Freedom of Speech (1): Three Rationales
The blog is back from vacation.
Introduction
When I begin teaching the First Amendment course, I introduce freedom of speech by briefly describing the conventional rationales of freedom of speech (this post) and then setting out three factors that are crucial for all free speech analysis (a subsequent post).
Three Rationales of Free Speech
1. Self-Government
Like the Constitution, a document that establishes a structure for self-government, the free speech clause of the First Amendment is a product of the Enlightenment. Citizens of the United States are to engage in self-government by using reason and practical judgment. Accordingly, one rationale of freedom of speech is that it is indispensable for self-government. People communicate on political matters so that they can intelligently participate in the democratic process.
This rationale is often identified with the work of Alexander Meiklejohn but it was articulated much earlier by Justice Brandeis in Whitney v. California.
Under this rationale, political speech ranks at the top of the First Amendment hierarchy, with other kinds of speech ranked in a derivative manner based on their relation to political speech.
2. The Marketplace of Ideas
This rationale, long identified with Justice Holmes in his dissent in Abrams v. United States but actually going back to John Stuart Mill, posits that freedom of speech is important because, in a marketplace of ideas, the better ideas eventually prevail through competition. It is modeled both on laissez faire in the economic realm and on scientific experimentation.
Under this rationale there is no hierarchy of speech. The value of different kinds of speech depends solely on the marketplace’s assessment.
3. Self-Fulfillment and Individual Autonomy
This rationale treats freedom of speech as promoting every individual’s self-fulfillment and autonomy.
Under this rationale, non-political speech such as artistic expression is fully covered; as with the marketplace of ideas rationale, there is no hierarchy of speech. On the other hand, under this approach one wonders what is so special about freedom of speech inasmuch as other provisions of the Constitution–think substantive due process–similarly promote self-fulfillment and autonomy.
Observations
No single one of these rationales captures either the complexity of free speech issues or the actual free speech jurisprudence of the Supreme Court. For example, the self-government rationale does not do that good of a job in explaining why artistic expression and scientific speech should be protected by the First Amendment. Similarly, the marketplace of ideas and self-fulfillment/ individual autonomy rationales do not satisfactorily explain why obscene speech and child pornography are not at all protected by the First Amendment.
Only in combination do these rationales do an adequate job of justifying and explaining free speech jurisprudence. This is a point I made quite some time ago in a Wisconsin Law Review article on artistic expression. Others have made the same point.
Blog on Vacation; 2010 Plans
Vacation
My blog and I are busy grading exams, finishing an article and then vacationing afterward. We will return during the week of January 18, 2010, the first week of the spring semester.
In 2010
I will continue my series of posts on all aspects of § 1983, from the basics to the complexities.
I will also continue to address interesting and important constitutional law issues as they arise in the courts and in the classroom. I will likely focus on speech, press and religion issues in the first half of 2010, since I will be teaching the First Amendment course next semester.
Thanks
These first four months of this blog have been rewarding to me and I hope to some of you as well. I look forward to resuming it next month.
In the meantime, I wish you a happy and healthy new year.
Sheldon Nahmod
The Religion Clauses: ‘Tis the Season
Introduction
The first part of the First Amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”
These sixteen words containing the Religion Clauses have for the last fifty years caused a great deal of controversy not only in the United States Supreme Court but among the public at large. What I would like to do here is set out some basic points without getting bogged down in the legalities.
History
The Framers studied the religious wars of Europe and knew of their terrible impact on religious freedom and on the lives of Europeans. They also had a good understanding of the political divisions that religion created in the colonies. In drafting the First Amendment, they were determined to avoid as much of this divisiveness as possible while at the same time insisting on the importance of religious belief for morality, and on freedom of thought.
Public Employee Free Speech: The New Regime
Introduction
Several years ago the United States Supreme Court handed down Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), the most important public employee free speech case in decades.
[Note: my article, Public Employee Speech, Categorical Balancing and Section 1983: A Critique of Garcetti v. Ceballos, 42 U. of Richmond L. Rev. 561 (2008), is downloadable. This article extensively criticizes Garcetti at the theoretical and doctrinal levels.]
The First Amendment Background: The Pickering Two-Step
In 1968, the Supreme Court decided Pickering v. Bd. of Educ., 391 U.S. 563 (1968), which held that certain speech of public employees was protected by the First Amendment from public employer discipline. Specifically: (1) if the content of the public employee’s speech was a matter of public concern, (2) then the First Amendment kicked in and protected the employee so long as the employer’s interests did not outweigh the free speech interests of the employee and the public. If, however, the employee’s speech was a matter of private concern only, then the First Amendment was inapplicable.
