from beginning to end, with a specific directional purpose.
Reimagining it as just "an interesting jumping off point" fundamentally undermines the whole point of having a bridge, or a written Constitution.

Gabriel said...

1) Can we retire "fire in a crowded theater"? If the theater is actually on fire, you have a goddamned moral duty to yell "fire", and possibly a legal one.

2) The Constitution is not a magic wand that dispenses justice, liberty, or more democracy. This is why women had to get their own amendment to get the vote, and not rely on the 14th. The Consitution explicitly included slavery.

You can't just use the Consitution to wave away laws that are dumb or unjust.

Ignorance is Bliss said...

Gabriel said...

1) Can we retire "fire in a crowded theater"? If the theater is actually on fire, you have a goddamned moral duty to yell "fire", and possibly a legal one.

You do realize that the example of yelling fire in a crowded theater refers to yelling it when you know the theater is not actually on fire?

If you understand that, do you agree that the government can outlaw that type of speech?

mccullough said...

I think his statement about Scalia and others regarding statutory text is pretty accurate. When it comes to the Constitution's text, the words are often to broad "equal protection" or too narrow "the press" to be much help.

And assessing contribution limits is assessing the constitutionality of the means of enabling speech or "the press" not the constitutionality of a expression itself.

Gabriel said...

@Ignorance is Bliss:You do realize that the example of yelling fire in a crowded theater refers to yelling it when you know the theater is not actually on fire?

Not being a mind reader, I don't, and I do not know if the person saying it knows that's what it means.

All they have to do is say "falsely yelling fire in a crowded theater" and both things are made clear--that they are referring to that case, and that they know the difference.

It's like when people say "the end doesn't justify the means". Okay, what DOES justify the means? It can only be an end that justifies a means.

What they aren't saying is the distinction between "necessary" and "sufficient". If they don't say "the end doesn't necessarily justify the means", how I do know they mean it? How do I know they don't seriously misunderstand the whole idea?

Ignorance is Bliss said...

Gabriel-

Thank you for that response. It gives me a much better understanding of your thought processes.

In answer to your previous question Can we retire "fire in a crowded theater"?

Yes, we can, but we choose not to, because it is a simple example readily understood by the vast majority of adults. But you are free to not participate in such discussions if you have too much trouble following them.

David said...

The fight over the First Amendment can best be understood as a process issue: who gets to regulate speech, the press, religious practices, etc.

From the founding until, arguably, the passage of the Fourteenth Amendment, the First Amendment wasn't so much about the freedom of individuals as it was about allocating authority to regulate. Congress couldn't abridge the freedoms of speech, press, religion and assembly and couldn't make any law respecting an establishment of religion. The states could. Because, however, these freedoms are core American value, the states didn't do much. They mostly secured these freedoms in their own constitution and got rid of their established churches on their own.

In 1923, however, the Supreme Court overturned NY's conviction of Gitlow, a socialist, for publishing a left wing manifesto. The court held that the states, just as much as Congress, couldn't abridge the freedoms protected by the First Amendment.

It turns out, however, that speech does need some regulation (fraud, for example) and the court then had to find a way (strict scrutiny) to allow the federal government to regulate speech. Now, the federal government wants to extend that exception to swallow the whole (control of the internet, hate speech, harassment, and even, through campaign finance reform and other regulation, core political speech).

I personally think we'd be better off leaving this to the states (if its going to happen anyway; I'm pretty close to a free speech absolutist as a matter of policy) because the states are closer to the people, they're more malleable, and its easier to "vote with your feet" by leaving a state with policies you dislike for a state with policies you like.

Hunter said...

One good reason to dislike the "falsely shouting Fire in a crowded theater" metaphor/cliche is the context in which it was coined by Justice Holmes, to defend the government's power to jail someone for political protest during wartime.

It is in fact perfectly legal in some instances to falsely shout Fire in a crowded theater. If you are an actor in a play the plot of which involves a character shouting about a fire... or you shout Fire but an usher removes you before anything bad happens as a result of your outburst, that may well not be an arrestable offense.

In any case, it misses the point and makes it seem like speech can be regulated "in extreme cases," but this is not true. Speech can become a form of action, and it is the action component (incitement, causing a stampede, slander/libel) which, if harmful or dangerous, is not protected. Speech, as speech, absolutely cannot be limited and only where speech becomes action that is harmful can there be laws restricting it as action, not merely as expression.

Questionably apropos, I am reminded of a sketch from The Whitest Kids U Know that played with this subject

Qwerty Smith said...

David said... "The fight over the First Amendment can best be understood as a process issue: who gets to regulate speech"

That certainly makes the most sense of the texts and what was said about them. Madison said explicitly that the First Amendment was to be read literally, as wholly eliminating all federal authority over speech, press, etc.. The states could regulate things like sedition, libel, and speech that disturbed public order, and some explicitly exempted licentious speech from protection.

Many of the horrific balancing tests that the courts have manufactured only become necessary if one (wrongly) assumes that the Fourteenth Amendment should result in applying identical or similar restrictions on both sovereigns.

ken in tx said...

At what point in history, did the courts determine that the term 'no law' meant 'no law except for...'?

Saint Croix said...

My favorite Supreme Court free speech case is Brandenberg v. Ohio, a unanimous opinion.

I would expand Brandenberg and apply it across the board in every free speech controversy, particularly obscenity and fighting words and the other stupid doctrines that need to die.

