Limits of a Libertarian First Amendment
I had a few thoughts I wanted to share in response to Glenn Greenwald’s thoughtful reply to Mike Konczal and Jeremey Kessler’s Bloggingheads discussion re Citizens United.
1) I certainly agree that there’s something distinguishable between right-wing libertarianism and the First Amendment views of Mr. Greenwald, the ACLU, and Eliot Spitzer. The support for public financing is an extremely important difference, and I would be very curious to know what types of public matching or leveling, if any, Mr. Greenwald believes would be consistent with the First Amendment.
The word “libertarianism” is not entirely out of place though. There was a pretty clear turn toward civil libertarianism in First Amendment doctrine in the 1920s and 30s, led by one of the most liberal justices to ever sit on the Court, Louis Brandeis. And it’s a view that won over many on the Roosevelt Court and Warren Court as they made First Amendment into the highly speech-protective doctrine we currently recognize. In short, it's possible to take a civil libertarian view of the First Amendment without being libertarian more generally. A lot of great justices have done precisely that.
There are, however, good arguments to be made that this libertarian doctrine has grown too weak in some places (notably, the government response to Wikileaks and Occupy Wall Street) and that it’s grown too robust in others (the expansion of First Amendment rights to cover corporate labeling, the sale of prescription data, and decisions by management to spend shareholder money). It’s precisely this divergence that should prompt liberals to question how well current First Amendment doctrine is protecting unpopular speech and how often it’s protecting the powerful at the expense of the politically marginalized.
2) In response to Mr. Greenwald’s point that opposing Citizens United for its consequences is not a valid basis for opposing the decision as a matter of law, it’s important to emphasize that as a descriptive matter legal and policy arguments are not so easily separated.
As legal realists and critical legal theorists have been documenting for decades, there are no objective criteria for judges to select among inconsistent interpretive theories. This is why Judge Posner, for instance, came around to what he called “legal pragmatism” and has been a consistent critic of Scalia and originalism more generally. (“The originalist faces backwards but steals frequent sideways glances at consequences.”) And it’s how the constitutional challenge to Obamacare moved so quickly from the right-wing legal fringe to a winning argument in a matter of months. While there are more and less established/legitimate interpretive theories, it's simply inevitable that a judge's normative views—whether consequentialist or derived from principles—will inform their interpretive choices and ultimately their rulings.
3) But more in response to the concern about the strength of the legal arguments against Citizens United: The United States has a long history of spending limits, and there are a number of textual theories that could once again support the constitutionality of more restrictive campaign finance regulations. They just happen to be somewhat out of favor with many of the current justices.
For instance, there is Justice Stephen Breyer's "Making the Democracy Work" theory of the larger Constitution, which takes the position (as reflected in Baker v. Carr and Reynolds v. Sims) that the Court has an obligation to ensure the legitimacy of democratic process. And even if the justices have reservations about taking on an active oversight role, there is a strong institutional argument that the Court should give greater deference to Congress when it chooses to limit its own conflicts of interest. Alternatively, there's the Article IV guarantee of republican government clause that could be revived to find some oligarchic configurations unconstitutional.
Within First Amendment jurisprudence, there are a number of options in terms of expanding what compelling interests the state might advance. As recently as Austin, the Court recognized there were valid state interests in preventing corruption, the appearance of corruption, and distortions to the democracy. Alternatively, the Court could reverse Buckley and create a more circumscribed doctrine around the notion 'money is speech' by recognizing the nation's long history of regulating campaign spending and economic activity more generally. Critically, any such reworking should remain committed to content neutrality and viewpoint neutrality that has made the American First Amendment such an exceptional tool in defending political minorities.
Some of these theories are more susceptible to charges of activism than others, and each has inherent limitations. But constitutional consensus moves, and it’s important that that consensus reflects the document’s democratic and egalitarian commitments as well as its libertarian ones. In light of the oligarchic trend in American politics, this is an important moment for the left to reevaluate how well its commitment to a civil libertarian theory of the First Amendment is working out.
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