Unifying Around Our Expressive Liberties
The rights of speech and assembly must extend beyond party or ideology
Last week, I introduced an exchange I had on Law and Liberty with Yuval Levin, the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs. Yuval had written an essay, “Constitutional Unity,” and I was one of several invited respondents. In last week’s post, I focused on my skepticism about some of Yuval’s assumptions regarding our national unity.
Yuval has since responded to the commentaries on his essay. Addressing my critique of his claim that “we are not strangers,” Yuval writes:
I would say that we are fellow citizens, with an enormous amount in common. We disagree about a lot (though by no means everything), but our common culture, history, instincts, and presumptions add up to a common national character that no one outside the United States could miss. Our politics naturally takes shape around our disagreements, but we should not imagine that this renders Americans into strangers, let alone enemies, to one another. Ask Americans what they think of the opposite party, and they will say nasty things. But ask them about what they believe and prioritize themselves, and you will find a lot of common ground.
My second critique of Yuval’s essay was about the nature of this common ground. I suggested that he missed an opportunity to explore the unifying potential of our expressive liberties of speech and assembly. Today’s post highlights the importance of preserving those liberties regardless of the belief or viewpoint espoused.
In the News
Earlier this year, the United States Court of Appeals for the Second Circuit upheld the dismissal of a lawsuit filed by Debra Vitagliano, a woman who participates in prayer vigils and seeks to counsel women entering the Planned Parenthood in White Plains, New York. Vitagliano challenged a Westchester County law establishing a zone around abortion clinics that prohibited anyone “engaging in oral protest, education, or counseling” from coming within eight feet of another person without that person’s consent.
The Second Circuit reached its conclusion based solely on the Supreme Court’s 2000 decision in Hill v. Colorado, a 5-4 decision that upheld a Colorado restriction similar to the Westchester County law. Justice Kennedy’s dissent in Hill noted the decision left unprotected core political expression conducted “in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk” and “contradict[ed] more than a half century of well-established First Amendment principles.”
Hill has been widely criticized as an aberration of First Amendment law. In 2014, the Supreme Court took McCullen v. Coakley, a case that many observers thought would overrule Hill. Instead, the Court sided with the protester but left Hill undisturbed. Justice Scalia wrote separately, noting that the provision at issue in McCullen was modeled on the Colorado law in Hill and that the majority should have overruled Hill to side with the petitioner in McCullen:
I necessarily conclude that Hill should be overruled. Reasons for doing so are set forth in the dissents in that case, and in the abundance of scathing academic commentary describing how Hill stands in contradiction to our First Amendment jurisprudence. Protecting people from speech they do not want to hear is not a function that the First Amendment allows the government to undertake in the public streets and sidewalks.
In July, Vitagliano petitioned the Supreme Court to review the Second Circuit’s decision and specifically asked the Court to overrule Hill.
In my Head
Last week, I joined Stanford law professor Michael McConnell and Steve McFarland of the Christian Legal Society in an amicus brief urging the Supreme Court to grant Vitagliano’s petition. Like Vitagliano, we believe that Hill is fundamentally wrong and should be overruled. Our brief asserts:
Hill’s failure to guarantee meaningful access to all speakers skews the forum in favor of a particular viewpoint. Under the guise of neutrality, ideological policing of the forum operates like a classic prior restraint—excluding certain perspectives from the forum before their ideas and values are ever able to manifest.
A core part of our argument links the flaws in Hill to a misunderstood public forum doctrine that neglects its roots in the right of assembly. As I have argued elsewhere, the right of assembly “allows people to form and gather in groups of their choosing and to express their values and beliefs even when—and perhaps especially when—those views challenge or upset government officials.” The Court’s modern focus on free speech doctrine misses the significance of assembly to public gatherings and protests. In particular, its focus on “content neutrality” (a free speech doctrine that pays no attention to assembly) allows government officials to restrict the time, place, and manner of expressive liberties. But as we note in our brief, restrictions not based on the content or viewpoint of a message can also stifle important expression:
Content-neutral time restrictions can sever the link between message and moment. Consider, for example, the consequences for political dissent of a content-neutral time restriction that closed a public forum on symbolic days of the year like September 11th, August 6th (the day the United States detonated an atomic bomb on the city of Hiroshima), or June 28th (the anniversary of the Stonewall Riots). Content-neutral time restrictions that closed the public sidewalks outside of prisons on days of executions, outside of legislative buildings on days of votes, or outside of courthouses on days that decisions are announced, would raise similar concerns.
Content-neutral place restrictions can be similarly distorting. Restrictions that deny access to places of symbolic significance undermine the expression that depends upon connection to place. Hill’s assertion that the Colorado statute was not a regulation of speech but simply “a regulation of the places where some speech may occur” misses this fundamental connection: the location of the speech can be indispensable to its message and its efficacy.
Content-neutral manner restrictions can drain an expressive message of its emotive content. A ban on singing could weaken the significance of a civil rights march, a funeral procession, or a memorial celebration. Content-neutral manner restrictions can also eliminate certain classes of people from the forum altogether. Imagine, for example, a public forum that required all expression to be conveyed on notarized documents or gold-embossed stationery.
One of the most disappointing developments in this area of the law has been the shift of the American Civil Liberties Union away from supporting free speech and assembly for all and toward issue-specific advocacy. In Hill, the ACLU rightly sided with the protesters, noting that the Colorado restriction made “even traditional First Amendment advocacy on the public streets a matter of grace rather than right.” Fourteen years later, the ACLU filed a brief “in support of neither party” in McCullen and substantially backed away from its prior commitment to free speech in Hill. If the Supreme Court grants Vitagliano’s petition, the ACLU will have another opportunity to weigh in on the speech and assembly rights that benefit us all.
In the World
This week, I am taking the unusual step of recommending a book that I haven’t yet read. Nadine Strossen’s Free Speech: What Everyone Needs to Know will be published this October. Professor Strossen is the former president of the ACLU, and she and I serve together on the advisory board for the Bech-Loughlin First Amendment Center at the University of Texas School of Law. Unlike the ACLU in recent years, Professor Strossen has consistently advocated for broad speech and assembly rights. This book looks to be an explanation of her views for a more general readership, summarizing the law in “an understandable, interesting, and memorable fashion.” Importantly, the book also roots its arguments in the history of the First Amendment:
The book focuses on modern First Amendment law, explaining the historic factors that propelled its evolution in a more speech-protective direction. It highlights the many cases, involving multiple issues, in which robust speech-protective principles aided advocates of racial justice and other human rights causes. The book also shows how these holdings reflect universal, timeless values, which have been incorporated in many other legal systems, and have inspired countless thinkers and activists alike.
I look forward to reading Professor Strossen’s book this fall, and I hope you will join me in deepening our understanding of a commitment to speech and assembly rights for all expression, whether we agree with that expression or not.
