Trading the First Amendment?

Mark Graber

Michael Kinsley last week in the New York Times quickly dismissed Sandy Levinson’s call for a new constitutional convention on grounds that, while we might get rid of an undemocratic Senate, the risk was too great that we would also get rid of the democratic First Amendment. While I have my own concerns about a convention, mostly dealing with the importance of stable electoral rules, the constitutional issues Kinsley raised seemed worthy of far more serious consideration than they were given.

Is there any serious possibility that a new constitutional convention would omit explicit constitutional protection for freedom of speech? Such constitutional protections are routinely found in new constitutions throughout the world. No good reason exists for thinking that Americans are less concerned in the abstract with expression rights than anyone else. If the framers in 1787 could not get away with a constitution that did not include an enumerated freedom of speech right, why would anyone think framers in 2006 would have more leeway on that subject. Of course, a revised constitution might include provisions making clear that flag burning, certain forms of hard core pornography, or, perhaps, hate speech were no longer constitutionally protected. Still, the claim that a more democratic Senate is not worth the risk of punishing flag burners seems quite different that the claim that a more democratic Senate is not worth the risk of losing the freedom of speech entirely.

Getting rid of the freedom of speech is also likely to be quite difficult. Imagine the new constitution has no enumerated speech right. If that constitution has an enumerated due process right, a right which under contemporary constitutional law encompasses a free speech right, that may be just as good. Indeed, much doctrine suggests that one can generate the same degree of free speech protection Americans presently enjoy from the privileges and immunities clause of the Fourteenth Amendment and the abolition of slavery in the Thirteenth Amendment (restrictions on speech being a badge and incident of slavery). There is also the guarantee clause and the citizenship clause of the Fourteenth Amendment as possible sources for speech rights. In short, as this exercise suggests, interested justices and other constitutional interpreters are likely to find a source for constitutional free speech rights in almost any plausible constitution for the United States that might be written at present. If, for the past 30 years, we have not needed a textual guarantee explicitly declaring "abortion is constitutional protected," then we may not need an explicit textual guarantee declaring "free speech is protected."

Of course, a good possibility exists that we might not have justices and other officials interested in interpreting the new constitution as protecting free speech rights. History suggests, however, that such constitutional interpreters tolerate a good deal of repression even when interpreting a constitution in which free speech rights are enumerated. Consider, for example, the Alien and Sedition Acts, slave state bans on abolitionist speech, Lincoln’s willingness to imprison Copperheads, the assaults on radical union groups at the turn of the twentieth century, censorship during World War I, and the McCarthy Era. All of these occurred despite the First Amendment (or analogous state constitutional provisions). A good case can be made that explicit constitutional protections for free speech have had some influence only in the past half-century (and, as noted above, good reason exists for thinking the constitutional interpreters who protected speech would have done so on other grounds if they lacked a specific free speech clause). Consider, similarly, that Western democracies that lack or lacked explicit constitutional protections for speech have been about as libertarian or repressive as the United States. Significant differences exist, but my sense is that they exist at the margins. Again, the trade-off is different if we risk the loss of free speech for a more democratic Senate or merely risk living under English standards of free speech for a more democratic Senate. Text may matter. Indeed, I think text probably does matter. But the way in which text matters, the above paragraphs suggest, is far more complicated that the simple assumption that free speech is protected if and only if a free speech right is constitutionally enumerated.

Finally, one might wonder whether the left for the foreseeable future should be willing to risk all and everything for a first amendment that is more likely to protect big campaign donors, abortion protestors, commercial enterprises, and religious groups seeking public funds than leftists increasingly shut out of a shrinking public sphere. Nearly 80 years ago, Brandeis suggested that the due process clause of the Fourteenth Amendment ought to be repealed. Whether the left will similarly be all that excited about the First Amendment after 20 years of the Roberts Court may be open to question.

The persons responsible for the constitution of 1787 did not include textual protections for the freedom of speech because they believed that rights were best protected by governing institutions and that parchment barriers would play little protective role in the absence of a public committed to protecting certain rights. My sense is that more than 200 years of history have largely validated this claim. If those structures are presently rotten, we need to seriously consider replacement because, contrary to Kinsley’s too brief comments, poorly designed republican institutions are likely to be poor vehicles for protecting republican rights, even those republican rights enumerated in a national constitution.
Posted 11:30 AM by Mark Graber [link]