One of the posters Taylor left at the airport depicted a smiling crucified Christ next to an advert for a brand of “no nails” glue. In another, a cartoon depicted two Muslims holding a placard demanding equality with the caption: “Not for women or gays, obviously.” A third poster showed Islamic suicide bombers at the gates of paradise being told: “Stop, stop, we’ve run out of virgins”.

Professor Volokh calls this “an appalling restriction of free speech” and asserts that he likes “our free speech rules much better.”  But I don’t have too much of a problem with this considering Europe’s unique racial dynamic, particularly with respect to its Muslim minority.  I blogged about this precise topic about a year ago (see here).

The unique context of an airport prayer room makes this a form of harassment first and free speech second.  There are certainly different contexts where the situation might be the opposite.  Professor Volokh might like our rules better but I don’t think the United States has any unique need for restrictive  laws like these.  The European racial climate is far too volatile for their governments to risk the repercussions of such conduct going unpunished.

The trial court awarded Mark Snyder — the father of a dead soldier whose funeral was picketed by the organization — a five million dollar verdict for intentional infliction of emotional distress and invasion of privacy.  But the U.S. Court of Appeals for the Fourth Circuit reversed, holding that this activity is constitutionally protected speech under the First Amendment.

Eugene Volokh believes that the Court of Appeals was right:

[A]t least where speech on matters of public concern is involved, the First Amendment precludes liability based on “statements on matters of public concern that fail to contain a ‘provably false factual connotation’”. This applies not just to libel liability, but also liability for intentional infliction of emotional distress and intrusion upon seclusion (the specific form of invasion of privacy alleged here). If the speech fits within “one of the categorical exclusions from First Amendment protection, such as those for obscenity or “fighting words’” it might be actionable. But if it’s outside those exceptions, then it can’t form the basis for an intentional infliction of emotional distress or intrusion upon seclusion lawsuit — regardless of whether it’s “offensive and shocking,” or whether it constitutes “intentional, reckless, or extreme and outrageous conduct causing … severe emotional distress”.

Professor Volokh also notes that ruling in favor of Mr. Snyder would create a real slippery slope problem that would erode free speech protections in other contexts.  In particular, he gives the following hypothetical scenario that he says might very well be permitted as a result of ruling in favor of soldier’s father:

The University of Maryland decides to discipline students who hold a demonstration carrying posters that display the Mohammed cartoons. The University disciplines for violating some sort of rule that bars the creation of a “hostile educational environment” for various religious groups, or for that matter a rule that bars “conduct or speech that is outrageous, and that intentionally or recklessly inflicts severe emotional distress on some students.”

Professor Volokh specifically asks us whether we would be confident that judges would in fact distinguish these two scenarios or instead defer to university administrators in the wake of a ruling against the Phelps organization.  To be clear, I certainly believe that at the core of the First Amendment is the notion that speech must be tolerated even if the majority of society finds such speech abhorrent.  If abhorrent speech were not tolerated then the First Amendment would quickly become a nullity.  But I never found slippery slope arguments of the sort hypothesized by Professor Volokh very convincing.  While I’m not sure if judges would rule in favor of university administrators in such a manner, my belief is that they should not.  Funerals and educational settings are entirely different and distinguishable.  Free speech on university campuses is vital to the “marketplace of ideas” theory.  Where else are diverse viewpoints more important than higher educational settings?  But a funeral is no such marketplace.  Rather, funerals are perhaps the most solemn of human events and are immensely personal to the families involved.  They certainly aren’t public and do not carry nearly the same interest of fostering diverse viewpoints as a university campus.  Considering the context, I can’t help but think it provides ample room for distinguishing future speech-restricting scenarios and thus not make it the slippery slope that Professor Volokh fears.  It also provides some justification for an explicit funeral exception to the First Amendment.

Whether this decision is in line with the Constitution is debatable.  On the one hand, the text of the First Amendment is clear that “Congress shall make no law abridging the freedom of speech.”  If political expenditures constitute speech then there’s nothing in the text that differentiates between people and corporations.   On the other hand, it’s not cut and dry that such expenditures constitute speech, although the Supreme Court has long said that they do.   When I think of what the “freedom of speech” protects, I see a protester on a soapbox criticizing the government, a “lone pamphleteer” distributing a controversial essay, and, yes, even pictures of Barrack Obama in Joker makeup.  These are the quintessential examples of free speech.   The point of the First Amendment was, in my view, to limit the government’s ability to act as a form of thought police.

Whatever your take on what the Constitution actually protects, it is certainly an imperfect document.  I’ve written many times on this blog that the Constitution doesn’t protect a right to same-sex marriage.  But I’ve never said that this is a good thing.  When the Constitution doesn’t do the job, the only constitutional remedy is a constitutional amendment.

In response to Citizens United, Lawrence Lessig has proposed just that.  From Change Congress:

Such an amendment must secure not one side in a political debate against the
other. It must instead give Congress the power to support its own elections in a
manner that secures its own independence. Members in Congress must be, and
must seem to Americans to be, free of any dependency upon lobbyists, or
fundraisers, and instead be dependent simply “upon the People.” We need an
amendment that gives Congress the power to secure this independence.

