A strong form of legal realism, or the view that judges analyze and interpret the law to achieve the policy results they want, can be a self-fulfilling prophesy. Believing that judges disingenuously use the law for their own political aims makes people support judges who disingenuously use the law for political aims with which they agree. When it comes to constitutional interpretation, principled people can easily become partisans if they believe that their political opponents are using the Constitution in a partisan way. A vicious cycle ensues. The perception that the Constitution has been captured by the left (say, the Warren Court) leads the right to want to interpret the Constitution in a partisan way (say, the Burger Court), causing the left to perceive this politicization and want to capture the Supreme Court.
This cycle is especially corrosive in the First Amendment arena. The vitality of the First Amendment requires judges to create standards for First Amendment protection that are independent of speech’s viewpoint. However, if the First Amendment is either contracted or expanded in a partisan way, to achieve other policy goals (say, social justice or the dismantling of unions), First Amendment cynicism threatens our most uniquely American right. If the First Amendment is read too narrowly, we lose critical free speech rights. However, if the First Amendment is read too broadly – to invalidate laws that don’t actually implicate speech — we lose respect for the Amendment’s guarantees. This lack of respect, or First Amendment cynicism, ultimately threatens our speech rights as well.
When even the American Civil Liberties Union has retreated from its principled defense of First Amendment protection, the soul of the First Amendment is in jeopardy. Below are some reasons for our First Amendment cynicism and some thoughts on how to reinvigorate rule of law values.
Some of the First Amendment cynicism is sown by those who invoke the First Amendment to suit their purposes, but then want to undermine it when convenient. When Unite the Right organizer and apparent free speech enthusiast Jason Kessler brings a lawsuit against someone who cursed at him and called him a crybaby, it’s easy to ignore the distinction between abstract speech (even hateful speech) and fighting words (a doctrine a bit too vague for fair application anyway). Many of today’s champions of the First Amendment, right and left, care about speech protections only when it is politically advantageous. Motive, however, should not be relevant to the judicial application of our First Amendment rights. Just because a university student wishes to shout down a controversial speaker (and can be punished for doing so), doesn’t mean that student does not deserve the right to peacefully protest against school policies. Judges can save us from this type of First Amendment cynicism by not stooping to the level of those who cite the First Amendment when convenient without caring about its true scope. Each case should be examined individually, on the law, without inquiring into the motives of the litigant.
Much of the cynicism about the Supreme Court in general, and the First Amendment in particular, is sown by those in the media. For example, the Supreme Court recently decided Janus v. AFSCME. In Janus, the Court held that requiring non-union employees, who disagree with a public-sector union’s bargaining activity, to pay agency fees violates the First Amendment. Janus was a highly controversial decision, both because (1) it overruled a previous case allowing unions to require dues for collective bargaining activity but not to fund ideological speech and (2) it has the potential to create free rider problems for unions. So many media sources focus almost exclusively on the result in Janus, as if the role of the Court was simply to decide whether or not it liked unions.
Even more sophisticated media portrayals blamed the Court for acting politically in misleading ways – like this comparison between Janus and Citizens United. Contrary to this author’s view, Janus and Citizens United can be reconciled under basic First Amendment principles. Citizens United involved people engaging in collective action to pool money for political speech, where Janus involved a state statute mandating that unwilling participants contribute to union dues to support government petitioning they find objectionable. This Slate article compares being “forced by capitalism” to contribute to corporations to being forced by state statute, ignoring the critical fact that the First Amendment protects individuals against government force, not against private actors or the private marketplace. Readers of this article with less understanding of how constitutional rights work may be easily moved into thinking that the Court is far more results-oriented than it is, just seeking to undermine labor interests and boost corporations.
Unfortunately, given the 5-4 split, any member (or every member) of the Court may have decided the case based not on First Amendment principles and the coherence of the legal doctrine, but on whether they like or dislike unions as a matter of policy. Indeed, Justice Kagan’s dissent explicitly accuses the majority of “weaponizing the First Amendment” to achieve its policy goal of dismantling pro-union economic legislation. She may be right, and the majority may have overstepped its role in overruling Abood. But, the First Amendment is supposed to be a weapon. The First Amendment is the counter-majoritarian individual right that protects us even from good, effective, important policies. Rights against compelled speech exist to trump even good laws that infringe too much on individual autonomy.
According to Justice Kagan in Janus, “[t]he First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.” I cannot say I agree with this description. The First Amendment, as written, is best understood as a libertarian right that protects the individual from compulsion. It does not give the state the right to affirmatively interfere as a positive right to enhance democracy. Surely, one of the rationales behind the First Amendment is to ensure a well-functioning democracy. However, if agency fees are speech, and if the employer-employee context doesn’t diminish the employee’s rights (and I am still ruminating on that question), then the Court serves democracy by ensuring that people are not forced to support political speech with which they disagree.
I’m currently writing a paper to explore First Amendment cynicism, and thinking about how to save the soul of the First Amendment. We need limiting principles to ensure that neither the majority nor the dissent have too much leeway to weaponize the First Amendment in disingenuous ways. Janus should have been decided based on employee speech doctrines, compelled speech doctrines, and more coherent understandings of how to apply stare decisis.
The media also has a responsibility to diversify itself politically, instead of silo-ing itself off into right and left sources. Panels or news sources where everyone has the same political leanings will tend to overcriticize decisions with which they disagree and undercriticize decisions with which they agree. Hegemony of political views causes blind spots to the ways decisions are more correct (or less correct), as a matter of law than people would like to admit.
Importantly, we need a way out of the vicious cycle. As a start, I propose this. Be very careful before accusing your political enemy of First Amendment manipulation. This accusation is often launched, as either projection or justification, because the accuser herself would like to use the First Amendment politically to support the result she desires. There are reasons to be suspicious of judges whose jurisprudence always reaches the result he or she desires, and we cannot ignore that reality. (I’ll be tackling arguments about whether the Court has engaged in First Amendment Lochnerism in my paper.) However, an easy cynicism will self perpetuate, and the First Amendment will become more about power than principle. I do not believe this is currently the case. If you do, do you have good reason to do so, or are you just looking to restore your own sense of power?