Amendment 1, Clause 3: Freedom of Speech

Panel Recap -- America and the World

The Constitution 2020 Conference opened powerfully with a panel that engaged questions essential to defining a vision of progressive constitutionalism: Who ‘counts’ as American?  And what kind of law ‘counts’ as American?

The panelists, along with their moderator, Bruce Ackerman, tested the boundaries between citizen and non-citizen, and between U.S. and international law, in the context of national security, foreign policy, immigration enforcement, and discrimination against minorities since September 11, 2001.

The panel opened with Aziz Huq (University of Chicago Law School) and Muneer Ahmad (Yale Law School), who tackled issues on citizenship, personhood, and advocacy. Their comments framed an approach to the question of who ‘counts’ as American. Then Jon Michaels (University of California Law School – Los Angeles) and Oona Hathaway (Yale Law School) reflected on the need to reintroduce democracy to determine what kind of law ‘counts’ as American law. Their proposals paid special attention to checking executive power in national security and foreign policy matters.

Video Courtesy of Yale Law School

Who ‘counts’ as American?

Since September 11, 2001, Muslim Americans have had a common encounter with discrimination that has often placed them outside the circle of who ‘counts’ as American. While discrimination can and has alienated Muslims, Aziz Huq proposed that this shared experience also has the power to form the otherwise diverse and fragmented community into a single interest group that can reclaim core constitutional rights, such as free speech, freedom of religion, and privacy.

As credible advocates for constitutional change, Muslim Americans can powerfully advocate to base counter-terrorism operations on trust and cooperation with the Muslim community, rather than on surveillance and suspicion. Huq urged that we open foreign policy decision-making to a diversity of voices, including Muslim Americans, because “without voice, loyalty often erodes.”

Muneer Ahmad then identified the citizen/non-citizen divide as a major barrier to expanding who ‘counts’ as American to communities with immigrant populations. Traditionally, the rights granted to citizens and persons in the Constitution are considered independent sources of rights, but Ahmad argued that the two are in fact tethered together so that “citizenship circumscribes personhood.”

Citizenship exceeds personhood across our legal system. In order to secure protections of personhood for their clients in court, for example, immigrant rights advocates must argue that their clients are citizen-like – hard-working individuals who go to church, don’t have a record, and have the support of family and friends. In other words, lawyers must argue that their clients are super-citizens who represent a form of social rather than constitutional citizenship. However, the rights of personhood will never meet the full level of rights that citizenship provides. Immigrant rights advocates therefore necessarily reinforce the citizen/non-citizen divide and the paradox continues.

How can progressives expand who ‘counts’ as American under our Constitution given the dominance of the citizen/non-citizen divide? We can either expand the ambit of citizenship, Ahmad suggested, or re-imagine citizenship entirely to better match a globalized world where people have multiple loyalties and identities.

What law ‘counts’ as American?

Turning to the sweeping powers of the executive since September 11, 2001, Jon Michaels and Oona Hathaway reflected on what law ought to ‘count’ as American. Jon Michaels noted that the Bush administration bypassed constitutional requirements; it gathered information from corporations about their customers, used foreign interrogators, and engaged in domestic wiretapping, for example.

The problem of unchecked executive power is not specific to the fight against Al Qaeda, however, but rather a result of broader globalization processes where "the law lags behind," Michaels argued. Social, technological, and economic trends in globalization blurred traditional legal boundaries, allowing the Bush administration to aggrandize power and operate military and national security apparatus free of traditional regulation. Michaels concluded that Congress and the courts ought to check executive power in the future through structural change rather than ad hoc regulation.

Oona Hathaway brought the discussion into an international framework, examining America's relationship to other nations through its dual powers of making law and making war.  Hathaway noted that most of U.S. foreign policy is made by the President acting alone, authorized by Congressional authority delegated some forty years earlier. Similarly, under our Constitution, Congress gives the President limited authority to make war, but those limitations have been ignored when expired, reducing Congress' role to paying war bills.

Hathaway argued that progressives should bring congressional oversight and democratic legitimacy back into international law and foreign engagement. Specifically, Hathaway and Bruce Ackerman are working on a proposal that would create a new default rule that makes Congressional authorization for war expire in two years time.

Take a look at the video to learn more about their proposal -- and dig deeper into all of these rich reflections on a progressive vision for constitutional change.

Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom

Crosspost from Balkinization

What The Constitution in 2020 calls a “progressive vision of constitutional law in the years ahead” should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive – because very old – idea.  Here it is:  Constitutionalism generally, and religious freedom more specifically, are well served by the protection and flourishing of an array of self-governing non-state authorities.  The Jacobins were wrong.  In a nutshell, religious liberty is both nurtured in and protected by – it needs, I think – religious communities, associations, and institutions.

The contributions to the volume dealing with politics, democracy, and expression – in particular, the essays written by Robert Post and Yochai Benkler – are sensitive to the structures through which we participate in politics and engage in protected, democracy-enhancing speech.  They are attentive, in other words, to the infrastructure that is required for the exercise and maintenance of cherished freedoms. 

Well, like the freedom of speech, religious freedom has and requires an infrastructure.  Like free expression, it is not exercised only by individuals; like free expression, its exercise requires more than an individual with something to say; like free expression, it involves more than protecting a solitary conscience.  The freedom of religion is not only lived and experienced through institutions, it is also protected and nourished by them.  The values and goods that the First Amendment’s Religion Clauses are today understood to embody and protect—and, we can usefully refer to this cluster of goods and values as “religious freedom”—are well served by a civil-society landscape that is thick with religious institutions and associations, and by legal rules that acknowledge and capture their importance.  These institutions contribute to—they do not only benefit from, and they are not only protected by—the reality of religious freedom under law.

The theories and doctrines we use to understand, apply and enforce the First Amendment’s religious-freedom provisions should reflect and respect this fact.  They should not be constructed solely to deal with the problems that were the focus of the thoughtful essays on religious liberty contributed by Noah Feldman and Bill Marshall, namely, the task of identifying the bounds of permissible religion-regarding spending or expression by government.  Religious liberty, fully understood, involves not only the immunities of believers but also what was once called “the freedom of the church.”  And, as Feldman and Marshall explain, the separation of church and state involves legal arrangements and constitutional constraints whose point is not so much to artificially exclude religious faith from our civil and political lives as to respect religious institutions’ independence and autonomy.

In my view, if we want to understand well the content and implications of our constitutional commitment to religious liberty, we need to ask, as Chip Lupu and Bob Tuttle once put it, whether “religious entities occupy a distinctive place in our constitutional order.”  I believe they do, and should.  Today, though, American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals’ rights, beliefs, consciences, and practices.  The distinctive place, role, and freedoms of groups, associations, and institutions are often overlooked.  This pattern is consistent with the widespread assumption that, because the individual religious conscience is and must be free, religion itself is entirely private.  However, an understanding of religious faith, and religious freedom, that stops with the liberty of conscience, and neglects institutions and communities, will be incomplete.  And, so will the legal arrangements that such an understanding produces.

Indeed, it could be that the Supreme Court’s Religion Clauses doctrine is famously confused and confusing, not because religion is inherently “divisive,” not because scholars disagree about the content and relevance of the First Amendment’s original meaning, and not because that doctrine is the product of changing groups of judges, appointed by Presidents of different parties, with a range of values and commitments.  Instead, it could be that our constitutional doctrine and our thinking about religious freedom under law do not reflect, capture and translate very well the importance of particular institutions in the constitutional order and to the values that the First Amendment should serve.

Now, how does the infrastructure of religious freedom work?  How, exactly, do churches (and the like) shore up (and not just find shelter within) the freedom of religion?  It is clearly not by supplanting the freedom of the individual religious conscience as the ultimate beneficiary of religious freedom under law.  Quite the contrary.  As I have spelled out in more detail elsewhere, the existence and independence of religious institutions long served, and is still needed today, as – in John Courtney Murray’s words – the “social armature to the sacred order,” within which the individual human person could be “secure in all the freedoms that his sacredness demands.”

Of course, the days are long gone – and 2020 will not bring them back – when we could speak of the Church as the chief rival to, check upon and sometimes close partner with the State.  Today, in our religious-freedom doctrines and conversations, it is likely that the independence and autonomy of churches, and of religious institutions and associations generally are seen as deriving from the free-exercise or conscience rights of individual persons rather than as providing the basis for the exercise of those rights.  (Indeed, many would say, and perhaps celebrate the fact, that institutions are becoming less important to our religious, or “spiritual,” lives.)  It remains the case, though, that the existence and independence of religious institutions are needed to – quoting Murray again -- “check the encroachments of secular power and preserve [the] immunities” of our “basic human things.”  Murray was right to worry that the individual conscience, standing alone, is not up to the task of creating and sustaining the conditions necessary to ensure religious freedom; it is not, as he put it, “equal to the burden” of serving as the “sole authentic mediator of moral imperatives to the political order” and the “keystone of the modern experiment in freedom.”  An institutional approach to the Religion Clauses – an approach that is consistent with the reality of increasing pluralism and should therefore be attractive to progressives --  would recognize this worry, and have responding to it as its chief aim.

