Thank you for providing the link to the back-and-forth between Professor Mchangama and Professor Franks re: "Fearless Speech"!
I think Professor Mchangama overlooks or diminishes the value in helping people better see the limits of the First Amendment. The limitations of the First Amendment's text have been abused historically (and they continue to be abused currently) by people in power (including legislators and judges (including today's SCOTUS majority)) to deny protection to disfavored viewpoints and disfavored people.
Too many seem to see the First Amendment as some sort of immaculate conception, as something akin to one of the Ten Commandments, i.e., akin to the word of God. In fact, it barely even reflects the words or thoughts of James Madison, who purportedly was its primary author.
Madison's words and thoughts were far more powerful, far more profound, far more encompassing than our anemic and emaciated First Amendment. Madison proposed starting the Bill of Rights with the following powerful “declaration” of the power and liberty of the people as THE sovereign power in every state and in our nation:
"That all power is originally vested in, and consequently derived from the people."
"That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety."
"That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution."
Madison's proposed amendments to our Constitution included the following (and SCOTUS took much more than 100 years even start to catch up to Madison by invoking the First Amendment (SCOTUS still hasn't caught up in important respects)):
"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed."
"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."
"The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances."
"No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."
Madison also had much to say in defense of the constitutional restraints he proposed:
"It may be said [that Madison's proposed amendments] do no more than state the perfect equality of mankind; this to be sure is an absolute truth."
"The freedom of the press [expression] and rights of conscience [are the] choicest privileges of the people . . . . [So t]he people of many states, have thought it necessary to raise barriers against power in all forms and departments of government."
The proposed amendments will have "a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."
Madison particularly forcefully defended and advocated the proposed amendment protecting minorities from majorities or other people in power in any state government or state majority:
The proposed restriction on state power "interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made [restricting federal power] . . . [including] that no state shall violate the equal right of conscience, freedom of the press [expression], or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. . . . [A]nd nothing can give a more sincere proof of the attachment [ ] to these great and important rights, than to [provide for] the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the [federal] government is, and therefore ought to be as cautiously guarded against."
Another member of Congress noted that
"Mr. Madison Conceived this [restraint on the power of state officials] to be the most valuable amendment on the whole list; if there was any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments."
Anyone who thinks the First Amendment is some sort of perfect protection (or even particularly strong protection) for our freedom of thought, conscience, speech, press, assembly and petition must consider, at the very least, what its words actually say and do (what judges say they say and do), and contrast that with what Madison said that constitutional amendments securing our liberty and sovereignty should say and do.
After that, I'd really appreciate it if someone could explain to me how six SCOTUS justices in Dobbs can (consistent with the First Amendment) say that a tyranny of the majority in any state can have the power to impose their personal religious viewpoints on how other people live their lives. How, for example, (consistent with the First and Fifteenth Amendments) can a majority in any state force a woman or a couple into "involuntary servitude" based (often expressly, including even in the majority opinion in Dobbs) on the majority's religious beliefs by making and serving another person for some 18-19 years?
After that, I'd even more appreciate it if someone could explain to me how six SCOTUS justices in Dobbs can (consistent with the First Amendment) say (based expressly on religious beliefs) that a tyranny of the majority in any state can have the power to impose criminal penalties on medical professionals who would help women save their own lives.
The day before Dobbs, the same six SCOTUS justices issued N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). In Bruen, they invoked District of Columbia v. Heller, 554 U.S. 570 (2008):
In [Heller] the Court concluded that [our Constitution] protects the right to [ ] self-defense. [Clearly, the Second] Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “‘the natural right of [ ] self-preservation.’” [ ] “[T]he inherent right of self-defense,” Heller explained, is “central to the Second Amendment right.”
How can it be that a woman has the right (secured by our Constitution) to take the life of another actual person (even an actual citizen) in self-defense or for self-preservation, but she has no right to take a life that manifestly is not a person, much less a citizen, in self-defense or for self-preservation if doing so would offend someone else's sense of religion or conscience?
