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04/14/2021

Eric Segall on First Amendment Originalism (with my Comments)
Michael Ramsey

At Dorf on Law, Eric Segall:  The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism.  From the introduction: 

John Roberts became the Chief  Justice of the United States Supreme Court on September 29, 2005. This term will make the 15th anniversary of the Roberts Court. During that time some important constitutional doctrines stayed more or less the same (abortion and affirmative action) and others changed dramatically (the Spending Power,  the Second Amendment and voting rights). But by a large margin, the Roberts Court generally and the Chief personally have taken the first amendment's free speech clause and turned it into an aggressive tool to impose the Court's conservative values on the rest of us. As discussed below, the numbers are staggering and the consequences for our country immense. And virtually all of it has nothing at all to do with the original meaning of the United States Constitution.

According to a study by Ronald Collins and David Hudson, between 2005-2020, the Roberts Court decided 56 free speech cases. The Chief authored 15 majority opinions. The four liberals on the Court, Justices Ginsburg, Breyer, Kagan, and Sotomayor, cumulatively wrote a total of 15 free speech majority opinions. Retired Justice Anthony Kennedy, the swing vote from 2005-2018, wrote seven. The Chief wrote only one dissent in those 56 cases and joined two others. In 95% of these cases, Roberts was in the majority. He has been from the start, the "Free Speech Justice."

What kind of speech cases are we talking about? Has the Roberts Court been protecting political dissenters, racial justice protesters, and censorship warriors? Not so much. 

First, a number of these cases can only be explained by the flimsiest of constitutional rationales--the slippery slope. The Roberts Court invalidated a state law banning the sale of violent video games to children, a federal law banning depictions of animal cruelty, including so-called "crush videos" where animals are effectively tortured for sexual pleasure, and civil liability for the highly inflammatory speech of the Westboro Baptist Church, which protested near a military funeral through homophobic and other forms of hate speech. Whether these cases are right or wrong as a matter of policy, there is no plausible originalist basis for the decisions and the Court did not justify these cases on originalist grounds. The Founding Fathers were concerned with prior restraints on political speech and that's about all. As Jud Campbell has documented in an excellent Yale Law Journal article, the Court's robust free speech doctrines can only be justified by reference to living or common law constitutionalism. Yet, it should be noted that so-called originalist Justices Antonin Scalia and Clarence Thomas joined all three of these opinions (except Thomas dissented in the violent video games case)....

While I agree with some of the criticisms of specific cases later in the post, I think its general theme is faulty in several  respects.

(1)  Free speech rights under the First Amendment are especially (one might say uniquely) articulated through an elaborate doctrinal structure, much of which lacks originalist foundations.  It's an especially difficult area to navigate for an originalist judge who also has at least some respect for precedent.  The First Amendment cases the post describes are often instances of originalist Justices, when they join a majority, applying rather than fighting the prevailing doctrinal structure.  Thus I think the First Amendment is a particularly inappropriate area to search for purity in judicial originalism.  Moreover, the three cases noted in the post's introduction -- Brown v. Entertainment Merchants [violent video games]; U.S. v. Stevens [animal cruelty]; and Snyder v. Phelps [Westboro protests] were not the product of contested doctrinal reinterpretations by conservative justices.  Justices Kagan, Ginsburg and Sotomayor joined Scalia's opinion in Brown; Justices Ginsburg, Breyer and Sotomayor joined Robert's opinion in Stevens; and Justices Breyer, Ginsburg, Sotomayor and Kagan joined Roberts' opinion in Snyder.  The Roberts Court's support for free speech in these cases was decidedly a bipartisan matter.

(2) The post depends on a version of the First Amendment's original meaning that is highly contested.  Professor Segall writes: "The Founding Fathers were concerned with prior restraints on political speech and that's about all."  Perhaps.  There is some historical scholarship to support this view.  But there are also contrary views, in particular that "the freedom of speech" to which the Amendment refers was a general statement exempting speech from punishment, subject to longstanding traditional exceptions.  (See, for example, this recent book by Wendell Bird.)

(3) Justice Scalia made it clear that he embraced the broader view of the First Amendment's original meaning -- that is, that it prohibited punishment of speech generally, subject to exceptions.  He explained his approach in, for example, a lecture titled "The Freedom of Speech," reprinted starting at p. 201 of Scalia Speaks (the volume of Scalia's speeches edited by Ed Whelan and Christopher Scalia).  Justice Scalia's opinion in the violent video game case (Brown v. Entertainment Merchants), which the post criticizes, reflects that approach.    It uses originalist sources to conclude that there was no traditional exception for speech describing violence, and thus concludes that speech describing violence (including depictions in video games) comes within the general protection of the Amendment.  Of course, one can dispute Scalia's specific conclusion, and one can dispute his general understanding of the First Amendment's original meaning (as Professor Segall does).  But that does not make the Entertainment Merchants case -- or Scalia's general approach to the First Amendment --  non-originalist.

(4) I agree that some of the decisions decided by a narrow conservative majority lack persuasive originalist foundations -- in particular,  Janus v. AFSCME and McCutcheon v. FEC (both of which I criticized on this blog).  But these questionable cases do not make the Court's entire First Amendment enterprise illegitimate from an originalist perspective.  On the whole, I think most of the Court's modern free speech decisions can be justified either as applications of relatively settled precedent or as applications of the broader Scalia view (as opposed to the narrow Segall view) of the First Amendment's original meaning.