//  10/3/17  //  Commentary

Because of controversies over NFL protests and campus demonstrations, among other things, free speech has lately been in the news.  And for those unhappy with the direction our country has taken since 2016, rights of dissent and protest may be more important than ever.

But how secure are our First Amendment freedoms?  For reasons addressed in a draft essay I prepared for an excellent University of Pennsylvania Journal of Constitutional Law symposium last February, I fear several salient recent developments could imperil constitutional protections for expressive freedom, at least as the Supreme Court has come to define them.

For roughly half a century, the Court has understood our First Amendment to provide near-absolute protection for expression of ideas.  To a degree that is unusual around the world, even among other western democracies, our Constitution has been held to protect expression of all ideas, no matter how hateful, offensive, illiberal, or dangerous.  This understanding, moreover, has been a striking point of judicial consensus.  The Court unanimously reaffirmed it just a few months ago.

How did we get to this place?  As my essay explains, robust judicial enforcement of the First Amendment took hold in the 1930s and 1940s, yet the doctrine gained its now-familiar absolutist cast only in the 1960s and 1970s, against the backdrop of the Civil Rights Movement.  The Supreme Court, in other words, entrenched the understanding that our First Amendment recognizes “no such thing as a false idea” during a period when civil rights protesters and other progressive groups were obvious prime beneficiaries.

A number of recent developments may now place stress on this view.  Indeed, Take Care is hosting a forum that highlights risks the current President poses to freedoms of speech and process.  My draft essay addresses three other, broader trends that appear especially salient after the 2016 election—and that could have long-term significance.

The first is the eruption of “fake news,” by which I mean the deliberate propagation, particularly through social media, of demonstrably untrue factual assertions that nonetheless shape public opinion.  As I have written previously on Take Care, this problem is certain to get worse, as new technology will make it increasingly difficult to distinguish real recordings and videos from fake ones.

This new media environment (and related fears about its pollution and manipulation by hostile foreign actors) could erode popular support for free expression by promoting corrosive cynicism about whether truth and justice will prevail in open debate.

As is now painfully apparent, we have enlightenment institutions without enlightenment minds:  people’s beliefs are often determined more by emotion, self-interest, and cognitive bias than by objective rationality.  This tension is not new, and it hardly strips the existing doctrine of any compelling rationale.  On the contrary, broad expressive freedom is best understood as a vital underpinning of popular sovereignty, and from that point of view human vulnerability to deception and propaganda may only make it more imperative to keep the channels of communication open to competing viewpoints.

Nevertheless, the risk of popular (and possibly judicial) disillusionment seems to be growing.  If manifest falsehoods—such as the grotesque lie that President Obama was born outside the United States—continue to shape our electoral politics, expressive freedom may lose some of its constitutional luster, and calls to more actively manage public opinion in the name of truth may gain new traction.

A second development, demonstrated by the recent Charlottesville tragedy, is the apparent disinhibition of hateful and bigoted expression.  Although it’s hard to tell precisely where we are headed, early signs suggest not only that hate groups are newly emboldened, but also that their ideas may now be more likely to incite actual violence.  Quite understandably, if people feel menaced by hateful ideas, they will grow less tolerant of extremist expression.

A last (and related) development is the ongoing danger of domestic and international terrorism—and political violence more generally.  In developing its First Amendment absolutism, the Supreme Court has defined narrowly what speech qualifies as unlawful “incitement to violence.”  But this understanding, too, will come under stress if advocacy appears increasingly likely to result in real violence.

These three developments all present hard problems with no easy solution.  As I explain in the essay, all three also implicate existing pressure-points in First Amendment doctrine: areas where caselaw permits plausible arguments for weaker protection, and indeed where substantial arguments exist that more limited freedom could be consistent with some set of principled First Amendment protections.

In the current political environment, however, the costs of weakening protection could be quite grave.

Within our sharply divided polity, narrowing (or overturning) protection in any of these areas—for false statements, offensive expression, or incitement to violence—could open the door to highly selective and discriminatory enforcement, as officials of different political persuasions at different levels of government selectively repress statements they find most threatening.

In addition, precisely because each side of our divided polity may hold quite different intuitions about what speech is most dangerous (or most false), erosion of protection along any of these axes could produce reciprocal changes along the others.  Simply put, given current partisan dynamics, any new equilibrium in First Amendment doctrine seems unlikely to favor one side or the other unambiguously.

Whatever its drawbacks, the great virtue of the current absolutist approach in First Amendment doctrine is precisely the clarity of the rule it enforces.  By tightly cabining the exceptions to First Amendment protection, current doctrine squarely protects overheated rhetoric of all sorts, thus leaving wide and unambiguous protection for the rest of us.  The nation appears to be on a downward spiral in other areas of its political life.  We should take care to avoid one here.

For those interested in a deeper look, you can read the full draft here.

Versus Trump: Going to Church In Times of COVID

12/7/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the recent Supreme Court decisions requiring states to allow in-person religious services even while other gatherings can be banned. The pair gently disagree about how hard or easy these cases are. Listen now!

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Legal Update + The GSA Travesty

11/17/20  //  Commentary

On this week's Versus Trump, Charlie and Jason discuss the status of Trump's legal challenges to the election (going nowhere) and the Trump Administration's dangerous and illegal refusal to designate Biden as the President-elect and therefore give his team resources for a smooth transition. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Lawyers Should Be Sanctioned

11/11/20  //  Commentary

Lawyers who bring cases without evidence solely to harass or delay should be sanctioned. It's what Justice Scalia would have wanted.

Jason Harrow

Gerstein Harrow LLP