Monday, November 2, 2009



Over the last few weeks, I've had the chance to read some Supreme Court cases. I always keep a long list of cases I want to read. I have not had much time to write as much as I'd like lately, so I've taken the chance to read a few. That's not to say that Supreme Court cases freshen my outlook. To the contrary, they often confirm my overriding belief that the Supreme Court is full of shit. As a satirist, I need to see foolishness at work in order to properly mock it. Both sadly and thankfully, the Supreme Court keeps me well-stocked with preposterous arguments, as well as unabashed ideology masquerading as neutral legal principle.

If I had to choose an area of constitutional law that interests me the most, I would choose the First Amendment. The First Amendment is the soul and conscience of the Constitution. It is the intellectual nucleus of our liberal republic. Although the Framers may have conceived it very differently than the way we understand it today, it is a beacon of individual hope in an otherwise dully administrative document. The First Amendment protects the individual freedom to speak, write, think and express ourselves as the people we are. It forbids government from punishing us because we hold beliefs or profess religions. It also guarantees a free press, ensuring that--at least in theory--every voice has a forum to be heard. While that may not technically be true in an age when money translates into the power to circulate messages, it at least espouses a strongly positive ideal: That all voices have worth, no matter how much the majority rejects them.

These are metaphysically good principles in which anyone can believe. In fact, they are so good that both American patriots in the 18th Century and revolutionaries in later times died for them. Without the First Amendment or something like it, we could not truly say what we mean in life. And when we cannot say what we mean, we cannot be who we are. In that sense, the First Amendment is all about individuality. That is inspiring. That is why I like studying it. It is not just about property and penalties. It is about ideas and expression. There are not many legal areas that impact such profoundly philosophical questions. I like profundity more than banality.

But there is a sharp distinction between First Amendment theory and Supreme Court practice. For better or worse, nine men and women have the sole authority to determine whether government violates First Amendment principles in individual cases. In these clashes between the individual and government, the Court sometimes favors liberty. At other times, it permits government to stamp out individual self-expression. Supreme Court justices say they "rule according to the law." But in First Amendment cases--as in virtually all hotly-debated constitutional areas--the justices barely mask their own political and ideological leanings. They use law merely as a cloak to justify deeply biased political conclusions. Behind all the technical analysis and supposed detachment (many justices abandon detachment altogether) stands stark, flawed humanity. Despite their pedigrees, resumes and degrees, justices are human beings. And human beings are woefully imperfect.

When it comes to the First Amendment, the justices' personal values influence everything they do. If they do not like certain messages, they will find a way to voice hostility toward them. This takes some artifice, of course, because the Constitution forbids government from suppressing speech "solely because it disapproves of the content." But the Court has fashioned doctrines to outmaneuver this result. It allows government to target speech if it artificially regulates the "time, place and manner" in which the speech occurs. So if a city wants to stop communists from speaking, it can say they can only hold a parade on Tuesday at 3 AM in some uninhabited back alley. Obviously, government does not like communist messages. Although it cannot literally ban communism as "content," it can achieve the same result by targeting the "time, place and manner" of communist speech. In this way, the Supreme Court allows government to cloak its own hostility toward certain ideas by phrasing its disapproval in more "neutral ways." The result is often the same: Government does not like certain speech and successfully suppresses it.

Our Supreme Court has burrowed deeply into the First Amendment. The freedom to express individual ideas carries so many exceptions that it is now almost an illusory right. Without going into exhaustive detail, government can suppress speech not only because it occurs in "inappropriate places (ie, schools)," at "inappropriate times (ie, late at night)" or in an "inappropriate manner (ie, too loud)," but also because the speech itself is categorically "obscene," "defamatory," "inciting," or "reasonably likely to lead an average person to come to blows with another." The burden lies on the government to establish that the "dangerous speech" falls into one of these categories, but the Court has been surprisingly accommodating toward government over the years. In fact, it has been so accommodating that it has permitted government to regulate speech even beyond the "traditionally unacceptable categories."

Renton v. Playtime Theaters, 475 U.S. 41 (1986), provides a ready example. That case involved a municipal effort to crack down on porn shops. It was clear that the city simply did not like porn, even though porn is technically "speech" under the First Amendment. So the city enacted zoning laws that forced porn shops into run-down industrial neighborhoods. The law treated porn shops differently solely because they engaged in the porn business; in other words, their speech made them targets. But the Court did not call this "impermissible content regulation." Rather, it fashioned a new exception to the First Amendment: the "secondary effects doctrine." Through this sleight of constitutional hand, the Court proclaimed that government does not violate the First Amendment if it merely wishes to regulate the "effects of speech on the community," rather than the "speech itself." Under this approach, the city in Renton just had to say it enacted the law because it wanted to keep crime down and property values up. Then it said that porn "speech" caused crime to rise and property values to sink. The Court validated the restriction and the porn shops had to move.

