Our Jurisdictional (Not Relativistic) First Amendment

You know we live in interesting times when Chief Justice Roberts and Justices Scalia, Kennedy, Ginsburg, Alito, Sotomayor, and Kagan are lined up against Justices Thomas and Breyer, Archbishop Charles Chaput, Cathy Kaveny, and MOJ’s own Steve Shiffrin. To that mix, add Hadley Arkes today at Public Discourse writing on Brown v. EMA (the California violent video games case, though I still prefer the earlier caption, Schwarzenegger v. EMA) and charging Justice Scalia with “add[ing] yet another step to the acceptance over the years, of the law on speech that has been built on the premises of Justice Harlan’s relativism: ‘One man’s vulgarity is another’s lyric.’” 

With all due respect to Hadley, I think I see things a little differently. The First Amendment is not a sanction for moral relativism but is instead a judicially enforceable limitation on the power of the government to prescribe orthodoxy in the expression of ideas (a "jurisdictional" interpretation of sorts). Now, there are interesting disagreements that consume my friends who work on the First Amendment over what counts as protected “speech” and the appropriate level of scrutiny of government restrictions on various types of speech. But outside of a narrowly circumscribed set of cases, the government is powerless (“shall make no law”) to limit speech. That’s why I regard the recent spate of controversial First Amendment cases as, for the most part, correctly decided and, in some instances, obviously so—U.S. v. Stevens (animal cruelty videos), Snyder v. Phelps (tort liability for funeral protest), Citizens United v. FEC (limits on independent campaign expenditures by corporations and unions), Davis v. FEC (“Millionaire’s Amendment” to Bipartisan Campaign Reform Act), and, most recently, Brown v. EMA (violent video games), Sorrell v. IMS Health, Inc. (prescription drug "data mining"), and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett (public finance matching funds scheme). 

A minor doctrinal disagreement I have with Arkes’s characterization of R.A.V. v. St. Paul in an earlier piece at the First Things web site (where Arkes took Justice Alito’s side in Snyder v. Phelps) and again today is, I think, illustrative of the larger point. Arkes wrote back in March at First Things that Justice Scalia’s opinion in R.A.V. v. St. Paul was based on the “presumption that any attempt to judge the content of speech was on its face invalid,” and today he writes:

Scalia would insist yet again that it is arbitrary to cast moral judgments on the “content” of speech. The same doctrine that led him to accept, as free expression, the burning of crosses…now leads him to withdraw any ground of judgment, or moral restraint, on a class of “entertainments” that occasioned no particular strain in the past as they were brought under a regimen of legal restraint.

But this misinterprets Justice Scalia’s opinion for the Court in R.A.V. (joined by Chief Justice Rehnquist and Justices Kennedy, Souter, and Thomas) as a bald claim of moral relativism about whether the burning of crosses is a good thing or a bad thing. Instead, R.A.V.stands for a much narrower (but, from the standpoint of First Amendment precedent, very important) principle that, even within a class of otherwise constitutionally proscribable speech (fighting words or assault), the government cannot make a content-based discrimination and carve out some forms of such speech for especially punitive treatment:

The content based discrimination reflected in the St. Paul ordinance comes within neither any of the specific exceptions to the First Amendment prohibition we discussed earlier, nor within a more general exception for content discrimination that does not threaten censorship of ideas. It assuredly does not fall within the exception for content discrimination based on the very reasons why the particular class of speech at issue (here, fighting words) is proscribable. As explained earlier, the reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression—it has not, for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner. Rather, it has proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas. That possibility would alone be enough to render the ordinance presumptively invalid, but St. Paul’s comments and concessions in this case elevate the possibility to a certainty. 505 U.S. 377, 393-94 (1992).

So where Arkes sees moral relativism, I see an appropriate limitation on the authority of the state to censor the expression of ideas. This isn’t (I hope) because I’m in the grips of moral relativism but because that’s what the text and interpretive history of the First Amendment require.