Hohfeld's first amendment

George Washington Law Review

Volumn 76, Issue 4, 2008, Pages 914-932

  Schauer, Frederick ^a,b  

^a HARVARD UNIVERSITY   (United States)

^b BALLIOL COLLEGE   (United Kingdom)

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EID: 51849091516     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (84)

1. U.S. CONST. amend. I.
2. Near v. Minnesota ex rel. Olson. 283 U.S. 697, 707 (1931); Stromberg v. California, 283 U.S. 359, 368 (1931); Gitlow v. New York, 268 U.S. 652, 666 (1925).
3. See generally Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1913).
4. Compare, e.g., Phelps v. President of Colby Coll., 595 A.2d 403, 403 (Me. 1991) ("[T]he first amendment secures only the right to be free from governmental interference . . . ."). with Papish v. Bd. of Curators of Univ. of Mo., 410 U.S. 667, 670 (1973) (restricting state university's power to curtail dissemination of ideas).
5. Compare George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1230 (9th Cir. 1996) (finding that employee alleging infringement of First Amendment rights by private employer must make showing of state action), with Rankin v. McPherson, 483 U.S. 378, 383 (1987) (applying First Amendment to speech in a government workplace), Connick v. Myers, 461 U.S. 138, 140 (1983) (recognizing some free speech rights in government workplace), and Pickering v. Bd. of Educ. 391 U.S. 563, 574-75 (1968) (holding that public employee has some First Amendment rights against dismissal based on the content of a public speech).
6. Cf. Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (holding that states may impose access obligations on owners of private property, but not if those requirements would restrict the owners' own First Amendment rights). Compare Hudgens v. NLRB, 424 U.S. 507, 521 (1976), and Lloyd v. Tanner, 407 U.S. 551, 570 (1972) (both finding no constitutional guarantee to freedom of expression in a privately owned shopping center), with Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1975) (concluding that content-based denial of the use of a municipal auditorium constitutes a violation of the First Amendment). The significant exception to the statement in the text, although not especially germane here, is the so-called company town. See Marsh v. Alabama, 326 U.S. 501, 508-09 (1946) (holding that a resident of a company-owned town is afforded no less First Amendment protection than any other citizen). See generally Kevin Francis O'Neill, Privatizing Public Forums to Eliminate Dissent. 5 FIRST AMENDMENT L. REV. 201 (2007).
7. It is important to emphasize that these are two distinct choices. It is true that sometimes the grant of positive rights to one person may interfere with another's negative rights, as with the clash between Pat Tornillo's positive right to access and the corollary restriction on the Miami Herald's, negative right to control the content of its newspaper. See Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 247-48, 258 (1974). In most cases, however, that linkage is absent, and the decision whether to allow claims by speakers of positive rights against the state for access or funding, for example, is analytically distinct from the questions about the extent to which government may restrict the speaking or writing of nongovernmental speakers or publishers.
8. Although the public forum doctrine does, in effect, create mandatory access for purposes of speaking to streets, parks, and sidewalks, see Frisby v. Schultz, 487 U.S. 474, 481 (1988); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983); Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939), there is nothing in the cases that would require a municipality to provide streets, parks, or sidewalks if it had none. This is, of course, highly counterfactual, but it does underscore the way in which the doctrine, even here, requires the state to allow speakers to use some of the state's resources for speaking, but does not actually require the state to have such resources.
9. Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam).
10. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1963).
11. Cohen v. California, 403 U.S. 15, 16 (1971).
12. N.Y. Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam).
13. Brandenburg, 395 U.S. at 445.
14. N.Y. Times Co. v. United States, 403 U.S. at 714; Sullivan, 376 U.S. at 256.
15. Cohen, 403 U.S. at 16.
16. See Gov't of the Republic of S. Afr. v Grootboom & Others 2000 (1) SA 46 (CC) at 14 (S. Afr.).
17. See Minister of Health & Others v. Treatment Action Campaign & Others 2002 (5) SA 721 (CC) at 723 (S. Afr.); Colleen M. Flood, Lance Gable & Lawrence O. Gostin, Legislating and Litigating Health Care Rights Around the World, 33 J.L. MED. & ETHICS 636, 636, 639 (2005).
18. See generally Albie Sachs, Enforcement of Social and Economic Rights, 22 AM. U. INT'L L. REV. 673 (2007);
