IN THE NAME OF CELEBRATING what he sees as the music and poetry of the First Amendment, and with impeccable credentials — as former national legal director of the ACLU, founding legal director of the Brennan Center for Justice, and a professor of civil liberties at NYU Law School — Burt Neuborne unexpectedly sounds a sour note by urging courts to significantly cut back on constitutional protection for freedom of expression and to trust the government when it comes to regulating free speech.
Neuborne begins well, imagining that when James Madison crafted the First Amendment in 1789 at the First Congress, as part of what would become the Bill of Rights, he wrote a “textual blueprint for a robust democracy.” Neuborne explains that the
thesis of this book, dear reader, is that a careful study of the order, placement, meaning, and structure of the forty-five words in Madison’s First Amendment will trigger a responsive poetic chord in you that will enable us to recapture the music of democracy in our most important political text.
Madison deploys the foundational concepts in his First Amendment on a disciplined inside-to-outside axis, beginning in the two religious clauses with freedom of thought, progressing through three ascending levels of individual interaction with the community — free expression of an idea by an individual, mass dissemination of the idea by a free press, and collective action in support of the idea by the people — and culminating in the petition clause with the introduction of the idea into the formal process of democratic lawmaking. In short, a chronological description of the arc of a democratic idea — from conception to codification.
It’s intriguing to wonder if Madison himself had this progression in mind. But Neuborne declares that this “is not a work of history.” He readily disclaims having any special expertise about Madison’s interior life or his subjective purpose, and does not “claim that Madison himself was wholly responsible for his music.” Curiously, what we do know (as Neuborne himself acknowledges) is that Madison would have preferred to integrate throughout the Constitution the provisions that other drafters eventually organized into a separate Bill of Rights. This established historical fact seriously undermines Neuborne’s premise that Madison rigorously composed the chronological order, placement, and structure of the First Amendment.
Neuborne excuses himself from citing anything in Madison’s writings or speeches or in the writings or speeches of any of his contemporaries or in the work of any historian or legal scholar to support the notion that Madison (or anyone else) placed any significance on the particular order in which the rights guaranteed by the First Amendment are listed.
That Neuborne may be the first to focus on the order and placement of the terms of the First Amendment is of less importance than that he fails to make the case why there is anything lyrical, musical, or poetic in that order, placement, and structure, or more importantly, that any of this has or will make any difference in how the First Amendment should be interpreted or applied. Neuborne repeatedly argues that it is “tragic” that the Supreme Court has “utterly ignored Madison’s music,” but he does not cite a single decision that would have been decided differently based on the specific order or placement in which the rights in the First Amendment are listed. He does argue that in certain cases the Supreme Court should rely more on the First Amendment instead of the 14th Amendment, but not because of the order and placement in which the rights are listed.
Indeed, the book is reduced to little more than imaginative throat-clearing, which never matures into a useful theory of jurisprudence. Would it make any difference if the clauses protecting Free Speech and Free Press were listed before rather than after the Establishment or Free Exercise clauses or after rather than before the Petition clause? Would any specific doctrine of First Amendment law more robustly advance the goals of our democracy if the Court took into consideration the particular order in which the rights are listed in the First Amendment? Neuborne leaves these questions largely unexamined.
To be sure, Neuborne levels trenchant criticism against Supreme Court decisions regarding a wide range of issues (including in particular campaign finance reform and voting rights), but he never explains how these specific cases would have been decided differently had the Court considered the order and placement in which the rights in the First Amendment are listed. Neuborne is a lively and engaging writer, but his book promises more than just another critical survey of Supreme Court decisions, and he does not deliver on that promise.
If that were all, it would be disappointing. But it’s worse. In the midst of paying lip service to the “music” and “poetry” of the First Amendment, Neuborne executes a disturbing “bait and switch” by turning his book into an argument in favor of less First Amendment protection and more government regulation of free speech.
In the pantheon of landmark First Amendment decisions, few are as important as New York Times v. Sullivan (and its progeny), in which the US Supreme Court in 1964 decided that in defamation cases brought by government officials (and later public figures) the First Amendment requires that a plaintiff not only prove that the defendant published a false statement, but also that the defendant was motivated by “actual malice,” i.e., the defendant actually knew the statement was false or published it in reckless disregard of the truth.
Speaking for a unanimous Court, Justice William Brennan wrote that
we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
According to Kenneth A. Paulson, president and CEO of the First Amendment Center at the Newseum in Washington, DC, and dean of the College of Mass Communication at Middle Tennessee State University, Sullivan “changed American journalism. It set the stage for the boom in investigative reporting in the decades to follow and truly invigorated the watchdog role of the press.” As Anna Stolley Persky wrote in the ABA Journal, “Columbia University law professor David Pozen, who specializes in constitutional and national security issues, says that Sullivan and other cases from that era are ‘seen as valorizing an aggressive form of journalism and promoting the idea that courts are the institutional safeguards of that kind of journalism.’”
