FAC.1 (First Amendment Conversations) — Larry Tribe on Free Expression

photoOccasionally, I will post blog conservations (or Q & As) with various First Amendment persona – lawyers, litigants, journalists, scholars, or perhaps even a judge or two. My first such exchange is with the Carl M. Loeb University Professor at Harvard and author of numerous scholarly works, most notably his widely cited American Constitutional Law treatise. He has been awarded eleven honorary degrees, including most recently a D. Litt. from Columbia University in 2013. He is, of course, Professor Laurence Tribe. His views on freedom of speech have been an important part of his legal scholarship. More than three decades ago, he sketched out a “metatheory of free speech” in an essay in Constitutional Government in America (R. Collins, ed., 1980). Beyond scholarship, Professor Tribe has an impressive record as a Supreme Court litigator who has argued some 34 cases before the Justices between 1981 and 2005. Seven of those cases involved First Amendment free expression issues.

  • Heffron v. International Society for Krishna Consciousness (1980) (audio)
  • Richmond Newspapers v. Virginia (1981) (audio)
  • Sable Communications v. FCC (1989) (audio)
  • Rust v. Sullivan (1990) (audio)
  • U.S. v. United Foods (2001) (audio)
  • Nike v. Kasky (2002) (audio)
  • Johanns v. Livestock Marketing Association (2005) (audio)

Tribe even won a First Amendment case in the Supreme Court without having to argue it. The case is Boston v. Anderson (1978) (see also here and here), a summary per curiam disposition (over the written dissent of Justice Stevens, joined by Justice Stewart and then-Justice Rehnquist). The Court held that a state court may not prohibit municipal spending on speech regarding a referendum issue then pending before the people in a statewide election.

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

Question: Which Supreme Court Justice do you think has had the greatest impact on the law of free expression under the First Amendment? And why? 

Answer: Rather than naming just one, I’d point to Oliver Wendell Holmes, Jr. and Louis D. Brandeis for their extraordinarily influential separate opinions in Abrams in 1919 (Holmes’ greatest dissent) and in Whitney in 1927 (Brandeis’ greatest concurrence).

Question: Some noted First Amendment scholars such as Professors Steven Shiffrin and the late C. Edwin Baker, and also Dean Robert Post, have been rather critical of extending First Amendment protection to corporate commercial expression. Do you share that skepticism?

Answer: Although I do think the Court went rather far in Sorrell v. IMS (2011) three years ago, and found myself in considerable sympathy with Justice Breyer’s dissent (joined by Justices Ginsburg and Kagan), I continue to agree with Virginia Board of Pharmacy (1976) and with Discovery Network (1993) and disagree strongly with Florida Bar v. Went For It (1995), where I thought Kennedy’s dissent for himself and Justices Stevens, Souter, and Ginsburg was spot on. I just cannot bring myself to view either professional or corporate commercial expression as categorically beyond the reach of First Amendment protection. That’s why I took the position I did in Nike v. Kasky (2003) and was pleased to see that Justices Breyer, O’Connor, and Kennedy agreed.

Question: Insofar as the First Amendment is concerned, do you think that since corporations (for-profit ones) are entitled to free expression rights, they are likewise entitled to have free exercise rights? Or are the two conceptually different for constitutional purposes? What do you think?  

Answer: That’s too complex an issue for me to answer as briefly as you’d need in this context. To the extent that all First Amendment rights are interrelated and focus principally on the systemic dangers of entrusting certain matters to government control, I’m opposed to organizing one’s analysis around which entities are or are not “entitled to have” particular First Amendment rights. That’s an aspect of Citizens United (2010) with which I don’t take issue – even though the Court appears to be curiously agnostic on that score, as exemplified by its unexplained summary affirmance in 2012 of a district court ruling in Bluman v. FEC (2011) barring the participation of foreigners from campaign speech!

