Madison's Music (20 page)

REMEMBERING THE SPEECH TARGETS

Speech targets are the lumpen proletariat of Mr. Madison's neighborhood. The modern Court almost invariably subordinates their interests to the interests of speakers, hearers, and conduits. The woods are full of Supreme Court decisions celebrating the Kantian dignity of heroic speakers, the importance of informed hearers, and value of hardworking conduits. But the Court rarely seems to notice that speech targets are also Kantian beings entitled to be treated with respect. That's why it was so easy to sacrifice the privacy interest of a deceased soldier's family to the speaker-centered interest of religious bigots eager to hijack the funeral as a way to enhance their audience. Once the Court made sure that no face-to-face hearer interest existed because the church was too far away for mourners to hear the chanting, the Court declined to recognize the family's dignitary interest in not being turned into an involuntary backdrop for hate speech. Perhaps in the end such a dignitary interest should not be enough to silence a speaker, but something seems wrong with the Court's refusal to acknowledge and grapple with the interest at all.

The modern Court's reluctance to acknowledge the dignitary interests of speech targets dates from its iconic 1964 decision in
New York Times v. Sullivan
constitutionalizing the law of libel.
⁵⁸
The case arose in the context of the Southern civil rights movement, where national press coverage was crucial to the political success of Dr. Martin Luther King Jr.'s strategy of nonviolent moral confrontation. Beginning in the late 1950s, targets of critical Northern press coverage struck back with a series of libel actions before Southern juries, complaining of minor factual errors in the reporting. The speech targets succeeded in winning a series of massive damage awards. When
Times v. Sullivan
reached the Supreme
Court in 1964, the
New York Times
was facing five Southern libel judgments totaling more than $5 million (a huge sum in those days), jeopardizing its financial ability to continue aggressive coverage of the civil rights movement. The Supreme Court responded by developing a First Amendment law of libel making it impossible for a speech target in the public eye to win a damage award based on false defamatory speech unless she could prove that the speaker was on notice of the speech's falsity. The Court called it, confusingly, an “actual malice” standard of liability. Ironically, the
New York Times
, the principal defendant in
Times v. Sullivan
, wasn't functioning as a speaker at all. It was a paid conduit, being sued for printing a paid advertisement placed by a group of Southern clergy seeking to raise funds to defend Dr. King against a phony South Carolina tax prosecution. The advertisement described efforts by Southern college students inspired by Dr. King to fight Jim Crow, and recounted retaliatory actions against the students, including locking them out of their dining hall and subjecting them to police harassment. Claiming that the advertisement had harmed his reputation by exaggerating the level of police harassment, the local police chief won a $500,000 libel judgment against the
Times
from an all-white hometown jury.

Once it was clear that the
New York Times
had nothing to do with writing the advertising copy and had no reason to question the accuracy of the paid advertisement,
Times v. Sullivan
should have been an easy conduit case because the newspaper did nothing but carry a paid advertisement written by someone else. But the Supreme Court didn't treat the
Times
as a conduit. It treated the newspaper as a full-fledged speaker, and gave the
Times
-as-speaker the same First Amendment protection as the
Times
-as-conduit. Thus, under existing law, speakers as well as conduits are immune from damages for harms caused by false speech unless they knew the speech was false before they uttered it. That leaves a giant hole in the neighborhood safety net. Where is the dignitary protection for an innocent speech target harmed by false speech who can't prove that the speaker knew it was false? I believe that proper recognition
of the dignitary interest of speech targets requires three tweaks in current libel doctrine.

First, the essentially subjective “actual malice” standard governing speakers should be modified to something resembling gross negligence. Some judges already do that by treating “reckless disregard of the truth” as the equivalent of “actual malice.” But the idea should be expanded to impose a duty on both speakers and conduits to meet a reasonable standard of care in determining whether to utter harmful speech about a target. That's what good journalists do now. They should not have to compete with irresponsible or malicious speakers or conduits who don't care whether they are disseminating the truth, but who can hide behind the actual malice standard when their speech turns out to be false.

Second, the prospect of massive damage actions for libel should be minimized, if not eliminated. Elimination of the fear of massive damages would remove the principal reason for ignoring the speech target's interests. If damage actions designed to repair an unfairly damaged reputation were capped to take into account the restorative effect of judicial vindication, the proceedings would begin to resemble “honor courts,” designed to restore reputation, not impose ruinous punishment on a speaker or conduit. If, instead of a massive $500,000 verdict in
Times v. Sullivan,
the paper had been faced with a $5, $500, or even a $5,000 verdict, the risk of ruinous deterrence would have been avoided, replaced by a modest incentive to eliminate mistakes, and a judicial finding that restores the speech target's reputation.

Finally, if speech targets are to receive more protection, they must be discouraged from using that protection to bluff speakers into silence. One way to achieve that goal is to limit damages. Another is to impose serious sanctions on baseless actions against speakers, including awards of attorney's fees and the imposition of damages. But whatever paths we take, it's time for a modest upgrade of the status of speech targets in the neighborhood.

8

Divine Madness

Hearing Madison's Music in the Religion Clauses

The Bill of Rights opens with a First Amendment structured as a narrative of a free people governing themselves. That story begins where it must begin, with freedom of conscience. More than a century before Freud, Madison understood that the mainspring of human behavior is found in our psyches. Ronald Reagan, living in twentieth-century fin de siècle California, thought the mainspring was greed. Sigmund Freud, living in nineteenth-century fin de siècle Vienna, thought the mainspring was sex. James Madison, living in eighteenth-century fin de siècle Virginia, was sure the mainspring was conscience. Madison understood that profound conscientious belief, especially religious belief, can be a form of “divine madness,” a powerful psychological force that places a true believer in an impossible moral dilemma when forced by the state to choose between god and Caesar. Madison's two religion clauses are structurally designed to respond to that dilemma.

