It is now commonly understood that all areas of constitutional law consist of an uneasy amalgam between explicit constitutional guarantees on the one hand and the implied limitations on those guarantees on the other.  The textual guarantees are extended to private property, contract, religion and speech.  The implied portion of the analysis is—or more accurately, was—captured in the standard formulation of the police power, under which each substantive guarantee was, and properly so, subject to regulation for the protection of “the health, safety, general welfare and morals” of the population at large, so long as the means chosen were reasonably adapted to the end in view.

This general formulation of course conceals much, because it leaves unresolved two major inquiries.  First, how best to define each of these stated ends?  Second, what goodness of fit is needed between the means chosen to achieve that stated end?  A uniform approach to this topic would require that the choice of both ends and means should be roughly parallel across separate constitutional guarantees, so that what is the sound test for the regulation of property or contract also works for the regulation of religion and speech.

Unfortunately, legal doctrine has moved sharply in the opposite direction.  On economic matters, for example, courts are quite happy with a legal arrangement that allows economic regulation that serves the “public interest, convenience and necessity,” for it gives administrative agencies vast powers to pick those means appropriate to advancing those the ends.  On matters of speech and religion, the exact opposite mind set has been adopted.  The permissible ends in question are narrowly circumscribed, and the means chosen to achieve these ends must be narrowly and precisely tailored to deal with the question.  The deferential “rational basis” inquiry on matters of property and contract is worlds apart from the searching “strict scrutiny” inquiry often brought to the regulation of religion and, especially, speech.

The strongest indictment of modern constitutional law is that polarizing tendencies are wrong.  In this context, I shall examine the unpardonable laxity of judicial review on such questions as the public use limitation in eminent domain cases, embodied in such decisions as Kelo v. City of New London, which grants public official enormous discretion in setting the purposes for the condemnation of privately owned land.

Yet with the most elusive head of the police power, that dealing with matters of public morals, the pendulum has swung very far to the other side in cases of speech.  Activities that once fell easily into the morals category now receive extensive constitutional protection as privileged forms of speech, no less. To make this point, I shall examine two recent Supreme Court decisions, both of which seem far too cavalier in their treatment of the state’s interest.  I refer here first to Snyder v. Phelps, and Brown v. Entertainment Merchant Association.

Snyder v. Phelps The disjunction between the common law and the constitutional law of free speech is put into high relief in Snyder v. Phelps, about which I have already written extensively.  The odious background to this case is by now well known.  Lance Corporal Matthew Snyder was killed in action in Iraq, and was buried in Westminster, Maryland.  At the time of his death, the Westboro Baptist Church, held a demonstration on public lands some 1000 feet away from the burial site in which they chanted and sang songs in an effort to dishonor the memory of the man.  They were out of view and earshot of the funeral.  Their earlier press release, which said, “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor— for a fag nation cursed by God . . . .”  The Church claimed that Corporeal was gay, when in fact he was not. “

Snyder’s father suffered serious psychological damage as a result of this incident.  He then brought actions for defamation and intentional infliction of emotional distress, where the latter means more or less what it says.  In the District Court, the defamation case was dismissed on the ground that this expression of religious distaste would not have subjected Corporal Snyder to public hatred or scorn.  Incorrect, as a matter of common law.  The statement about sexual orientation is not a statement about opinion, but one of fact.  At common law the distinction mattered, because statements of opinion were insulated from suit, but false statements of fact were not.  Those common law rules also made it very difficult to sue for reputational losses to the deceased, because they did not have future business or social dealings that could be disrupted.  But defamation cases brought by family members, whose associational arrangements could have been disrupted, were in fact allowed, and general damages—i.e. damages that are not tied to specific proof of a lost relationship—were also routinely allowed, albeit for smaller sums of money.  The private law gave little dispensation for false statement of facts.  The modern constitutional law of defamation does.  This part of the case was not appealed.

