Today’s First Amendment jurisprudence centers on “Content-Neutrality.” A restriction on speech is “content neutral” if it affects the time, place, and manner of speech and does not restrict the content or viewpoint of the speech itself.[1] A basic set of assumptions underlies this jurisprudence: that speech is truly free only when it is unrestricted. A corollary to this assumption is that whenever the state engages with an activity, it restricts freedom. Therefore, the state should not intervene to restrict speech (i.e., to take sides, in effect), no matter the content of that speech, even against those recent protests arguing for the effective extermination of Jews and the State of Israel.
This concept of neutrality, however, misses the point of First Amendment rights, which are founded on conscience. [2] Conscience must be protected to realize the First Amendment’s function. Its protection occurs through government action as much as its inaction. The primary assumptions grounding Content-Neutrality are, therefore, terminally flawed.
The State of Play
While we assume our Constitutional law is as old as the document, that isn’t accurate. Much constitutional law is relatively new. While there may be prescient kernels in earlier precedents, the architecture of First Amendment speech rights is a building whose foundation the justices laid in the decades before World War II, whose framing happened during the Cold War, and whose facade they elaborated since. It is, in other words, a work of the libertarian twentieth and twenty-first centuries. [3]
In this framework, the “neutral” position [4] is a hypothetical (but practically impossible) Rawls-adjacent position where the state beneficently allows opinion to flow without assuming a position (viz. bias) itself. Conscience here doesn’t matter except as an independent variable for the freedom-function to balance against other independent variables in a highly complex and ultimately insoluble algebra of matrices, which the government nevertheless hopes to solve to create neutrality.
The tests that developed this doctrine emerged in a definitive order. First developed the Time-Place-Manner tests. This test developed before World War II to balance police power with individual rights. These restrictions force a court to ask “whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time” when restricting speech. [5] This framework, new as it is, misapprehends many legal and natural distinctions. This misalignment results in constitutional law that’s inefficient and ineffective at promoting the free exercise of expression within ordered liberty. To understand this fact, we must dig into these rights’ historical and logical nature.
The right to speech was originally narrow and restricted literally to the act of speaking. Contemporary texts clearly disclose the limited meaning of the word speech. Samuel Johnson’s 1755 dictionary provides this definition: “Speech. 1. The power of articulate utterance, the power of expressing thoughts by vocal words; 2. Language, words considered as expressing thoughts; 3. Particular language as distinct from others; 4. Any thing spoken; 5. Talk, mention; 6. Oration, harangue; 7. Declaration of thoughts.” [6]
We may contrast this understanding of speech as language with our current First Amendment jurisprudence that considers speech as “expression.” This expansion began in the Warren and Burger courts and has continued into the present.[7] In our current time, even textualist judges like Scalia have read the Speech clause to protect “expression” writ large.[8]
This right to speech simpliciter seems picayune today (no doubt the reason the Justices felt the need to expand it), because there are so many ways we may express ourselves and so few people who pay attention to oratory, making the simple act of speaking seem jejune. Before mass media, however, the powers of fine oratory were incredible.[9] A well-spoken person could secure prominence through near eloquence alone. Lincoln’s career is an example of how a well-spoken person could rise from obscurity to the heights of power. Other examples include Frederick Douglass and Susan B. Anthony. Speech was a key component to liberty and republican life.
The assembly right differs completely from speech. Strangely, because of the expressive expansion of the speech right, the right to assembly has become subsumed into the right to speech.[10] The differences in their nature have created a deeply confused law. We must therefore turn to natural reason to sort the mess out.
The assembly right involves gathering into groups, a fact demonstrated by a simple linguistic consideration of the English word “assembly.”[11] Groups exist in two types: informal groups assembling temporarily for narrow action, and formal groups assembling on a durable basis for broader action. The first is the classic protest group. The second is a corporate group like a political party. Both forms have been variously recognized under the law (in too many cases to cite), but this distinction remains underutilized and implicit. [12] Its elaboration is particularly harmed by the combination of speech and assembly rights.
