JURISPRUDENCE

Jurisprudence is the broad term for  the theory and philosophy of law. Used in a sentence, you might say that the a certain decision was important in First Amendment jurisprudence, or that a lawyer’s grasp of jurisprudence was legendary.      

Here are a few examples of general questions considered in jurisprudence:  

Should the law balance a variety of rights and interests, or should individual freedom be absolute?   For example, should the government regulate political speech (and money) in elections, or  should anyone be allowed to participate in any way they like? Do we treat political spending as a form of free speech?   

Should the law protect national symbols (eg, the American flag), or should the law protect a deeper principle in protecting the right to burn a flag?

Should the law protect the reputations of public people, or should the law protect the ability to criticize public people? And who is a public figure?

Should the law indemnify companies that carry other people’s ideas, or should those companies be responsible for all the ideas that they carry?  (For an example of indemnification, see Section 230 of the Telecommunications Act).

Should the law boost civic virtue (and how can we be sure what that is?), or should the law facilitate individualism (and what limits, if any, should there be?)

Should the law enhance copyright protections or should it enlarge the public domain?  

How do we measure the equity and effectiveness of the law?

Jurisprudence involves:  

• Foundational issues, such as the idea that the Supreme Court should  weigh the  “original intent” of the framers of the Constitution in every decision.  This is a  conservative point of view, often applied inconsistently, as opposed to the idea of a “living constitution” in which definitions of human rights may expand to meet new social conditions.
• Internal principles of the law and legal systems, especially equal justice under law, stare decisis, and  due process.
• External issues involving the interaction between the law and social institutions within a larger context.  An example of an external concern is the aura of outright corruption that surrounds the direct cash payments and vacation expenses accepted by Justices Clarence Thomas and Samuel Alito.  Another external issue, as expressed by conservative  Justice Anthony Kennedy (in July, 2015),  is that the reservoir of trust that people place in the courts is diminished by socially challenging decisions like same-sex marriage, flag burning, school prayer and abortion.

First Amendment jurisprudence 

First Amendment theories     

What is the First Amendment for?  Foundational theories include:

• • Enables people to participate in Constitutional government
  • Ensures a marketplace of ideas  
  • It allows good speech to counter bad speech (The ‘Counter-speech’ doctrine)  
  • It functions as a social safety valve 
  • It allows individual fulfillment

The diversity of thinking in First Amendment jurisprudence is typically approached by learning about the traditional First Amendment scholars (Chafee, Meiklejohn, Emerson and Haiman), and their theoretical approaches (balancing, absolutism, libertarianism and context).  However,  there are three others whose ideas have made significant contributions in recent decades.

The historic tradition 

Marketplace of ideas — The test of an idea is whether it survives and is accepted in competition with other ideas in open public debates, and not on the opinion of a government or religious  authority. Beginning with Milton, and continuing with Enlightenment philosophers like Benjamin Franklin, Thomas Jefferson and John Stuart Mill, the concept of a marketplace of ideas at the service of democracy is the major animating theory behind First Amendment jurisprudence.

John Milton (1608-1674) in his Areopagitica said:

“Though all the  winds of doctrine were let loose to play upon the earth, so (long as) Truth be in the field, we do injuriously, by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.

• Benjamin Franklin (1706-1790). “It is a Principle among Printers that when Truth has fair Play, it will always prevail over Falsehood.” Apology for Printers, Pennsylvania Gazette, July 24, 1740.
• John Stuart Mill (1806-1873). Since no one knows the certain truth,  truth left untested will slip into dogma. Therefore,  free competition of ideas is the best way to separate falsehoods from fact.
• The US Supreme Court has often  invoked the marketplace of ideas concept when dealing with issues of free speech over the past century.  Examples range from Abrams v US, 1919, to Matal v Tam, 2017.

Traditional First Amendment scholars 

• Balancing — Zechariah Chafee  wrote his foundational book Freedom of Speech (1920) in the context of the WWI Sedition Act,  the anti-Red “Palmer Raids” by the attorney general and especially the Schenck v US  ‘clear and present danger’ decision of  1919, which he found ill-advised.
  • “… the United States has affirmative power to protect its own life and the lives of its officers, not only from revolution and assassination, but also from attempts and solicitation directed toward these ends, and even from discussion which might have a remote tendency to produce such evils, unless that power is restricted by … the First Amendment.”
  • “Advocacy of revolution is [not so] dangerous except in extraordinary times of great tension. The chances of success are so infinitesimal that the probability of any serious attempt following the utterances seems too slight to make them punishable by the Federal Government. This is especially true if the speaker urges revolution at some future day, so that no immediate check is required to save the country…  There is no ‘clear and present danger’ in a revolution announced for [the future].
  • Chafee’s scholarship led Justice Oliver Wendell Holmes to dissent from the ‘clear and present danger’ finding in the 1919  Abrams case.  By 1927, another  Justice, Louis Brandeis, insisted  on what a “time to answer” test in Whitney v California: no danger flowing from speech can be considered clear and present if there is full opportunity for discussion.