The standard is that free speech cannot be abridged. As Hugo Black liked to say, that's an absolute prohibition.

But the government can punish conduct. How can we be certain the government is punishing conduct rather than speech? The Brandenberg test.

The lawless action (i.e conduct) has to be...

1) imminent
2) likely to occur
3) intended by the speaker

The Godfather said...

Didn't some great jurist say "No law" means "No law"?

As to the comment that "The value of the text is not that it was there when the founding fathers wrote it . . . ." If we are talking about the Constitution, the value of the text is that it's the law, our highest law. The courts must do their best to understand it and apply it to the circumstances before them, but they aren't free to decide that the law isn't a good idea anymore. They must, for example, decide whether freedom of speech and freedom of the press apply to radio, television, cable, the web, twitter, and whatever technology comes next. But they don't get to decide whether such freedoms are in the public interest; that's been decided for them, by the Constitution.

So says the wise Anglo.

Mick said...

Black and white words mean nothing to the scumbag lawyers. They only see gray, since seemingly only they can read. They played telephone with the Constitution for over 200 years, and now it is nothing like it was meant to be.

The words "shall not be infringed" became "shall not be infringed unless the 'colective' deems that it should be."

Basil said...

Gabriel, there is no reason for the federal Congress to pass a law banning yelling fire In a crowded theater. Therefore, the First Amendment should be read literally. Congress shall make no law abridging the freedom of speech. States areerfectly free to ban speech. Now, there should be an Amendment to extend the freedom of speech to restrict the state governments, but the First is not it.

Laslo Spatula said...

Jessica Alba and I don't talk about law that much.

Although we sometimes play "Naked Law & Order" where I am the NY Assistant District Attorney and Jessica is the female ADA bent over the table with her skirt around her waist and I am 'making my case.'

Sometimes, in the midst of such sex, Jessica asks me to "go for the death penalty." I know what she means by that.

I am Laslo.

Bob Ellison said...

Judge Laurence Silberman agrees with Scalia, who says the incorporation doctrine was a mistake (section 3).

jr565 said...

Gabriel wrote:
You can't just use the Consitution to wave away laws that are dumb or unjust.

case in point, gay marriage. The 14th amendment does not guarantee guys a right to marriage.
Equal protection of the laws would mean everyone has the same rights to marry, not that gays, who never had the right to marry, suddenly got the right to marry. No, they ar bound by the same restrictions to marriage as everyone else. If marriage is one man one woman the. Gays can certain partake of marriage they just have to do so as defined.
There may be great reasons to have states push for gay marriage legalization, but it's not an equal protection argument.
Equal protection would apply if gay marriage was legalized (using different reasoning) to heterosexuals. They too could get gay married. Not that they'd want to.
It would only be an issue if somehow a Herero wanted to get gay married but was denied. Which is absurd even thinking about as a hypothetical. Since thst wouslnt happen.

jr565 said...

If gays were denied one man one woman marriage because they were gay THEN you could make an equal protection argument. But I know plenty of gay men who were closeted and married women.
Were they denied the right to marry? No. since they did marry.
Could they marry as a gay couple? No, because that's not how gay marriage was defined.

mgarbowski said...

Text is king.
Interpret that as you will but keep it to those 3 words.

Ken Mitchell said...

Ignorance is Bliss said: "Now that I have the snark out of my system, I should mention that I agree that the First Amendment should not be read literally."

Go back and read "The Federalist Papers", and the various arguments for and against the adoption of our Constitution. The "anti-Federalists" feared that the Federal government would become abusive of the rights of the states and the people. The Federalists argued that the Constitution was written in a way that the Federal government didn't have, and could never assume, the power to become abusive. For example, the Federal government could never implement bans on firearms because the 18 "enumerated powers" of the Constitution didn't allow that.

The anti-Federalists responded that every government in history had seized far more power than was intended, and they wanted to prevent our new Republic from following the same fate.

The compromise was the Bill of Rights. The Federalists didn't think it necessary, because the Constitution did not grant the power to do any of the things that the Bill of Rights protected. The anti-Federalists felt that the Bill of Rights was a bare minimum list of "The Government Shall Not"'s. Please read carefully the 9th and 10th Amendments, which explicitly state that the Federal government has NO other authority than granted in Article 1, Section 8, and that ALL other powers were reserved to the states and to the people.

Then look at what has happened in the last century. 95% of what the Federal government does has no basis in the enumerated powers, and so is unconstitutional.

There was a movement back in the 1980's to require that every law should explicitly cite the enumerated power that authorized that law. Senator John Glenn relied that if they tried to do that, the Congress would never be able to get anything done! So even military officers and Federal officials, who have on many occasions sworn to "uphold and defend the Constitution of the United States against all enemies foreign and domestic", were lying to us all.

Ken Mitchell said...

Gabriel said: "The Constitution is not a magic wand that dispenses justice, liberty, or more democracy. This is why women had to get their own amendment to get the vote, and not rely on the 14th. The Consitution explicitly included slavery."

The Federal government shouldn't be determining voting laws at all; the plain TEXT of the Constitution doesn't give then the authority. STATES regulate voting laws, and in many states, women were allowed to vote starting in the late 1800's. Personally, I don't think that the ability to fog a mirror is really much of a qualification as a voter; I think we should demand a higher quality electorate. We should have some concrete tests; passing a civics test, and/or military service, perhaps.