In current US Constitutional doctrine, a standard view holds that there are exceptions to the First Amendment. For those that don’t think about Constitutional doctrines daily, the First Amendment is part of the Bill of Rights passed in 1791 soon after the ratification of the US Constitution. It guarantees freedom of speech, petition, assembly, and religion. In current jurisprudence, commonly recognized exceptions include obscenity, bans on child pornography, copyright, trademark, patent, trade secrets, fighting words, and true threats. But what if exceptions is the wrong way to look at it?
There are different ways to look at the Constitution. An originalist viewpoint combines a careful look at the text with a purposive look at the Constitution at the time it was written. Originalists often draw on historical sources from around the time of the Founding in an effort to understand what words meant at the time—dubbed the text, history, and tradition analysis. Other judges are legal realists, who may favor deciding cases based on a hunch about the state of the world. Still others believe in common law jurisprudence, making decisions—left, right, or center—without much reference to the Constitution itself.
Judges love to reserve power to themselves. Declaring that there are exceptions to the Constitution puts judges “in the driver’s seat” to make ad hoc determinations of law. This commonly comes up in circumstances like the Dormant Commerce Clause—the idea that judges should decide whether or not a state law unlawfully burdens interstate commerce even when Congress has not passed a law in that area. Saying there are exceptions to the First Amendment misses the point.
Most of the “exceptions” aren’t really exceptions at all. The same doctrines could be restated to say that simply because speech is involved in illegal conduct, it does not immunize that illegal conduct. It is unlawful to make threats and assault—putting another in fear of imminent bodily harm—is a crime.
Likewise, theft is a crime, even if accomplished through false statements constituting fraud. Some exceptions are a bit harder to parse. Obscenity superficially seems like an actual exception to the First Amendment. Since the 1960s, when courts were placing books on trial (turning ideas of standing and who can be named as a defendant on its head), the Supreme Court has restrained obscenity doctrine quite a bit. Social conservatives and “hate speech” banners would love to strengthen something like obscenity. Here, too, obscenity may be closer to the speech vs. conduct distinction than some imagine. Engaging in lewd acts is arguably conduct, not speech. Likewise, it may dovetail with common law doctrines of nuisance—like blasting music at ultra-high decibels, disturbing neighbors.
The problem with exceptions is that by declaring there are some exceptions, it implies there may be more. That invites judicial activism.
This hunch applies to other areas often seen as “reasonable” restrictions under the First Amendment like lobbying and campaign finance laws. These laws cannot stand, except to the extent they are used to prevent embezzlement and direct quid pro quo corruption.
Claiming there are exceptions to the First Amendment is a hazardous way of interpreting an essential Constitutional doctrine rooted in natural law rights, that could be stated much more succinctly.
Comments