If the First Amendment is so powerful, how can it be that any public servant (any judge or legislator) can presume or pretend to have the power to impose their own sense of religion or conscience on even one (much less a huge proportion) of the sovereign people of any state or this nation? If the First Amendment is so powerful, how can it be that so many public servants (including, e.g., Trump, Florida Gov. DeSantis and the Biden administration) dare to presume or pretend that they have the power to retaliate against speakers for the content of their speech and even their political viewpoints? How can it be that some of the most powerful people and publications in this country are so (rightfully) afraid of Trump that they won't even endorse his political opponent? How can gangs of federal judges dare to presume or pretend to have the power to discriminate against huge numbers of students expressly based on their mere association with certain universities (e.g., Stanford, Yale, Columbia)?
I profoundly appreciate the First Amendment and Professor Mchangama for all they have done for our freedom of speech and press. Still, reading Professor Mchangama's critique of "Fearless Speech," leaves me fearing that he would rather gloss over the great limitations of the First Amendment than address them.
Such limitations are accentuated by the speech and conduct of federal judges in blatant, on-going, public violation of the freedom of speech and press, freedom of conscience and freedom of association. Over more than the past two years, a least 13 federal judges have publicly declared their determination to discriminate against students (and presumably later lawyers) expressly because of the student/lawyer mere associations with certain universities (Stanford, Yale, Columbia). Additional judges have expressly supported such abuses of power.
Federal judges are openly undermining (and clearly violating) our Constitution. No federal law (no statute or court rule or ruling) did or could authorize federal judges to injure students because of their mere association with certain universities (or even because of their own speech at such universities). Such judicial oppression clearly violates our freedom of speech and press and freedom of association. Cf. U.S. Const. Amend. I. Yet, for years it has been on-going openly and notoriously.
The judicial oppression at issue targets “modes of expression and association protected by the First,” Fifth, “and Fourteenth Amendments,” which state and federal courts “may not prohibit, under [any actual] power to regulate the legal profession.” N.A.A.C.P. v. Button, 371 U.S. 415, 428-429 (1963). “[T]he First Amendment” necessarily “protects vigorous advocacy, certainly of lawful ends, against governmental intrusion.” Id. at 429. Clearly, “it is no answer to the constitutional” concerns here that the mere “purpose” might be “merely to insure high professional standards” because courts “may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.” Id. at 438-439. Courts “cannot foreclose the exercise of constitutional rights by mere labels.” Id. at 429. That includes such labels as "student," "Yale," "Stanford" or "Columbia."
Judges presuming (or pretending) that something somehow gave them the power to retaliate or discriminate against people for their speech or their associations that judges deem offensive is a hugely important issue, and it is not even a novel issue. It has been addressed repeatedly (for many decades), even by SCOTUS, even in decisions specifically protecting even attorneys who already are employed by the government. Myers, Garrison and Ceballos, below, were attorneys already employed by the government.
Connick v. Myers, 461 U.S. 138, 145 (1983) quoted Garrison v. Louisiana, 379 U.S. 64 (1964):
The controlling principle under our Constitution is that our “speech concerning public affairs” is [doubly protected as a] right to “self-expression [and as a power inherent in] the essence of self-government. The First and Fourteenth Amendments embody” the “profound national commitment” in our Constitution “to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Government “cannot condition” attorney “employment” on “a basis that infringes [any] employee’s” (attorney’s) “constitutionally protected interest in freedom of expression.” Garcetti v. Ceballos, 547 U.S. 410, 413 (2006) (quoting Connick at 142). “The First Amendment limits the ability of [government even as an] employer to leverage [even an] employment relationship to restrict” any “liberties” that even government “employees enjoy” as “citizens.” Garcetti at 419. Even when restricting speech of actual “employees” (attorneys) when “speaking as citizens about matters of public concern,” government must prove it imposed “only” such “speech restrictions” as were “necessary for” government “to operate efficiently and effectively.” Id. No one can prove that targeting mere students because of their mere association with educational institutions was or is “necessary for” any court “to operate efficiently and effectively.” Id.
Thank you for providing the link to the back-and-forth between Professor Mchangama and Professor Franks re: "Fearless Speech"!
