FAC.3 (First Amendment Conversations) – Martin Redish on Free Speech, the Roberts Court, & the Liberal Academy

His name is well known among First Amendment scholars. He is Martin Redish, a man who has published a considerable amount of scholarly work (including 19 books and some 100-plus law review articles) on constitutional law, federal courts, civil procedure, and the First Amendment, among other things. He is the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University. In 2012, the Northwestern University Law Review hosted a “Festschrift in Honor of Professor Martin H. Redish.” The following year Professor Redish was listed in a study conducted by William S. Hein & Company as the seventeenth most cited legal scholar of all time. His first book on the First Amendment was published in 1984 – Freedom of Expression: A Critical Analysis.

Marty, welcome to the Concurring Opinions blog and thank you for agreeing to share your thoughts with our readers. 

Question: What drew you to the First Amendment, to writing and teaching about it?Redish_09_photo

Answer: In high school I got into a conflict with school authorities over their censorship of an article I wrote for the newspaper. That first got me thinking about the evils of censorship. Also, in high school I bought a book called The Un-Americans, about the horrors of the House on Un-American Activities Committee. From that point on, I knew I wanted to devote myself to the fight for free thought and free expression. In college I helped a professor writing his PhD dissertation on Alexander Meiklejohn (1872-1964), and that confirmed it for me. The summer before law school, I wrote my first article on the First Amendment — arguing that flag burning was protected expression. It was only because a Harvard professor read it and told me I was nuts that I threw the paper away.

My third-year-paper at Harvard Law School turned into my first article about commercial speech. It was published in 1971. Tim Wu, writing in The New Republic [The Right to Evade Regulation,” July 3, 2013], pointed to it as the source of modern commercial speech law (he didn’t mean it as a compliment). Tim described me there as “a liberal democrat with a pronounced contrarian streak.” That is a description that fits me at least since my law school days, and one I am more than happy to embrace today. It underscores my foundational belief that one’s political values shouldn’t have anything to do with how one determines the scope of the free expression guarantee. I like to think I have devoted all of my First Amendment scholarship to that simple but central proposition.

Question: Forty-three years ago you wrote an article entitled “Campaign Spending Laws and the First Amendment” (46 NYU L. Rev. 900). What is your sense of the existing Supreme Court law in this area? And do you think Buckley v. Valeo’s contributions vs expenditures distinction will and should survive?

Answer: On the whole, I think the Supreme Court has been on the right track in dealing with campaign finance, though I still maintain that contributions are a form of expression and are therefore deserving of full First Amendment protection. While in that article I attacked disclosure requirements, in recent years I have reluctantly come around to the view that the First Amendment benefits of disclosure are, for the most part, more valuable than harmful.

Question: In 1971 you wrote the seminal article on commercial speech. Three questions on that score: (1) What do you regard as the worst commercial speech decision, and why?; (2) the best, and why?; and (3) where do you think the Court’s jurisprudence is lacking, if at all?

Answer: (1) Justice William Rehnquist’s opinion for the Court in Posadas (1986) is clearly the worst commercial speech opinion ever written. It uses the deceptively simplistic proposition that the greater includes the lesser and that since the actual commercial conduct can be regulated therefore advocacy of the commercial conduct can be regulated. It ignores the fact that the First Amendment protection is far greater than the Fifth Amendment protection of the commercial activity, so in reality his opinion stood the constitutional protections on their heads.

(2) The best commercial speech decision is Justice John Paul Stevens’ plurality opinion in 44 Liquormart (1996). While it is by no means perfect because it far too summarily dismisses the complex First Amendment issues involved in determining whether commercial speech is in fact false or misleading, it does recognize the inherent constitutional pathology of governmental paternalism in regulating truthful speech.

(3) While Court majorities have on occasion endorsed Justice Stevens’ anti-paternalism analysis, overall it has stubbornly stuck to the woefully outdated Central Hudson (1980) test. To be sure, that test has been applied in far more protective ways than it had been in its early years, but it would make more sense to recognize the illogic underlying the Court’s separation of commercial and non-commercial speech. Since the Court defines “commercial speech” exclusively in terms of the commercial motivations of the speaker, the exact same speech communicated to the exact same audience with the exact same harm can receive lesser protection for no reason other than speaker motive. In no other area of First Amendment protection of which I am aware does speaker motive reduce protection. Ironically, the Court itself seems to have acknowledged this problem in Sorrell v. IMS Health (2011), when it said that a state’s discrimination among speakers solely on the basis of the commercial motivation of one of those speakers was subject to strict scrutiny. Without realizing it, the Court effectively declared its own commercial speech doctrine unconstitutional, because that is exactly what its own doctrine does!

