Madison's Music (17 page)

Don't get me wrong. I get nervous about government censorship. But I also get nervous about the Court's fixation on speakers who run roughshod over the others who live in the neighborhood. Recognizing a community of speakers
and
hearers doesn't mean the overthrow of the speaker. But is it really necessary or wise to raise appalling speakers above the law just because we mistrust government's ability to regulate them fairly? Why don't we spend more energy worrying about minimizing the chances of improperly motivated government censorship? How did we get to such a place?

A TALE OF TWO FREE-SPEECH CLAUSES: DEREGULATORY AND ASPIRATIONAL

In today's America, robust constitutional protection of free speech is neither a Republican nor a Democratic idea; it's a consensus American idea. And that's a wonderful thing. But as I've noted earlier, it can be a false consensus. All nine Justices agree about the importance of robust free-speech protection, but their agreement masks an important difference in their readings of the First Amendment. The five Republican justices tend to tear out seven words—“Congress shall make no law . . . abridging . . . speech”—and read them as a deregulatory command forbidding any government interference with communication, at least by rich and powerful speakers. After preventing the government from regulating speech in most settings, the Republicans appear comfortable letting powerful corporations decide what gets said to whom.

The four Democratic justices tend to approach the First Amendment as an aspirational partnership between speakers and hearers aimed at preserving human dignity and improving the efficient functioning of institutions dependent on informed free choice. The Democrats also subordinate the rest of the First Amendment
to an imperial Free Speech Clause, but at least they use all ten words—“Congress shall make no law . . . abridging
the freedom of
speech,” letting the words
the freedom of
act as a filter to allow narrow government regulation of speech in aid of their aspirational vision of the ideal free-speech community.

Because any government regulation of speech usually impinges on human dignity and threatens the free market in ideas, the Democratic aspirational approach to the First Amendment usually dovetails with the Republican deregulatory approach, creating a powerful bipartisan consensus First Amendment. In the many settings where the deregulatory and aspirational approaches overlap, constitutional protection of the speaker usually trumps all competing values. Such a left/right consensus about the importance of free speech is relatively recent. For much of the nation's history, free speech was just one of a number of important values that jostled with each other in the formulation of constitutional law. Free speech usually lost.
²³
Until recently, a desire for vigorous Supreme Court enforcement of a robust First Amendment was a trademark of the American left and the bête noire of the American right. For most of the twentieth century, left-wing reformers, certain that their ideas were on the winning side of history, viewed robust free speech as an agent of change capable of destabilizing an oppressive and unequal status quo. To the reformist American left, more speech meant more—and faster—social and economic change. The future potential impact of a deregulatory First Amendment on the weak and the poor was deemed a small price to pay for the ability to invoke a robust free speech principle today in support of a more equal world.

Unlike the confident left, many mid-twentieth-century American conservatives, appalled by the excesses of fascist lunatics, their faith in unregulated economic markets battered by the great Depression of the 1930s, and confronted by an almost unbroken phalanx of academic support for leftist programs, did not look to the future with intellectual confidence. The Republican Party's shameful role in the infringement of free speech in the 1940s and
1950s—supporting McCarthyism, urging censorship of politically radical or erotically suggestive speakers, books, and movies, and applauding the successful effort to outlaw the American Communist Party—reflected the fear of many conservatives that uncensored speech and uncontrolled freedom of political association posed an unacceptable risk to the status quo and would lead to political, social, and economic chaos.
²⁴

The result was Republican support for a weak First Amendment built around the “bad tendency” doctrine, authorizing government to censor controversial speech based on its perceived tendency to lead to social harm. Under the bad-tendency test, a plausible suspicion that speech might increase the likelihood of harm was sufficient to ban the speech.
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That's what sentenced the opponents of World War I such as Eugene Debs to prison. That's also what led to the successful criminalization of the American Communist Party in 1951. In the late 1950s and the 1960s, the Warren Court, with a comfortable 6–3 Democratic majority (7–2 if you count Earl Warren as an honorary Democrat), rejected the bad-tendency test, laying the foundation for the modern First Amendment. In 1958, Justice Harlan discovered freedom of association. In 1964, the Court ruled that “public figures” must prove “actual malice” before suing a newspaper for libel. Throughout the 1960s, with the glaring exception of draft-card burners, the Court repeatedly shielded civil rights demonstrators and opponents of the Vietnam War from arrest and prosecution.
²⁶
The process culminated in 1969,
²⁷
when eight justices (five Democrats, if you include Earl Warren, and three Republicans) formally repudiated the old “bad tendency” doctrine in favor of a new constitutional standard—the “clear and present danger” test, originally articulated in the 1920s in the great Holmes/Brandeis opinions in
Abrams
and
Whitney
. The 1969 Court held that ranting by Ku Klux Klan leaders threatening “revengeance” against the government at some unspecified future time could not be deemed criminal in the absence of proof that the speech was almost certain to cause very serious and imminent harm.

Thus, beginning in 1969, in order to be allowed to censor, the neighborhood motorcycle gang had to convince a skeptical judge that the speech in question posed a grave and imminent risk to a very important (often “compelling”) governmental interest, a risk that could not be avoided by anything less drastic than censorship. The Court's new test would almost certainly have required the invalidation of Congress's successful attack on the leadership of the American Communist Party in the 1950s. Two years later,
²⁸
in 1971, three Democratic justices (Douglas, Brennan, and Marshall) joined two Republicans (Harlan and Stewart) in reversing the disorderly conduct conviction of a young man who wore a jacket into a Los Angeles courthouse with the words fuck the draft emblazoned on the back. The majority made it clear that an involuntary hearer's interest in being shielded from offensive speech cannot be deemed a compelling interest justifying government censorship. Sheltered behind the Court's clear-and-present-danger test and the Court's rejection of offensiveness as a justification for censorship, the American left breathed a sigh of relief and awaited its inevitable triumph. The right hunkered down and vowed to fight on the beaches.

