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Court’s First Amendment Decisions Lack Guiding Theory, BeVier Says

Professor Lillian BeVier

When it comes to the First Amendment, the Supreme Court justices may as well be wandering through the wilderness without knowing which way their compass is pointing since their decisions reveal ad hoc judgments rather than any concrete theory or rationale of free speech, according to Law Professor Lillian BeVier. BeVier presented these views in her John S. Shannon Distinguished Professor of Law inaugural chair lecture, “Whither Free Expression?” at the Law School April 3.

“The most important point I want to make is conveyed by the question mark” in her lecture’s title, she said. “I’m not going to tell you where free expression is headed—because I do not know.”

In the early 1970s the Court seemed poised to converge on a central meaning of the First Amendment, she said, as the focus of the debate shifted to the relationship of free speech to democratic government. It appeared that the Court had determined that free speech at its core protected speech about government or political speech. BeVier pointed to two cases, New York Times v. Sullivan (1964) and Brandenburg v. Ohio (1969), which showed this emerging consensus. In the former case the Court determined that debate on political issues should be “uninhibited, robust, and wide open,” and because “erroneous statement” is inevitable in such an environment, it must be protected for free speech to survive. To recover damages in a lawsuit regarding falsehoods about their conduct, public officials would have to prove such statements were made with “actual malice.” The second case, Brandenburg, undermined the traditional doctrine of “clear and present danger” in favor of forbidding a state from punishing those who advocate using force or breaking laws unless it is directed toward causing imminent lawless action and is likely to produce such action.

“I do think that the Court has dug a deep doctrinal hole for itself, and that it has filled that hole with precedents that have for good or ill become embedded in the legal fabric and that cannot and perhaps ought not to be dislodged.”

In ensuing cases, however, the Court showed it had no intention of limiting the First Amendment to speech about government, BeVier said. The Burger Court not only extended commercial speech rights, limited the scope of exclusion of “fighting words” (which are unprotected), protected nude dancing and the right to show naked bodies on drive-in movie screens, but also gave more rights to the press—including facilitating more access to the legal system despite fears about compromising the right to a fair trial, and allowing the Washington Post to publish the Pentagon Papers despite national security concerns. On the other hand, the Rehnquist Court has protected flagburning and has cited the First Amendment in a decision allowing the Boy Scouts to exclude homosexuals from their ranks.

“What the examples illustrate is that the array of cases on the Court’s First Amendment menu has for the last 25 years included—and continues to include—as many issues at the periphery as it includes issues at the core,” BeVier said, and the Court has failed to connect the core values stated in New York Times v. Sullivan—the commitment to open debate on public issues.

“I do think that the Court has dug a deep doctrinal hole for itself, and that it has filled that hole with precedents that have for good or ill become embedded in the legal fabric and that cannot and perhaps ought not to be dislodged.”

BeVier added that the challenge for the academy is to try to find ways to dispel incoherence in Court doctrine. If academics have become “unwitting accomplices” to the Court, sometimes eager to exploit incoherence or accept it as inevitable, “we must bear some of the responsibility for the Court’s having lost its way.” She said it is the academy’s job to keep looking for a theory about what the First Amendment is for.

The Court’s own explanations of its decisions can leave observers confused about how the justices interpret their own precedents. Sensitive readers of the Court’s decisions may be able to determine where future decisions will fall, but “how the Court’s going to explain it is a different matter.”

She likened the Court to the conductor of a train heading out of Grand Central Station, attempting to navigate the myriad crossing tracks.

“Unfortunately, however, I know there’s nobody at the switch and I fear that free expression is trying to stay on all those tracks at once, and thus is likely to go—whither?”

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