In 2002, the Court revisited Renton in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). There, the city enacted an ordinance forbidding more than one "adult business" from operating in the same building. No other business was subject to the restriction. The city said it enacted the ordinance because it wanted to control the "secondary effects" of "multiple adult businesses" in the same vicinity. It invoked the earlier Renton case for support, even though it had no real evidence to show that splitting up two related porn shops in the same building would reduce crime or boost property values. The Court was satisfied with a cursory 1977 study that anecdotally linked porn shops with higher crime rates, even though that study predated the ordinance by more than a decade. In sum, the Court had no problem sustaining a clearly speech-prohibitive, discriminatory law by invoking a doctrine it invented only sixteen years earlier.

In my view, this shows the Court's great willingness to ignore the First Amendment when its members do not like the speech at issue. Obviously Chief Justice Rehnquist and Sandra Day O'Connor did not like porn shops...just look at them:

As much as the majority in Alameda Books may have believed that "constitutional jurisprudence" dictated their conclusion in the case, I venture that it was simply a value judgment. Republicans (all five justices in the majority here were Republicans) don't like porn--well, at least publicly they say they don't. Those values influenced their decision whether to allow government to regulate it. After all, the law in Alameda Books specifically targeted only porn shops. The regulation turned upon the content of the speech. Although that seems to violate the First Amendment's ban on "content regulation," the Republicans found a way to sidestep that result. How? Simple: Values. When a justice doesn't like speech, he or she will find a "legal exception" to suppress it. That's the problem with law.

But there is more to the story. Justice Kennedy issued a bizarre concurrence in Alameda Books that brings another troublesome issue to the fore: Legislative intent. Kennedy--also a Republican, but a grandiose one with a penchant for self-righteous oratory (he's Catholic, too)--said he was "troubled" by the liberal argument that the statute in the case targeted porn shops "solely because of their speech." So he quieted himself by reasoning that a city could rely on the "secondary effects doctrine" as long as it did not "proportionally affect speech." In Kennedy's view, the law in Alameda Books was sound because it had an effect on bad "secondary effects" (good) without affecting the "quantity of speech" (bad) in equal measure. Put another way, because the legislature only specifically targeted "secondary effects" and allowed porn shops to open under separate roofs, it reasonably lowered "secondary effects" without "completely muzzling their expression."

This is a fanciful distinction. In essence, it appears that Justice Kennedy believes that a legislature's stated intent suffices to determine whether it has adopted a "content-specific" speech regulation. Here, it seems obvious that the Los Angeles city council did not like porn shops because they engage in "porn speech." It offended the councilmen's values. They simply did not like the speech. But they escaped constitutional consequence because they said they were concerned about "secondary effects," not the "speech itself." The statute visibly discriminated against porn shops based on their speech, yet Justice Kennedy said that was fine because the legislature had the right intent.

It defies belief to say that a city would not "reduce the quantity of certain speech" if its regulations drive its speakers from the marketplace. Why else would the city want to close down porn shops if it did not like what they were saying? It is too easy to mouth the words "secondary effects" when in fact the legislature flat-out doesn't like porn.

These are important questions because speech regulations are dangerous. When government succeeds in suppressing speech, it gains precedential authority to suppress even more. When the Supreme Court simply goes along with the program, our rights as individuals steadily decline. True, no one wants to crusade for a porn shop's right to sell smut. But the First Amendment does not distinguish between right and wrong speech. If it is speech, we presumptively protect it. Individual freedom depends upon the freedom to express ourselves. And when the Supreme Court slowly allows government to bar us from speaking in certain ways, our liberty slowly suffocates, too.

In short, Supreme Court justices should defer to the individual interest in self-expression in doubtful cases, not the value-laden judgments of local governments. If it allows government to regulate speech content merely by proffering a flimsy "secondary effects" justification, it will not take long to dismantle the First Amendment. If there is one constitutional guarantee that we must defend, it is the guarantee that government will presumptively not regulate the substance of our thoughts and expressions, no matter how unpopular they may be.

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