Strengthening Constitutional Self-Government

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Rehnquist on Freedom of Speech

Geoff Stone writes about CJ Rehnquist’s Freedom of Speech and Press jurisprudence over at the ACS blog. Geoff compares Rehnquists votes on these issues to those of other justices, and finds him wanting. This particularly seems to be so for Stone because, while Rehnquist was less likely to vote for First Amendment plaintiffs in cases involving, for instance, the press and porn, he was more likely to find a First Amendment right when speech that the Left is less likely to value was at issue (e.g., religious speech, commercial speech, and campaign speech). Stone offers this truly ridiculous conclusion:

His inclination to sustain First Amendment claims only when they involved commercial advertising, campaign expenditures, or religious expression belies any plausible theory of originalism, judicial restraint, or principled constitutional interpretation.

First, Rehnquist did not sustain only those claims. By Stone’s own account, those just happened to be areas where he was more likely than his colleagues to vote in favor of a First Amendment interest. Second, the originalist view of the First Amendment holds that political speech is the core of what the Freedom of Speech clause meant to protect, so it is perfectly keeping with that theory to specially protect that speech. Similarly, because religion is given special consideration by the Free Exercise Clause elsewhere in the First Amendment, and because most originalists believe that religion is included in the same Amendment as Free Speech for a reason--that is, because the framers(even in prior drafts) expressed the view that speech and religion were both freedoms of conscience, it would likewise make sense from an originalist perspective to be especially protective of that speech. Commercial speech is the least likely of these three to find support in originalism, but Stone goes further and suggests that Rehnquist’s position is outside any principled constitutional interpretation. O.K., protection of commercial speech certainly finds some support in textualism, as well as in a simple case-based jurisprudence that takes seriously the prior expansive rulings of the Supreme Court. Indeed, it "belies any plausible theory of . . . principled constitutional jurisprudence" to say that there is a grand right to display porn at drive-ins, but that the same First Amendment does not protect the right of a business to truthfully advertise prices.

I think that Stone got a bit ahead of himself. It is fine if he disagrees with the originalist view of the First Amendment, but it is sloppy and erroneous to say that a justice who grants heightened protection to religious and political speech is acting outside the confines of that jurisprudential view.

Discussions - 6 Comments

Well, I see Mr. Alt is still here "defending his positions" among his little band of cheerleaders. The thread seems to be just starting over at the ACS blog(only two responses so far). So, now’s your chance Robert to do some real defending.

Frank: In case you didn’t notice, I’m on the masthead for this site, which makes my writing here truly shocking. If I didn’t have a life and simply spouted uninformed opinion, then I suppose I could waste my time commenting on the ACS site.

Robert - please go to Afghanistan and help in the hunt to find bin Laden.

Well Robert, the fact is you’re taking potshots at a worthy peer behind your masthead. For a guy who has said he was "willing to defend his positions any time, any place," you have a mighty peculiar way of defending.

Frank: You still don’t seem to understand the concept of blogging. We comment about other news items and writings--that is the nature of the medium. Far from hiding our views, we publish them. If Geoff, who I happen to know, disagrees with them, he is welcome to comment. There is no duty, and frankly I do not have the time to write responses to every author personally. Instead, I publish them here.

You continue in your strange delusion that I do not publicly defend my positions. I participate in debates at colleges and law schools about once a month, so your statements are quite silly. Not to mention the fact that you choose as the comment to address one of my least controversial comments. The fact is that Geoff was objectively wrong. He was reaching, and even an honest liberal would be forced to agree. However, the liberal would have to have some knowledge of the subject matter, which again, you have admitted that you do not.

Gosh Robert, since I’m just a dumb country boy you’ll have to bear with me. But out here in rural America we always respect the principle that if you make certain claims(which you took the time to do in your previous post), then you need to back em up. So, you "participate in debates at colleges and law schools about once a month." Name a few of your recent gigs.

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