The Bizarro First Amendment
50 Pages Posted: 14 Nov 2021
Date Written: November 10, 2021
Welcome to the Second Lochner Era. Once again, the Supreme Court wields a great guarantee of liberty to nullify progressive governance. But this time its weapon of choice is not substantive due process but the First Amendment, as Justice Elena Kagan warned in her fiery dissent from the Court's ruling in Janus v. AFSCME. This Article examines Janus and two other recent cases, Sorrell v. IMS Health, Inc. and Arizona Free Enterprise Club's Free Enterprise PAC v. Bennett, where the Court has used the First Amendment to enact laissez faire.
But it also explores the intellectual history of these cases, showing how the Court's understanding of free speech is muddled in the wake of its gradual abandonment of the traditional “low-value speech” model of Chaplinsky v. New Hampshire. Because the Court has never held that all speech is protected, as Justices Hugo Black and William O. Douglas argued, it has not been forced to confront the question of when and how the state may properly restrict conduct that has an expressive aspect. This Article argues that there are sensible answers to this question, and sketches an account of what those answers might look like: a jurisprudence focused less on the qualities of regulated behavior and more on the nature of the government's purpose in regulating it.
The Court, however, has chosen a very different path. It has maintained the rigid framework of the Chaplinsky model but has hollowed out the "low-value," unprotected category. The resulting doctrine threatens to create expressive anarchy, for as Justice Kagan says, “speech is everywhere.” Everything we do is expressive in some measure, and therefore it is always possible to frame any law regulating conduct or commerce as a law restricting speech. It is easy, therefore, for the Court to see a First Amendment violation whenever a law offends the majority's free market instincts. And in other cases, where following this same twisted logic would not serve the Court's political purposes but would generate absurd results, it is equally easy to act as though there is no First Amendment problem at all—because, in truth, there isn't.
Thus, for example, the reasoning of Sorrell would undermine the basis for laws against fraud. Bennett would seem to prohibit the government from responding to a Nazi rally by expressing its own commitment to equality and diversity. And Janus, if taken seriously, would mean that the government can never spend tax dollars on anything with any expressive function or message. But these decisions cannot be taken seriously as explications of the Free Speech Clause, and in avoiding their absurd implications the Court shows that it recognizes this. The First Amendment these cases apply is not the genuine article but a doppelgänger: it may look and sound the same, and it has the same power to nullify regulation, but it is not animated the same values and does not respect the same principled limits.
Janus may cast itself as a landmark free speech ruling, but it is not truly a First Amendment case at all. Instead, it is the Bizarro First Amendment.
Keywords: First Amendment, free speech, Supreme Court, Janus v. AFSCME
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