But a couple of unexpected things happened on the left's First Amendment road to political paradise. First, during the last two decades of the twentieth century, the core of the American left's economic agenda imploded, while the American right enjoyed a remarkable intellectual renaissance.
²⁹
The left's economic platform had been premised on varying degrees of governmental redistribution of wealth, ranging from rigid Marxism to European democratic socialism to the mild egalitarianism of the Kennedys to Lyndon Johnson's War on Poverty to the amorphous do-gooder policies of the Carter, Clinton, and Obama administrations. After the Berlin Wall fell in 1989, that agenda ran into an increasing sense in the United States that government—even democratic government—performs poorly as the economic linchpin of a society. Whether it was the gray tyranny of Communism, the horrors of Fascist and Nazi rule, the kleptocratic antics of authoritarian
dictators, or the often disheartening bureaucratic ineffectiveness of well-meant democratically enacted government programs, many—including many on the left—simply lost faith in the efficacy and moral legitimacy of an agenda based on a strong, redistributive government.

A generation of conservative intellectuals stepped into the programmatic vacuum, worshipping the market, glorifying individual autonomy, and questioning the effectiveness, indeed the very legitimacy, of government.
³⁰
Flush with faith in their ideas—and the confidence that such faith brings—the American right discovered the First Amendment. During the early 1970s, under a new Republican Supreme Court majority, an expansive conception of free speech became attractive to Republican justices, both because robust free-speech protection fit neatly into the right's skeptical, deregulatory approach to government generally, and because it encouraged vigorous transmission by powerful speakers of the right's newly energized collection of ideas. When the right's newly minted dedication to an expansive Free Speech clause was added to the reformist left's longtime preoccupation with free speech, the resulting coalition created what I call “the First Amendment era of good feelings,”
³¹
beginning in the 1960s with the civil rights movement and reaching its apogee in the 1989 and 1990 flag-burning cases.
³²

The flag-burning cases illustrate the First Amendment era of good feelings at its most intense. The Supreme Court asked why the government wished to suppress the symbolic burning or other “desecration” of an American flag. Because the government was unable to posit a compelling reason for banning flag desecration other than the distress felt by hearers and viewers, the Court's bipartisan majority invalidated both state and federal flag-burning statutes. In both cases, the justices followed the fuck the draft case in declining to recognize the adverse emotional impact of flag burning on unwilling viewers as an adequate basis to suppress controversial speech.

During the First Amendment era of good feelings, the Republican and Democratic justices forged a strong free speech
partnership. In 1976, four Republicans joined three Democrats to hold that the First Amendment protects the power of the superrich to spend big money to affect electoral outcomes,
³³
giving the 1 percent a tangible reason to celebrate a muscular First Amendment. A coalition of four Republicans and three Democrats then recognized limited but important First Amendment protection for truthful, nonmisleading commercial advertising,
³⁴
giving corporate management a strong stake in the First Amendment.

Even during the era of good feelings, occasional rifts appeared in the consensus. For example, four Republican justices, joined by Justice Stevens (a formal Republican but an honorary Democrat), outvoted the Court's three Democratic justices, joined by Chief Justice Rehnquist, to hold that for-profit corporations enjoy a First Amendment right to use corporate treasury funds to oppose a statewide referendum on raising taxes,
³⁵
thus increasing corporate America's already substantial stake in protecting free speech. In the 1980s and 1990s, the Court's Republican majority invoked the First Amendment as a potent shield against government efforts to regulate massive private concentrations of communicative power, endearing the First Amendment to Rupert Murdoch and the other media barons who own and control most of the nation's mass media outlets.
³⁶
To add insult to injury (literally), in the 1990s, the Court invoked the First Amendment to reverse convictions for hate speech, including cross burnings targeting vulnerable minorities.
³⁷

By 1990, some progressives began to suspect that they had made a bad First Amendment bargain. They began to realize that a free-speech doctrine that protects the rights of a couple of scruffy kids to burn flags, and provides tepid protection for carefully constrained street demonstrations, but that also protects uncontrolled campaign spending by the superrich—including corporations—abets concentration of media power in a handful of huge corporations, and shields bursts of verbal venom aimed at historically weak hearers seeking access to education and decent housing is hardly a prescription for progress. Some on the left began to view the bipartisan
era as a Faustian bargain, far more likely to reinforce the status quo than destabilize it. By 2000, the First Amendment era of good feelings was over, but not before the bipartisan coalition had generated an enormously powerful body of precedent establishing an imperial Free Speech Clause.

After 2000, Republican and Democratic justices began to revert to type. The Republicans remembered the values of hierarchy, security, and control, shrinking public employees' rights to criticize the boss,
³⁸
limiting the rights of high school students to display banners at school-supervised events,
³⁹
all but destroying the protections of the student press,
⁴⁰
attacking the free-speech rights of unions,
⁴¹
and limiting the ability of Americans to associate peacefully with foreign organizations labeled by the government as terrorist.
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In each case, the three Democratic justices plus Justice Stevens (an honorary Democrat) dissented, urging the recognition of free-speech rights at the bottom of the hierarchy. On the other hand, the Democratic justices, realizing the danger to egalitarian values posed by a deregulatory First Amendment, stridently dissented from Republican majority opinions upholding uncontrolled electoral spending by corporations,
⁴³
invalidating efforts to use matching funds to subsidize political campaigns,
⁴⁴
and striking down aggregate limits on the amount a single person can contribute during a given election cycle.
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