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03/23/2019

Eric Segall on Jud Campbell on Originalism and the First Amendment
Michael Ramsey

At Dorf on Law, Eric Segall: Justice Thomas, Jud Campbell, and Free Speech Originalism.  From the beginning: 

Professor Jud Campbell (whom I have met only a few times casually) at the end of his excellent Yale Law Journal article titled "Natural Rights and the First Amendment," concluded the following:

The First Amendment ... was not designed or originally understood to provide a font of judicially crafted doctrines protecting expressive freedom....[P]erhaps, with a hint of irony for those who seek constitutional stability in original meaning, this lost history reveals our modern dilemma: the proper scope of expressive freedom is left for us to determine.

This important contribution to both First Amendment doctrine and originalism should be read by everyone interested in the First Amendment or originalism, especially Justice Clarence Thomas, who recently advocated overturning the landmark decision New York Times v. Sullivan. ...

There are two reasons Justice Thomas should read Professor Campbell's article. First, Campbell persuasively demonstrates that most of the Court's free speech doctrine cannot be supported by an originalist methodology. In a sense, this thesis supports Justice Thomas' view that Sullivan should be reexamined, but it also calls into question many other Supreme Court decisions that comport with Justice Thomas' priors. No doubt, Thomas will not suggest reconsidering those cases. Second, Campbell's anti-originalist First Amendment observations apply equally to most other important areas of litigated constitutional law, few of which can be traced back to founding era evidence.

I will not and could not repeat in detail the sophisticated analysis Campbell embraces to demonstrate that hard First Amendment questions today cannot be answered by looking back to the Founding. In sum, the argument goes like this: freedom of speech and the press were thought by the Founders to be natural rights, but what that meant to them was much different from how we view natural rights or some might say fundamental rights today. According to Campbell:

Americans typically viewed natural rights as aspects of natural liberty that governments should help protect against private interference (through tort law, property law, and so forth) and that governments themselves could restrain only to promote the public good and only so long as the people or their representatives consented. And assessing the public good—generally understood as the welfare of the entire society—was almost entirely a legislative task, leaving very little room for judicial involvement. Natural rights thus powerfully shaped the way that the Founders thought about the purposes and structure of government, but they were not legal 'trumps' in the way that we often talk about rights today.

This recounting is consistent with my oft-stated views, discussed most extensively in my book "Originalism as Faith," that the founders thought judges should interfere with legislative decisions only when there was clear constitutional error. Thus, although there were some shared determinate legal interpretations of the freedom of speech and press, such as prior restraints were disallowed and people had the right to state their views in good faith, these were relatively narrow rules, and most everything else was subject to regulation for the common good. The combination of those beliefs with a strong skepticism about judicial power, strongly suggests that the Founders believed that the balancing of speech and press freedoms with other concerns would be left primarily to the legislature in all but the most egregious cases. . . .

My quick thoughts: Professor Campbell's article is an important one.  (He presented it at a San Diego Originalism Works-in-Progress conference a while back). It might be right.  If it is, it's not "anti-originalist."  It just means that the original meaning of the First Amendment is narrower than many people today think or hope.  Originalists should be fine with that.

Second, even if Professor Campbell (as glossed by Professor Segall) is right, the impact depends quite a bit on how big the category of "the most egregious cases" is.  If the category equates to the government suppressing views it doesn't like, then it's still a fairly big category.

Third, I'm not sure Professor Campbell is right.  He may well be right about how people in the founding era thought about natural rights.  But there's a difference between a natural right and a right written in to a legal text, even if the written right is based on a natural right.  The question is what the founding generation understood the written-ness of the First Amendment to accomplish.  It is written in categorical and imperative terms ("Congress shall make no law...") that contemporaneous evidence indicates they thought would be (at least to some extent) judicially enforceable.  I agree that it seems doubtful this was an invitation to judicial evolution.  But the argument for reading it to direct judicial enforcement of the free speech right as it was then understood seems strong.