But Neuborne would change all that. He would replace the Sullivan “actual malice” standard with a much higher duty, requiring that writers, speakers, and the media meet a “reasonable standard of care” in determining whether to utter “harmful speech.” He claims that’s what “good” journalists do. He ignores the devastating impact this would have on journalism and freedom of expression — judges and juries would be empowered to decide whether a speaker had acted “reasonably,” like “good” journalists do, even if there was no proof that the speaker actually knew his or her statement was false. And judges and juries could decide that controversial or unorthodox speech was “harmful.”
But as Justice Robert Jackson wisely wrote in 1943, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Without referring to Justice Jackson by name, Neuborne complains that the “modern First Amendment is shaped by an almost pathological mistrust of government’s ability to regulate speech fairly.”
“Pathological”? Between Neuborne and Justice Jackson, who also served as attorney general of the United States and chief US prosecutor at the Nuremberg trials, Justice Jackson makes the far better case that the whole point of the First Amendment is not to trust the “government’s ability to regulate speech fairly.” Or better yet, as James Madison himself put it: “The truth is that all men having power ought to be mistrusted.”
Neuborne apparently missed the poetic force of Madison’s warning. Instead, he urges that First Amendment limits imposed on governmental restrictions on speech “be loosened to give the regulators some breathing room.” Ironically, whereas Madison and modern First Amendment law seek to give free speech the “breathing room” it needs, in Neuborne’s hands it’s the government that needs “breathing room” to regulate speech.
Elsewhere in his book, Neuborne contradicts himself. He applauds Madison for understanding that
the habits of thought that enable free people to govern themselves justly and well — respect for individual dignity, a healthy sense of self-worth, curiosity about and respect for others, skepticism about absolutes, toleration of disagreement, and openness to change — cannot thrive without a steady flow of unfiltered information, ideas, and opinions about art, philosophy, literature, science, technology, history, ethics, economics, psychology, sociology, sex, leisure, and business.
But then he argues that “unwilling hearers” should be shielded from “false, offensive, denigrating, or even frightening speech.” He seems oblivious to the fact that one person’s “ideas and opinions” on that list of everything from art to business might be thought to be “false, offensive, denigrating, or even frightening” to someone, somewhere, thereby allowing the government Neuborne is so willing to trust to impose restrictions and limitations.
As just one example, Neuborne complains that “Holocaust survivors living in Skokie, a largely Jewish suburb of Chicago, had no right to be shielded from Nazi marchers who chose to display swastikas and other Nazi regalia in the Jewish suburb precisely because the symbols would upset the elderly Jewish victims.” The most compelling refutation to Neuborne’s position on Skokie and indeed to his entire project of limiting free expression in the name of protecting “unwilling hearers” was made by Aryeh Neier, former executive director of Human Rights Watch, who was born in Nazi Germany and became a refugee when his family fled in 1939 when he was two years old. He was national director of the ACLU at the time of the Skokie controversy. What he wrote on this question in his book Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom (1979) is worth quoting in full:
Because we Jews are uniquely vulnerable, I believe we can win only brief respite from persecution in a society in which encounters are settled by power. As a Jew, therefore, concerned with my own survival and the survival of the Jews — the two being inextricably linked — I want restraints placed on power. The restraints that matter most to me are those which ensure that I cannot be squashed by power, unnoticed by the rest of the world. If I am in danger, I want to cry out to my fellow Jews and to all those I may be able to enlist as my allies. I want to appeal to the world’s sense of justice. I want restraints which prohibit those in power from interfering with my right to speak, my right to publish, or my right to gather with others who also feel threatened. Those in power must not be allowed to prevent us from assembling and joining our voices together so we can speak louder and make sure that we are heard. To defend myself, I must restrain power with freedom, even if the temporary beneficiaries are the enemies of freedom.
Neier’s powerful and compassionate comments reflect the words of the Seventh Circuit Court of Appeals in its decision in Collin v. Smith, upholding the right of the Nazis to march in Skokie:
Our task here is to decide whether the First Amendment protects the activity in which appellees wish to engage, not to render moral judgment on their views or tactics. No authorities need be cited to establish the proposition, which the Village does not dispute, that First Amendment rights are truly precious and fundamental to our national life. Nor is this truth without relevance to the saddening historical images this case inevitably arouses. It is, after all, in part the fact that our constitutional system protects minorities unpopular at a particular time or place from governmental harassment and intimidation, that distinguishes life in this country from life under the Third Reich.
Given Neuborne’s illustrious career as a civil liberties lawyer and all the battles he has fought to protect the First Amendment, it is distressing that he has turned his back on these fundamental principles and instead has devoted his considerable skills and rhetorical gifts to writing a book undermining what Justice Brennan called a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Inevitably, enemies of the First Amendment will relish citing Neuborne’s book in future cases to convince courts to limit or restrict freedom of expression.