Document Type
Article
Publication Title
Notre Dame Law Review
Publication Date
2016
Volume
91
First Page
1465
Abstract
The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods—as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost.
Something like this collection of views constitutes the conventional account of the First Amendment. This Article offers it two challenges. First, the development of the First Amendment over the past century suggests that freedom is not an American sociopolitical end. It is a means—a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. Freedom is not a social solution but instead gives rise to a social problem—the problem of how to allocate a resource in civically responsible ways, so as to limit freedom’s hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether. Thus the First Amendment of the conventional account has not maximized freedom for all people and groups. It has promoted a distinctive set of views about the virtuous legal and political society.
Second, the new legal culture promoted and entrenched by the conventional account is increasingly finding that account uncongenial. In fact, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture’s core values are not the First Amendment freedoms themselves, but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and promoted. Proponents of the new legal culture in consequence now argue for aggressive limits on First Amendment freedoms.
One prominent group has invented a new legal category: “enumerated rights Lochnerism.” These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment in the form of balancing tests that would restrict speech that injures the dignity of listeners and religious exercise that results in vaguely defined and vaguely delimited harms to third parties. What unites these critics is the desire to swell features of the Court’s post–New Deal Fourteenth Amendment jurisprudence, and particularly the law concerning sex as a civil right, by protecting progressively expansive conceptions of equality and individual dignity. The critics see the conventional account of the First Amendment as an obstacle in the path of progress.
Part I of this Article presents the conventional account of the First Amendment in three theses. It then critiques the conventional account in Part II by offering three revised theses, developed through the somewhat unusual route of exploring the First Amendment thought of the late political theorist and constitutional scholar, Walter Berns. Freedom, for Berns, gave rise to a problem—the problem of making men sufficiently virtuous to merit their freedom. It was a problem that he thought had been ignored or even forgotten by defenders of the conventional account of the First Amendment.
But the problem of virtue and freedom has been remembered. Part III argues that contemporary defenders of the new legal culture have remembered the problem just as their own cultural and legal mores are ascendant. The new civic virtues—exemplified in multiplying anti-discrimination regulations for the protection of thickening conceptions of equality and individual dignity, particularly as those concepts relate to sexual autonomy—are those that were fostered by the conventional account of the First Amendment in tandem with significant components of the Supreme Court’s post–New Deal Fourteenth Amendment jurisprudence. And those civic virtues are already informing new criticisms of the conventional account and arguments about new limitations on the scope of religious freedom and freedom of speech. Berns’s arguments about freedom and virtue, it turns out, are highly relevant today since progressive opinion is no longer committed to First Amendment “absolutism.”
The Article concludes with two speculations. First, it seems we are no longer arguing about whether to restrict freedom, but for what ends. If that is true, then those arguments should neither begin nor end with egalitarian and sexual-libertarian fervor. Second, there is no account of the First Amendment that maximizes freedom for everyone—for all persons and groups. There is only the society that America was before the rise of the conventional account of the First Amendment and the society that it is becoming after it.
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Available at: https://scholarship.law.nd.edu/ndlr/vol91/iss4/8/