I encourage anyone to read the full essay here. It’s stirring, moving and, most importantly, convincing.  There really is no good reason why Americans should settle for a political system that incentivizes corruption and disincentivizes bonafide leadership.

Jack Balkin argues that contemporary First Amendment doctrine is irrelevant in the face of 21st century free speech issues.  The modern day battle, as he sees it, is framed in the following way:

New technologies offer ordinary citizens a vast range of new opportunities to speak, create and publish; they decentralize control over culture, over information production and over access to mass audiences. But these same technologies also make information and culture increasingly valuable commodities that can be bought and sold and exported to markets around the world. These two conflicting effects- toward greater participation and propertization – are produced by the same set of technological advances. Technologies that create new possibilities for democratic cultural participation often threaten business models that seek to commodify knowledge and control its access and distribution. Intellectual property and telecommunications law may be the terrain on which this struggle occurs, but what is at stake is the practical structure of freedom of speech in the new century.

This dynamic certainly implicates free speech.  But the way I see it, this is a problem that is blind to the First Amendment itself – which prevents the government from abridging speech.  All of this implicates private parties in the private sphere.  Without a complete re-articulation of what the First Amendment is designed to guard against, it would seem that the Constitution is inapplicable here, right?

I recently came across a paper that makes an interesting argument.  The author argues that network neutrality legislation would likely trigger intermediate scrutiny by the courts, but might not survive it.  This is because network neutrality is akin to “must-carry” provisions that the Supreme Court has addressed in other contexts – namely in Turner v. FCC.  In order for the court to justify “must carry” provisions, which the author analogizes to network neutrality legislation, the government must demonstrate, with substantial evidence, that a real harm exists and that regulation will alleviate the harm.  Because the author thinks that the Court might find the harms surrounding network neutrality “conjectural,” legislation will not survive the inquiry.  In the face of this, the author essentially calls for a new First Amendment that recognizes the multi-speaker environment of the Internet.

I have two responses to this argument.  First, the paper seems to have been published prior to the Comcast/BitTorrent fiasco which put a very real face on the network neutrality debate.  If the harms of discriminatory policies implemented by ISPs were conjectural before the Comcast example, it certainly can’t be considered such in the wake of it.  So, if the author’s doctrinal rubric is the one that prevails in the courts, net neutrality legislation might survive a challenge.  That is, of course, if such legislation is ever passed.  The FTC is apparently warming up to enforcing such policies, but I feel like we’ve been hearing this for years.

Second, it seems that we should keep the First Amendment out of this debate.  If network neutrality is justified, it should be because policy makers on the ground see the regulatory merits in mandating non-discriminatory access to Internet content, notwithstanding the economic interests of the ISPs.  It seems unnecessary and unwise to create first amendment rights enforceable against private entities.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

By its text, it is unclear whether the Sixth Amendment is a promise not to interfere with somebody’s right to counsel or a promise to ensure that every defendant in a criminal prosecution is in fact represented.  But in Johnson v. Zerbst, the Supreme Court adopted the latter approach, holding that the federal government cannot convict a defendant who is not represented by counsel unless that defendant waives this constitutional right.  In subsequent decisions, the Supreme Court not only applied this requirement to the states, but also required the states to appoint counsel for those defendants that cannot afford one.

In the face of this, my buddy makes the following interesting point:

The Second Amendment has been acknowledged by the Court as guaranteeing an individual’s right to bear arms.  Surely, however, the Second Amendment does not require that government purchase a handgun for everyone who cannot afford one.  Further, the right to a free press does not mean that government needs to buy a newspaper company for anyone who would like to start one.  That cannot have been the original understanding.  Yet once the Court decides that government is required to pay for the right to counsel, why wouldn’t the Constitution require government to pay for other rights the Constitution guarantees?  Yes, there are very good reasons (and Gideon lists many of them) to provide counsel for the indigent (but not a gun or a newspaper company).  But, an originalist might ask, is this a Constitutional question?  Or might it be a policy question?

Here’s my response:

I think this is a pretty convincing post.  The only issue I have with your reasoning is that the three amendments that you cite (First, Second, Sixth) do not use the same language in protecting their respective rights.  Here’s how I read each right you discuss:

First: “Congress shall make no law . . . abridging the freedom . . . of the press.”
Second: “[T]he right of the people to keep and bear Arms, shall not be infringed.”
Sixth: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”

I suppose originalism places more emphasis on the intentions of the Framers rather than on the text.  But, as a textual matter, I think it’s possible to read the sixth amendment as mandating appointment of counsel to those who cannot afford it while not reading the first or second amendments as mandating government subsidized newspaper companies or guns.  The first and second amendments are restrictions on government action – they say what the government can’t do.  The sixth amendment seems to say what the government must do.

To be sure, I still think it’s a strong argument to say that mandating appointment of counsel to the indigent should be a matter for the legislatures since the Constitution’s text is not that clear on the matter.  But, at the same time, it seems that someone who does think it’s a matter of constitutional law can distinguish the nature of such a right from others protected in the Bill of Rights.

I’m really not sure how convincing my response is.  But my point here is to highlight the importance of the precise words that the Constitution uses.  I agree that the Sixth Amendment, by its terms, does not necessarily guarantee appointment of counsel to the indigent.  But using other protected rights to draw parallels is risky if the language doesn’t protect the right in the same way.