Freedom of Expression/Philosophical Origins/Theories
What do the major legal theories (positive law, natural law, critical legal studies, etc.) say about this right?
The phrase “living constitutionalism” was first coined in Howard Lee McBain’s 1927 book The Living Constitution (Solum 1256, 2019) . Although the theory was only beginning to form, the book provided the foundations of living constitutionalism that we know today: “The following passage illustrates McBain’s notion of a living constitution:
‘A word’, says Mr. Justice Holmes, ‘is the skin of a living thought.’ As applied to a living constitution the expression is particularly apt; for living skin is elastic, expansile, and is constantly being renewed. The constitution of the United States contains only about six thousand word; but millions of words have been written by the courts in elucidation of the ideas these few words encase” (Solum, 2019) .
Ultimately, the fundamentals of living constitutionalism rely upon the laws of the Constitution being evolutionary, able to change over time, and adaptable to new circumstances and times without the difficult and time-consuming formal amendment process (Strauss, 2010) . In a constantly changing world with advancements in technology, changes in international, diplomatic, and social relations, as well as economic evolution, the Constitution does need to be flexible to a certain degree (Strauss, 2010) . However, the idea of a Constitution that constantly changes over time cannot entirely be; “The Constitution is supposed to be a rock-solid foundation, the embodiment of our most fundamental principles-that's the whole idea of having a constitution. Public opinion may blow this way and that, but our basic principles-our constitutional principles-must remain constant. Otherwise, why have a Constitution at all? Even worse, a living Constitution is, surely, a manipulable Constitution.” (Strauss, 2010) . Scholar James E. Fleming goes on to explain that:
“Strauss describes common-law constitutional interpretation as an evolving process of developing precedent and tradition, coupled with judgments of fairness and good policy.49 So far, so good. But some of his formulations make it sound like judges engaged in this process make judgments of fairness and good policy as if they were simply making pragmatic judgments rooted in concern to develop sensible doctrine, rather than judgments about how best to elaborate the abstract moral and political principles to which the Constitution commits us – or judgments about how best to realize our aspirational principles. He acknowledges this point elsewhere in the book, e.g., where he speaks of common-law courts as relying on “general principles derived from precedents and on its judgments about good policy.” Likewise, he refers to “a living constitution that exists apart from the text and the original understandings – that exists in, for example, the principles that protect freedom of expression and those of Brown v. Board of Education.”51 In short, we should conceive the Constitution as a framework or scheme of abstract aspirational principles that we elaborate through common-law constitutional interpretation” (Fleming 1178, 2011) .
Regarding specifically freedom of expression in the First Amendment, the principles of freedom of expression that we know today did not become established in law until over a century after the Constitutions ratification (Strauss 52, 2010) . The views of the drafters of the First Amendment drafters is unclear according to the wording of the rights, and even further “There is, in fact, good evidence that the people responsible for adding the First Amendment to the Constitution would have been comfortable with forms of suppression that would be anathema today… The central features of First Amendment law were hammered out in fits and starts, in a series of judicial decision and extrajudicial developments, over the course of the twentieth century” (Strauss 52-53, 2010) .
The components within the First Amendment that protect the freedom of expression can be broken down into two main categories. First, the 1964 case of New York Times v. Sullivan helped to solidify the protection of the people’s right to criticize the government. The case was the first to place limitations upon the government’s ability to fine individuals who defame public officials (Strauss 53-54, 2010) . Then five years later, in Bradenburg v. Ohio, it was decided by the Court that you, as an individual, can exercise your right to freedom of speech and expression by going as far as advocating for violence and/or use of force legally “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action” (Strauss 54, 2010) . Along the same vein, in the 1971 case of New York Times co. v. United States, the Court decided that the Pentagon papers (top secret government documents that revealed diplomatic secrets and detailed American involvement in the Vietnam war) were legally published by the New York Times seeing as the publication did not “surely result in direct, immediate, or irreparable damage to our Nation or its people” (Strauss 54, 2010) . All these cases came together to underline the fact the people have the right to broad freedom of speech and expression. The government cannot infringe upon this right unless there is clear evidence that suggests other laws will be broken as a result of the exercising of the right; this is a very different image than what the drafters of the First Amendment presumably pictured.
Second, within living constitutionalism, under the protection of the right to freedom of expression, there is a hierarchy in terms of which circumstances of exercising the right require the most protection from the Constitution and which the Constitution does not protect at all: “Certain values of low-value speech should receive less or no constitutional protection” (Strauss 55, 2010) . Low-value speech, or relatively unimportant speech, includes instances of “obscenity, commercial speech, false and defamatory statements, perjury, blackmail, threats, criminal solicitation…” (Strauss 55, 2010) . In lawmaking, laws must not infringe upon one’s rights to freedom of high-value speech, or relatively more important speech such as criticism of the government and public debate.
All this is in effect now because of the courts’ interpretations of the Constitution under living constitutionalism. The application of the Constitution now is very different from its first ratification. For example, eventually the Bill of Rights extended to states, but for a hundred years they did not extend to the states, and ultimately, the states were able to restrict freedom of expression freely and legally (Strauss 56, 2010) . Also the focus of lawmaking has changed: “When the framers adopted the First Amendment, they were concerned with the balance of power between the federal government and the states and not just about protecting free expression in general. The entire focus of the debate over the First Amendment was on the federal government and on making clear that the Constitution’s grants of various powers to Congress did not include the power to restrict free speech or the press” (Strauss 59, 2010) . The states, seeing as they were viewed as much more independent then, and federalism was much weaker, were seeking to protect their territories from an overly-powerful federal government and possible restrictions that could ensue. Ultimately, living constitutionalism has permitted for the practice of freedom of expression that we have today while still trying to maintain the central principles and themes of the American government granted to it by the Constitution.