Intentional infliction of emotional distress has long been a staple of the common law, but here too the situation is more complex than might appear at first blush.  No one thinks that this tort should be allowed for most efforts to embarrass other individuals.  In those cases where there has been a negligent infliction of emotional distress (as by watching the death of a child run over by a car) the usual rule is that only close relatives can bring the suit, and only if they have direct sensory observation of the loss.  With deliberate harms, there is a willingness in some cases to relax those tight causal conditions.  Thus, when left to the jury, it awarded $2.9 million in actual damages and $8 million in punitives, which seems right on liability, but overgenerous on damages.

The Supreme Court knocked out these damages by resorting to a simple-minded paradigm of free speech cases that stated that since this speech was a “public, not private concern” the Church’s speech “occupies the ‘highest rung of the hierarchy of First Amendment values’ and is entitled to ‘special protection.’”  Unfortunately, this approach takes a certain kind of moral blindness not to see the difference between this sorry episode and the speech involved in a political debate over the future of the country.  The common law rules that always held that both falsity and latent aggression were reasons to allow damage actions after the fact, but not injunctions before the fact, reflect a very different set of sensibilities, and Chief Justice Roberts at no point explained why his view was better than the common law position.  Recall that the First Amendment protects freedom of speech, which does not mean that all speech is free of bad consequences.  The libertarian concern with force and fraud applies to speech as well as action, and it makes a lot of sense in this context to read the First Amendment as a protection against government encroachment into areas of protected political debate and artistic expression. But it hardly follows that this commitment offers courts a warrant to disregard the common law categories that have stood the test of time.

All of this does not mean that the Court was necessarily right to let the judgment stand, although I would have done so with reduced damages.  But it is close.  Snyder does not fall easily within the category of either defamation or intentional infliction of emotional distress, and thus lies at the edges of protected speech.  But the rationale given matters not only for the case at hand, but for the next case on the list, and here the prognosis is not so optimistic. The wrong major premise can lead to wrong results in other contexts and just that has happened in the aftermath of Snyder.

Brown v. Entertainment Merchant Association  Exhibit A of this proposition is Brown (as in Governor Jerry Brown) arose under a California law dealing with violent video games. Justice Scalia describes the statute’s reach as follows:

[The California Law] prohibits the sale or rental of “violent video games” to minors, and requires their packaging to be labeled “18.” The Act covers games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”

The California law does not prohibit access of these video games to minors, but only their sale.  It does not explicitly address the level of parental control over the access that minors have to these games, but clearly assumes some degree of parental control on that matter, which is outside the scope of the First Amendment, whose prohibitions are only directed to governments.  Try as I may, I cannot find anything about this statute that is particularly offensive or ill-conceived.  It only poses a modest barrier to the use of these games, and thus works in a fashion that will tend to reduce the exposure of minors to these games, leaving untouched their use by adults.

As a matter of morals regulation this statute would not raise the slightest peep from any nineteenth century judge.  Any judge who would let the legislature keep bowling alleys off limits to the young would rest easy with this statute on the books.  But to read Justice Scalia’s opinion, one would think the entire edifice of freedom of speech would collapse of its own weight if this statute were allowed to remain on the books.  Justice Scalia relied explicitly on the Supreme Court’s 1952 decision on Joseph Burstyn, Inc. v. Wilson, which rightly struck down a general censorship rule that required all films to go through a preclearance before being released.  The more modest reach of the California statute makes the two cases readily distinguishable.

For his next move, Justice Scalia adopts the rigid proposition that the categories of speech that the government may regulate are in essence closed.  It is instructive to quote his exact words:

The most basic principle—that government lacks the power to restrict expression because of its message, ideas, subject matter, or content, a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.