I think Professor Mchangama overlooks or diminishes the value in helping people better see the limits of the First Amendment. The limitations of the First Amendment's text have been abused historically (and they continue to be abused currently) by people in power (including legislators and judges (including today's SCOTUS majority)) to deny protection to disfavored viewpoints and disfavored people.
Too many seem to see the First Amendment as some sort of immaculate conception, as something akin to one of the Ten Commandments, i.e., akin to the word of God. In fact, it barely even reflects the words or thoughts of James Madison, who purportedly was its primary author.
Madison's words and thoughts were far more powerful, far more profound, far more encompassing than our anemic and emaciated First Amendment. Madison proposed starting the Bill of Rights with the following powerful “declaration” of the power and liberty of the people as THE sovereign power in every state and in our nation:
"That all power is originally vested in, and consequently derived from the people."
"That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety."
"That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution."
Madison's proposed amendments to our Constitution included the following (and SCOTUS took much more than 100 years even start to catch up to Madison by invoking the First Amendment (SCOTUS still hasn't caught up in important respects)):
"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed."
"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."
"The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances."
"No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."
Madison also had much to say in defense of the constitutional restraints he proposed:
"It may be said [that Madison's proposed amendments] do no more than state the perfect equality of mankind; this to be sure is an absolute truth."
"The freedom of the press [expression] and rights of conscience [are the] choicest privileges of the people . . . . [So t]he people of many states, have thought it necessary to raise barriers against power in all forms and departments of government."
The proposed amendments will have "a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."
Madison particularly forcefully defended and advocated the proposed amendment protecting minorities from majorities or other people in power in any state government or state majority:
The proposed restriction on state power "interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made [restricting federal power] . . . [including] that no state shall violate the equal right of conscience, freedom of the press [expression], or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. . . . [A]nd nothing can give a more sincere proof of the attachment [ ] to these great and important rights, than to [provide for] the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the [federal] government is, and therefore ought to be as cautiously guarded against."
Another member of Congress noted that
"Mr. Madison Conceived this [restraint on the power of state officials] to be the most valuable amendment on the whole list; if there was any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments."
Anyone who thinks the First Amendment is some sort of perfect protection (or even particularly strong protection) for our freedom of thought, conscience, speech, press, assembly and petition must consider, at the very least, what its words actually say and do (what judges say they say and do), and contrast that with what Madison said that constitutional amendments securing our liberty and sovereignty should say and do.
After that, I'd really appreciate it if someone could explain to me how six SCOTUS justices in Dobbs can (consistent with the First Amendment) say that a tyranny of the majority in any state can have the power to impose their personal religious viewpoints on how other people live their lives. How, for example, (consistent with the First and Fifteenth Amendments) can a majority in any state force a woman or a couple into "involuntary servitude" based (often expressly, including even in the majority opinion in Dobbs) on the majority's religious beliefs by making and serving another person for some 18-19 years?
After that, I'd even more appreciate it if someone could explain to me how six SCOTUS justices in Dobbs can (consistent with the First Amendment) say (based expressly on religious beliefs) that a tyranny of the majority in any state can have the power to impose criminal penalties on medical professionals who would help women save their own lives.
The day before Dobbs, the same six SCOTUS justices issued N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). In Bruen, they invoked District of Columbia v. Heller, 554 U.S. 570 (2008):
In [Heller] the Court concluded that [our Constitution] protects the right to [ ] self-defense. [Clearly, the Second] Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “‘the natural right of [ ] self-preservation.’” [ ] “[T]he inherent right of self-defense,” Heller explained, is “central to the Second Amendment right.”
How can it be that a woman has the right (secured by our Constitution) to take the life of another actual person (even an actual citizen) in self-defense or for self-preservation, but she has no right to take a life that manifestly is not a person, much less a citizen, in self-defense or for self-preservation if doing so would offend someone else's sense of religion or conscience?
