Friday, September 26, 2014

The Invention of Low-Value Speech

Andrew Koppelman

Here’s a familiar rule of First Amendment law:  free speech protection does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. As recently as 2010, the Supreme Court declared in United States v. Stevens that First Amendment protections extend equally to all speech and expression except those “well defined and narrowly limited classes” of low-value speech, “the prevention and punishment of which have never been thought to raise any Constitutional problem.”

In an important new paper, Genevieve Lakier shows that this story is false.  In early American courts, all speech—even low-value speech—was protected against prior restraint, and almost all speech— even high-value speech—was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently.

The fake historical narrative was offhandedly invented by Justice Frank Murphy in Chaplinsky v. New Hampshire (1942).  The passage the Stevens Court quoted declares:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘‘fighting’’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

The passage closely tracks the following, from Zechariah Chafee’s important book, Free Speech in the United States (1942), which Lakier quotes:

“obscenity, profanity, and gross libels upon individuals . . . are too well-recognized to question their constitutionality, but I believe that if properly limited they fall outside the protection of the free speech clauses as I have defined them. My reason is not that they existed at common law before the constitutions, for a similar argument would apply to the crime of sedition, which was abolished by the First Amendment. . . . The true explanation is that profanity and indecent talk and pictures, which do not form an essential part of any exposition of ideas, have a very slight social value as a step toward truth, which is clearly outweighed by the social interests in order, morality, the training of the young, and the peace of mind of those who hear and see.”

Lakier writes:

“Justice Murphy borrowed a great deal from this passage in constructing his opinion in Chaplinsky, as is evident from the opinion’s text. Nevertheless, there is a crucial difference between Chafee’s argument and Murphy’s recapitulation of the argument in Chaplinsky—namely, that Chafee never claimed the distinction he drew between what he called the “normal” criminal laws of obscenity, profanity, and libel and the abnormal and unconstitutional sedition statutes was based on historical practice.”

Her discovery of the Chafee passage is only one of the virtues of this terrific paper.  She also displays an impressive command of nineteenth century free speech law.

The Court today declares, as a basis for rejecting state attempts to prohibit such novelties as videos of animals being tortured, that the only permissible content-based regulations of speech are those that target speech that was historically unprotected. If that were true, then child pornography – a category unknown to the law until the late twentieth century – would likewise be protected.

Murphy was merely making an offhand claim to shore up the value judgment that underlay his holding.  The modern Court, in yet another exercise in phony originalism, elevates that claim to official doctrine, and purports to be relying on an ancient understanding when in fact it is doing nothing of the kind.  The value judgments in the present doctrine may or may not be defensible, but they need to be defended as such, not cloaked behind bad history.

Lakier’s piece should definitively put this dishonest bit of doctrine to rest.

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