As a practical matter, in most cases where the employee’s speech was a matter of public concern, the employee won under the First Amendment. But this all changed in Garcetti. Read the rest of this entry »
A Section 1983 Primer (2): The Seminal Decision of Monroe v. Pape
This is the second post for those lawyers, law students and others who are not familiar with 42 U.S.C. § 1983. The first was on October 27, 2009.
The Seminal Decision: Monroe v. Pape, 365 U.S. 167 (1961)
This forty-eight year old decision is where § 1983, enacted long ago in 1871, first had life breathed into it. The themes it announced continue to be important to this day.
Monroe involved a plaintiff’s allegations that police officers entered his home without warning and forced the occupants to stand naked while the entire house was ransacked. The plaintiff was thereafter arrested but released without being charged. According to the plaintiff, the police officers violated his Fourth (and Fourteenth) Amendment rights and were personally liable to him for damages under § 1983.
In response, the officers made three arguments, all of which the Court rejected.
The First Defense Argument: “Chutzpa” and Color of Law
The officers’ first argument was one that I have elsewhere characterized as “chutzpa.” Focusing on § 1983’s color of law requirement, they maintained that they did not act under color of law because they allegedly violated the Illinois constitution and much statutory and common law. In their view, § 1983 defendants could only be liable for federal constitutional violations where they acted in a manner consistent with state law. For this reason, the officers did not act under color of law and were not liable for damages under § 1983.
The Court, in an opinion by Justice Douglas, responded by saying that § 1983’s statutory color of law requirement was essentially the same as the Fourteenth Amendment’s state action requirement: once there was state action, there was color of law. (Justice Frankfurter dissented on this issue). And since in this case it was clear that the plaintiff alleged an abuse of state law and power that violated the plaintiff’s Fourth Amendment rights, state action was present. It followed from this that the plaintiff properly alleged acts under color of law. To put it another way, the Court said that the scope of § 1983 was as broad as the scope of the Fourteenth Amendment.
This turned out to be very significant as the scope of the Fourteenth Amendment expanded, by the process of incorporation, to include most of the provisions of the Bill of Rights. Read the rest of this entry »
The Equal Protection Clause and Fundamental Interests
Introduction
Litigants who challenge a legislative classification on equal protection grounds prefer, for obvious reasons, to have strict scrutiny apply to that classification. The paradigm suspect classification for which strict scrutiny is used is a classification based on race. However, there is another category of equal protection cases in which a legislative classification has to overcome strict scrutiny, namely, those cases in which a legislative classification burdens a fundamental interest. Unfortunately, this category often causes a great deal of confusion.
The Supreme Court’s Record
It has not helped that the Supreme Court has sometimes misleadingly characterized fundamental interests as “fundamental rights.” At other times, the Court has made clear that fundamental interests are not substantive constitutional rights at all but are “only” fundamental interests. At still other times, the Court has applied strict scrutiny in equal protection cases in which substantive constitutional rights were indeed implicated. Ultimately, the development of fundamental interest doctrine came to a halt in San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973). Read the rest of this entry »
Prosecutorial Immunity Revisited: The Pottawattamie County Case (UPDATED)
Pottawattamie County Case in Supreme Court: Argued November 4, 2009
The Supreme Court heard argument in Pottawattamie County v. McGhee, 129 S. Ct. 2002 (2009)(granting certiorari), on November 4, 2009. What follows is a description of the important section 1983 prosecutorial immunity issues raised.
[Full disclosure: I consulted with defense counsel and my name appears on their merits brief in the Supreme Court].
IMPORTANT UPDATE: AFTER ORAL ARGUMENT THE PARTIES SETTLED THE CASE AND MOVED TO DISMISS THE PETITION FOR CERTIORARI. THE PETITION WAS DISMISSED PURSUANT TO RULE 46 ON JANUARY 4, 2010.
Doctrinal Background
The Supreme Court held some time ago in Imbler v. Pachtman , 424 U.S. 409 (1976), that prosecutors are absolutely immune from damages liability for their advocative conduct in connection with trials. This immunity was based on the common law immunity background in 1871 (when section 1983 was enacted) and the important policy consideration of promoting independent decision-making by prosecutors. The Court later elaborated on prosecutorial immunity doctrine in Buckley v. Fitzsimmons , 509 U.S. 259 (1993), where it held that such immunity does not extend to a prosecutor’s conduct that is investigative in nature and that precedes the existence of probable cause; such conduct is protected only by qualified immunity. In so ruling, the Court applied what has come to be known as the functional approach to immunities under which it is not the person who is protected by absolute or qualified immunity but rather the function performed.