It’s well-known that the Founders’ philosophy was not lawless license but ordered liberty. We find that difficult to understand today. This difficulty is why courts cling to “neutrality.” Through neutrality, one gains the illusion of, if not ordered liberty, ordered “freedom.” To take an extreme, but vivid example, we can observe a neo-pagan freedom reflecting the dys/utopian vision when a camp of robed, bench-sitting Wiccans “speak ye ersatz olde tongue while chanting “An’ it harm none, do what ye will.” [13]
College Protesters Who Harm None…?
Recent months have seen a serious escalation in a new type of protest pioneered in the wake of the 2008 financial crisis and Occupy Wall Street: the autonomous, collective occupation. In this model of protest, the goal isn’t simply to march through a street and spread a message, although protests may begin this way. Instead, it’s to inhabit a physical space for an indefinite amount of time, to deny that space to others, and to establish a “community” whose existence forms the protest itself. There may be some speech acts within this domain, such as occasional “soap-box” speaking, but the methods and the goals of this protest are far more existential. This is why the protesters often “bridge” the focus of the protest at hand, such as the Israel-Palestine conflict, to larger issues of questionable relevance, e.g., the structure of “global capitalism,” with the resulting strange bedfellows, such as the liberal, trans-accepting activists supporting fundamentalist Islamic causes.
The problem with these kinds of protests is that, while they’re clearly illegal at this stage, they don’t start as occupations. Instead, they begin as smaller, more conventional actions, such as marches and speeches. They only realize their exclusive and impermissible monopoly over spaces by degrees, eventually reaching a point where they are so entrenched that only an armed police force can remove them; an escalation which, even if technically legal, is practically hard to execute given the conflicting sentiments held by by-standers who want to support the right to protest while simultaneously restricting its overreach. The occupiers themselves rely on this tension to achieve their goals, abusing the good faith of law-abiding citizens to launch an abusive effort obstructing other individuals’ access to that space.
What To Do About It
The primary flaw in “Content-Neutrality” is, ironically, its “fairness.” It assumes that by failing to take a position, the government can somehow support all positions equally. The problem is that some positions necessarily exclude others, even when they aren’t inherently oppositional. While it may be obvious that a totalitarian-oriented position (such as absolute Marxism or a fundamentalist religion) excludes other positions through the centrality of its truth-claims, other less totalizing positions can do the same, such as when one position claims an empirical or scientific truth that crowds out alternatives, or one position’s popular support means that other positions become untenable.
Perhaps the most troubling feature of this imperial tendency of opinion is that truth can itself become imperial. The value, for example, of life over death means that any theory that argues for the death of a group of people (such as the elimination of one people’s state) must be invalid. Arguments for genocide are therefore inherently wrong and cannot receive support, even though a “content neutral” position would give them their appropriate “time, place, and manner” of expression.
Also troubling is the fact that even though these positions are wrong, they aren’t without utility. It’s an ironic truth of our imperfect world that one cannot explore the truth without tolerating error, because it’s only by understanding how a thing is wrong that we fully grasp why something else is right. This realization implicitly means that both positions must be able to be expressed, though clearly the erroneous position cannot destroy the correct one and must receive less respect and attention than the truth. The problem then becomes how to recognize which imperial opinions are true and which are false, and then how to balance the trends of that imperialism both in favor of the good and in opposition to the bad?
Content-Neutrality seems to be the answer to this problem in the sense that a “marketplace of ideas” will mean that the right position naturally “outcompetes” the wrong position. This appeal smacks of natural law insofar as it grounds its assumptions in the operations of the world. Unfortunately, it is also inaccurate.
Markets of any kind rely on scarcity for their operation. Markets are, after all, are a way to distribute products that are otherwise subject to imbalance in supply and demand. But the problem with the “marketplace of ideas” is that ideas aren’t subject to scarcity. There can be no price mechanism regulating their exchange. Moreover, their currency is certainly not fungible since truth is infinitely more precious, and partakes of a different nature, than error.
In other words, while capitalism works well to supply the world with both essential and nonessential goods, it cannot provide the world with truth.[14] Any law that tries to anchor itself in this poisonous metaphor will enervate and ultimately kill the body politic. Unfortunately, our contemporary jurisprudence seems oriented towards policing the marketplace of ideas, as if it were the marketplace for commodities, by using a quasi-antitrust standard of Content-Neutrality.
