What does D.C. v. Heller mean for *First* Amendment Rights?

I’m not a Second Amendment buff. I follow Second Amendment cases like I followed basketball this year. I really didn’t perk up until the playoffs. That’s why I have asked Jonathon Blevins to guest blawg on the Heller case.

But, I follow First Amendment issues like I follow football. From the draft, to the pre-season to the final second in the Super Bowl, I’m glued to it. Accordingly, when an opinion of great Constitutional importance comes out, even if it is not a First Amendment case, I like to sniff around the case for dicta that might be used to flesh out the writer’s First Amendment beliefs. There is some good and some bad in this opinion.

Good – The First Amendment is an individual right

This seems like a “no duh” statement, but not everyone knows this.

I have had far too many conversations with students and with other law professors who have a misguided belief that the First Amendment can be analyzed from a collective right perspective. The argument being, since the marketplace still has plenty of erotica available, there is no Constitutional problem created by over-zealous suppression of adult entertainment. Essentially, from commenters to this blawg to some very respectable law professors, there is a growing (and misinformed) school of thought that the First Amendment might be a “collective right.”

In Heller, at page 5, the conservative majority confirms that the First Amendment is unambiguously a personal right, not a collective right. When even Scalia sides with me on a First Amendment issue, that makes me feel better.

Good – The First Amendment extends to new forms of communication

Some originalists claim that the First Amendment only protects communication that the founding fathers contemplated in 1789. This foolishness isn’t limited to pre-law students and laypeople. I have had an argument (out of court) with a member of one of Florida’s courts of appeal about this. His position was that since the founders were not thinking about adult entertainment when they wrote the First Amendment, they didn’t intend to protect it. One logical come-back to this is that the founders didn’t need strip clubs, they could just buy slaves and make them do whatever they liked. Who needs a stripper when you can just buy Sally Hemmings?

Scalia dispenses with this perspective at page 8.

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

Bad – The purpose of speech can impact its Constitutional protection

At page 22, Scalia introduces me to a new Constitutional principle – that the purpose of speech can render it unprotected.

Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

I hope that this was just careless language on Scalia’s part. It is true that we can’t speak in a defamatory, obscene, or threatening manner. However, I don’t agree that the speaker’s purpose in speaking can change protected speech to un-protectable.

Neutral – Just because the court doesn’t address something for a long time does not mean that it is settled law.

This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dist. No. 71, Champaign Cty., 333 U. S. 203 (1948). Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding. See New York Times Co. v. Sullivan, 376 U. S. 254 (1964). See page 54.

Good (perhaps) – Scalia recognizes that our rights are at least as broad as they were believed to be at the time of the drafting of the Constitution.

Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views.

This can cut both ways. It seems to me that this passage means that free speech means free speech, and if it might be desirable to some, or even all, to limit today’s notions of free speech, the Constitution tolerates no such balancing test.

This passage also says that constitutional rights are “enshrined with the scope they were understood to have when the people adopted them.” To me, that means that the “scope” of the rights is the breadth of the conduct or speech they protected. However, some might argue that this means that types of speech that the founders didn’t think about, namely adult entertainment, might not fit. However, Scalia’s dicta on page 8 (above) seems to contradict that possible interpretation.

The other possible perversion of this passage is that courts might substitute the word “narrow” for the word “broad,” above. I believe that civil liberties are a one-way street. The courts can always rule that the Constitutional protections in the Bill of Rights expand as times pass, but not the other way around. Scalia seems to recognize this one-way street in this passage, but perhaps he merely felt no need to add a footnote or parenthetical with the word “narrow”.

Bad – Breyer’s Dissent and local government power

In page 23 of his dissent, Breyer relies upon some of the language in adult entertainment cases to support his deference to local government knowing “what is best” in terms of local regulation – the First Amendment be damned.

In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions. See Los Angeles v. Alameda Books, Inc., 535 U. S. 425, 440 (2002) (plurality opinion) (“[W]e must acknowledge that the Los Angeles City Council is in a better position than the Judiciary to gather an evaluate data on local problems”)

Conclusion

This is one of the most uncivil opinions rendered in recent years. Not since Scalia’s dissent in Lawrence v. Texas do we find such mud-slinging.

But, if we dig through the dirt to play “dicta forensics,” it would seem as if the wings of the Court have traded sides with respect to the First Amendment. I would like to believe that they wouldn’t be so crass and results oriented that these positions will revert when the issue before these same justices has to do with free speech and adult entertainment.

A man can dream…