That said, it seems to me that it makes much more sense to maintain that the Free Speech Clause protects “speech” regardless of who or what happens to be its source than it would to say that the Free Exercise Clause protects “religion” regardless of who or what is engaged in its exercise. With respect to claims involving the free exercise of religion, I think there is considerably more room to pay attention to the nature of whoever is doing the “exercising.” For an illuminating thought experiment, I would suggest that, if a cute but distinctly alien extraterrestrial – let’s call it “ET” – were to land in Lafayette Park and were to broadcast condemnations of Obamacare, the fact that such a creature is not itself entitled to the protection of the Free Speech Clause would not undermine an interested listener’s First Amendment objection to an Executive Order silencing the exterrestrial (or to an Act of Congress shutting it up were it to switch to praising the ACA!). Yet I wouldn’t expect anyone to take seriously a claim made on the extraterrestrial’s behalf by the ACLU defending, either under the Free Exercise Clause or under RFRA, the right of ET to smoke grass as part of a sincere religious ritual in front of the White House – particularly if, as some argue is the case in Hobby Lobby, the religious freedom ET wished to exercise could be shown to injure third parties or even compromise their exercise of their constitutional rights.

I don’t believe, however, that the for-profit or not-for-profit character of the entity in question should be decisive, although some Justices will probably find that a tempting line to draw in otherwise difficult and close cases.

Finally, I believe that decisions like Hosanna-Tabor (2012) and those barring civil courts from injecting themselves into disputes over religious doctrine and/or the internal organization of religious bodies should not turn on the corporate or non-corporate character of the institutions in question.

Question: As of this date, the Roberts Court has rendered 30 First Amendment free expression opinions. For First Amendment purposes, what is your sense of the Court? What are its strengths and/or shortcomings as you see them?

Answer: That question is even less compatible with a short response than the previous one, and I’d rather let the fourth chapter of my forthcoming book (co-authored with a superb recent student of mine, Joshua Matz), Uncertain Justice: The Roberts Court and the Constitution (Henry Holt, June, 3, 2014), speak for itself on that issue. The chapter, which expresses both my sense and Joshua’s of the free speech jurisprudence of the Roberts Court, is entitled “Freedom of Speech: Sex, Lies, and Video Games.”

Question: As you know, this term the Court heard yet another campaign finance case, McCutcheon v. FEC. I gather you favor a constitutional amendment to curb what you see as the Court’s constitutional excesses in this area. Can you say a few words about why you think it would be wise to amend the First Amendment? 

Answer: Actually, although I did assist my former student Adam Schiff (D. Cal.) in drafting a proposed constitutional amendment that I thought would be better than the alternatives floating around at the time, and although at one point I thought some such amendment would be wise to consider seriously, I haven’t joined forces with those who currently urge vigorous pursuit of the amendment path, which I think probably represents a political dead end. I think that there’s both more promise and less danger in pushing for greater transparency and disclosure of the sort the Court held permissible in Citizens United, for reforms in the laws determining how and when corporations can spend their shareholders’ money on speech, and for possible ways to get around the Court’s post-Citizens United decision striking down the calibrated public finance mechanism at issue in Arizona v. Bennett (2011).

Thanks Larry, I hope we can continue this conversation again sometime. 

I hope so, Ron. I’ve enjoyed this opportunity to address your excellent questions.

The next FAN (First Amendment News) column (to be posted this Wednesday) will be devoted to Justice Stevens’ proposal to amend the First Amendment, replete with comments from noted First Amendment scholars and lawyers.

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1 Response

  1. Brian says:

    His ET analogy is flawed. He conflates “exercising religion” with “strict scrutiny analysis”. No reasonable Individual would suggest ET’s “smok[ing] grass as part of a sincere religious ritual in front of the White House” is NOT an exercise of religion. What could reasonably be in dispute is whether (a) a prohibition on such a practice is a generally applicable law which is otherwise neutral towards religion in order to meet the requirements of the Free Exercise clause and (b) whether such a prohibition, as applied specifically to ET, advances a compelling government interest and represents the least restrictive means of advancing said interest.