19. Ellen Wiles, Aspirational Principles or Enforceable Rights? The Future for Socio-Economic Rights in National Law, 22 AM. U. INT'L L. REV. 35, 37-38, 48 (2006).
20. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
21. Id. at 35.
22. See Sotirios A. Barber, Welfare and the Instrumental Constitution, 42 AM. J. JURIS. 159, 161 (1997).
23. The Supreme Court's view appears to be shared by both the American people and the American political system. In a country with fewer guarantees to health care than exist in almost all other industrialized democracies, with a lower top marginal income tax rate than exists in most other industrialized countries, and with a higher education system in which private colleges and universities are very heavily represented, it would be hard to maintain that the Supreme Court's view of positive rights is out of step with longstanding, prevailing American views about the role of the state. See Frederick Schauer, The Exceptional First Amendment, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS 29, 45 (Michael Ignatieff ed., 2005).
24. Rodriguez, 411 U.S. at 35-37.
25. See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 580-81 (1997); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 276 (1984); Kassel v. Consol. Freightways Corp. of Del., 450 U.S. 662, 678 (1981); Hughes v. Oklahoma, 441 U.S. 322, 337-38 (1979).
26. See Dunn v. Blumstein, 405 U.S. 330, 336 (1972); Harper v. Va. Bd. of Elections, 383 U.S. 663, 665 (1966).
27. U.S. CONST. amend. I.
28. See Alabama v. Shelton, 535 U.S. 654, 679 (2002) (providing an affirmative right to counsel for any defendant); Ake v. Oklahoma, 470 U.S. 68, 83 (1985) (noting an affirmative right to a psychiatrist where a criminal defendant demonstrates that his sanity at the time of the offense will be a significant factor at trial); Argesinger v. Hamlin, 407 U.S. 25, 37 (1972) (holding that "no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial"); Gideon v. Wainwright, 372 U.S. 335, 343-44 (1963) (recognizing an affirmative right to assistance of counsel in all criminal prosecutions).
29. Judicial caution about taking on potentially unbounded issues involved in recognizing and enforcing positive rights is of a piece with the same caution about judicial involvement with effects as opposed to intent. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), might be thought of as a First Amendment case, but it might also be understood as the First Amendment instantiation of larger concerns about judicial intrusiveness in too wide a range of governmental decisions, a concern exemplified by, for example, Washington v. Davis, 426 U.S. 229 (1976).
30. Hudgens v. NLRB, 424 U.S. 507, 520-21 (1976); see also Lloyd Corp. v. Tanner, 407 U.S. 531, 570 (1972) (holding that a privately owned shopping center not dedicated to public use was not under First Amendment obligation to allow protest on its premises).
31. See Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 325 (1968).
32. See Dist. Attorney for the Plymouth Dist. v. Coffey, 434 N.E.2d 1276, 1279 (Mass. 1982).
33. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 177 (1972).
34. See Lockwood v. Killian, 375 A.2d 998, 1004 (Conn. 1977).
35. See Jackson v. Metro, Edison Co., 419 U.S. 345, 358-59 (1974).
36. See supra notes 16-18 and accompanying text.
37. E.g., Frank I. Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 HARV. L. REV. 7 (1969);
38. Jessica Schultz, Economic and Social Rights in the United States: An Overview of the Domestic Legal Framework, HUM. RTS. BRIEF, Fall 2003, at 1, 1-4 (vol. 11, no. 1).
39. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989).
40. Frequently to the annoyance of the rest of us.
41. Ronald Dworkin, in his analysis some years ago of the contretemps arising out of the refusal of the journalist Myron Farber to disclose confidential sources, Ronald Dworkin, The Rights of Myron Farber, N.Y. REV. BOOKS, Oct. 26, 1978, at 34, properly drew a distinction between those aspects of the First Amendment that could be said to reflect or embody deeper moral and political rights, such as the right to express one's political or religious views, and those aspects that are based on more contingent and more empirical considerations, such as the contingent empirical and instrumental relationship between certain forms of press rights and the effective operation of government, id.
42. See also RONALD DWORKIN, A MATTER OF PRINCIPLE 373-80 (1985). Dworkin's concern, however, is not the same as mine, for his interest was primarily in the source of judicially enforceable rights, see id., and mine is in the nonjudicially enforceable policy dimensions of the First Amendment.
43. JOHN MILTON, AREOPAGITICA (J.C. Suffolk ed., Univ. Tutorial Press 1968) (1644).
44. Abrams v. United States, 250 U.S. 616, 630-31 (1919) (Holmes, J., dissenting).
