The First Amendment: Consequentialists And Principleds
The consequentialist and principled view of the First Amendment are irreconcilable. Their adherents can only talk past one another and become increasingly angered and frustrated by what they hear from the other side. This ongoing soap opera has been the content of First Amendment jurisprudence ever since it emerged full blown in the second decade of the 20th century. Citizens United is a virtual anthology of the limited repertoire of moves the saga affords. You could build an entire course around it. And that is why even though I agree with much of what Stevens says (I’m a consequentialist myself) and dislike the decision as a citizen, as a teacher of First Amendment law I absolutely love it.
This sounds pretty in that "majesty of the law" sort of way, but is it true? Not really. I'll explain on the flip.
Fish ascribes to the Citizens United majority a deeply held principle-ism on the First Amendment that simply does not hold up to scrutiny. Not only is this fallacy exposed by Fish himself with his references to Justice Thomas' partial dissent on the issue of disclosure requirements, it is demonstrated by the Roberts Court decision in Morse v. Frederick, the Bongs Hits 4 Jesus case. The limits of "principle-ism" on the First Amendment are laid out fairly straight forwardly by Chief Justice Roberts:
The mode of analysis employed in Fraser is not entirely clear. The Court was plainly attuned to the content of Fraser’s speech, citing the “marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of [Fraser’s] speech.” Id., at 680. But the Court also reasoned that school boards have the authority to determine “what manner of speech in the classroom or in school assembly is inappropriate.” Id., at 683. Cf. id., at 689 (Brennan, J., concurring in judgment) (“In the present case, school officials sought only to ensure that a high school assembly proceed in an orderly manner. There is no suggestion that school officials attempted to regulate [Fraser’s] speech because they disagreed with the views he sought to express”).
We need not resolve this debate to decide this case. For present purposes, it is enough to distill from Fraser two basic principles. First, Fraser’s holding demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Id., at 682. [. . .] In school, [. . .] Fraser’s First Amendment rights were circumscribed “in light of the special characteristics of the school environment.” Tinker, supra, at 506.
Our most recent student speech case, Kuhlmeier, concerned “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” 484 U. S., at 271. Staff members of a high school newspaper sued their school when it chose not to publish two of their articles. The Court of Appeals analyzed the case under Tinker, ruling in favor of the students because it found no evidence of material disruption to classwork or school discipline. 795 F. 2d 1368, 1375 (CA8 1986). This Court reversed, holding that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Kuhlmeier, supra, at 273.
(Emphasis supplied.) This is certainly not "principle-ism" regarding the First Amendment. I happen to agree with the formulations expressed by Roberts in the passage I quote (I disagreed with the application of those principles to the facts in that case.) My point is that when Fish describes the "doctrine" followed by the Citizens United majority he wrongly states that it is a consistent principle followed by that same majority (which was the Frederick majority.) Fish writes:
In other words, forget about what speech does or does not do in the world; just take care not to restrict it. This makes things relatively easy. All you have to do is determine that it’s speech and then protect it[.]
(Emphasis supplied.) As Frederick clearly demonstrates, that is not the principle consistently adhered to by the majority. It is, as it almost always is in judicial decision making, a principle adhered to support a desired result. In Citizens United, the majority wished to strike down the restrictions on independent corporate expenditures. To support that result, they waxed poetic on the virtues of the marketplace of ideas. In Frederick, the majority was not so interested in the virtues of the marketplace of ideas and was more interested in the desires of school administrators.
There are principles implicit in these judgments, but they are not really related to the First Amendment. Consider Justice Stevens arguments in both Frederick and Citizens United. In Frederick, Justice Stevens wrote:
In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding—indeed, lauding—a school’s decision to punish Frederick for expressing a view with which it disagreed. [. . .]
Two cardinal First Amendment principles animate both the Court’s opinion in Tinker and Justice Harlan’s dissent. First, censorship based on the content of speech, particularly censorship that depends on the viewpointof the speaker, is subject to the most rigorous burden of justification:
“Discrimination against speech because of its message is presumed to be unconstitutional… . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 828–829 (1995) (citation omitted).
Second, punishing someone for advocating illegal conduct is constitutional only when the advocacy is likely to provoke the harm that the government seeks to avoid. See Brandenburg v. Ohio, 395 U. S. 444, 449 (1969) (per curiam) (distinguishing “mere advocacy” of illegal conduct from “incitement to imminent lawless action”).
(Emphasis supplied.) In Frederick, Justice Stevens expressed concern about viewpoint discrimination aimed at an individual. Fish misstates Justice Stevens' First Amendment reasoning when he writes:
The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism. For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?
Answers like the First Amendment facilitates the search for truth, or the First Amendment is essential to the free flow of ideas in a democratic polity, or the First Amendment encourages dissent, or the First Amendment provides the materials necessary for informed choice and individual self-realization. If you think of the First Amendment as a mechanism for achieving goals like these, you have to contemplate the possibility that some forms of speech will be subversive of those goals because, for instance, they impede the search for truth or block the free flow of ideas or crowd out dissent. And if such forms of speech appear along with their attendant dangers, you will be obligated — not in violation of the First Amendment, but in fidelity to it — to move against them, as Stevens advises us to do in his opinion.
That is not Justice Stevens' point at all. Instead, Justice Stevens is making the completely unremarkable point that the First Amendment permits SOME restrictions on speech by SOME actors in SOME settings, and that the restrictions at issue in Citizens United did not violate the First Amendment. Justice Stevens wrote in his Citizens United dissent:
The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation.
While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United maybe required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.
In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure,and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.
(Emphasis supplied.) their is the principle underlying Justice Stevens' positions in Frederick and Citizens United. Corporations are NOT like individuals. Viewpoint discrimination against persons is a more serious First Amendment concern than restriction on corporate spending on electioneering.
You can agree or disagree with this, but it is not a different theory of First Amendment jurisprudence than that applied by the Frederick and Citizens United majorities. The difference is the Roberts 5 place a higher value, in the First Amendment context, on corporate electioneering expenditures than on the speech of individual students.
Fish's conceit of dividing people into "consequentialists" and principleds" is deceiving. Everyone is a consequentialist and from the consequentialist reasoning, principles are drawn. It is counterproductive to ascribe purity and principle to one type of view and to label another consequentialist.
When discussing the Supreme Court and its decisionmaking process, nothing frustrates me more than reading erstwhile allies like Fish assign "principles" to conservatives and "consequentialism" to progressives. It is wrong and harmful.
Speaking for me only
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