Critical legal theory states that the law is inherently intertwined with social issues, essentially claiming that the law has social biases that maintain the status quo of systemic issues (Legal Information Institute). According to critical legal theorists, the law enables the protection of the privileged few and systemically disadvantages the underrepresented and underprivileged (Legal Information Institute). In “Speaking Respect, Respecting Speech,” lawyer Richard Abel attacks the legitimacy of First Amendment protections: first, by declaring that the line between accepted and prohibited speech is too subjective and, consequently, “rests on sociopolitical needs and judgements” (Gould 763). Secondly, Abel asserts that the marketplace of ideas—the concept that is used to defend free and unfiltered speech—skews in favor of the privileged few (Gould 764). Concurring with Abel’s assessment are Richard Delgado and Jean Stegancic, authors of “Must We Defend Nazis? Hate Speech, Pornography, and the New First Amendment” (Gould 765). They take issue with the view that First Amendment protections are neutral, instead declaring that this jurisprudence is “repeatedly reinforcing the status and views of the governing white, male elite” (Gould 765). While many scholars acknowledge that the judicial system is unintentionally political and, consequently, decides on legal matters, many believe that freedom of expression is an absolute, unwavering statue (Gould 767). Some, like Supreme Court Justice Black, believe that the First Amendment literally: that Congress shall make no law which restricts expression (Gould 767). Others argue that the values which motivated the First Amendment—“self-expression, truth seeking, and self-government—require that its doctrine be permanent and unwavering” (Gould 768). However, Gould points out “that we present cultural and political rationales for the norm of free speech mean[ing] that we determine its importance through social interactions (768).
Americans are often proud of their nation’s commitment to free speech; according to US jurisprudence, content-based restrictions on speech are generally unconstitutional unless they directly prevent criminality or public danger. Americans also tend to venerate the founding fathers, learning from a young age that the colonies courageously overthrew the British tyrants. Although free speech is enshrined in the Bill of Rights, the unique status that American courts have afforded free expression has little basis in originalism. Rather, such strong free-speech protection is a product of living-constitution theory and America’s modern notions of civil libertarianism. Originalist generally understand the First Amendment’s primary purpose as protecting political speech - not the broad speech protections we observe today. Justice Scalia, who was perhaps the country’s most prominent originalist, wrote the following sentence in his opinion of McConnell v. FEC: “Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming, would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.” Many key free-expression cases, including arguably the two most important in establishing a standard for content-based restrictions, did not draw on originalist thought. The Supreme Court’s opinion in Schenck v. US (1919) , which established the clear and present danger test, draws on no founding-era understanding of the Constitution to defend this standard. Ditto for Brandenberg v. Ohio (1969) , where the court replaced clear and present danger with the more-stringent imminent lawless action test. Obviously, there have been many other important free-speech cases. Still, the lack of originalist insight on such important cases is telling. Modern free-expression jurisprudence demonstrates more fidelity to living constitution theory than to originalism. As the University of Chicago’s David A. Strauss articulated, “a living Constitution is one that evolves, changes over time, and adapts to new circumstances” (2010) . As such, free-speech interpretation can shift to meet the needs of a changing nation According to SMU’s Christopher Wolfe, seditious speech was accepted early in the nation’s history as an exception to the First Amendment because the nation’s stability was not a given then as it is today (2019, 536-7). Today, however, courts can reevaluate anti-government speech in light of the fact that the US is a global superpower. There is even some evidence that the Supreme Court takes public opinion into consideration (Epstein and Martin 1). This might help explain why the court has moved toward broad free-speech protections in a country where free speech is a huge aspect of political culture (although this begs the question of whether causation occurs in the opposite direction). School-speech cases exemplify the different First-Amendment Jurisprudence produced by living-constitution and originalist theory. Justice Thomas issued a strikingly originalist opinion in Morse v. Frederick (2007) . Thomas analyzed the history of US public schools, which proliferated in the early 1800s (Thomas 2007, 2). He argues that early public schools “were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled ìa core of common valuesî in students and taught them self-control.” He concludes that because students in this area were not seen as having First-Amendment rights, neither are today’s. Meanwhile, in the court’s majority opinion in the landmark case Tinker v. Des Moines (1969) , the court cited the following passage from Shelton v. Tucker (1960) : “The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, (rather) than through any kind of authoritative selection." Here, it is argued that the First Amendment should protect schools’ current and future function as a breeding ground for ideas, regardless of whether such a function existed early in our nation’s history.
References Wolfe: https://scholar.smu.edu/cgi/viewcontent.cgi?article=4807&context=smulr
Fallone: https://law.marquette.edu/facultyblog/2018/ 12/on-originalism-and-the-first-amendment/ Dailey: https://open.bu.edu/bitstream/handle/2144/ 24083/Dailey_bu_0017N_12912. pdf?sequence=5 McConnell v. FEC: ttps://www.law.cornell.edu/supct/html/02-1674. ZX.html
Schenck v. US: https://www.law.cornell.edu/supremecourt/text/249/47
Brandenburg v. Ohio: https://www.law.cornell.edu/supremecourt/text/395/444
Strauss: https://www.law.uchicago.edu/news/living-constitution
Epstein and Martin: http://epstein.wustl.edu/research/supctEMPubOp.pdf
Morse v. Frederick: https://www.mtsu.edu/first-amendment/article/690/morse-v-frederick
Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, James E. Fleming, 1178, Boston University School of Law, 2011 Boston.
Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, Lawrence B. Solum, 1256, Northwestern University Law Review, 2019 Evanston.
The Living Constitution, David Strauss, 52-59, Oxford University Press, 2010 Oxford.
The Living Constitution, David Strauss, The University of Chicago Law School, 2010 Chicago.