What First Amendment Absolutism Gets You

Hugo Black was known to go around underlining the words "no law" in the First Amendment: "Congress shall make no law respecting an establishment..." This was meant as a critique of the trend in First Amendment jurisprudence of "balancing tests" which weigh the state's supposed interest in suppressing some speech against how important the free speech interest at stake is. The rule wasn't "Congress shall make no law...abridging the freedom of speech, unless it's sufficiently important or the speech isn't that important," it was just, "Congress shall make no law." Throughout their tenure on the Court he and William O. Douglas would routinely write a joint concurrence or dissent in just about every First Amendment case saying, "hey by the way guys, we're First Amendment absolutists!"

But of course, people respond, you can't really be an absolutist. If you take the free speech clause both absolutely and literally, then any law or regulation which in any way restricted what people could say would be unconstitutional. Libels, threats of murder, incitements to violence, even criminal conspiracies could be protected. Combine that approach with a non-literal interpretation of the word "speech," so as to encompass non-verbal expression, and, well, you're in trouble: almost nothing doesn't have some expressive content. Murder is typically very expressive. So, people said, what Black and Douglas were really doing was shifting the problem. It was all very well and good to underline the words "no law," but that just meant you needed to come up with a definition of "the freedom of speech" that ended up excluding most of the stuff everyone else was excluding with their balancing tests, and for approximately the same reasons.

That's not quite what Black and Douglas actually did. Justice Douglas's concurring opinion in Brandenburg v. Ohio, which reshaped free speech law, outlined the absolutist position in some detail. In doing so it addressed why you can prosecute the man who, in the classic example, falsely shouts fire in a crowded theater, even under the absolutist approach: there, speech is "brigaded with action." You suppress the action, even though you do so by suppressing speech. That saves our murder laws right away, for one thing. But, like most things, it doesn't solve the whole problem. Every expression has some effects, and some intended effects, so we need some sort of theory for when those effects rise to the level of "brigaded with action." And we still haven't gotten anywhere, right?

No. Because the one key thing you get out of the Black/Douglas absolutist position, combined with the "brigaded with action" exception, is that a whole host of cases become easy. Because any time the case for the suppression of speech, or other expression, is based in how terrible and worthless that speech is, you know you're not dealing with a "brigaded with action" situation. In other words, what the government absolutely may not do is suppress speech for the sake of suppressing that speech and its expressive content, and in some cases it's just clear that that's what they're doing. Take obscenity, for instance. The way the Court justifies upholding anti-obscenity laws is that obscenity has no redeeming social value whatsoever. Not only does that flunk the absolutist test, it's not even a close question. There is no question! It doesn't present a remotely viable case for passing that test. The whole point is that we really really hate obscenity, and so we want to suppress it because we think it's terrible. And there's just no reason to think the Constitution allows for that. It doesn't matter how much we think the speech in question is worthless and devoid of any social value whatsoever: it is speech, and Congress shall make no law abridging the freedom of speech.

Interestingly, there would still be a path to cracking down pretty hard on pornography, on the grounds that its production involves various bad things like prostitution or sexual exploitation or whatever. You can make creative arguments along those lines, even within an absolutist framework, because we're all agreed that sometimes laws which very plainly do suppress speech are nonetheless constitutional. But right off the bat you can just eliminate any argument for suppression which depends on the idea that the speech being assailed is of particularly low value. That's just not a factor the Constitution makes relevant.