45. E.g., Dennis v. United States, 341 U.S. 494, 546-53 (1951) (Frankfurter, J., concurring); Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting); Int'l Bhd. of Elec. Workers v. NLRB, 181 F.2d 34, 40 (2d Cir. 1950) (Hand, C.J.).
46. JOHN STUART MILL, ON LIBERTY (D. Spitz ed., W.W. Norton & Co. Inc. 1975) (1859).
47. There is an interesting debate in the political philosophy literature about whether Mill's defense of the liberty of thought and expression, or his defense of liberty in general, is in reality a utilitarian one, or whether it is ultimately based on deontological considerations that Mill may have failed to recognize or acknowledge. See generally FRED BERGER, HAPPINESS, JUSTICE, AND FREEDOM 41, 50, 199, 231-32 (1984) (discussing Mill's references to ethical considerations in relation to utility);
48. C.L. TEN, MILL ON LIBERTY 126-28 (1980) (providing a critique of Mill's dedication to utilitarianism based on his advocacy of freedom of expression);
49. James Bogen & Daniel M. Farrell, Freedom and Happiness in Mill's Defense of Liberty, 28 PHIL. Q. 325 (1978) (providing a critique of Mill's dedication to utilitarianism based on Mill's harm principle);
50. David O. Brink, Mill's Liberal Principles and Freedom of Expression, in MILL'S ON LIBERTY: A CRITICAL GUIDE (C.L. Ten ed., forthcoming);
51. David O. Brink, Million Principles, Freedom of Expression, and Hate Speech, 7 LEGAL THEORY 119 (2001);
52. Daniel Jacobsen, Mill on Liberty, Speech, and the Free Society, 29 PHIL. & PUB. AFF. 276 (2000) (situating Mill's views on freedom of speech within larger Millian perspectives).
53. Indeed. Mill's extended attention to what he called "social intolerance" is a valuable caution against importing too much state action theory into a full appreciation of the idea of freedom of expression.
54. I use the term "population" in its social scientific sense, to encompass any group of people (or particulars), and not just the population of a city, state, or nation. Thus, we can ask the question both for the population consisting of a certain scientific community, for example, and for the population of Cleveland. It may well be that the answers in the two cases are not the same.
55. See FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 19-22 (1982).
56. It is also an interesting question, although here a normative rather than empirical one, how a society should balance the gains from increased knowledge against the losses from greater acceptance of error. Is a society that knows n true things and x false things better or worse off than a society that knows n+1 true things and x+1 false ones?
57. Mill comes close to treating the increase in knowledge and the identification of truth as having a lexical priority over all other values, but it is hardly self-evident that this is the case. Once we see that it is not always a good idea to circulate true but private facts about others, once we see that it may not be wise to provide terrorists with correct information on how to make explosive or chemical agents out of readily obtainable ingredients, see United States v. Progressive, Inc., 467 F. Supp. 990, 993, 995 (W.D. Wis. 1979), appeal dismissed, 610 F.2d 819 (7th Cir. 1979), mandamus denied sub nom. Morland v. Sprecher, 443 U.S. 709 (1979) (unpublished table decision); Thomas M. Scanlon, A Theory of Freedom of Expression, 1 PHIL. & PUB. AFF. 203, 204, 211-12 (1972), and once we see that it is not always the best course to tell our loved ones that their new dress or jacket makes them look fat, we can put truth and the possession of it in proper perspective.
58. See generally Frederick Schauer, Reflections on the Value of Truth, 41 CASE W. RES. L. REV. 699, 704, 710-11 (1991) (arguing that not every increase in knowledge will be a social good).
59. To expand on the suggestion in the text, consider more closely the case of arts funding. If (realistically and not just hypothetically) increased governmental funding for museums, exhibitions, art schools, and emerging talented artists can come as a practical but unfortunate political matter only by allowing funding authorities to refuse to fund so-called indecent art, see Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 574, 585, 588-89 (1998), and even if granting that power will increase the amount of serious art that is restricted or simply not produced, it is not axiomatic that the benefits to art coming from the increased funding will be outweighed by the admitted impediments to art stemming from the power of a governmental agency to refuse to fund the art it deems indecent.
60. A plausible example is the issue of publication in learned journals, see ALVIN I. GOLDMAN, KNOWLEDGE IN A SOCIAL WORLD 263-71 (1998), where the goals of increased knowledge and greater acceptance of truth may in fact be fostered by empowering journal editors to distinguish between knowledge and ignorance, and to base their acceptance and rejection decisions on questions of truth and falsity.
