First Amendment Opportunism

Abstract:     
Suppose you have a wooden board, and you need to drive a nail into it. You have the nail, and you have the board, but you do not have a hammer. You do, however, have a pipe wrench. What do you do?

Faced with this problem, some people would simply abandon the task. Not possessing the right tool for the job, they would take the position that it would be better that the task not be performed than that it be performed poorly. But most of us would react differently. Especially if the task is genuinely important, we will whack away at the nail with the pipe wrench. This will take longer than it would have taken with a hammer, the nail will still probably not go all the way into the board, and the wrench will likely be damaged in the process. But it would be better than nothing.

In many respects, the culture of First Amendment discourse and argument, both in the courtroom and in the larger culture, exhibits many of the features of the story of the nail and the pipe wrench. With surprising frequency, people and organizations with a wide array of political goals find that society has not given them the doctrinally or rhetorically effective argumentative tools they need to advance their goals. The absence of these legally or culturally accepted arguments, like the absence of the hammer, disturbs them, but it also leads them, faced as they are with immediate goals that cannot wait until the world is reordered, to look for plausibly effective but ill-fitting tools. And in looking for these imperfect but usable tools, they often find that the leading candidate is the First Amendment. Like the pipe wrench, the First Amendment is frequently called upon to do a job for which it is poorly designed. The job frequently gets done, but, as with driving a nail with a pipe wrench, the job gets done poorly, and the tool is damaged in the process.

Working Paper Series