What should we do? Fortunately, we have a pre-Burger Court answer.
Cantwell, Conscience, and Good Faith
In Cantwell, decided just before the outbreak of World War II, a state law prohibiting soliciting without a license and a charge of disturbing the peace were enforced against a proselytizer who played offensive, anti-Catholic records in a Catholic neighborhood. The law required a permit to engage in expressive activity. The Supreme Court ruled that, although the permits could take effect on non-religious purposes, they couldn’t discriminate against activities of a religious nature.[15]
Cantwell provides a firm basis for recognizing conscience as a criterion of distinction, one that differs from the contemporary standard. While Cantwell relied on the conscientious nature of the religious activity, a contemporary court could instead use the concept of “protected speech,” which could protect almost anything against the serious offense the hearers experienced and the potential disruption of peace that could result.
A test derived from Cantwell would evaluate not only the speech that was used, but also the belief and reason supporting that speech. Speech made without a conscientious intent wouldn’t be protected, while speech, like Cantwell, that engaged from a perspective of conscientiousness and engagement on matters of concern (in that case, religion) would receive protection.
Speech fitting this model would receive broad protection. Cantwell demonstrates the breadth of this protection. Arguably, the speaker didn’t act in good faith insofar as the anti-Catholic utterances were made with the intent to inflame, annoy, and to harass (even if ultimately later to convert). But even such hurtful speech can be protected because speech is limited in its harms. While possibly loathsome, one can tolerate (not suppress) generally antisemitic positions in a public-school classroom with far fewer consequences than marching for those causes through schools and neighborhoods where Jews live. The right to assembly, therefore, invokes greater restrictions than the right to speak. [16] This greater restriction is good faith.
Good faith is important in the assembly context to discriminate between those incidents of healthy protest and the licentious incidents of destructive assemblies. The Good Faith exercise of the assembly right necessarily requires peaceful activities that allow for the daily activities of uninvolved citizens to continue, even if those activities involve speech and action contrary to the sentiments of the protesters. A protest that interrupts the lawful activity of an organization or group cannot be an exercise of one’s right in good faith and wouldn’t be covered under a proper understanding of the right to assembly.
To apply a conscientious/good faith standard will introduce a new, complicating factor into our current, “modern” system of procedure.[17] Courts are notoriously reluctant to engage in conscience determinations today. There’s generally a fear of judges imposing their own views on litigants. This fear is absolutely justified. Fortunately, courts have a way to avoid this concern, one highlighted by another Supreme Court case, Miller.
In Miller, the Court faced a litigant with a conviction for mailing pornographic material. The jury convicted Miller based on a jury instruction that required the jury to use the standards of the community to determine whether the items in question were obscene.[18] Miller argued this standard was incorrect since it subjected him to an evaluation of a limited area of the country and that the standard should be larger and more objective.[19] The Court ultimately determined that the control of the community mattered most for the determination of obscenity and that the question of whether something is obscene should be an issue of fact for a jury.
The use of juries to determine constitutional questions is unusual today, in part because jury trials are unusual in general, but also because increasingly the material understood to be obscene is increasingly narrow in scope.[20] Despite their lack of popularity in some quarters, restoring the jury’s role provides the path to avoiding judicial tyranny.
The role of the jury as a panel drawn from the vicinage of the court places the people of the area in charge of the ultimate outcome of a court. As a result, if the question of conscience and good faith is turned into a question of fact rather than law, it won’t be the oligarchic judiciary that determines a defendant’s conscientious conviction, but members of their own communities, a yoking of judicial action to the community that will prevent tyranny while promoting order (and is the very reason why the Founders wished to protect the right to trial by jury).
Nat’l Socialist Party of America v. Village of Skokie provides an excellent lens to examine how such a jury-trial would work.[21] In Skokie, a group of Nazis wished to hold a rally in a largely Jewish town but were denied a permit. They sued and ultimately won under the First Amendment.
