"[Shiffrin] masterfully makes the best case for an enduring constitutional and cultural love affair with the First Amendment."Ronald Collins, ABA Journal
The First Amendment, Democracy, and Romanceby Steven H. Shiffrin
If an organizing symbol makes sense in First Amendment jurisprudence, it is not the image of a content-neutral government, argues Steven Shiffrin, nor is it a town-hall meeting or even a robust marketplace of ideas. If the First Amendment is to have an organizing symbol, let it be an Emersonian symbol: let it be the image of the dissenter.If an organizing symbol makes sense in First Amendment jurisprudence, it is not the image of a content-neutral government, argues Steven Shiffrin, nor is it a town-hall meeting or even a robust marketplace of ideas. If the First Amendment is to have an organizing symbol, let it be an Emersonian symbol: let it be the image of the dissenter.
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The First Amendment, Democracy, and Romance
By Steven H. Shiffrin
PRINCETON UNIVERSITY PRESSCopyright © 1990 Steven H. Shiffrin
All rights reserved.
The First Amendment and Social Engineering
Leo Tolstoy was a fox masquerading as a hedgehog. So said Isaiah Berlin. The fox, Berlin explained, knows many things; the hedgehog knows one big thing. Tolstoy "preached not variety but simplicity, not many levels of consciousness but reduction to some single level...." Yet Tolstoy's talent was to depict the multiplicity of nature, and his depictions overwhelmed his metaphysical commitments. He wanted to believe that the massive diversity he described ultimately belonged to one system, but his detailed evocations of the concrete resisted absorption into any well-rounded whole. Nonetheless, Tolstoy persisted in his belief in the one over the many.
The psychological attractions of the one over the many were well understood by Immanuel Kant:
[I]f we are told that a more searching or enlarged knowledge of nature derived from observation must eventually bring us into contact with a multiplicity of laws that no human understanding could reduce to a principle, we can reconcile ourselves to the thought. But still we listen more gladly to others who hold out to us the hope that the more intimately we come to know the secrets of nature, or the better we are able to compare nature with other aspects as yet unknown to us, the more simple shall we find nature in its principles.
Those trying to understand first amendment law—those who just want to "get a handle on it"—listen gladly to anyone who claims to provide a handle, to any person who would domesticate the fox. Even if the first amendment turns out to be an endless maze, to enter it we must find a starting point. A prominent modern entrance into the maze is a distinction between restrictions directed at communicative content and restrictions directed at communicative conduct. The first scholar to point the way was Melville Nimmer. In an important 1973 article, Nimmer argued that a commonplace distinction should serve as an organizing category for first amendment law. The distinction was that every communicative act has a meaning effect and a nonmeaning effect. If I shout a word—any word—in a crowded theater one nonmeaning effect is noise, and the production of that noise could interfere with an audience's enjoyment of the play, whether or not they understood what had been said.
Suppose, however, that the audience accurately translated what I said and that the word I had shouted was "fire." As Nimmer explained the point, the "meaning effect" was not merely the understanding of the word's meaning but also included actions prompted by that understanding. Suppose everyone in the audience takes me to be asserting that there is a fire in the theater. Some believe I am a lying crank and use violence to punish me. Others panic, race out of the theater, and nearly trample one another in the process. In Nimmer's lexicon, both responses are meaning effects.
The state has an interest, to be sure, in preventing both the nonmeaning effects and the meaning effects in the theater example. The state might proceed against me for noise pollution—disturbing the peace—or for attempting to deceive the public in a way that clearly threatened an immediate panic. Nimmer proposed that the crucial starting point for first amendment analysis should turn on whether the state is regulating meaning effects or nonmeaning effects. As Dean Ely put it two years later, "The critical question would therefore seem to be whether the harm that the state is seeking to avert is one that grows out of the fact that the defendant is communicating, and more particularly out of the way people can be expected to react to his message, or rather would arise even if the defendant's conduct had no communicative significance whatever."
By 1978, Nimmer's organizing strategy had become central to the way in which legal commentators thought about first amendment doctrine. The leading treatise on constitutional law, by Laurence Tribe, stated that, "The Supreme Court has evolved two distinct approaches to the resolution of first amendment claims; the two correspond to the two ways in which government may 'abridge' speech." The terminology was somewhat different, but the two ways were Nimmer's ways.
Nimmer's 1984 treatise presented a systematized explanation of the different treatment he thought the two types of regulations should receive. In labeling the two types of regulations, we will think of government action regulating meaning effects as on the content track; we will think of government action regulating non-meaning effects as on the conduct track.
If the state's action was on the content track, Nimmer argued that the action was "presumptively unconstitutional." This presumption was somewhat mild, however. He was suggesting "an approach, not a formula, whereby doubtful balancing questions are resolved in favor of the speech interest. There is nevertheless a balancing, and the speech interest does not always win." What Nimmer argued for above all was that the balance struck between the free speech interests and government interests should be struck at a level of abstraction that transcended not only the parties before the Court, but also the equities of the individual case.
