Free Speech and 'a Law of Rules'
26 Pages Posted: 22 Sep 2016 Last revised: 28 Jun 2017
Date Written: September 19, 2016
In 1989, Justice Antonin Scalia published an essay in The University of Chicago Law Review titled “The Rule of Law as a Law of Rules.” The essay sets forth, and defends, one of the primary jurisprudential themes of Justice Scalia’s three decades as a Supreme Court Justice: the need for and obligation on judges, especially Supreme Court Justices, to articulate clear rules in resolving cases, rather than relying on vague balancing or multifactor tests. Or alternatively, as no one but Justice Scalia could have put it, the essay explains why throughout his career Justice Scalia opposed “the’ol’ totality-of-the-circumstances test” under which “[t]he law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be.”
Justice Scalia’s commitment to clear rules over mushy standards is as important an element of his First Amendment jurisprudence as of his administrative law and separation-of-powers opinions (the sources of the earlier quotes). It was, for example, undoubtedly the driving force behind his majority opinion in Employment Division v. Smith, severely limiting the scope of the Free Exercise Clause, and in Brown v. Entertainment Merchants Association, extending full First Amendment protection to the sale of violent video games to children. And there are many other examples.
Generally, a commitment to clear rules is a good thing, especially in the area of free speech where vague standards risk chilling protected speech. However, this article identifies some unexpected barriers to the “law of rules” approach. The reason, essentially, is that simple rules can very easily lead to unacceptable results. Faced with such results, a justice committed to clear rules might be pushed to adopt complex, arbitrary ones, even irrational ones, to avoid them. The result is epicycles within epicycles. My intention is to demonstrate that in at least some areas – notably sexually oriented expression, hate speech, and government funding of speech– this is precisely where Justice Scalia ended up. The problem is that an excessively complex body of rules, such as I identify, sacrifices many of the most powerful advantages that rules enjoy over standards. I finish by speculating as to why Justice Scalia had such a difficult time formulating clear rules in the free speech arena, concluding that the likely reason is that unlike in many other areas of jurisprudence, Justice Scalia lacked an underlying theory of how and why we protect free speech. Workable, clear rules, I conclude, need an underlying theoretical scaffolding. Absent that, ad hocery is inevitable — a point that Justice Scalia may well have recognized, and been the reason why he wrote so few free speech opinions in comparison to other areas of constitutional jurisprudence.
Keywords: Justice Scalia, First Amendment, Rule of Laws, Free Speech, Originalism
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