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Originalism and the Supreme Court: Two Free Speech Cases
Michael Ramsey

Two cases this term may give the Supreme Court a chance to put some originalism into First Amendment analysis.  Golan v. Holder, argued earlier this month, involves the intersection of the First Amendment and copyright law; United States v. Alvarez, which the Court will hear later this term, involves the federal Stolen Valor Act, criminalizing false statements about military service.

Last term Justice Thomas made an attempt to bring originalism to bear on the First Amendment in Brown v. Entertainment Merchants Association (the violent video games case), although as noted here I think he used unpersuasive sources.  But his basic approach seems right, as suggested by Eugene Volokh in this post: (a) the First Amendment appears absolute on its face (“Congress shall make no law…”), but (b) it appears that in the founding era restricting certain categories of speech was uncontroversially understood not to “abridge[ ] the freedom of speech” within the meaning of the amendment.  This basic idea underlies modern free speech doctrine’s categorical approach to “unprotected” or “low value” speech – obscenity, incitement, threats, fighting words, etc.  The problem, from an originalist perspective, is that the categorical definitions have become unmoored from history and now amount to little more than policy intuitions.  So if we don’t like a certain kind of speech, we say it’s “low value” because, well, we don’t like it.

Justice Thomas tried to do something about this unmooring in the video games case by attempting to connect speech restrictions he wanted to allow (on speech to children) with restrictions that existed in the founding era.  I don’t think he was at all persuasive, but the broader approach seems right (in an originalist sense), and Golan and Alvarez offer a chance to confirm it.

Conceptually Golan ought to be the easiest of the two.  The First Amendment surely wasn’t meant to overrule the copyright clause of Article I, Section 8; the two exist harmoniously under the principle outlined above.  Copyright was a traditional area of speech regulation, existing in the founding area and widely accepted, that wasn’t understood to “abridge[]” the “freedom of speech.”  But that’s true only of copyright law as it was understood in the founding era.  Congress can’t end-run the First Amendment by calling a new kind of regulation “copyright” if it exceeds what copyright was then understood to encompass.  This seems roughly to be how the argument has been made in Golan – the question is framed as whether the extension of copyright law challenged in Golan exceeds the traditional bounds of copyright law.  That is, I think, roughly the way an originalist should think about it (with the further implication that if the law does exceed traditional bounds of copyright, it violates the First Amendment).

This analysis ought to carry over to Alvarez as well.  The question is whether intentional false statements can be restricted.  The Court has said that there’s no value in a false statement of fact, but that idea usually comes from contexts in which there is a traditional harm and a traditional background of regulation – libel, fraud, and the like.  These categories are subject to regulation despite the First Amendment under the analysis set forth above.  But that assessment doesn’t necessarily apply to other sorts of false statements, such as exaggerating one’s military record.  Originalist analysis should ask whether analogous statements were punished without controversy in the founding era.  I don’t know the answer, but at least I think I (sort of) know the question.

Note too that these cases highlight the challenge for nonoriginalist analysis.  If you don’t like the originalist approach, is there any way to deal with Golan and Alvarez other than by asking whether the restrictions are good as a policy matter (as in this post on the 9th Circuit's initial ruling in Alvarez, by my colleague Shaun Martin)?  Precedent seems inconclusive.  Judicial restraint might uphold both restrictions, but unless one favors taking the courts out of the First Amendment picture altogether, at some point adherents of judicial restraint would need to explain when they would intervene and why.  A nonoriginalist decision on either side could be dressed up by appeal to constitutional values of ill-defined origin, scope and application, but it’s hard to see the debate ultimately being any more than (1) “These sorts of rules are good policy” and (2) “No they aren’t.”  Of course, one might favor a Supreme Court that decides in this manner, but it should be defended squarely on that understanding.