61. The canonical locus for this argument is Vincent Blasi, The Checking Value in First Amendment Theory, 1977 AM. B. FOUND. RES. J. 521, 523 (1977), although, as Blasi himself recounts, it has its roots in the eighteenth century, id. at 529-44.
62. See also Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 S. CT. REV. 1.
63. E.g., Rankin v. McPherson. 483 U.S. 378 (1987); Pickering v. Bd. of Educ., 391 U.S. 563 (1978); Watts v. United States, 394 U.S. 705 (1969).
64. E.g., Fla. Star v. B.J.F., 491 U.S. 524 (1989); N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).
65. E.g., N.Y. Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).
66. See Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575 (1983); Grosjean v. Am. Press Co., 297 U.S. 233 (1936).
67. Alexander Meiklejohn, Free Speech and Its Relation to Self-Government, in POLITICAL FREEDOM: THE C ONSTITUTIONAL POWERS OF THE PEOPLE 3, 27 (1965). Earlier traces of the argument can be found in the writings of Spinoza and Hume, and in Justice Brandeis's opinion in Whitney v. California, 274 U.S. 357, 372 (1927) (Brandeis, J., concurring).
68. See Lillian BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance, 73 CAL. L. REV. 1045, 1068 (1985);
69. Lillian BeVier, An Informed Public, An Informing Press: The Search for a Constitutional Principle, 68 CAL. L. REV. 482, 502 (1980).
70. See ROBERT C. POST, CONSTITUTIONAL DOMAINS 179-80 (1995).
71. See CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993).
72. See Australian Capital Television v. Commonwealth (1992) 177 C.L.R. 106, 138-42 (concluding that there was an implied right to freedom of political expression situated in the Australian Constitution's guarantee of representative government).
73. And thus what I say here is different from the argument that strong judicial enforcement of the First Amendment may detract from other ways of promoting First Amendment values. See Robert Nagel, How Useful Is Judicial Review in Free Speech Cases, 69 CORNELL L. REV. 302, 318 (1984) (noting that the use of principle in judicial enforcement "requires courts to protect speech even in cases in which the immediate advantages are questionable and the social disadvantages are clear").
74. See Frederick Schauer, The Second-Best First Amendment, 31 WM. & MARY L. REV. 1. 7 (1989) (noting that freedom of speech is both underinclusive and overinclusive with respect to its background justification).
75. Especially, it seems to me, in the protection of wildly unpopular speech, such as flag desecration, child pornography, racist speech, and the like. Apart from the question of how many of the foregoing categories of speech should be protected and, if so, how much, which is not our topic here, it may nevertheless be the case that protection of speech not taking place within the "forty-yard lines" of contemporary political and social discourse is best entrusted to countermajoritarian institutions such as the courts. See Frederick Schauer. Judicial Supremacy and the Modest Constitution, 92 CAL. L. REV. 1045, 1057-58 (2004).
76. See generally Jerome Barron, Access to the Press - A New First Amendment Right, 80 HARV. L. REV. 1641 (1967).
77. See id. at 1156.
78. See id.
79. Communist Party of the U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 121 (1961) (Douglas, J., dissenting).
80. And perhaps prior to the question of whether those against whom access rights are claimed have countervailing rights. When countervailing rights, especially countervailing First Amendment rights, do not exist, the question of access is far less constitutionally, doctrinally, and politically perilous. See Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 83, 91 (1980). As a matter of strategy, it might have been wiser first to see the case for access to government established, as with freedom of information and open meeting laws, and then to see the case for access to non-ideological private property established, as in Pruneyard, and then, and only then, take on the question of access to a press whose own understanding of the First Amendment is a powerful force. As the old saw goes, "[n]ever argue with the fellow who buys ink by the barrel."
81. Michelman, supra note 36, at 9, 11.
82. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212, 1221 (1978).
83. Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 257-58 (1974) (holding a Florida statute, which required newspapers to devote equal space to allowing a political candidate to respond to attacks on their record, unconstitutional on First Amendment grounds).
84. Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 132 (1973) (holding that the First Amendment does not require broadcasters to accept paid editorial advertisements).