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

April 14, 2003
Lillian BeVier
Professor Bevier gave her chair lecture, "Whither Free Expression?" April 3 at the Law School.

John S. Shannon stands to applause.

A Life Member of the University of Virginia Alumni Association and the Law School Dean's Council, John S. Shannon '55 (standing) was the chief legal officer of Norfolk & Western and its successor corporation, Norfolk Southern, for a total of 27 years. When he retired in 1996, Norfolk Southern Corp. agreed to donate $100,000 in his honor, which Shannon helped raise to $1 million to endow the John S. Shannon Distinguished Professorship in Law.

The Supreme Court justices may as well be wandering through the wilderness without knowing which way their compass is pointing when it comes to the First Amendment, since their decisions reveal ad hoc judgments rather than any concrete theory or rationale of free speech, according to law professor Lillian BeVier, who presented her John S. Shannon Distinguished Professor of Law 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.

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 flag-burning 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.

Instead of constructing a core theory, the Court has created a "multiplicity" of tests to determine whether any given case of free speech is valid or not, including such variations as a four-part test for determining the validity of commercial speech regulations or two tests for determining the validity of regulations of student speech.

"The application of all these tests to the facts of actual controversies tends to produce opinions that are charitably described as rhetorically clunky," BeVier said. She argued that the formulas offer little guidance or constraint when tough questions come to the Court, resulting in ad hoc judgments.

BeVier cited two free speech cases before the Court that would be difficult to settle based on such tests, one of which coincidentally was decided the day of her lecture — Virginia, Commonwealth v. Black, which upheld 6-3 a Virginia statute forbidding cross burning on another's property, a highway, or a public place with the intent to intimidate. Basing their decision on a prior U.S. Supreme Court case, RAV v. City of St. Paul, Virginia's Supreme Court had held the statute unconstitutional because it was hostile to the message of racial hatred that cross burning conveys.

But "RAV did not hold that any selective viewpoint-based restriction on otherwise unprotected speech is unconstitutional — if a statute targeted particular unprotected speech for the very reason the entire category [of "fighting words"] is unprotected, then the selective regulation will be sustained." Because the statute specified "'with the intent to intimidate' — it may be proscribed precisely because it is a particularly terrorizing and threatening symbol." In the Court's decision, the three dissenters found that cross burning is inevitably tied up with viewpoint discrimination, of which the Court is in most cases "very suspicious."

The second case, Kasky v. Nike, is a commercial free speech case involving Nike's attempts to counteract bad press about its labor practices in foreign factories by using press releases, letters to newspapers, letters to university presidents and athletic directors, and full-page newspaper ads claiming that Nike protects workers from abuse, pays them a "living wage," gives them free meals and provides health care. Californian Marc Kasky sued Nike for false advertising under California's "exceptionally broad" unfair competition statute, which allows citizens to sue commercial enterprises for "'any unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising.'" In response, Nike claimed its efforts were not advertising but commentary on issues of genuine public concern.

BeVier said the Court decided in 1976 that commercial speech would be protected to a lesser degree than non-commercial speech. If an airline ad makes a false claim that another airline has the worst on-time record in the industry, and the same claim is made by a newspaper article, the former is likely to be held liable for the false statement, whereas the non-commercial speaker is likely to be considered constitutionally privileged. While lower courts agreed with Nike, the California Supreme Court decided that Nike's speech was commercial.

"A lot rides on whether a particular party's speech is commercial or not commercial," BeVier said. The Court's own four-part test for assessing the validity of commercial speech regulations will likely prove unhelpful in resolving Nike because "the Court has never actually specified what kind of speech commercial speech is … it's difficult to predict how the Court in Nikewill decide the category question."

Dissenting judges in the California Supreme Court feared that "holding Nike to a standard of strict liability for its speech would deter future commercial speakers from engaging in debate about important issues."

Precedents offer little help in determining what the Supreme Court will decide, she added, in particular because it's not clear whether the speech was commercial. If Nike wins, it may not be because their speech is non-commercial, but because of the facts of the context in which the public relations campaign was launched. A debate of "intense public interest" about Nike's labor practices and the consequences of globalization could legitimately include Nike's voice.

"The commercial speech doctrine that the Court has fashioned to date does not begin to get at the First Amendment heart of the dilemma that the case presents," she said. "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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