Question: In a 2008 article you wrote, “respected scholars have long conducted a form of guerilla warfare on commercial speech protection.” Can you elaborate on that and, if you are so inclined, tell us which scholars in particular you had in mind?

Answer: What I meant was that a number of leading scholars readily reduce protection of commercial speech for reasons that should logically apply equally to much expression to which they extend full protection. I include most scholars who have written about commercial speech in this category (other than Judge Alex Kozinski, it is tough for me to think off hand of a scholar who agrees with me on commercial speech). Leading scholars I put in this category are Alexander Meiklejohn, C. Edwin Ed Baker (1947-2009), and Robert Post. I elaborate my critiques of all three in my book The Adversary First Amendment (2013).

Question: Speaking of respected scholars, some sense that many of today’s First Amendment scholars are really critics of much existing law supporting free expression claims in areas such as commercial speech, corporate speech, hate speech, moneyed speech, sexual expression, and even so-called “silly speech.” What is your view on this?

Answer: When we talk about the forms of speech you mention, we are not operating behind a Rawlsian “veil of ignorance.” We all know the ideology of the speech that is being suppressed, and it is an ideology for the most part that is abhorrent to those on the political Left. Of course, I cannot get into all of their heads to know exactly what they are thinking.

Question: What is your sense of the Roberts Court when it comes to its free expression record in the 30 First Amendment cases it has decided in this area? And whose record impresses you most?

Answer: On the whole I have been pleased with the Roberts Court’s approach to freedom of speech. Justice Anthony Kennedy’s work in the area has been, for the most part, especially thoughtful.

Question: Last year you published The Adversary First Amendment. For those who have not read it, can you say a few words about it? What is the main takeaway point you want your readers to have?

Answer: Most modern theories of free expression – in particular, those of Alexander Meiklejohn and Robert Post – are grounded in cooperative or communitarian theories of democracy, i.e., where the goal is ultimately to arrive at and pursue a “common good.” I have chosen to ground my theory of free expression in the concept of “adversary democracy.” The book itself says it best: “The theory of adversary democracy both acknowledges the inevitable existence of conflict among competing interests in a descriptive matter and embraces its pluralism and diversity as a normative matter. . . . Based on the premise that democracy at its core involves a competition among adverse interests, the book argues that the purpose of democracy is to guarantee individuals the opportunity to seek to affect the outcomes of collective decision making according to their own values and interests as they understand them.”

In short, I argue that there is nothing inherently wrong with political selfishness – we all may use expression as a means of trying to influence others to accept positions that advance our interests. Our system has been built on a form of interest group advancement, whether those groups are the NAACP, NOW, or the National Association of Manufacturers. And that, I believe, is really the core of American democracy. But adversary democracy controls and regulates the adversary battle in important ways by setting ground rules prohibiting the winner from suppressing the loser. I then apply those theories to concrete doctrinal areas, including commercial speech, campaign finance and the right of anonymity.

Question: Oh, one last question. You once took the liberty of saying “with friends like Collins and Skover, the First Amendment is in no need of enemies.” True to the First Amendment, we never hired a defamation lawyer to shake you down. That said, and upon more sober reflection, do you care to revisit that assessment?

Answer: Ron, you know that on your work that I was criticizing at that time we have had to agree to disagree. But I have valued so much of your work on the First Amendment with David Skover. You both have made so many valuable contributions, especially your fascinating historical work in the field. You have set out your own sub-field and in so doing added to the richness of First Amendment scholarship. And you are two of the most interesting human beings I have ever met in law teaching. I regret we don’t get to see each other more, but I greatly value your friendship, and David’s as well.

Thank you Marty, you are too kind. 

FAC.1: With Harvard Law Professor Laurence Tribe.

FAC.2: With Bruce Johnson, Davis Wright Tremain.   

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