Under the suggested inquiry, the proper remedy would be a jury trial where the question would be why the Nazis wished to hold their rally and why their permit was denied. If it turned out that the Nazi party had something particular to say on a given issue or event relevant to civic life, then they should have the right to assemble. If, on the other hand, they simply wished to force an odious, offensive, and hated position on their neighbors in an obnoxious way, then they clearly lacked the good faith required for ordered liberty and the town was within its rights to deny their permit.[22]
One might be concerned that this test would be overly restrictive, but in truth it would apply only to cases of serious civil conflict. Any person wishing to hold a rally on a routine subject, such as establishing a park, clearly acts in good faith and his social disruption is minimal. A group that may be disruptive, such as a protest against racial discrimination, might be disruptive, but is also addressing a key social concern. The Nazis, however, addressed no such concern, and wanted to provoke disruption to the civic order. They did not have any good faith basis to speak.
Today’s Protests
The major protests of today, be they the Occupy Wall-Street style occupations that campuses endured in the Anti-Israel protests, or the riotous street actions, post-the George Floyd killing, gain a toe-hold in a content neutral world. They are by their very nature not in good faith, as the theory that justifies their practice is based in bad faith because it is directed at the denial of space, peace, and presence to any individual who disagrees with their position.
The occupation of space in defiance of the rights of others to use it isn’t just an act of bad faith, it’s also a violation of the natural liberty that supports society. Such an act necessarily subordinates the scope of others’ action to the circumscription of the occupying body. This tyranny is in fact the point of the occupation: to oppress individuals until they surrender to the occupation’s ideological desires.
The aggression of this form of protest action acts under a different methodology than the truly peaceful protest, it acts under the theory of war: to take a position by force of arms and hold it against all attempts to being dislodged. In some cases, such as with the events in Portland or the Columbia University campus, these groups actually engaged in the hostile taking of a spatial position. In Portland they arguably engaged in an insurrectionary act.
The insurrectionary nature of these acts is important to recognize, for outside of well-ordered militaries, there is no law in war except the jungle law of “talon and tush and claw.” These protesters therefore turn the inefficacy of Content-Neutrality into a mockery of the law, an entrée to anarchy ironically provided and facilitated by the law itself. A true legal self-abnegation. The only escape from this legal self-destruction is to return to those natural roots of any law that are anything but neutral as interpreted by modern jurisprudence: ordered liberty, conscientious action, and good faith.
[1] The Content Neutral test requires that any restriction on the time, place or manner of protected speech be (1) Content Neutral; (2) Narrowly tailored to serve a significant government interest; (3) Leave open ample alternative channels for the speaker’s message. Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989). Time-Place-Manner controls have been defined elsewhere as “whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” Graynerd v. City of Rockford, 480 U.S. 104, 116 (1972). Essentially all speech is protected under this test, except obscenity and national security secrets (although if the materials fall into the hands of journalists, this too does not apply, e.g. New York Times Co. v. U.S., 403 U.S. 713 1971)).
[2] As various versions of the First Amendment make clear: Madison’s initial draft promised that “…nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” The Massachusetts convention’s proposal stated, “that the said constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience.” Samuel Livermore, a member of the House with Madison, suggested a version that read: “the equal rights of conscience, the freedom of the speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any state.” John Witte, Jr. and Joel A. Nichols, Religion and the American Constitutional Experiment (New York: Oxford University Press, Fourth Edition, 2016), 72-81.
While some lawyers would be tempted to object, not unreasonably, that “conscience” was ultimately dropped from the draft of the Constitution, indicating we should disregard the word, this omission goes too far. In this case, we can see conscience’s removal as an endorsement; as a way of saying, essentially, that “conscience” as a word was both too assumed and too profound a fundamental right to place in the text itself, for it would overpower the other words’ use and to the Founders’ minds, so resonate as to obscure its more specific provisions. The Founders would likely have a hard time imagining how hard we have to strain to hear that sound in our modern era.
[3] For a discussion and debate of this development regarding freedom of speech, please see Jud Campbell, “The Emergence of Neutrality,” Yale Law Journal (131:861, 864-947, 2022) and Genevieve Lakier, “A Counter-History of First Amendment Neutrality,” Yale Law Journal Forum (873- 906, January 31, 2022).
