The Soul of the First Amendment
Two years ago I was kibitzing with a group of under-50 First Amendment scholars at the nation’s most bustling academic First Amendment conference, held annually at Yale Law School. Our discussion wound from anti-LGBT funeral protests through campaign finance, campus speech, and government secrecy. One considerably more seasoned attendee, the legendary free speech litigator Floyd Abrams, listened with keen interest. (I later learned that he provided funding for the conference.) After sitting quietly through much of the conversation, Abrams genially but pointedly asked why we young scholars all wanted to limit the freedom of speech so much.
Abrams’s concise new book, The Soul of the First Amendment, develops that question, and the perspective behind it, for a general audience. The book embodies much of what makes its author so widely admired. It is elegantly written, deeply learned, and temperate in tone. Abrams may be the greatest First Amendment lawyer we have ever known. He has won seminal Supreme Court arguments in disputes ranging from the Vietnam-era Pentagon Papers Case, which protected newspapers’ right to publish sensitive national security information, to the more recent Citizens United v. FEC, which protected corporations’ right to spend freely in election campaigns. Abrams’s book, however, delivers only brief snippets of the fascinating war stories he must have to tell.
Instead, as its title suggests, The Soul of the First Amendment deals in big, broad ideas. Abrams is not an academic free speech theorist but rather a top-flight advocate for the ideas he prizes. The book makes a passionate case for Abrams’s conception of what the First Amendment means and how constitutional speech protection should work. The book’s value lies not in the novelty or nuance of that conception but in the clarity and conviction with which Abrams makes his argument.
… free speech absolutism presents serious difficulties that have diminished its influence over the past few decades. Those difficulties fall into two categories: normative undesirability and logical incoherence. Abrams’s argument runs into both sorts of problems.
Abrams belongs to the First Amendment tradition of free speech “absolutism,” though he does not use that term. The First Amendment states: “Congress shall make no law abridging . . . the freedom of speech.” Absolutists take that language (adjusted to include the actions of the entire federal government and state governments as well) to mean fully what it says. The government simply may not do anything that restricts the freedom of speech. “The imposition of strict limits on governmental authority over religion, speech, and press,” writes Abrams, “was the central purpose of the First Amendment. It is what the First Amendment is about.”
The rhetorical force of free speech absolutism lies in its certainty. A courtroom warrior like Abrams needs strong, reliable weapons. An argument that the First Amendment trumps any conceivable justification for restricting speech cuts through a lot of resistance. Of course, that sort of weapon may prove blunt rather than sharp. The rhetoric of certainty, though, works well in First Amendment arguments because the value of free speech pulls like a moral tractor beam on the American conscience. Our social and political order embodies a broad consensus that constitutional speech protection is a moral imperative and a political necessity. Abrams taps into our noblest communal impulses when he rightly claims that “the First Amendment is part of this country’s ethos, its popular culture, unrivaled by any other provision of the Constitution.” (xxii) From that foundation he adroitly deflates “national security” justifications for press censorship, and he persuasively criticizes some European constraints on speech, like plaintiff-friendly defamation regimes and protections for the “right to be forgotten” online.
At the same time, free speech absolutism presents serious difficulties that have diminished its influence over the past few decades. Those difficulties fall into two categories: normative undesirability and logical incoherence. Abrams’s argument runs into both sorts of problems.
We can tell that free speech absolutism is normatively undesirable because no one actually believes that the First Amendment should bar all laws that restrict speech. This is the old problem of yelling “fire” in a crowded movie theater–or revealing state secrets, or blackmailing a colleague, or telling someone to commit a crime. We can all identify several categories of speech not only that we want to restrict but that we can be fairly sure others would agree about wanting to restrict and that courts have, in fact, continually let the government restrict.
Abrams acknowledges important exclusions from First Amendment protection. Some exceptions are conceptual: “[S]pying, for example or perjury [have] simply been held to be not the sort of ‘speech’ the First Amendment has ever been thought to protect.” Others depend on tradition: “[L]ibel and obscenity, for instance[,] have historically been subjected to sanctions and still are, but in a manner that accommodates First Amendment concerns.” (27) Abrams presents these exclusions as unremarkable and inevitable. Understood that way, the exclusions do not compromise the force of free speech absolutism; they simply stand apart from an absolutist conception of the First Amendment. If the limits of absolutism are inevitable, then absolutism itself can remain easy. That is exactly how Abrams presents his First Amendment theory. His absolutism is not contingent, contentious, a best choice from among imperfect alternatives. It is just necessarily right.
