November 6, 2017
itizens United v. Federal Elections Commission evoked a more visceral and widely negative response than any Supreme Court decision in recent history. The Left painted the Court’s majority as anti-democratic hacks working on their corporate overlords’ behalf, while the Right hailed the decision as a victory for free speech. In his 2011 State of the Union address, President Obama chastised the Court for its decision in an unprecedented public rebuke before Congress and the American people. Citizens United’s lawyer, Floyd Abrams’s new book, The Soul of the First Amendment, demystifies the First Amendment for citizens who aren’t sure where hyperbole ends and Constitutional intent begins.
Citizens United centered around whether the First Amendment protects a private organization’s right to publish derogatory accounts of presidential candidates on an election’s eve. Broadly, it was about what degree of control over campaign speech ought to be ceded to the federal government at the private sector’s expense. Justice Kennedy wrote the majority opinion with concurrences from Justices Scalia and Thomas. In Justice Stevens’s dissent, he spoke for the minority by reasserting that money is not speech and including the obligatory anti-corporatist nod to “We the People,” i.e., “corporations are not people,” ergo not entitled to free speech protections.
Few, save the odd billionaire activist, applaud the massive amount of private money that fuels our election processes. But the remedy will be worse than the disease if freedom—especially freedom of speech—is sacrificed to exorcise money’s influence. If we are to remain faithful to the First Amendment’s intent, really removing money’s influence is probably impossible. But how do we know what the text really means? Abrams offers shortcuts for constitutional interpretation. The first is the text, which ought to be read often and carefully:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The First Amendment proscribes action—it limits rather than empowers the government. Absent reminders for restrained and careful reading, citizens read implications into the Amendment that the authors never intended, such as the “separation of church and state,” and ephemeral references to un-enumerated purposes and interminable powers to do good. Abrams uses Justice Breyer’s tortured interpretation of the First Amendment’s freedom of speech protection to illustrate this point:
the primary purpose of the First Amendment “goes beyond” protecting the individual from government restrictions. “First and foremost,” the First Amendment “seeks to facilitate democratic self-government.” Correctly viewed, one must “understand the First Amendment as seeking primarily to encourage the exchange of information and ideas necessary for citizens themselves to shape that ‘public opinion which is the final source of government in a democratic state.’”
Should we ever need a priesthood for Constitutional interpretation, Justice Breyer would be a natural for membership. Not only was his interpretation pre- rather than pro-scriptive, its operative words are nowhere to be found in the First Amendment’s text. Rather than asking what the Framers intended, Breyer found what he believed they should have intended. His desired exchange of information and ideas is sufficiently accomplished by free markets and liberty: “going beyond” is neither legitimate nor necessary.
Moreover, Abrams reminds his readers that the Bill of Rights was added to the Constitution after its ratification, as amendments to the original. In fact, Madison, Adams, and Hamilton opposed a Bill of Rights in the Constitution’s original text. Since the Constitution fundamentally limits government action by granting some powers and ignoring others, there is no constitutional mechanism short of amendment by which the federal government can act outside of its enumerated powers. Since the Constitution does not give Congress the power to limit speech in Article I, Section 8, for example, Congress does not have that power. Madison, Adams, and Hamilton saw no reason to reiterate that truth later in the document. Moreover, no list can completely list every unalienable right, meaning that enumerating some necessarily meant minimizing others.
In retrospect, however, we look at the Bill of Rights as an additional embodiment of one of the most fundamental American governance principles—the Declaration of Independence’s “unalienable rights.” The Declaration anchors our rights in nature—they are not granted or rescinded by government without the due process of law. The Declaration, to which Abrams only tacitly points, extends the idea of natural rights to the government’s basic purpose, namely that of securing rights. Government action that goes beyond this core purpose moves into illegitimacy.
Notwithstanding the First Amendment’s seeming simplicity, free speech is not unlimited. The government limits speech when public order is at stake, through laws limiting libel, protecting national security information, or prohibiting child pornography, for example. At its heart, the First Amendment is intended to protect individuals against retribution for holding unpopular political opinions, though arguments over the form those protections take continues apace. The Constitutional language is spartan; the Preamble opens with “We the People,” not “We Citizens” or “We States.” The issue at Citizens United’s heart is whether a group of people who incorporated after Constitutional ratification and now use their resources to influence elections are entitled to the First Amendment’s free speech protections. The justices in Citizens United’s majority argued that corporations are no more than groups of people and are therefore afforded constitutional protection. The minority justices argued that a corporation is an entity separate from the people who comprise it, and thereby subject to government regulation.
Abrams addresses “hate” speech through the lens of the First Amendment and of foreign and international law. He argues that the First Amendment’s muscular protection for freedom of speech is key to American exceptionalism—a topic that many misunderstand. For Abrams, the distance between American and European speech protections is “oceanic.” Noisy controversy and occasionally ugly speech is the price we pay for robust protections.
The book’s weakest argument centers around questions of loyalty and national security. While these questions deserve a place in the national discourse, the First Amendment doesn’t add much to the debate other than the text’s exoteric meaning: the government may not abridge freedom of speech. Citizens must analyze and decide collectively through legislation how to balance privacy and national security concerns. And they should expect their legislative solutions to be tested under the First Amendment.
In contrast to many First Amendment tomes that concentrate on case law, The Soul of the First Amendment is eminently readable. That Abrams reveals so much in so few pages is no small accomplishment.