Art and the First Amendment, Redux

Mark Tushnet

Some final thoughts provoked by reflecting on the (modest, to say the least) reception of "Art and the First Amendment" by law reviews. As I've suggested, one "problem" with the article is that it doesn't take a strong normative position. Another, I think, is that its normative dimension is heavily institutional rather than direct, and almost all First Amendment scholarship is directly normative.

Directly normative scholarship identifies and defends value-based interpretations of constitutional terms (I include originalism in this category, but it would take me too far afield to explain why). Institutional normative scholarship asks an institutional question: In light of the obvious reasonable disagreements people have about the specification of an agreed-upon normative principle -- that is, disagreements about how that principle comes to bear on specific problems --, what reasons are there for preferring the author's specification over the legislature's, or, because authors hope that courts will accept their proposed specification, what reasons are there for thinking that courts will do a better job at specifying the principle than legislatures will?

The reasons have to lie in differences in institutional character. I suspect that the preference for directly normative scholarship arises from an unarticulated institutional argument, correct in its setting, but perhaps -- only perhaps -- inappropriately generalized. We all start teaching and learning about the First Amendment with the classic sedition cases, in which the government seeks to penalize speech critical of government policy on the ground that the dissemination of such speech poses a risk of social disorder. Our historical survey teaches us that legislatures, prosecutors, juries, and trial judges do a terrible job of singling out circumstances in which that is even remotely true. So, we conclude, what we need -- and what the Supreme Court supplied in Brandenburg -- is a test that reduces the chance that these decision-makers will fall prey to this pathology, as Vince Blasi labeled it in a classic article (subscription required).

(It's worth pausing to wonder why the Supreme Court itself isn't susceptible to the pathology. One can imagine institutional differences that would immunize the Court, though Holder v. Humanitarian Law Project suggests that the immunity is not perfect.)

The next step is the generalization: Because the Supreme Court is better than other decision-makers in sedition cases, it's better than they are in all First Amendment cases. So, once we have the institutional analysis in place for the sedition cases, we don't have to go through it again for cases involving art, animal crush videos, or anything else. All we have to do is figure out the proper direct normative analysis.

That generalization, I emphasize, might be correct, but one needs an argument, which would go along these lines: We know that courts are better than other institutions in the context of sedition. Legislatures might be better than courts in some other contexts, but courts are not institutionally capable of distinguishing the "legislatures are OK" contexts from the "legislatures suck" contexts, so overall it's better for the courts to do direct normative analysis rather than institutional analysis. Maybe, but I'm skeptical.

All this is quite sketchy, and I may try to flesh it out in some later work. For now, here's a link to my most recent effort along these lines.
Posted 5:58 PM by Mark Tushnet [link]