PRIVILEGING CONSCIENCE

As we'll see in a moment, the modern Free Exercise Clause, as tweaked by the Supreme Court, requires us to tolerate conscientiously driven private behavior to the outer limits of a free society's capacity for such tolerance. Conversely, Madison's Establishment Clause imposes strong preventive restrictions on the capacity of true believers wielding governmental power to use that power to
impose their religious beliefs on others. What ties the two clauses together is Madison's understanding that the commands of conscience, especially religious conscience, can transcend the capacity for reasoned judgment.

If it had been up to Madison, the First Amendment would have opened with three different ways to protect conscience—non-establishment of religion, free exercise of religion, and freedom of conscience. Madison's original version of the First Amendment contained a separate clause for each.
¹
Throughout the summer of 1789, the three clauses rotated in and out of the text. Sometimes the free-exercise clause was discarded in favor of the conscience clause. Sometimes the conscience clause was bumped in favor of free exercise. Sometimes establishment was dropped. The clauses were clearly seen by many to be overlapping, perhaps redundant. The version of the Bill of Rights that passed the House and went to the Senate contained all three clauses. The Senate deleted Madison's proposed conscience clause at the last minute, leaving the Establishment and Free Exercise Clauses to open the Bill of Rights. Because the Senate's deliberations were secret, we'll never know precisely why. I like to think it was because the senators believed that the Establishment, Free Exercise, and Free Speech Clauses already provided full protection to conscience, rendering a separate conscience clause redundant.

One hundred seventy-eight years later, in two cases arising out of the Vietnam War,
²
that's just what the Supreme Court ruled in granting conscientious objector status to two young pacifists who denied the existence of a Supreme Being but professed deeply held secular philosophical objections to wars of any kind. As a technical matter, the Court's plurality merely broadly construed a congressional statute granting conscientious-objector status to religious objectors to war in any form as applying to secular objectors, as well. The plurality's extremely broad reading of the statute was, however, explicitly designed to avoid the serious constitutional question that would have been raised if Congress had granted CO status on the basis of religious belief but denied it to an identical
secular believer. Justice Harlan's influential concurrence makes it clear, moreover, that the commands of both religious and secular conscience enjoy equivalent First Amendment protection as long as secular conscience plays a comprehensive role in the believer's life analogous to religion.
³

Justice Harlan's move from protecting religious conscience under the two religion clauses to protecting secular conscience in the white space between Free Exercise and Free Speech was pure Ninth Amendment equity of the statute in action. The commands of religious and secular conscience are closely analogous. Recognizing an implied protection of secular conscience is broadly harmonious with the First Amendment's text. Most important, as Madison had understood in 1789, protection of secular as well as religious conscience is vital to the First Amendment's story of the evolution of an idea in a well-functioning democracy. In fact, Justice Harlan simply made explicit in 1970 what had been implicit in Justice Jackson's magnificent 1943 rhetoric protecting the right of Jehovah's Witnesses schoolchildren to refuse to salute the flag. Justice Jackson chose not to rest his seminal flag-salute opinion on the Religion clauses. Instead, he recognized First Amendment protection of secular conscience.

Thus, although it took almost two centuries, the Supreme Court used Madison's Ninth Amendment equity of the statute to insert an implied right of secular conscience into the text of the First Amendment, finally correcting the Senate's erroneous rejection of Madison's proposed conscience clause in 1789.

Recognizing the primacy of freedom of conscience in the structure of the First Amendment has one important immediate payoff. It reveals the current Court's error in limiting full free-exercise protection to
intentional
government interferences with religious conscience. Under the Court's current narrow reading of the Free Exercise Clause, religious conscience receives virtually no constitutional protection unless the government is consciously targeting religion. For example, Justice Scalia, writing for a narrow majority, ruled in 1990 that Native Americans can be punished for using
peyote in age-old religious ceremonies under general laws banning hallucinogenic drugs. The Court reasoned that since the drug ban was not intended to interfere with religion, the government had no duty to make an exception for a Native American caught between god and Caesar.
⁴

Such a grudging view of the Free Exercise Clause cannot be squared with Madison's vision of the importance of a free conscience in a democracy. Intended or not, government prohibition of Native American religious practice forces the true believer to choose between god and Caesar—exactly the existential choice that Madison tried to avoid. Recognizing the primacy of conscience in the First Amendment should lead the Court to provide enhanced constitutional protection against all forms of government interference with individual behavior driven by sincerely held religious or secular beliefs, whether the interference is intentional, reckless, negligent, unthinking, or inadvertent. That's just what Congress did when it reacted to the peyote case by enacting the Religious Freedom Restoration Act (RFRA), providing enhanced protection for religious (and presumably secular) conscience against the federal government.

That is not to say that conscience always wins under Madison's First Amendment or Congress's new statute. Conscience is not a license to harm others. Freedom of conscience does not empower even a true believer to shift the costs of her belief to others.
⁵
For example, Christian Scientists may neither deny their children critical medical care nor enroll them in school without inoculation against communicable diseases.
⁶
A religious aversion to paying Social Security taxes doesn't license a true believer to avoid a general duty to help pay for the program.
⁷
Nor would a religious aversion to unions excuse an employer from complying with the collective bargaining rights in the National Labor Relations Act. In each of those settings, a true believer unfairly asks someone else to bear the costs of the believer's religious conduct. Thus efforts by family-owned corporations to carve a religious exemption from the duty to comply with the employee health insurance obligations of the Affordable
Care Act should have failed because, even if corporations may raise a religious freedom claim (itself a dubious proposition), granting the religious exemption would force the corporation's employees to bear the economic costs of their employer's religious conscience—a classic improper burden shift.