The issue, argued Nimmer, was whether a particular category of speech should be protected or not protected. In a libel case, the Court would weigh not the importance of the speech in the case before it but the interest in speech generally. It would weigh not the particular damage to reputation in the case before it, but the interest in reputation generally. In so weighing, the Court should formulate a rule or set of rules of general application. Nimmer called this "definitional balancing." In formulating such a rule, the Court would be defining what counted as freedom of speech and what did not. Such a procedure, he argued, was calculated to afford some measure of certainty and to minimize deterrence of speech. "The very existence of the rule makes it more likely that the balance originally struck will continue to be observed despite new and perhaps otherwise irresistible pressures."
As to cases on the conduct track (where the government interests were focused on nonmeaning effects), Nimmer proposed a different approach, but there was an underlying continuity of theme. The task was to formulate rules; again, ad hoc balancing could not be tolerated. Here, however, because there was no intent to suppress speech, government action on the conduct track was presumptively constitutional. Moreover, again, assuming no intent to suppress speech, Nimmer proposed that the test set out in United States v. O'Brien should be employed in all cases on the conduct track, namely that such a regulation is "sufficiently justified if it furthers an important or substantial governmental interest ... and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."
There are ambiguities in the test, of course; and Nimmer discussed many of these difficulties with sophistication. Indeed, after the dust clears, what emerges is a picture of a doctrinal structure of first amendment law that many find attractive. It seems to provide a handle on an otherwise mysterious body of law. What I seek to do here is to make the picture less attractive, to argue that at best this picture provides one entry into the maze. Nimmer himself traced the many places where the Court had departed from his proposed structure. Nonetheless, many now see first amendment doctrine through Nimmer's framework; they miss the nuanced "exceptions."
The efforts of Nimmer, Ely, and Tribe are designed to provide an orderly framework for rule making in first amendment law. My purpose is to trace the many ways in which the framework is not helpful. I begin by questioning the axiom that rules are invariably appropriate in first amendment law. I go so far as to suggest that in some contexts first amendment values require ad hoc balancing and not rules, and that, in other contexts, it is hard to tell the difference between the two. I do not prescribe anarchy, but I do insist that the absolute preference for rules—definitional balancing—is overly absolute.
I then aim at the foundation of the distinction between the content track and the conduct track. Underlying that distinction in large part is some variation of the notion that the first amendment stands against government's acting on the basis of its hostility to particular points of view. I make the relatively easy argument that the distinction between the content track and the conduct track is not strongly linked with its ultimate foundation. Moreover, I argue that the "foundation" is itself weak. Government hostility toward particular speech is neither a necessary nor a sufficient condition for a first amendment violation, and, therefore, a structure designed to combat that hostility is ill-suited as a foundation for first amendment doctrine.
This background helps explain why a distinction so prominent in the rhetoric of first amendment law turns out to have so little explanatory force in practice. Regulations on the content track and those on the conduct track are treated by methods that have more in common than is usually appreciated. Paradoxically, these two tracks tend to collapse into one, not because the underlying social reality is so similar, but because of its underlying multiplicity. In order to make good on these claims, I have to follow some doctrinal paths at some length, but the paths are sufficiently interesting in their own right to make the trip worthwhile.
Although both paths turn out to be similar, they are dotted with idiosyncratic signs. That is, the first amendment has developed its own language, and that language may be independently influential and important, even if not in an overarching way. Nonetheless, the language is less important than its place in the doctrinal rhetoric would suggest. Recognition of its unimportance is a useful corrective to the commentary.
Even in the face of this broadside attack, it might be possible to rescue the centrality of point-of-view discrimination to first amendment law and the distinctive features of the language of first amendment law by relying on distinctions less ambitious than those suggested by Nimmer, Ely, and Tribe. Dean Stone of Chicago has attempted such a defense, but his defense is also thwarted by the multiplicity of first amendment interests and concerns. In fact, it turns out that no general framework rooted in first amendment principle exists. For the most part, the first amendment social engineer just balances the relevant interests and comes to a decision.
Absolutism, Definitional Balancing, and Ad Hoc Balancing
Gifted legal advocates frequently structure their presentations to make it appear as if they are reasonable moderates rejecting the extremes. The extremes that Nimmer set himself against were absolutism and ad hoc balancing. At least in one respect, however, he was an extremist posing as a moderate.
Absolutism is the view that: "Congress shall make no law ... abridging the freedom of speech" means that Congress shall make NO LAW abridging the freedom of speech. As Nimmer pointed out, laws forbidding speech, however, are commonplace. Laws against perjury, blackmail, and fraud prohibit speech. Much of contract law and securities law abridges speech. Indeed no one has ever contended that citizens are free to say anything, anywhere, at any time. The specter of a man crying fire falsely in a crowded theater crushed absolutism as a serious intellectual position. To be sure, it is possible to say that freedom of speech should be absolutely protected or the freedom of speech, but the terms are not self-executing. The protective character of any variation of absolutism depends upon the values controlling the definitions. Absolutism need not be absolute; it is either crazy in its full-blown form, or radically incomplete in its more sensible forms.
