FAN 200 (First Amendment News) Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism'”
Marjorie Heins is the author of Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge (2013) and, most recently, Ironies and Complications of Free Speech: News and Commentary From the Free Expression Policy Project, 2001-2017.
When I was a new staff lawyer at the ACLU of Massachusetts almost 40 years ago, I quickly learned that among the many sources of contention that beset public interest organizations, one stood out at the ACLU: the conflict between what one of our board members dubbed the “absolutists” and the “frontierists.”
The absolutists valued the First Amendment Free Speech Clause above all else, and insisted that “no law … abridging the freedom of speech” meant exactly that — “no law.” The frontierists saw free speech as one among many rights the ACLU was committed to defending, averred that “no law” did not really mean “no law” or, alternatively, that the constitutional right to “the freedom of speech” does not encompass every word written or uttered by a human being, and that often there is a need for balancing — that is, that sometimes other rights, such as equal protection, outweigh untrammeled speech.
I was always puzzled by the absolutist position. Obviously, there are many long-established exceptions to absolute free speech: defamation laws, invasion of privacy laws, obscenity laws (this one being, admittedly, dubious as a matter of both history and public policy), laws against false advertising, threats, incitement, bribery, extortion, and perjury. More recently, civil rights laws have been interpreted to bar racial and sexual harassment, although here, as in the more traditional areas, there has to be careful, sometimes excruciatingly careful, line-drawing that gives breathing space to expression and guards against vagueness and overbreadth.
As I learned, these are not the only complications one encounters in trying to formulate an understanding of “the freedom of speech” and its limits. How, for example, to reconcile the Establishment Clause prohibition on public funding of religious proselytizing with the right of students at public universities to viewpoint-neutral support for their activities? How to analyze conditions imposed on government funding of the arts, humanities, or scientific research? These were just two of the tricky balancing acts the ACLU confronted when I moved to the national office in 1991.
The first issue arose in the Supreme Court case of Rosenberger v. University of Virginia; ACLU staff and board passionately argued and solemnly reflected; ultimately we submitted an amicus brief that supported the proselytizing students but with an “on the one hand/on the other hand” approach that strenuously emphasized the importance of the Establishment Clause. The Supreme Court ruled for the students, over the vigorous dissent of Justices Souter, Ginsburg, Stevens, and Breyer.
The second issue, raised by National Endowment for the Arts v. Finley, created particularly rough political fallout. We represented artists who challenged a vague and viewpoint-based law that required the NEA to consider “general standards of decency and respect for the diverse beliefs and values of the American public” in awarding grants. The political stakes — primarily, Congress’s possible defunding of the NEA entirely — were reflected in the Supreme Court’s disingenuous decision upholding the “decency and respect” law by stripping it of any real meaning. Justices Souter, dissenting, and Scalia, concurring, both recognized the obvious force and chilling effect of the “decency and respect” law, Souter arguing that this made it unconstitutional; Scalia arguing the contrary. But the dilemma for absolutists and frontierists alike was how to apply the Free Speech Clause in the context not of criminal or civil penalties but conditions on funding. Here, our vagueness argument was particularly shaky because the very essence of arts grant-making depends on vague standards such as merit and excellence.
Of course, there have been, and continue to be, many other intense debates within the ACLU, and the First Amendment community generally, over the meaning and limits of free speech. One notable example is the ACLU’s “money equals speech” approach to campaign finance regulation. Those leaning toward absolutism adhere to the old “marketplace of ideas” metaphor despite the dramatic imbalances in that marketplace when it comes to campaign spending. Those leaning toward frontierism (myself included) think “the freedom of speech” mandate doesn’t prohibit limits on spending in the interest of preventing corruption and making the proverbial marketplace less lopsided.
When I departed the ACLU in 1998 and, shortly after, began the Free Expression Policy Project, or “FEPP,” in collaboration with my former ACLU colleague Joan Bertin, then the new director of the National Coalition Against Censorship, I set out the understanding of free speech that I’d refined after many years in the trenches. As I wrote on the FEPP website: threats, false advertising, and sexual or racial harassment (where properly defined), are three examples of speech that doesn’t have First Amendment protection; but “a painting or photograph with sexual content is not sexual harassment; and a work of literature or scholarship is unlikely to constitute a threat. … Unprotected speech should be narrowly and specifically defined, and have a direct, tangible, demonstrably harmful effect.” In other words, free speech should be the default position, but there are inevitably important, well-justified exceptions.
Thus, for example, in the perennially fraught area of sexual speech, obscenity laws are unconstitutional (the Supreme Court to the contrary notwithstanding) because they are not only intolerably vague, but they are premised on generalized moral attitudes about likely corruption of adults and minors, rather than on direct, tangible harm, despite well-publicized efforts over the years by some psychological researchers to establish harmful behavioral effects. The same applies to the efforts of some feminists in the 1980s to stamp out pornography, as they defined it, in terms of images that subordinate women (many other feminists disagreed). As with obscenity laws, the bad effects that the pro-censorship camp asserted depend on mental mediation — that is, the individual ways in which different men might respond to arousing if admittedly often disturbing pictures.
Likewise, in the political minefield of violent entertainment, messages that can reasonably be interpreted to encourage violent behavior rarely amount to incitement — that is, to triggering a reaction so immediate that the hearer doesn’t have time to reflect. Instead, violent stories, pictures, and films need mental mediation, which will be different for each viewer, and despite well-funded efforts over the years to prove bad behavioral effects, the very nature of the problem makes it unamenable to scientific proof either way, as some courts and scholars have recognized.
None of this First Amendment rumination, of course, solves the real social problems posed by lowest common denominator entertainment or other, worse scourges of our social media age, with its lightning-speed global spread of racist hate speech, Holocaust denial, threats of violence, blackmail, revenge porn, and much more. The challenge for the corporate, private industry platforms that now control most of our public communications is daunting.
The First Amendment Free Speech Clause, like many other constitutional provisions, is Delphic and thus always requires interpretation in the light of social and political realities; and the balancing that inevitably goes on, both in the courts and in the court of public opinion, is politically driven. Exhibit one for this proposition is the regrettable corporatization or “weaponizing” of the First Amendment (to quote dissenting justice Elena Kagan this year in Janus v. American Federation of State, County, and Municipal Employees) that the Supreme Court under John Roberts has effected: scholars and pundits alike have noted how free-speech claims that serve for-profit corporations, wealthy individuals, and/or a right-wing agenda have consistently received hospitable reception at the Court, whereas claims by students, public employee whistleblowers, prisoners, and humanitarian aid organizations are rejected. The Brennan Center for Justice documented the imbalance in 2011, and more recently, journalists Adam Liptak and David Gans, among others, have noted an acceleration of the trend.
As Justice Kagan wrote in Janus (which ruled that requiring public employees to contribute to the cost of collective bargaining violates the First Amendment): “Speech is everywhere — a part of every human activity. … For that reason, almost every economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things.”
This last thought from Justice Kagan echoes calls for judicial restraint decades ago, when judicial activism meant primarily the striking down of progressive economic legislation. Judicial activism came to have quite a different meaning under the Earl Warren Court, when it invalidated racially discriminatory laws and restrictions on the speech of civil rights demonstrators and Vietnam War protestors. Which only goes to support my point that the interpretation of the Free Speech Clause is inevitably political.