Kagan Nomination--Questions for Her & Her Questioners, Part 2 ("Judicial Activism" & the Constitution [Free Speech])

Free Speech.

Free: "no law abridging the freedom."

Speech: "of speech."

That's how the First Amendment of the Constitution states it.

Pretty unequivocal: "no law."

Pretty unambiguous: "speech."

So strict interpretation should be simple. Just applying the law rather than making it should be a cinch. Objectively and neutrally enforcing the law, and avoiding one's own opinion of what's wise and reasonable should be a snap.

Well, the only thing that's simple, a cinch, and a snap is that none of those things really are. And THAT should be a fairly easy one for Elena Kagan and for the Senators questioning her.

Strictly interpreting free speech, just applying it, and avoiding one's own opinion is more than difficult. It's impossible. And this is true--even more so--for other provisions of the law that are not as straightforward as the First Amendment. That would include most legal provisions. Indeed, it would include virtually all legal provisions that raise issues difficult enough to make it to the Supreme Court for the Justices to interpret.

So when the Senators ask Kagan about these sorts of matters and insist on strict interpretation, just applying the law, etc., etc., ad nauseam, you know it's the purest nonsense. And if a nominee robotically responds, "I-will-just-apply-the-law-to-the-facts-of-each-case-before-me-and-my-own-personal-views-will-not-affect-my-decisions" [like the previous nominee, now-Justice Sotomayor did at her hearings], you know that is also the purest nonsense.

But specifically, what about that most straightforward of Constitutional provisions? "No law abridging the freedom of speech."

Regarding "no law," I'm pretty confident that the point about this implausibly unqualified language was made pellucidly clear in the last post. (See Kagan Nomination--Questions for Her & Her Questioners ("Judicial Activism" & the Constitution), June 14, 2010.)
Then there's the term "speech." How strictly and objectively can that term just be applied? I.e., untainted by any "activist" input of the Justices' own views of what makes sense, what "speech" should be kept free, and what "speech" can be restricted or prohibited entirely.

So for free speech, let's first look at "no law," then "speech."

1) No law.
In the last post, we discussed how "no law" cannot really mean, or be applied to mean, exactly what it says. Well, it can as a matter of pure mental physics be applied literally. But that would be insane. And the Supreme Court has not, in fact, applied it literally. No strict interpretation there.

In that last post, we addressed this in the context of religious liberty. The Court has throughout its history been upholding some laws prohibiting freedom of religion regardless of the First Amendment's absolutist language. (See the last post, cited and linked above.)

As for "no law" in the context of free speech, neither the Court nor virtually anyone else actually has much of a problem with laws against certain kinds of speech. There's the classic example: falsely shouting fire in a crowded theater. Also, verbally urging the assassination of a President. Recklessly and maliciously defaming a private person. And the one I usually use in class: a soldier responding "F__ you" to a General giving orders, or, for that matter, any insubordinate speech to any commanding officer.

Laws "abridging"--as in prohibiting and punishing--such kinds of speech have had little or no difficulty passing constitutional muster. (See Justice Oliver Wendell Holmes famous discussion in Schenck v. U.S., 1919. On the other hand, Justice Hugo Black, a committed literalist, declared: "I read 'no law abridging' to mean no law abridging." Smith v. Cal., 1959. )

There are plenty of other kinds of speech--pure speech, as in talking--that the Court has over the years decided may be abridged. Such speech is unprotected or un-free, regardless of the First Amendment's "no law" command.

For example:
Inflammatory epithets likely to trigger a violent response [Chaplinsky v. N.H., 1942].
Vulgar, patently offensive words over the airwaves [F.C.C. v. Pacifica, 1978].
Verbally threatening imminent physical harm [Virginia v. Black, 2003].
Political speech supporting a candidate by a federal employee [U.S. Civ. Svc. Comm'n. v. Nat'l. Assn. Letter Carriers, 1973].
Soliciting votes in the immediate vicinity of a polling place [Burson v. Freeman, 1992].
In-person solicitation of a client by a lawyer [Ohralik v. Ohio, 1978].
Suggesting abortion to a client in a federally subsidized family planning clinic [Rust v. Sullivan, 1991].

These are, of course, but a few illustrations of speech that the Supreme Court has ruled is not free. Maybe Kagan and the Senator's questioning her ought to consider whether a strict interpretation and application of the very language of the First Amendment is preferable. I.e., all the foregoing kinds of speech should be free. "No law" abridging them should be allowed. Do Kagan or the Senators agree with Justice Black's aforementioned "I read 'no law abridging' to mean no law abridging?" (It's a sure bet that those purported believers in strict construction and just applying the Constitution believe absolutely no such thing!)

Or maybe the Justices should simply respect the judgment of the lawmakers about what restrictions on speech are necessary and proper. So "no law" would be interpreted loosely as "no law except those which the lawmakers think are needed and appropriate." Of course that would entirely nullify the First Amendment. "No law" = Any enacted law.

