The Supreme Court’s First Amendment problem
Yale Law School dean Robert Post ’77JD is trying to sort out the court’s position on free speech.
Gilad Edelman ’15JD has written on legal issues for the New Yorker and the Washington Monthly.
Illustrations by Alex Nabaum
The Supreme Court, says Robert Post, is having trouble. Just not in the way you might think.
He’s not talking about the 4–4 court stalemate, or even the standoff in Congress that caused it. Post ’77JD, the dean of Yale Law School, believes the justices have lost their way on free speech. They’re caught between two conflicting visions. In one, the First Amendment applies in the same way, all the time, regardless of context: speech is speech, period. In the other, speech should be treated differently in different contexts. It’s not just a matter of politics, he says. “There’s a genuine uncertainty about how to think about the regulation of speech that afflicts both the right and the left,” Post told me recently. “It’s not a liberal or conservative mess. It’s a conceptual mess.”
Recent media coverage of free speech has focused on fights on college campuses, including Yale’s, over racism and political correctness. But in the courts—where our legal rights to free speech are won and lost—that’s not where the action is. The biggest First Amendment issue right now isn’t hate speech or political censorship; it’s speech in the business world.
Take Sorrell v. IMS Health. In 2007, Vermont passed a law restricting the sale of doctors’ prescription records to drug companies, which were using the records in their marketing. The drug companies, along with data mining companies, sued, saying the law violated their First Amendment rights. Vermont argued that the law regulated commerce, not speech.
The case reached the Supreme Court, where Justice Anthony Kennedy delivered the majority opinion in 2011. Marketing, he reasoned, consists of speech. Therefore, singling out marketers amounts to government censorship. The Vermont law, he wrote, “burdens disfavored speech by disfavored speakers”—a big First Amendment no-no. Justice Sonia Sotomayor ’79JD, one of the most liberal justices, voted with Kennedy and the other four conservatives.
Sorrell wasn’t treated like a blockbuster in the press, but it caused a sensation in the legal world. It’s hard to argue with Kennedy’s declaration that “the state cannot engage in content-based discrimination to advance its own side of a debate.” But if that’s true for pharmaceutical marketers, what else does it apply to? All kinds of commercial and professional regulations restrict speech based on its content. Under Sorrell, can states still require psychologists to be licensed, considering that therapy is speech? Can a public school teacher be fired for telling students the Earth is flat? Could Bernie Madoff have claimed a First Amendment right to deceive his clients?
Something has to give. But what?
For a long time, commercial speech didn’t trigger First Amendment coverage. Then, in 1976, the Supreme Court held that commercial speech should get some First Amendment protection. Because citizens have an interest in learning about consumer prices, among other things, the government couldn’t ban advertising outright. But it could impose regulations, like disclosure and accuracy requirements, that wouldn’t be allowed for regular speech.
The basic problem, he argues, is that the court sometimes acts as if the phrase “freedom of speech” applies every time someone uses words. It doesn’t. In many cases of communication, it would seem absurd to say the First Amendment is even relevant: a bomb threat, a consumer product manual, insider trading. The First Amendment only comes into play when certain values are at stake. Post’s work is an attempt to deduce those values from the pattern of Supreme Court decisions. Like a mathematician plotting a best-fit line over scattered data points, he is building a theory that explains the law better than the stated doctrine does.
It’s a project Post has been working on since he became a law professor in the 1980s. He always aspired to be a literary critic, but as he was finishing a PhD in American civilization at Harvard, his job prospects looked bleak. “So, in despair, I went to law school,” he says. “I said, ‘The hell with all this—I’ll write on the side and I’ll make a living as a lawyer.’ It was a huge, huge collapse that I experienced. It was terrible.”
At Yale, Post impressed his professors. “He was so extremely talented, dazzling,” says Owen Fiss, one of the most-cited legal scholars in history. I asked what made Post stand out. “‘Standing out’ understates it a lot. Post was among the best of the best.” Fiss helped arrange for Post to clerk for William Brennan, one of the most prominent Supreme Court justices of the twentieth century.
After clerking, Post took a job at a Washington, DC, law firm, where his main task was defending the Washington Post in a major libel case. Then, after three years of legal practice, he took a job teaching law at Berkeley.
Post’s scholarly approach was visible in his very first law review article, published in 1984. The Supreme Court had recently ruled that a newspaper couldn’t publish confidential information it had obtained through discovery in a civil lawsuit. Post found the court’s reasoning unpersuasive, and, as a former press lawyer, he sympathized with the newspaper. But as he thought through the problem, he discovered that the court had reached the right result. The legal system, Post realized, isn’t an open forum for public debate; it’s a government institution designed for a specific purpose. For the courts to function, judges have to have the power to regulate speech in a trial setting.
This was the germ of Post’s first major contribution to First Amendment theory, which he spent the next decade working out. His insight is that the amendment applies differently in different contexts, or “constitutional domains.” The most important domain is what he calls “public discourse,” because the goal of free speech is self-government. Only speech relevant to that goal should get the highest level of protection. Because public opinion shapes law in a democracy, people need the chance to affect it; otherwise, they won’t experience self-government. Free speech makes it possible, Post writes, for “those who are subject to the law” to “also experience themselves as the authors of the law.” It doesn’t guarantee effective democracy, but we couldn’t have democracy without it.