The normativity of constitutional speech protection becomes important for Abrams’s argument when he airs his central anxiety: that today’s political left does not care enough about free speech. Like many distressed libertarians, though with a more measured and forgiving palette than most, Abrams paints the contemporary free speech landscape as a liberal paradise lost.
But are the exceptions and exclusions really that easy to justify? How do we come to define spying or perjury as not the sort of speech the First Amendment protects? We might just as logically define criticism of the government as not protected speech. Why should we credit a “free speech” tradition that permits legal punishment of something we call “obscenity”? If we, like many countries, had a tradition of legal punishment for criticizing the government, we might honor that tradition and still claim we were robustly committed to free speech. The exceptions Abrams identifies, like the boundaries of First Amendment protection more generally, reflect contingent, sometimes contentious normative choices. They are not inevitable, and therefore the scope of the free speech protection they define is contestable.
The normativity of constitutional speech protection becomes important for Abrams’s argument when he airs his central anxiety: that today’s political left does not care enough about free speech. Like many distressed libertarians, though with a more measured and forgiving palette than most, Abrams paints the contemporary free speech landscape as a liberal paradise lost. Somewhere along the way, he laments, left-wingers dropped the First Amendment ball. The true meaning of free speech was sitting in front of their faces, right where it had always been, and yet they somehow lost sight of it. They committed the same sin conservatives used to commit: limiting their First Amendment scruples to speech they favored, while throwing speech they disfavored–notably racist invective and big-ticket electoral spending–to the dogs.
This numbingly familiar “illiberal left” narrative suffers from two major defects. First, singling out left-wing speech suppression whitewashes right-wing speech suppression. Abrams might benefit from a trip to Ferguson, or wherever the latest police shooting of an unarmed African American has pulled the front lines of the Black Lives Matter movement. He might take a greater interest in the President’s scathing attacks on professional journalism (at least some of which, on the 2016 campaign trail, appear to have predated Abrams’s book deadline). He might probe legislators’ moves in states like Wisconsin to attack the perceived excesses of left-wing academia by rolling back funding and tenure protections at state universities and colleges. Abrams claims that left-wing critics of current free speech doctrine want a “politicized, one-sided” First Amendment that depends on “the economic or social status of those claiming its protections.” (26) The problem is that we already have such a First Amendment, one that protects the wealthy and entrenched far more than the poor and marginalized.
Second, Abrams does not actually refute the left-wing objections to expressive freedom that he calls out; he merely rules those objections out of bounds. The inescapable normativity of speech protections makes that ruling untenable. In an admirably conflicted passage, Abrams forswears criticizing nations that have experienced calamitous ethnic conflicts, such as Germany and India, for imposing restrictions on hate speech. “For this nation, though, strict constitutionally imposed limitations on such legislation have served us well.” (49) By what, and whose, measure? Abrams states that “[t]he United States has been fortunate not to have suffered such horrific events.” Of course, our country never had to deal with Nazi rule or religious civil war. But we have suffered domestic terrorism, lynchings, beatings, bombings–all fueled by racist rhetoric. Abrams may be right that our law should protect hateful speech. I think, for the most part, he is right. However, he cannot hope and should not try to win that charged argument by fiat. He needs to dig into the normative muck–down among the spies, perjurers, and pornographers – and persuade us that the lines he wants to draw are wise and right.
The logical incoherence of free speech absolutism cuts even deeper than its normative undesirability into Abrams’s argument. Abrams presents as unproblematic his thesis that the simple, exclusive purpose of the First Amendment is “avoiding governmental control over speech.” (27) That thesis depends on two premises: that we can clearly distinguish government action from private action; and that assaults on free speech always follow a linear track, with the government restricting the speech of a speaker or group of speakers with a unitary speech interest. Both of those premises are much more fraught than Abrams makes them out to be.
Like Abrams, the Supreme Court for the past 40 years has not troubled itself about the public-private distinction in First Amendment law. Maybe it should.
Where does government action end and private action begin? Sometimes the answer really is easy. If you are running a website out of your house, and the police break down your door and drag you away based on what you are posting, that is government censorship of private speech. What if you try to stage a political rally at one of those faux “Main Street” shopping malls, and the mall owners have you arrested for trespass? The mall owners, of course, are not the government. Abrams would therefore say “move along; no First Amendment problem here.” But wait a minute. How exactly did that mall siphon all the foot traffic from actual Main Street to fake “Main Street”? That kind of transposition requires help that only government can give, like tax breaks, zoning variances, and targeted spending on transportation. Those government boons have public consequences: A healthy democracy needs public interaction and opportunities for speech, whether it happens on government or private property. Then there is the “arrested for trespass” issue. As Abrams acknowledges, “only the government has police and prisons.” (24) When we dissect this kind of “private” speech suppression, we can see all kinds of crucial government involvement.