•  Absolute protection for free speech — Alexander Meiklejohnargued that  nothing is more important to a democracy than freedom of speech.  For example, see Free Speech and its Relation to Self-Government, 1948.
  • Meikeljohn’s idea was that the First Amendment protected all political speech under any circumstances, but not commercial speech.  (The absolutist ideal has been extended into advertising and the electoral process, as noted by McChesney). Also see this UW page. 

• Libertarianism — Action vs Expression — Thomas I. Emerson   The underlying theory of the First Amendment should distinguish between action and expression.   Also, freedom of expression includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium, along with the right to hear the opinions of others, and the right to inquire, to have reasonable freedom of access to information.
  • Toward a General Theory of the First Amendment 
  • The System of Freedom of Expression
  • Freedom of Association and Freedom of Expression (1964)

• Context  — Franklyn S. Haiman –  Trying to distinguish  between expression and action causes more harm than good, Haiman argues. All expression and action is in effect communication. It’s the context, the potential for harm, that the law has to consider.
  • Speech Acts and the First Amendment — One of the most frequent justifications for limitations on freedom of speech is the claim that an unpopular sort of speech is really an action. So for example hate speech against racial minorities can be limited because it is not speech at all, it is really an action of disrespecting other people. Haiman argues that the slope is slippery, and therefore not a good location for a theory of law that helps us regulate speech in a democracy.

New approaches to First Amendment jurisprudence 

• Social Justice  — Robert W. McChesney — The New Theology of the First Amendment, Monthly Review, March 1, 1998.  — McChesney discusses freedom of speech in the context of corporate and commercial intrusion on political speech issues.   The reason this is significant is that McChesney anticipated the Citizens United v FEC, which was the 2010 decision by the conservative court that spending spending money is the equivalent of speech and can’t be curtailed under the First Amendment.  Many moderates and liberal believe this flood of cash into the federal election system has led to a huge wave of political corruption. McChesney said:
  • “I have no qualms about extending the First Amendment net to include areas that may not have any clear connection to politics, but I think principle is necessary to guide the debate. And a good start is this: if the rights to be protected by the First Amendment can only be effectively employed by a fraction of the citizenry, and their exercise of these rights gives them undue political power and undermines the ability of the balance of the citizenry to exercise the same rights and/or other constitutional rights, then it is not necessarily legitimately protected by the First Amendment.”
  • “It is no surprise that the political right and the business community approve of this extension of First Amendment protection to these activities. To the extent commercial activities are given First Amendment protection, it makes the rule of capital increasingly off-limits to political debate and government regulation…”
  • The need to consider social justice in the area of ethics (for example, in the theories of John Rawls)  is one reason to include Robert W. McChesney in a list of First Amendment scholars.

• “Code” versus law — Lawrence Lessig   
  • Digital media is already balanced between the a) code of laws written by elected officials and, b) the computer  code written by digital media companies who structure the media experience.  His book  Code: Version 2.0  was released in 2006.
  • Lessig is a proponent of the “pathetic dot theory”  in  which individuals (the pathetic dots in question) are  regulated by four forces: the law, social norms,  the market, and architecture (technical infrastructure).
  • Lessig is somewhat controversial. Declan McCullagh wrote an essay for  Cato called “what Larry doesn’t get.“

• Human Dignity  — A “new guard” of First Amendment scholars has a different take on approaches to Freedom of Speech, which it sees as threatened more by digital disinformation than top-down government censorship. It balances First Amendment libertarianism against Fourteenth  Amendment equal protection— or what the international community calls ‘human dignity.’
  • The marketplace of ideas is broken. It cannot correct false, harmful and hateful speech due, in part, to  the complexities of new media. This is leading to new ideas about how the marketplace should be regulated.   (See Harrison Rosenthal’s “Bridging the Divide,” AEJMC Media Law Notes, 2021)

“An ideological chasm is emerging between new First Amendment theorists and their scholarly forbearers on the philosophical justifications for hate speech protection. The new guard … is balancing the equities of First Amendment  libertarianism against Fourteenth Amendment equal protection—or what the international community calls human dignity. For socio-historical reasons rooted in armed conflict, Americans tend to embrace individualism, while Europeans tend to embrace collectivism.

“These new scholars, by reframing the extreme-speech problem through John Dewey’s individualism-collectivism taxonomy, are rebalancing free-speech objectives through holistic and international lenses. This reconceptualization is critical given our increasingly globalized and digitized speech marketplace.

• • Karl Popper’s Paradox of Tolerance –  A society can be too tolerant. It can open the door to its own destruction by being overly tolerant to destructive ideas.
  • Carrie Goldberg, an attorney who fights for victims of online harassment,  says that trolling and revenge porn are “acts” and not speech, and therefore are not protected. Note the contrast with Haiman’s contextual approach (above).
  • Mary Ann Franks, an attorney and professor at the University of Miami, also fights online abuse and advocates internet reform, for example, with respect to Section 230 protections for ISPs.   Also, Franks writes about the failure of the marketplace of ideas in the digital age.  “Unbridled, unlimited free speech rights, especially in an era of technologically mediated expression, have led to the disintegration of truth, the reign of unanswerable speech, and the silencing and self-censorship of women, queer people, persons of color, and other racial and ethnic minorities.”