Taking Another Look At The Constitutional Blueprint
May/June 1987 | Volume 38, Issue 4
The case has already been made against those who explicitly or at bottom oppose it and those who are hardly aware of it and those for whom freedom of expression means, in the end, only freedom for me. The amendment is fully as important as Justices Black, Brandeis, Brennan, Douglas, and Holmes have said. It is, as Justice Cardozo pointed out, “The matrix, the indispensable condition, of nearly every other form of freedom.” But it suffers from a curse of acolytes.
Buddha, an atheist who preached early deliverance, was made into a god by his followers, and his precepts thereby diminished. So also First Amendment groupies pervert due regard for free expression into unreasoning worship, and again the effects are bad, both in specific application of the amendment and in a more general consequence that may plausibly be anticipated.
The courts, of course, are influenced by what they read and hear. After scarcely having mentioned the First Amendment for the first 130 years of their mutual existence, the Supreme Court, beginning with ideas put forth by two dissenters of the 1920s (Holmes and Brandeis, naturally), only 40 years later fondly embraced the amendment. Invoking its provisions, the Court rewrote the law of libel. At about the same time, the Court extended the amendment’s protection to what had always been thought to be outside its scope—the impermissible writing about sex that went by the name obscenity. (A later bench declared it still outside, but defined obscenity in terms so narrow that its formulation was a mirror image of its predecessor, and the new law remained effectively untouched.) Thenceforth, against the charge of obscenity, all writing—the printed word in volume form—would be completely free, and other media of expression would be freer than they had been.
Meanwhile, on political expression, as distinguished from literature and art, less progress has been made. In the depth of what has come to be called the McCarthy period, the Supreme Court, in the course of affirming the conviction of certain Communists (not others), made clear that expression of ideas—even the idea that the government ought to be overthrown by violence—was not itself a crime, and under the First Amendment could not be made a crime. Since, then, however, the Court has been timid in the application of the amendment where the opposing argument is that national security may be impaired. The Court revealed this timidity in the Snepp and Marchetti decisions, and in the Morrison case a trial court allowed a conviction under the espionage acts for the publication of an article, thus excising from the definition of spy its prime adjective—clandestine.
On nonsecurity matters, however, the First Amendment has been unmercifully enlarged. In the obscenity field, we hear arguments from the “absolutists,” people who say the proper interpretation of the amendment is that there can be no suppression whatever. Those who take the absolute view—the one large instance of irrationality on the part of the generally rational and lucid Hugo Black—must close their eyes to plain and never-questioned aspects of the law. Slander and libel—false statements harmful to reputation —may lead to the payment of damages, a possibility that inhibits the speaker or writer. A conscious misrepresentation on which another person relies, and as a result of his reliance suffers, is fraud; the law holds the liar responsible and, as with defamation, the prospect of paying damages is a restraint. Fraud also brings criminal penalties—under false-advertising statutes, for instance, or under the Securities Act. All these things are speech or press.
The absolute view fails in the obscenity field as elsewhere. The most liberal of our Justices have recognized that exceptions should be made where what is felt to be offensive is forced upon a captive audience, where public displays affect the ambience of a neighborhood, and where children are concerned. Here the views of those who are just wild about the First Amendment have not affected the courts. The unwarranted and dangerous extensions of the First Amendment lie elsewhere, in commercial advertising and in the voting process.
Going against an earlier decision that it weakly sought to distinguish, the Supreme Court holds that the speech and press to which the amendment is addressed include commercial advertising, an ugly distortion of a guarantee whose beginnings had to do with liberty of conscience. The amendment protects, certainly, speech and writing on the conduct of government and other public affairs, and, with hardly any strain, literature and art. When the concept is imported into the sale of goods and services, however, there is an unappealing dissonance. What we are dealing with is commercial puffery—not so much free expression as free private enterprise, which, to the extent the Constitution protects it at all, is the subject of the due process clause, not the First Amendment.
Consider this in one of its specific aspects—advertising by lawyers. The Supreme Court has ruled that the First Amendment requires the profession to give up its self-imposed, traditional, salutary ban. We now have the spectacle of lawyers appearing on television to tell the audience (which of course can ask no questions) how talented and knowledgeable they, the lawyers, are.