Like Abrams, the Supreme Court for the past 40 years has not troubled itself about the public-private distinction in First Amendment law. Maybe it should. Consider our nation’s two biggest, most powerful political organizations: the Democratic and Republican parties. Every President, virtually every member of Congress, and the vast majority of state elected officials ride into office under one of the major parties’ flags. All those officials, when they make governing decisions, owe substantial political allegiance and fealty to their party organizations. To the Supreme Court, though, the Democratic and Republican parties are just big private clubs. When Californians voted to amend their state Constitution to let primary election voters pick a candidate of any party for any given office, the Supreme Court did not see people exercising control over their government; rather, it saw government exercising control over private speakers. It thus struck down the “blanket primary” system as a violation of the major parties’ First Amendment rights. Most of us would agree that treating political parties as private, rights-bearing entities for most purposes benefits democracy. That does not compel us, however, to ignore the important ways in which the two major parties wield coercive power.
Any version of liberalism requires a workable distinction between the governmental and private spheres. Too often, though, liberals like Abrams mistake necessity for resolution. The public-private distinction, like the conceptual boundaries of constitutional speech protection, requires a normative grounding. Liberalism does not arise from a state of nature; it posits and constructs a social order. That means Abrams cannot just wave his rhetorical wand to demarcate the nature and range of actions that the First Amendment prohibits.
Closely related to the public-private conundrum in First Amendment law is a second logical problem of free speech absolutism that Abrams elides: the frequent opposition of speakers with competing, credible claims for First Amendment protection. Here we arrive at the jagged rock that splinters the flagship of Abrams’s attack on left-wing illiberalism: campaign finance.
We largely have Floyd Abrams to thank or blame for the Supreme Court’s notorious Citizens United decision. He argued the case, brilliantly, and chalked up a historic win, for which this book runs a victory lap. To Abrams, Citizens United is an easy First Amendment case. When Congress told corporations and unions that they could not spend money to support or oppose candidates for office, the government was simply censoring private entities’ speech (even though that restriction had a long historical pedigree, similar to the restrictions on obscenity and defamation that Abrams chalks up to tradition). Advocates of restricting political money in the name of a healthy democracy want nothing less than to “limit[ ] the speech of those [they] believe[ ] talk too much.” (22)
To Abrams, Citizens United is an easy First Amendment case. When Congress told corporations and unions that they could not spend money to support or oppose candidates for office, the government was simply censoring private entities’ speech (even though that restriction had a long historical pedigree, similar to the restrictions on obscenity and defamation that Abrams chalks up to tradition). … Campaign finance laws, though, do not aim to suppress any idea or set of ideas. In fact, the most forceful arguments for campaign finance regulation rest on free speech values.
Campaign finance laws, though, do not aim to suppress any idea or set of ideas. In fact, the most forceful arguments for campaign finance regulation rest on free speech values. Advocates of campaign finance reform invoke the free speech rights of both participants in political debate and members of the electorate. Unfettered political money, reform advocates contend, effectively drowns out the voices of underfunded speakers. That drowning out corrodes much of what free speech contributes to democracy: broad sourcing of political discussion, the sense that we all have a stake in electoral outcomes, the process by which our representatives respond to the rich cacophony of ideals and interests across the polity. From the other end of the telescope, big money’s narrowing of electoral discourse deprives us, as voters, of lesser-funded perspectives that might deepen or complicate our understanding of political issues. The more arguments we hear, the more informed our votes. Abrams writes off these speech-promoting justifications for campaign finance limits as antithetical to “the core teaching of the First Amendment that [democratic] values are served best by limiting the power of government over speech, not augmenting it.” (23) He promotes a simple formula: more money => more speech => better democracy. That formula rests on highly contestable premises about political discourse and democracy itself. The First Amendment should lead the Supreme Court to leave those premises up to public debate, not to shut down the debate with conclusory edicts like Citizens United.
The view of First Amendment law that Floyd Abrams passionately promotes in The Soul of the First Amendment is by far the dominant one in our legal institutions. Abrams has almost no critical words for the present Supreme Court, even though the Court in recent years has rejected quite a few First Amendment claims, mostly from socially marginal and underfinanced speakers. Perhaps a strong majority of readers will embrace Abrams’s view of what the First Amendment means. The book surely has great value, even to a skeptic, for its vivid and emphatic defense of our legal system’s prevalent conception of expressive freedom. Its great omission is its refusal to grapple with the reasons it may be wrong.
