"Free Speech, Free Press. Free Society?"

By Eric Segall

Today is “Law Day,” for which I have the pleasure of giving talks to the Savannah and Augusta Bar Associations on the assigned topic “Free Speech, Free Press, Free Society?” This blog post summarizes some of the ideas I shall express during those events.

There is little doubt that America values free speech and a free press far more than any other democracy in the world, even at times at the expense of other important values. Here are some representative examples.

Our politicians have unfettered access to television advertising, if they can afford it, without any governmental interference. This hands-off approach mandated by our courts is a major reason why we are inundated by political ads for the months, sometimes years, before elections, local, state and federal. Does or should a free society have to allow this unrestricted access?  

The laws of the United Kingdom, Ireland and Switzerland, as well as many other democracies, contain restrictions on the running of political advertisements on television. In Japan, candidates are not allowed to pay for their own political advertising. In these countries and many others, the governments have balanced the corrosive effects of money on elections and mean-spirited and often false political ads with free speech values quite differently than we have.

I’m not saying I am for or against these rules, but I do feel obligated to mention that the current Governor of Georgia ran a successful political ad where he aimed a rifle at an actor playing his daughter’s boyfriend.

Another example is the law of defamation. In a number of cases throughout the 1960’s and 1970’s, the Supreme Court federalized the law of defamation, taking some important issues away from the states. In New York Times v. Sullivan, the Justices decided that to sue for libel or slander governmental officials have to prove actual malice, an almost impossible burden. That decision was later extended to public figures such as non-governmental celebrities like actors, sports stars, and famous writers. Additionally, statements of opinion are never actionable because according to the Justices, there is no such thing as a false idea.

Could we live in a free society with less restrictive defamation laws?  Well, for one thing we did until 1964, when most states had very different rules. Additionally, most of the world’s other democracies punish defamation much more than we do because they balance injury to reputation and the importance of free speech differently than we do. For example, in the United Kingdom, the burden of proving that a defamatory statement is true falls on the defendant, whereas here the plaintiff must prove the statement is false. A number of European countries have fairly robust criminal defamation laws, something unheard of today in America. There can be no debate that America makes it much more difficult than most other democracies to sue for injury to one’s reputation or one’s privacy.

The third example is the rather strange law of compelled speech, especially in the hands of the Roberts Court. The general idea is sound. Just as people in America have the right to speak, we also have the right not to speak. The Supreme Court’s decision in West Virginia State Board of Education v. Barnette is the classic example of the compelled speech doctrine. In that case, the Court ruled that a state cannot force children to stand, salute the flag, and recite the Pledge of Allegiance.

Another compelled speech case is Wooley v. Maynard, where the Court ruled that state officials could not punish a man for covering the state’s motto — “Live Free or Die” — on his license plate. Chief Justice Warren E. Burger declared, “The right to speak and the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind.” Of course, the notion that a state with the motto “live free or die” would try to punish someone for not wanting that motto on his plate is ridiculous and more than a little ironic.

These cases are sensible, but in recent years the Roberts Court has taken the compelled speech doctrine to some rather strange places. In Janus v. AFSCME, the Court held that the laws of 23 states requiring non-union public sector workers to pay agency fees to the union to engage in collective bargaining and related activities amounted to unconstitutional compelled speech. To reach this result, the Roberts Court reversed a unanimous 1977 precedent, and ignored the fact that these governmental workers could say anything they wanted anytime, anywhere, any place on any subject and were never forced to utter a single word. It is likely no other country in the world would view the mandatory payment of union dues as a violation of freedom of speech. We also should not ignore, as the Court did, the major federalism implications of dictating to almost half the states how they treat their own workers. Apparently, the freedom not to pay union dues, which the Court analogized quite unpersuasively to the freedom of speech, trumped states’ rights.

The Court in NIFLA v. Beccera also recently overturned a California law that required among other things so-called crisis pregnancy centers to post certain notices about the availability of state furnished abortion services. How such notices can be distinguished from the laws of many states requiring doctors to show women seeking abortions pictures of their fetuses and other non-medical information is anyone’s guess, not to mention distinguishing government required warnings on dangerous consumer products where the sellers of those products object.

There are many more examples, but the point is clear. Although we can all agree that a free society requires robust protections for political speech, artistic expression, and the right of the people to engage in robust debate (or not), speech can also cause substantial harms, which is why we have non-controversial laws against perjury, bribery, and treason, all of which can involve pure speech. The harm from defamation, corporate money in politics, and much commercial speech can also be serious, but we have elevated free speech values over those other concerns in a way that is unique throughout the Western world. Moreover, I am by no means the only American scholar to question America's sometimes overzealous protection of speech. Professor Steven Shriffin wrote an excellent book raising similar doubts.

Moreover, the use of the word “we” three sentences up isn’t accurate. In most difficult areas of free speech law, We the People haven’t protected anything. It is the Supreme Court of the United States that has taken these issues away from the American people and imposed the Justices’ values on the rest of us. That may be good or that may be bad, but it is true.

Here is something else that is true. You can either believe in strong and robust judicially created free speech doctrines, or you can believe in originalism, but you cannot believe in both, at least honestly and consistently. That reality raises interesting questions about the role of free speech in our country.

We can all agree that the founding fathers believed that political speech was very important.  They may even have believed that artistic expression was very important.  But in both circumstances, their major complaint was with prior restraints--requiring government permission before speaking or writing, not with after-the-fact punishments for that speech.

According to a detailed and persuasive article in the Yale Law Journal by Professor Jud Campbell, which I discussed previously on this Blog, the founding generation thought freedom of speech was a natural right. But they also thought that the right only extended as far as the public good required. And, here’s the catch.  They also believed that the people, or legislatures, would balance free speech principles against the harms caused by speech.

Campbell argued that the Supreme Court’s complicated, comprehensive, and often confusing free speech doctrines have not been and probably cannot be justified with reference to either the original meaning or the original intent of the first amendment. Many, if not most difficult free speech cases, require the balancing of free speech principles with serious harms.  Under an originalist approach to the Constitution, the justices should, but they unequivocally do not, defer to voters and legislators on these questions.

Just last month, Justice Thomas suggested that the Court should revisit its landmark decision in New York Times vs. Sullivan because that decision lacked an originalist basis.  But if Justice Thomas is serious about revisiting the court’s first amendment doctrine whenever it is inconsistent with originalism, the Court will have to reverse many free speech cases.

Here are just a few issues where a sincere originalist would likely have to defer to state and federal laws.  Most of the court’s defamation doctrine would have to be reversed.  Students in schools would have virtually no first amendment rights (a position for which Justice Thomas has already advocated). The Court’s entire commercial speech doctrine would likely have to be reversed.  As late as the 1970s, the Court did not protect commercial speech at all. And the idea that baking a cake or making a floral arrangement would be protected by courts as free speech in the face of non-discrimination laws is absurd under any reasonable definition of originalism.

The bottom line is that you can be an originalist or you can be a strong advocate for strong judicial protection of free speech, but you can’t be both. But that problem will not stop the Justices on the current Court from protecting speech in ways that would not be tolerated in most of the world’s democracies, for better or for worse.