21 April 2010

US v Stephens

Popehat | Ken | Cute Widdle Kitties: Cute, But Not Cuter Than First Amendment

[T]he key to the decision is the Court’s approach to historical carve-outs from free speech protection. The Court has always recognized certain exceptions to the plain language of the First Amendment based on established common law tradition — notably defamation law and obscenity. In Stephens, the Bush and Obama Administrations took the frightening position that courts could add new carve-outs without any historical support based on a touchy-feely weighing of the social value of particular speech. SCOTUS demolishes this argument:
The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis thatsome speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).
What was at stake here was considerably more than anyone’s right to sell “crush videos” — or videos of bullfights or fishing or cat juggling. What was at stake was our entire approach to the First Amendment — whether we would allow the courts to continue to poke holes it in based on vague “weighing” tests motivated by the fickle passions of the moment, or whether it would remain a bulwark against hostility towards disfavored speech. Everybody but Justice Alito got it right. Good for them.
Two points:

(1) I wholeheartedly agree that there is no point in the first amendment if some temporal authority gets to decide "nah, that stuff isn't worth it." For one thing, that means speech isn't a right anymore, it's something you're privileged to do by the grace of congress and the courts. For another, there's no need to protect only speech we all agree is valuable. The entire point of protecting speech is to protect the stuff that most people don't like.  I've used the Adlai Stevenson quote once already this week, but freedom is about making it possible to be unpopular.

(2) Maybe somebody can fill me in here, because I get the feeling I don't have the background knowledge to understand this,* but why are there so many cases of administration n continuing to press the arguments of administration n-1?  Because these sorts of decisions are made by courts so slowly I feel like I read an awful lot of "the Clinton DOJ argued X, which was continued by the Bush DOJ" or in this case Obama is continuing down the road that Bush put him on.

Is it a sort of gentlemen's agreement that the new Solicitor General won't abandon lines of reasoning laid out by their predecessor, perhaps in the name of continuity? Is it that these cases are about defending government power and administrations of all ideologies have an interest in doing that? Is it a procedural thing? Once a party, such as the entire United states, has made it's case it can't tack in a different direction?

Maybe there are lots of cases where DOJ n+1 does drop an argument but I don't here about those.  It just seems to me like I ought to be reading about more appeals in which the Solicitor says "no, we forsake the position of our predecessors, they were mistaken."

PS Patrick commented on this case at Popehat as well.

* Updated:  Patrick helpfully points out that I was missing something very, very basic:

DOJ is required to defend the constitutionality of any act of Congress. There may have been a case or two recently in which the Solicitor General equivocated in defending a law that was problematic, but it's almost unheard of.


  1. DOJ is required to defend the constitutionality of any act of Congress. There may have been a case or two recently in which the Solicitor General equivocated in defending a law that was problematic, but it's almost unheard of. That's why the Obama DOJ defended this law as aggressively as the Bush DOJ. It's their job.

    Parenthetically I don't view Obama as an angel on free speech. He'd have signed this law as readily as Bush did.

  2. I knew I was missing something blatantly obvious like that.

    I'm wondering, are they required to continue the same line of reasoning to defend the legislation as their predecessors? If not, do they continue to do so for procedural reasons (ie they can't rewind and go back to earlier stages of presenting their case)? Or is it usually the case that their predecessor already chose the strongest line of reasoning possible and it just makes sense to stick with it regardless of ideology?

    And I agree with the parenthetical comment, by the way.