If the First Amendment is so powerful, how can it be that any public servant (any judge or legislator) can presume or pretend to have the power to impose their own sense of religion or conscience on even one (much less a huge proportion) of the sovereign people of any state or this nation? If the First Amendment is so powerful, how can it be that so many public servants (including, e.g., Trump, Florida Gov. DeSantis and the Biden administration) dare to presume or pretend that they have the power to retaliate against speakers for the content of their speech and even their political viewpoints? How can it be that some of the most powerful people and publications in this country are so (rightfully) afraid of Trump that they won't even endorse his political opponent? How can gangs of federal judges dare to presume or pretend to have the power to discriminate against huge numbers of students expressly based on their mere association with certain universities (e.g., Stanford, Yale, Columbia)?
Re: Sanford handing out Constitutions, if people can hand out Chick Tracts, maybe it would be useful to hand out Cato pocket Constitutions.
Of course, you have to hand out candy, too.
I profoundly appreciate the First Amendment and Professor Mchangama for all they have done for our freedom of speech and press. Still, reading Professor Mchangama's critique of "Fearless Speech," leaves me fearing that he would rather gloss over the great limitations of the First Amendment than address them.
Such limitations are accentuated by the speech and conduct of federal judges in blatant, on-going, public violation of the freedom of speech and press, freedom of conscience and freedom of association. Over more than the past two years, a least 13 federal judges have publicly declared their determination to discriminate against students (and presumably later lawyers) expressly because of the student/lawyer mere associations with certain universities (Stanford, Yale, Columbia). Additional judges have expressly supported such abuses of power.
Federal judges are openly undermining (and clearly violating) our Constitution. No federal law (no statute or court rule or ruling) did or could authorize federal judges to injure students because of their mere association with certain universities (or even because of their own speech at such universities). Such judicial oppression clearly violates our freedom of speech and press and freedom of association. Cf. U.S. Const. Amend. I. Yet, for years it has been on-going openly and notoriously.
The judicial oppression at issue targets “modes of expression and association protected by the First,” Fifth, “and Fourteenth Amendments,” which state and federal courts “may not prohibit, under [any actual] power to regulate the legal profession.” N.A.A.C.P. v. Button, 371 U.S. 415, 428-429 (1963). “[T]he First Amendment” necessarily “protects vigorous advocacy, certainly of lawful ends, against governmental intrusion.” Id. at 429. Clearly, “it is no answer to the constitutional” concerns here that the mere “purpose” might be “merely to insure high professional standards” because courts “may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.” Id. at 438-439. Courts “cannot foreclose the exercise of constitutional rights by mere labels.” Id. at 429. That includes such labels as "student," "Yale," "Stanford" or "Columbia."
Judges presuming (or pretending) that something somehow gave them the power to retaliate or discriminate against people for their speech or their associations that judges deem offensive is a hugely important issue, and it is not even a novel issue. It has been addressed repeatedly (for many decades), even by SCOTUS, even in decisions specifically protecting even attorneys who already are employed by the government. Myers, Garrison and Ceballos, below, were attorneys already employed by the government.
Connick v. Myers, 461 U.S. 138, 145 (1983) quoted Garrison v. Louisiana, 379 U.S. 64 (1964):
The controlling principle under our Constitution is that our “speech concerning public affairs” is [doubly protected as a] right to “self-expression [and as a power inherent in] the essence of self-government. The First and Fourteenth Amendments embody” the “profound national commitment” in our Constitution “to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Government “cannot condition” attorney “employment” on “a basis that infringes [any] employee’s” (attorney’s) “constitutionally protected interest in freedom of expression.” Garcetti v. Ceballos, 547 U.S. 410, 413 (2006) (quoting Connick at 142). “The First Amendment limits the ability of [government even as an] employer to leverage [even an] employment relationship to restrict” any “liberties” that even government “employees enjoy” as “citizens.” Garcetti at 419. Even when restricting speech of actual “employees” (attorneys) when “speaking as citizens about matters of public concern,” government must prove it imposed “only” such “speech restrictions” as were “necessary for” government “to operate efficiently and effectively.” Id. No one can prove that targeting mere students because of their mere association with educational institutions was or is “necessary for” any court “to operate efficiently and effectively.” Id.