The Pottawattamie County Case
In this case, prosecutors were accused of manufacturing evidence in a murder case in order to falsely arrest, prosecute, try and convict the plaintiffs. The evidence allegedly manufactured included providing a coerced witness with false information, with the result that the witness’s testimony was later used at trial to convict the plaintiffs who were consequently imprisoned for several decades. Their convictions were eventually overturned because they were not informed about a possible alternate suspect. Plaintiffs then sued the prosecutors for damages under section 1983, alleging that their due process (and not Fourth Amendment) rights were violated in connection with their arrest, prosecution, conviction and imprisonment. Read the rest of this entry »
Affirmative Action
Background
Affirmative action involving race is a hot button topic and there may consequently be some student reluctance to engage in meaningful discussion of the issues involved. So I begin class by pointing out the analytical distinction between constitutionality and wisdom. A statute, for example, may be constitutional but still unwise (or immoral). On the other hand, a statute may be unconstitutional but still wise (and moral). The point is that students should feel free either to critique or to agree with the Supreme Court’s current approach to affirmative action as a matter of constitutional interpretation.
Of course, this distinction often breaks down in practice in affirmative action cases inasmuch as strict scrutiny is applied. After all, aren’t the inquiries into whether there is a compelling government interest, and whether the means are narrowly tailored, based in large part on the Court’s view of the wisdom of the particular affirmative action plan in question? Nevertheless, I find the analytical distinction useful pedagogically.
What Affirmative Action Is/Is Not: Getting to “No”
I begin with a series of simple hypotheticals involving claims of racial discrimination arising out of unsuccessful applications for public employment, where various plaintiffs are victorious and the courts order that they be given the jobs they applied for. I ask students whether these are affirmative action cases, to which the short and correct answer is “no.” Rather, these are cases in which constitutional violations are found and judicially remedied. But it takes some time to get to “no.”
In contrast, true equal protection affirmative action cases are those in which a governmental entity voluntarily adopts a plan involving higher education, public employment and the like, under which certain members of a racial minority are given a benefit while certain members of a racial majority are denied that benefit. Read the rest of this entry »
A Section 1983 Primer (1): History, Purposes and Scope
This post is intended primarily for those lawyers, law students and members of the public who are not very familiar with 42 U.S.C. section 1983. It is the first in an introductory series on section 1983 that I will occasionally post.
History and Purposes
At the outset, observe the very close connection between section 1983 and the Fourteenth Amendment.
Section 1 of the Fourteenth Amendment to the Constitution of the United States, ratified in 1868, declares that states may not abridge the privileges or immunities of citizens of the United States and sets out the protections of due process and equal protection for “any person,” none of which states (and local governments) may deprive or deny. Section 5 of the Fourteenth Amendment gives Congress the power to enforce section 1 by appropriate legislation.
Section 1983 was enacted in 1871 by the 42nd Congress pursuant to its section 5 power in order to enforce the Fourteenth Amendment. It effectively creates a Fourteenth Amendment action for damages (and for injunctive relief) against “Every person,” acting under color of state or local law, who deprives a person of his or her Fourteenth Amendment rights and thereby causes damage. As it turns out in Supreme Court case law, “Every person” includes state and local government officials as well as local governments themselves (but not states). Read the rest of this entry »
Brown v. Board of Education
Introduction
Brown v. Board of Education, 347 U.S. 483 (1954), is one of the great constitutional law cases and perhaps the most important Supreme Court decision of the 20th century. I want to describe how I approach the case in class and what I hope students will learn.
History
Brown cannot be understood in isolation from what preceded it: the history of slavery, the Civil War, the 13th, 14th and 15th Amendments and Jim Crow in the South as exemplified by Plessy v. Ferguson, 166 U.S. 537 (1896). In Plessy, the Court, over Justice Harlan’s prescient dissent, had upheld separate but equal for railroad cars, with far-reaching implications for segregation generally.
Similarly, Brown cannot be understood apart from its own specific historical setting: victory over the racist Nazi regime in the Second World War, the rise of the Soviet Union, the integration of the American military, the urgent need for workers after the Second World War and important demographic changes.
Finally, there is an obvious moral dimension to Brown, although the Court did not expressly ground Brown on moral considerations.
In this connection, I raise the question in class whether the Court in Brown was leading the nation, whether it was following the nation or some combination thereof. I also disabuse my students of the notion that the Court as an institution was particularly heroic in Brown, since its own late 19th and 20th century decisions enabled and encouraged the South to continue the segregationist policies that the Court in Brown finally began to dismantle. Read the rest of this entry »
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