To answer these questions, this essay takes place in three parts. The first deals with what it means to « reshape » the First Amendment and what « equality » means in the context of this endeavor. Each of them could mean different things, with important consequences for the project. What can the First Amendment do in society? In the twentieth and twenty-first centuries, it has had an undeniable influence. This is why people can burn flags, 1 1 See Texas v. Johnson, 491 U.S. 397, 399, 420 (1989). Conclude why schoolchildren may refuse to take an oath of allegiance, 2 2 See W. Va. State Vol.
of Educ. v. Barnette, 319 U.S. 624, 628–29, 642 (1943). Close and why state employees cannot be fired because of unpopular political views. 3 3 See, for example, Elrod v. Burns, 427 U.S. 347, 363 (1976) (« If the maintenance of public employment is contingent on the employee`s support for the party in order to survive a constitutional challenge, the party must promote certain important objectives of the government in a manner that. the least restrictive. Freedom of religion and association. and benefits.
must outweigh the loss of constitutionally protected rights. »); United States v. Robel, 389 U.S. 258, 265–66 (1967) (considers a law unconstitutional because it « seeks to prohibit employment both for associations that may be prohibited and for associations that cannot be prohibited in accordance with First Amendment rights »). Close This is why there is so much money in politics, 4 4 See Citizens United v. FEC, 558 U.S. 310, 365 (2010) (unconstitutional legal limits on independent corporate political spending); Buckley v. Valeo, 424 U.S. 1, 19 (1976) (per curiam) (states the principle that restrictions on political spending limit the quantity and variety of political discourse); see also Chris Cillizza, How Citizens United Changed Politics, in 7 charts, Wash. Post: The Fix (January 22, 2014), www.
washingtonpost.com/news/the-fix/how-citizens-united-changed-politics-in-6-charts (filed with Columbia Law Review) (shows Citizens United`s impact on campaign spending). Conclude why the outside of abortion clinics looks like what it does, 5 5 See McCullen v. Coakley, 134 pp. C. 2518, 2541 (2014) (declaring that a Massachusetts law criminalizing standing on a sidewalk within thirty-five feet of an abortion clinic violates the First Amendment). Conclude why white racists can use a public park, 6 6 See Kessler v. City of Charlottesville, No. 3:17CV00056, 2017 WL 3474071, at *1–3 (W.D. Va. August 11, 2017); see also Jason Kessler, S. Poverty Law Ctr., www.splcenter.org/ fighting-hate/extremist-files/individual/jason-kessler [perma.cc/JPR2-AYDB] (last accessed 8 August 2018) (described Kessler as a « white nationalist »). Close and why the Nazis can march through a city of Holocaust survivors.
7 7 See National Socialist Party of Am. v. Vill. von Skokie, 432 U.S. 43, 43–44 (1977). Close In each of these examples, the First Amendment intervened against political will, which was usually embodied in laws or regulations. Other aspects of our society — including the right to criticize government and the existence of a free press — would hopefully exist without the First Amendment. But the First Amendment protects them and informs the political culture that has treated them as sacrosanct for some time, at least until recently. The plan to reshape the First Amendment could aim at its scope, its strength, its distinctiveness, or its robustness. If it were aimed at scope, it would advocate reformulating the very values that make freedom of expression distinctive in the first place.
38 38 Cf. Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality 121 (2000) (argues for a reassessment of freedom as « an aspect of equality and not, as is often assumed, an independent political ideal likely to conflict with it »). Close These values should include political or social equality, and the scope of the law should be redefined accordingly. If he were aiming for the strength of the right, he would argue that the values promoted by free speech should remain more or less the same, but we should reconsider how those values balance and equality. Under this approach, the scope of the First Amendment could hardly change, but it would provide less protection for activities within its scope. To create a First Amendment doctrine that adequately protects free speech in our complex democratic society, it is necessary to first understand how that freedom of speech has been historically protected. This is the task that awaits this article. It is divided into three parts. The first part examines the history and current operation of some of the laws that make up the tradition of freedom of expression. The second part examines the impact of the non-First Amendment speech tradition on how we think about the present and past of free speech in the United States. Finally, Part III argues that the fact that scholars have not paid attention to the tradition of free speech outside the First Amendment has made it too easy for the Supreme Court to claim that the American tradition of free speech is laissez-faire when the reality is much more complicated.
For example, to say that campaign finance regulation is outside the scope of the First Amendment means to rephrase what is considered a First Amendment issue in the first place. This would mean redefining the scope of the law by redefining the values it serves. 39 39 See, for example: Deborah Hellman, Money Talks But It Isn`t Speech, 95 minn. L. 953, 956 (2011) (« [K]one of these connections between money and speech provides enough reason to treat restrictions on giving and spending money as restrictions on speech. (One of these links between money and speech provides sufficient reasons to treat restrictions on giving and spending money as restrictions on speech.)) Wright, op. cit. Cit. Footnote 13, p.
609 (« Buckley and Bellotti create an artificial contrast between freedom and equality. The First Amendment tradition of reference cases and scientific writings shows that the ideals of political equality and individual participation are essential to a proper understanding of the First Amendment. »). Alternatively, campaign finance regulations could be said to fall within the scope of the First Amendment, but language protection in this area must give way to concerns about corruption or political equality. This would restate the robustness of First Amendment protection, not its scope. 40 40 See, for example, Richard L. Hasen, Three Wrong Progressive Approaches (and one Right One) to Campaign Finance Reform, 8 Harv. 21, 35 (2014) (« [T]he schools need to do more work to define and defend the government interests that warrant reasonable (but only reasonable) regulation of campaign finance. »).
Close If you expand the lens and look at free speech over time, the justifications become even more diverse. John Milton`s defense of a free press in Areopagitica is the most significant articulation of free speech since the beginning of the modern period and remains a touchstone of free speech discourse to this day. 60 60 See John Milton, Areopagitica 13–14 (Grolier Club 1890) (1644) (he asked Parliament to reconsider its ordinance, which required printing licences). For an important look at Milton`s relationship with the First Amendment, see Vincent Blasi, A Reader`s Guide to John Milton`s Areopagitica, the Foundational Essay of the First Amendment Tradition, 2017 Sup. 273, 298-312 (describes the enduring relevance of some aspects of Areopagitica); see also Vincent Blasi, John Milton`s Areopagitica and the Modern First Amendment, Comm. Law., Winter 1996, pp. 1, 12-19. The justifications he advances, however, are related to his theology, which was idiosyncratic for his time and is essentially foreign today. 61 61 See Milton, op. cit. cit., note 60, p.
56 (« He who can understand and contemplate vice, with all his apparent bait and pleasures, and yet abstains and distinguishes what is really better, is the true wandering Christian. »).