After destroying absolutism, Nimmer pounced on ad hoc balancing. He described ad hoc balancing as the idea that free speech cases should be decided by consideration of the particular circumstances in concrete cases. This procedure, Nimmer argued, would lead to uncertainty and would fail to insulate judges from strong popular feelings, such as the national hysteria of the McCarthy era. Against absolutism and ad hoc balancing, Nimmer proposed definitional balancing. That is, the courts should define freedom of speech not by resort to absolutism, and not by focusing on the circumstances of the individual case, but by assessing the competing interests in the general run of cases and formulating rules. Rules, he argued, were crucial: "[I]n the sensitive and vital area of freedom of expression, constitutional protection must not be predicated on ad hoc balancing." Posed between the extremes of absolutism and ad hoc balancing, definitional balancing was made to appear eminently reasonable.
The difficulty with Nimmer's presentation does not lie in the relationship between absolutism and definitional balancing. Definitional balancing can appropriate many of the advantages of absolutism without accepting its disadvantages. Notice, for example, that a rule fashioned by a balancing of interests can result in absolute protection for speech in any area where that seems appropriate. Nimmer argued against absolute first amendment protection for libelous speech, but that conclusion followed from his assessment of the best social engineering to take account of the conflicting interests. Someone using the same methodology could argue for a different rule absolutely protecting such speech. Many have.
Later I will argue that flexibility of first amendment methodology is a general strength and not a weakness. Now I shall argue that the particular weakness of Nimmer's methodology is its inflexibility. Consider the relationship between definitional balancing and ad hoc balancing. There are two things that an advocate of ad hoc balancing might be taken to say. On the one hand, an ad hoc balancer might say that in every first amendment case, there should never be a rule. The qualities of each individual case should be considered, and rules should never be contemplated. So far as I am aware, in the history of the dispute no one has ever taken this position. The remaining ground is that in some unspecified areas of first amendment law, courts should consider the equities of individual cases and should try to identify factors that should be weighed and considered, but need not formulate rules. The claim might be that some pockets of first amendment law involve so many competing variables that any rule would lead to intolerable results in too many concrete cases. Indeed, the pattern of common law decisionmaking is case-by-case adjudication, tentative formulation of principles and rules. Rules are sometimes not formulated; when formulated they often change. Rules are not foreign to the common law; indeed, they are common. But the "rule of law" often functions without rules. Principles and policies are often the only guide.
So understood, the extreme character of Nimmer's position ought to be clear. Nimmer's position was that rules had to exist for everything touching on first amendment freedoms; the concrete circumstances of individual cases should never be considered (except, of course, to determine which rule applies); factors are always inferior; ad hoc balancing is always wrong.
Extreme positions are often right, and Nimmer's position has some appeal. Rules in first amendment law promise predictability; they afford notice to speakers as to what they can and cannot do; they cabin the arbitrary exercise of discretion; they allow judges to tell the partisan mob that they have no choice but to follow the applicable rule of law.
On the other hand, in some contexts, ad hoc decisionmaking can advance first amendment values more than a regime of rules is able to do. Consider the question of whether reporters can be forced to reveal their confidential sources to grand juries. The Supreme Court's major decision on this issue has been interpreted to authorize ad hoc decisionmaking on the question. Lower courts consider the significance of the investigation, the extent to which the evidence involved bears upon issues important to the investigation, and the extent to which the grand jury could secure the evidence it needs by alternative sources. By contrast, Nimmer proposed a rule that would be less protective of the press. Specifically, his rule would permit grand juries to force reporters to reveal their confidential sources so long as the grand jury was not acting in bad faith. From the perspective of the press, ad hoc balancing in this context is surely better than Nimmer's definitional balance. Of course, ad hoc decisionmaking involves imprecision, but from the press's perspective, there are some things worse than uncertainty. From this perspective, more protection for the press with accompanying uncertainty is better than the certainty of little or no protection.
Admittedly, it is almost always possible to craft a rule that would offer more protection for speech than ad hoc balancing would provide. For example, the rule could be that reporters never have to reveal a confidential source under any circumstances. In any given area, one can resort to absolutism. But absolutism assumes that protection of speech is always more important than other values. The very point of definitional balancing was to reject that brand of dogmatism. If the road to absolutism is blocked, it must be admitted that ad hoc balancing is sometimes more protective of speech than rules.
Excerpted from The First Amendment, Democracy, and Romance by Steven H. Shiffrin. Copyright © 1990 Steven H. Shiffrin. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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