So maybe, just maybe, the answer lies somewhere in between those two extremes, or somewhere else entirely. And what should that answer be? What laws abridging speech are to be allowed? Laws that are really--as in REALLY--necessary? For the public health and safety, and for national security, as well as for other vital, essential concerns?

And should the Justices exercise their own judgment on what is really necessary? Or should they go along with the judgment of the lawmakers? And unless the Justices blindly do the latter, when should they and shouldn't they go along with the lawmakers?

The point is that those questions cannot be escaped. Additionally, none of that is strict interpretation. None of that is just applying the law.

All of that--except for mechanically applying the "no law" command, or blindly going along with the lawmakers--requires judgment exercised by the Justices. That is, each Justice's views and assessments of what is necessary, proper, essential, vital, etc. Not my views and assessments. Or yours. Or the Congress's or a state legislature's. Or another Justice's. But each individual Justice's own (yes, personal) views and assessments.

2) Speech.
Beyond all that, interpretation gets even more problematic when dealing with the First Amendment's use of the term "speech." We know what speaking is. We know that it's different than other activities.

It's not running or jumping or swimming or walking or marching or dancing or dressing or drawing or spending money or displaying signs or advertising on a billboard. Yes, to be sure, some of these activities may well have an expressive component to them. They may be ways of expressing oneself. But they are not "speech." Not strictly speaking.

Only a rather broad or loose or expansive interpretation of "speech" would include those activities and others. The literalist, Justice Black, of "no law means no law," was also strict about the difference between "speech" and conduct. In his view, only speech, not conduct, is protected by the First Amendment. Wonder if Kagan or her supposedly strict constructionist, "apply the law not make it" questioners agree with Black? Or do all of them actually support a broader, looser, more expansive interpretation of "speech?"

What does Kagan--and what do the Senators questioning her--think of the Supreme Court's decisions about the following kinds of conduct?

Wearing a black armband to protest an American war at an official ceremony? [Protected speech: Tinker v. Des Moines Sch. Dist., 1969.]
Wearing a jacket bearing the words "F__ the Draft" in a courthouse? [Protected speech: Cohen v. Cal., 1971.]
Displaying an American flag with a peace sign emblazoned on it? [Protected speech: Spence v. Wash., 1974.]
Lawyer advertising? [Protected speech: Bates v. Ariz., 1977.]
Picketing in a residential neighborhood? [Protected speech: Carey v. Brown, 1980.]

It's a pretty good bet that most of the more liberal Senators approve of those decisions. It's also a pretty good bet that most of the more conservative ones really don't. Well, the conservative Senators would certainly be correct that all of the foregoing cases involved conduct, not speech. That the Supreme Court's decisions were all wrong under a strict interpretation of the First Amendment's protection of "speech."

OK. But--and again, for Kagan and her questioners--what about some other conduct that the Court has ruled on?

Picketing and displaying images of fetuses that are observable inside an abortion clinic? [Protected speech: Madsen v. Women's Health Center, 1994.]
Holding a parade and excluding gay and lesbian marchers, in violation of the state's equal protection law? [Protected speech (i.e., the parading & excluding): Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 1995.]
Displaying alcohol content on a beer label? [Protected speech: Rubin v. Coors, 1995.]
Advertising tobacco products, in violation of the state's restrictions near schoolyards? [Protected speech: Lorillard v. Reilly, 2001.]
Corporate spending to finance political communications? [Protected speech: Citizens United v. F.E.C., 2010.]

It's a pretty good bet that liberal and conservative Senators switch sides on these cases. Most of the liberal Senators probably aren't too happy with the Court's rather broad, loose, expansive interpretation of "speech" in these decisions. The cases all involved politically conservative or business-friendly conduct.

Which is why most of the more conservative Senators undoubtedly favor these decisions. Now they're fans of broad, loose, expansive interpretation of "speech." Now, to hell with that strict interpretation, just-apply-what-the-Constitution-says stuff. Now, of course the Justices (the majority of them in these cases, that is) were right to use their good common sense in deciding that the activities (as in "conduct") should receive the same protection as pure speech. Now, well, those activities were expressive. Now, this is about freedom of expression.

Yep. Sure is about expression. But that ain't what the First Amendment says. It says "freedom of speech." And no strict interpretation can get conduct, that happens to be expressive, out of "speech."

Need a little judicial activism for that. Need to apply the broader underlying principles and purposes of "freedom of speech." Not a strict interpretation or simple application.

Need to inject some good judicial wisdom, and perspective, and understanding and appreciation for the essence of a free society. Need to balance order and liberty. And that couldn't be more different than a mechanical "strict interpretation," "just-apply-the-law-to-the-facts-of-the-case," and "just-apply-the-law-don't-make-it."

Ms. Kagan, and Senators questioning her: your thoughts on that?
Can we speak seriously at the hearings about what Supreme Court Justices must actually do in deciding cases?
Can we avoid the ignorant, simplistic, pandering nonsense?
Probably not.


Coming posts: other provisions of the Constitution. Some pretty straightforward; some much less so. Both cause difficulties.