This astonishing passage is a peculiar mix between high principle and historical accident.  On the former, Justice Scalia does not explain the generality of his principle.  For example, defamatory utterances seem to fall within the category of speech protected by content for it does not involve obscenity, incitement or fighting words.  Yet making this conduct tortious is perfectly consistent with the general libertarian principle that has never protected either force of fraud.  By the same token, the publication of a trade secret does not seem to fall within these three categories either, and it seems impossible to claim that the First Amendment requires this large field of law to bite the dust. His most basic principle is thus utterly undefended.

Nor are the confusions in this text removed by the appeal to history.  Each of the particular exceptions mentioned had to be endorsed or accepted by some court.  And what they did was to ask about making some kind of category-by-category cost/benefit analysis that he disparages.  Yet at no point does Justice Scalia indicate what principle allowed those cases to proceed once the categorical approach is rejected.

He could have done better.  In dealing with incitement and fighting words, the best explanation is the libertarian principle that treats the threat of force as tantamount to the use of force.  But that explanation fails in the case of obscenity, which has always been justified under the morals head of the police power.  Why then is the combination of these two ideas so weak that that this form of violent speech must remain unprotected?

Yet once the strict scrutiny test is unleashed, no evidence that is modestly probative can receive the slightest weight, such that legislatures which are allowed to introduce economic regulation that offends every known principle of economic rationality are put to such a high standard of proof that they are doomed to fail no matter what the state of the record.

In dealing with these issues, an anxious concurrence by Justice Alito concedes that the ends in view are valid subject of regulation, but nonetheless thinks that this particular statute must fall on the grounds of vagueness of its key terms “deviant or morbid.”  I confess to a huge distaste to all of these general vagueness arguments, which, if consistently applied, would place huge barriers to all sorts of regulation.  The argument seems hollow, for if these two words are unacceptably vague, it is hard to imagine what suitable words could be substituted in their place.  In addition, it is hard to think that any of the video games caught by the statute fall into some kind of gray area, given the repetitive and mindless violence that they portray.  It seems most unwise to strike down a statute because of uncertainty at its edges when there is a clear common agreement at its core.

In sum, one does not have to agree with every assertion in the long and learned dissent of Justice Thomas to think that any modest form of originalism would not find the slightest difficulty with this particular statute.  There has long been a category of disgust, which now receives additional attention, in the popular and learned media, which points to its importance for human survival. The video games differ at least in degree if not in kind from other media, and the effort in the state to look at the work “as a whole” marks a serious attempt to distinguish Biblical violence from the video games.  It is a bit messy at the edges. But the for the courts that are willing to tolerate wholesale delegation to administrative bodies in economic affairs, the constant flyspecking on whether this statute is over or under-inclusive is the wrong standard.  The California statute deals with minors and violence, both of which lie at the heart of the police power.  The Court went overbroad in dealing with this issue.

Conclusion  in my view both Snyder and Brown indicate ways in which a rigid and absolutist logic has led the Court seriously astray in two cases. The common law system was always based on a set of rebuttable presumptions that are the best blend of predictability and flexibility possible.  The failure to understand or apply distinctions that are strongly grounded in the classical liberal tradition represents a mistake of constitutional magnitude.

IN Snyder and Brown, the role of force and fraud is reduced in cases where the imposition of some liability would pose not the slightest threat to the types of speech that deserve protection.  The only question is how far bad theory will continue to lead the Court astray.  Already in United States v. Stevens, a majority of the Court (with Justice Alito in his lone dissent) took a far too hostile view toward statutes that were directed against depictions of animal cruelty, and in United States v. Alvarez, the Court will have to face whether the Stolen Valor Act, which imposes punishment for the false display of conduct medals, without proof of actual injury can withstand a First Amendment Challenge as I have said on two occasions (here and here) it does.  The simple proposition here is that the Supreme Court should give no special solicitude to speech that is fraudulent, cruel or violent.  There are, of necessity, some issues around the edges, but none that justify the heavy artillery of strict scrutiny or a wholesale repudiation of the common law rules that have long been used to regulate speech.