While Lakier disagrees with Campbell and asserts that neutrality was always a value present in First Amendment law, her own examples, especially that of the importance of jury trials in early First Amendment law (to which we will return later) are commensurate with an explanation that early First Amendment jurisprudence was not so much interested content neutrality, but rather sought to prevent the suppression of unpopular ideas based in fact-specific settings. This fact-intensive inquiry is different than a generic sense of neutrality and clearly possessed some kind of community-oriented sentiment, as the jury trials would have guaranteed through the jury’s representation of the vicinage.
[4] Oddly predicting Rawls’s arguments in A Theory of Justice. Indeed, one wonders if Rawl’s thinking was simply the logical conclusion of these ideas.
[5] Graynerd, 116.
[6] Samuel Johnson, “Speech,” Samuel Johnson’s Dictionary (1755).
[7]E.g. Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969); Redrup v. New York, 386 U.S. 767 (1967); Texas v. Johnson, 491 U.S. 397 (1989).
[8] See e.g. Barnes v. Glenn Theater, Inc. and Scalia’s discussion of a circumscribed right to expression under the First Amendment, while arguing against the broad assumption of a “message of eroticism” in the majority’s opinion. 501 U.S. 560 (1991).
[9] There are many scholarly writings to this point, for two survey works see Sandra Gustafson, Eloquence is Power (Chapel Hill, NC: The University of North Carolina Press, 2000) and James Warren, Culture of Eloquence (University Park, Pa: Penn State Press, 1999).
[10] See e.g. De Jonge v. Oregon, 299 U.S. 353 (1937); NAACP v. Alabama, 357 U.S. 449 (1958) and especially the full conflation in Justice Kennedy’s concurrence in California Democratic Party v. Jones, 530 U.S. 567 (2000).
[11] Again, we turn to Johnson to understand the word in its 18th century context: “Assembly, A company met together.” Note that while Johnson uses a past participle for this sentence, we would prefer the gerund to build the adverb, i.e. “meeting.” Samuel Johnson, “Assembly,” Samuel Johnson’s Dictionary (1755).
[12] And constitutes the difference between government under a “mobocracy” (a protest group) and a republic (a corporate entity, literally the res publica, or “common property”), an explosive and often contradictory tension that obsessed and deeply concerned the Founders. E.g. T.H. Breen, The Will of the People: The Revolutionary Birth of America (Cambridge, Ma: Harvard University Press, 2019), pp. 17, 44-45, 194. Though not a founder, Lincoln’s words on this subject are profound. Abraham Lincoln, “Mobocracy,” reprinted in Lapham’s Quarterly.
[13] See Ethan Doyle White, “An’ It Harm None, Do What Ye Will: A Historical Analysis of the Wiccan Rede,” Magic, Ritual and Witchcraft (10:2, 142-171, 2015).
[14] Friedrich Hayek’s argument about the market producing knowledge that may produce knowledge about the right price level for a given supply and demand and the nature of a given good within society, but that is a fact of necessary but transient convenience. It is not “truth.” F.A. Hayek, “The Use of Knowledge in Society,” The American Economic Review (35:4, Sept. 1945).
[15] Cantwell, 308-311.
[16] It is axiomatic that actions which are less potentially harmful to society merit less constraint, regardless whether they be positively good or simply neutral.
[17] Since modern procedure is no longer so modern, many people, to include well-experienced lawyers and judges, do not realize that things were ever different. A good introduction to what modern procedure is and what things looked like before it can be found in David L. Noll, “A Reader’s Guide to Pre-Modern Procedure, “Journal of Legal Education (65:2, 414-427).
[18] This essay does not necessarily endorse the community standard form of obscenity, though it does not argue against it. Millermerely provides the example of how a jury might be employed to answer the question of obscenity.
[19] See Miller. This standard clearly would have involved a question of law under our Summary Judgment standards rather than fact since it would normally be “objective” with a set, undisputed series of facts. In other words, Miller’s counsel was attempting to take the determination of obscenity entirely out of the hands of juries.
[20] E.g. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). link
[21] 432 U.S. 43 (1977).
[22] One can see the application to other such cases, like Snyder v. Phelps where the Westboro Baptist Church sought to picket a military funeral for the purpose of satisfying their desire to outrage the public at large with opinions that are both well-known to that public and despised by it. 562 U.S. 443 (2011).
