In a recent post, I discussed the use of left wing institutions by the right. Here I want to discuss a specific idea for promoting a so called right wing idea – protection of free speech on college campuses from violence and other disruption – by using the methods that the left has employed in the past. A common problem on both public and private campuses is that violent and disruptive protesters prevent right wing (and other controversial) speakers from giving speeches and presentations on campuses. In addition to preventing the events from being conducted in an orderly fashion, the threat…
My first two posts in this series discussed, respectively, the origins of the concept of “exclusive representation” in the NLRA and the Supreme Court case law leading up to Abood in 1977. In this post, I will analyze the decision in Abood (which, it will be recalled, was roundly criticized in Harris v. Quinn (2014) and may be overruled in Friedrichs).
Mike Ramsey writes that the opinions of the plurality and Justice Thomas in McCutcheon v. FEC do not employ an originalist methodology. Regarding Justice Thomas’s opinion, Mike writes:
The question is not whether, as a matter of some abstract principle, contributions are or are not speech. I doubt there is a single answer to that question, and I doubt even more strongly that we can reach agreement upon one. But in any event, that isn’t the question an originalist asks. The question is (or ought to be) whether “the freedom of speech” in the founding era included campaign contributions. (I’m not sure we can answer that question either, based on the historical record, but that is a separate problem). Whether the founding era’s view makes analytic sense to us (or to any individual Justice) should be irrelevant.
Mike is certainly correct that one needs historical evidence and originalist analysis about this matter. Unfortunately, there is relatively little written on the original meaning of the freedom of speech, with the principal exception in recent years of several pieces by Eugene Volokh. (I have toyed with writing on the subject, but have not done so as of yet.) It is difficult for the justices to write originalist opinions without such scholarship. Thus, they either rely on doctrine, as Chief Justice Roberts’s plurality opinion does, or argue for a change in doctrine, assuming the general doctrinal framework, as Thomas’s concurrence does.
How would one analyze the question from an originalist perspective? Let’s put aside for now whether there is an enumerated power to support the legislation, an issue I plan to discuss in a future post. Do the aggregate limitations at issue in McCutcheon abridge the freedom of speech?
Should there be any limitation on the freedom of public expression, and if so why, how and when imposed? The question has become acute in France where the Minister of the Interior, Manuel Valls, has declared his intention of seeking to silence a stand-up comedian, Dieudonné M’Bala M’Bala, because of his increasingly anti-Semitic tirades. M. Valls, hitherto the most popular minister in President Hollande’s government, has managed to corner himself by an astonishing lack of adroitness, having fallen prey to the illusion of many politicians in a highly centralized state, namely that they can control what happens in society.
Over at the Volokh Conspiracy, Akhil Amar has a long post on freedom of speech. Akhil takes issue with the post by Richard Posner that had criticized Scalia and Garner for not following the narrow Blackstonian understanding of freedom of the press as the original meaning. Readers will remember that I had criticized Posner on the same grounds. As I did, Akhil relies in part on Eugene Volokh’s scholarship on the original meaning of the First Amendment. Akhil raises a separate issue, which he and others have discussed before: While it is possible that freedom of the press was intended to…
So, in a preemptive defense against accusations that textual originalism is political, the book gives examples of liberal decisions that Scalia has written or joined . . . In United States v. Eichman, for example, he voted to hold a federal statute forbidding the burning of the American flag unconstitutional, and it was certainly a vote against his ideological grain. But it is a curious example for a textual originalist to give. The relevant constitutional provision—“Congress shall make no law abridging … the freedom of speech”—does not mention non-verbal forms of political protest, and Scalia and Garner insist that legal terms be given their original meaning lest the intent of the legislators or the constitution-makers be subverted by unforeseen linguistic changes. . . . That approach is inconsistent with interpreting “freedom of speech” to include freedom to burn flags, since the eighteenth-century concept of freedom of speech was much narrower than the modern concept, and burning cloth is not a modern technological innovation. According to William Blackstone, whom Scalia and Garner treat as an authority on American law at the time of the Constitution, freedom of speech forbids censorship in the sense of prohibiting speech in advance, but does not prohibit punishment after the fact of speech determined by a jury to be blasphemous, obscene, or seditious. And so an understanding of free speech that embraces flag burning is exceedingly unoriginalist. It is the product of freewheeling Supreme Court decisions within the last century.
Judge Posner has a plausible interpretation of Freedom of Speech here, but he is much too confident about it, and consequently, his criticism of Scalia and Garner here is wide of the mark. It is certainly possible, as Judge Posner suggests, that freedom of speech does not include the symbolic act of burning a flag. But recent work by First Amendment expert Eugene Volokh argues persuasively that symbolic acts may have been covered by the language “the freedom of speech, or of the press.”