Richard Epstein on Morals and the Police Power in Free Speech Cases

Following on a friendly debate between Hadley Arkes and me last summer (here and here) over some of the Supreme Court's recent First Amendment cases, this essay by the always-interesting Richard Epstein at the Liberty Law Blog departs from the standard libertarian view in some provocative ways by contrasting judicial deference to legislative judgment on economic matters to judicial scrutiny on matters of speech and religion. As Epstein writes, "The deferential 'rational basis' inquiry on matters of property and contract is worlds apart from the searching 'strict scrutiny' inquiry often brought to the regulation of religion and, especially, speech." He then makes the argument that Snyder v. Phelps (the funeral protest case) and Brown v. EMA (the violent video games case) represent an unwelcome limitation on the morals aspect of the police power and disregard of common law rules.

On Snyder v. Phelps:

The Supreme Court knocked out these damages by resorting to a simple-minded paradigm of free speech cases that stated that since this speech was a “public, not private concern” the Church’s speech “occupies the ‘highest rung of the hierarchy of First Amendment values’ and is entitled to ‘special protection.’”  Unfortunately, this approach takes a certain kind of moral blindness not to see the difference between this sorry episode and the speech involved in a political debate over the future of the country.  The common law rules that always held that both falsity and latent aggression were reasons to allow damage actions after the fact, but not injunctions before the fact, reflect a very different set of sensibilities, and Chief Justice Roberts at no point explained why his view was better than the common law position.  Recall that the First Amendment protects freedom of speech, which does not mean that all speech is free of bad consequences.  The libertarian concern with force and fraud applies to speech as well as action, and it makes a lot of sense in this context to read the First Amendment as a protection against government encroachment into areas of protected political debate and artistic expression. But it hardly follows that this commitment offers courts a warrant to disregard the common law categories that have stood the test of time.

On Brown v. EMA:

As a matter of morals regulation this statute would not raise the slightest peep from any nineteenth century judge.  Any judge who would let the legislature keep bowling alleys off limits to the young would rest easy with this statute on the books.  But to read Justice Scalia’s opinion, one would think the entire edifice of freedom of speech would collapse of its own weight if this statute were allowed to remain on the books.  Justice Scalia relied explicitly on the Supreme Court’s 1952 decision on Joseph Burstyn, Inc. v. Wilson, which rightly struck down a general censorship rule that required all films to go through a preclearance before being released.  The more modest reach of the California statute makes the two cases readily distinguishable.

The replies to Epstein by Paul Salamanca and Adam White are also worth checking out.