Post makes clear that this isn’t some pet idea of how free speech should work in a democracy; it is, he believes, the theory that best explains how the courts actually make decisions. He illustrates the idea with an example drawn from a real case. Some dentists believe the mercury in certain dental fillings can leach out into the body. But the American Dental Association and state medical boards have punished dentists for malpractice for advising patients to remove their fillings. “Dentists cannot assert a First Amendment defense to this discipline,” Post writes, “just as they generally cannot assert a First Amendment defense to suits for medical malpractice based upon bad advice.” Yet if these same dentists published an op-ed about the dangers of fillings, the First Amendment would protect them from being sued by people injured by the advice.
The medical advice and the op-ed are both speech; why are they treated differently? Post’s answer is that the op-ed gets protection because it’s part of public discourse. Within that domain, the government can’t decide what positions are or are not acceptable. On the other hand, a dentist can be punished for giving bad advice during a dental appointment because that takes place outside of public discourse.
Public discourse doesn’t just mean “political” speech. Because the question of which issues matter to the public is always up for debate, Post argues, the state can’t decide in advance what topics are relevant to self-government. The crux is social context: does the speech take place in the realm of democratic self-determination? Public schools and the legal system, for instance, are what Post calls “managerial” domains, in which the state can regulate speech as needed to carry out its mission. That’s why a judge can forbid lawyers from asking a witness certain questions, even though that’s technically discrimination based on the content of speech. A trial is not part of public discourse.
“What Robert did was come along and redescribe doctrine in a way that made it have an internal coherence and make sense,” Harvard Law professor Lawrence Lessig ’89JD tells me. “We never had a First Amendment that has applied in the same way everywhere, but before Post we didn’t have a really clear conceptual reason why it would be applying differently in these different domains. He gives us a theoretical way of understanding why it has that dynamic.”
Like any academic, Post has his intellectual opponents. Martin Redish, a law professor at Northwestern University, has accused him of ignoring the constitutional importance of individual autonomy.
Fiss, Post’s friend and former mentor, has sparred with him from the opposite direction, arguing that his theory of public discourse gives the government too little power to regulate speech in ways that promote equality. Even those who agree with his approach, like Lessig, note that Post’s work leaves important practical questions unanswered. How, for instance, are judges supposed to decide what counts as public discourse and what doesn’t?
Post readily admits that his abstract explorations of constitutional values rarely translate into concrete legal rules. Early in his career, he found the pressure to definitively resolve legal disputes “totally paralyzing.” He decided to write only as much as he felt sure was correct, even if that meant leaving the fine details to be worked out by others.
Although Post stops short of specific recommendations, his framework helps us understand how the court’s recent commercial speech decisions have gone off course. “You have to understand the domain in which speech is functioning, and it’s the failure to have that premise that leads to everything else,” Post says. “That’s the key problem. If you just think of it as ‘freedom of speech,’ and ‘speech’ is whenever anyone is communicating, you’re going to instantly end up in intellectual confusion. You’re going to end up in an impossible situation.”
A decision like Sorrell is a case in point. “Speech in aid of pharmaceutical marketing . . . is a form of expression protected by the free speech clause of the First Amendment,” Kennedy’s opinion declares. Of course, it’s literally true that marketing involves words. But, if Post is right, that doesn’t settle anything. The question to ask is whether these words are a part of public discourse. Otherwise, it would be hard to imagine any law that regulates a white-collar profession surviving constitutional scrutiny. Lawyers, stockbrokers, consultants, human resource officers: there’s very little they do at work that doesn’t consist of communication.
Far from pulling back from the black-and-white logic of Sorrell, the court has doubled down. In a 2015 decision, Reed v. Town of Gilbert, the court struck down a local signage ordinance that imposed different rules for signs based on factors like what type of event they were advertising. All the justices agreed that the ridiculously complex code had no justification. But the majority opinion by Clarence Thomas, joined by the conservatives and Sotomayor, went further: it held that any time the government makes distinctions based on the content of language, in any context, it’s “presumptively unconstitutional.”
That sort of reasoning keeps Post up at night. The implications of Reed are profound, and they go far beyond signage regulations. Lower courts have already relied on the Reed decision to overturn restrictions on panhandling, robocalls, and “ballot selfies.” Even supporters of the decision recognize that it departs drastically from traditional free speech law. Floyd Abrams ’60JD, a prominent First Amendment lawyer and free speech absolutist, told the New York Times that the ruling “provides significantly enhanced protection for free speech while requiring a second look at the constitutionality of aspects of federal and state securities laws, the Federal Communications Act, and many others.” Whether or not such “enhanced protection” is a good thing, it’s hard to argue that it has roots in traditional legal principles.
Post knows the justices aren’t going to change their minds because of his articles. Like most law professors, he’s used to being ignored. (On the other hand, in a dissent in a 2014 campaign finance case, Justice Stephen Breyer cited Post’s then-unpublished book Citizens Divided.) The most immediate possibility for a change to the court’s First Amendment approach lies in the seat left vacant by the death of Justice Antonin Scalia. Post thinks President Obama’s nominee—Merrick Garland, chief judge of the DC Circuit Court of Appeals and Post’s former co-clerk for Justice Brennan—could help bring coherence to free speech doctrine. But he wouldn’t bother trying to influence him directly.
“I’ve been doing this too long,” he says. “I’m not doing it to influence the court. I don’t think they’ll listen to me, because what I do is so orthogonal to the way people who are judges and lawyers think about these questions, and even most scholars. But I’m satisfying myself.”
Post doesn’t say so, but he may be playing a longer game. Many of his students go on to clerk for federal judges; some will eventually be the judges. One or two may even make it to the Supreme Court. As a teacher, Post has a chance to shape the way future generations of jurists understand the law.
“I’m trying to disrupt the intuitions of students that speech is just speech,” Post says.
“I’m not going to change a judge’s decision, but I hope to give my students a way to think of these issues in a way that is rational.”