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Richard W. Garnett is Associate Dean and Professor of Law at the University of Nortre Dame Law School. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Paul Horwitz (The University of Alabama School of Law, "The First Amendment in 2020: An Institutional Perspective"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").
 

Constitutional Right and Normative Frameworks: The Information Age

Lingering in the background of many of the articles appearing in The Constitution in 2020 is a debate about the rhetorical framing of rights and policy.  The debate is perhaps nowhere more evident than in the transition from Robert Post’s "A Progressive Perspective on Freedom of Speech" to Yochai Benkler’s "Information, Structures, and the Constitution of American Society." The authors of these two articles agree on the underlying goals of information policy: that it should encourage the public to participate in a democratic culture, foster a democratic society, and promote democratic legitimacy.  (Benkler assumes that we should “strive for a more democratic society, where individuals are ever more free and equal citizens”  (Benkler at 195). Post notes that “[t]he First Amendment safeguards the ability of persons to participate in the formation of public opinion so as to preserve the democratic legitimacy of our government”  (Post at 182). Both Benkler and Post train their arguments on similar countervailing interests (the commercial and the individual) and come to similar conclusions (generally favoring the individual).)

Despite their similar goals, Post and Benkler present markedly different ways of reaching those goals.  These different strategies create a tension, reflecting the authors’ divergent agendas. 

Post is trying to make room for good information policy within the normative framework of First Amendment jurisprudence.  His argument is about shaping information policy through a rejuvenated First Amendment: "A strong normative vision of a healthy public sphere will enable progressives to make visible important constitutional questions that are simply invisible when seen through the lens of received First Amendment doctrine." (Post at 185). At the same time, Post steers the First Amendment discussion away from the question of what we have a right to say to a question about how we ought to encourage people to speak in democratically conducive ways. 

Benkler, meanwhile, writes bluntly that information policy “must be concerned with the constitution of the U.S. society, rather than with the U.S. Constitution.”  (Benkler at 187).  He wants policy to incorporate perspectives that lie outside of constitutional jurisprudence.  Benkler (as well as Sunstein in his piece "The Minimalist Constitution") is trying to move the debate out from under the purview of the Constitution. 

It is important to keep these rhetorical frameworks in mind, since they have normative implications  Any constitutional conclusion will necessarily be more rigid and entrenched, for better or worse.  In the area of information policy specifically, this rigidity may be problematic when it comes to regulating an incredibly dynamic and unpredictable medium.  The same constitutional framework, however, provides a stronger normative foundation that appeals to both the jurisprudential and popular, in that an argument founded on constitutional principles appeals to a commonly held, more traditional set of values.  Post is right to seize on this aspect of the argument; progressives need to hang their hat on a normative perspective that has durability. 

At the same time, an overly fluid First Amendment doctrine will struggle to gain traction against a simpler normative framing (such as “all speech is free”).  Benkler, for his part, is skeptical of the boundaries that a constitutional argument imposes; he wants progressives to think as broadly as possible, to consider “the totality of the sources of freedom and constraint, equality and inequality, and to think of law in terms of its role in that broadly defined system of freedom and constraint.”  (Benkler at 195).  This added flexibility is particularly important within the information technology world where innovations are made daily and the wrong regulation could stifle individual creativity and contribution.

In outlining the differences between Post and Benkler’s respective views, I don’t intend to set-up a false choice, to suggest that we have to resolve this conundrum decisively in one direction or the other.  Rather, I think that Benkler and Post would agree that progressives will have to rely on both approaches. We will need a Post-like First Amendment argument to counter conservative appeals to more traditional First Amendment doctrine.  At the same time, we will want to push information policy further and further from under the Constitution, so we can tweak it as we learn what works best.  In other words, the successful implementation of a sound information policy will depend on harmonizing Benkler’s bid for fluidity and Post’s desire for constitutionally derived legitimacy.
 

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