Sunday, January 06, 2019

John Yoo And James C. Phillips: "'Free Speech' Means Just That"

"A too-broad interpretation of the Constitution’s free-speech clause protects things that have nothing to do with speech and makes other clauses superfluous."

Very interesting:
   Ironically, while the Court has diverged from the First Amendment’s original meaning by watering down the definition of speech, the Court has determined that commercial speech deserves lesser protection. But again, the Constitution makes no distinction between types of speech. Speech is speech under the First Amendment, whether political, religious, commercial, ideological, academic, or other. The only way that commercial speech could receive less protection under the Constitution is, under the natural-rights framework, because it is more prone to certain harm than other types of speech, and thus can trigger government regulation. But that’s a correlation, not a categorical distinction — and must be determined case by case.
   Given this original meaning, some of the Court’s canonical, if not controversial, free-speech decisions have wandered far beyond the Constitution’s text and history. Certainly the Court’s 1972 decision finding a constitutional right to nude dancing is wrong (California v. LaRue). Similarly, Texas v. Johnson, in which the Court concluded that flag burning is speech, is also probably wrong.
   Restricting free speech to just that — speech — rather than conduct, cuts both ways. For example, liberals want sexual orientation to be speech. Conservatives want cake baking to be speech. Neither would have constituted speech at the time of the ratification of the Bill of Rights. The Constitution’s original meaning is not necessarily conservative or liberal.
   Conservatives have arguably pushed an erroneous free-speech argument as to why limits on campaign contributions, such as those upheld in Buckley v. Valeo, violate the First Amendment. Adopted in Citizens United v. FEC, conservatives on the Court reasoned that financial contributions facilitate candidate speech; thus, limiting donations unconstitutionally limits speech.
   We think the Founders might have disagreed that money equals speech. Money facilitates speech. So does a megaphone, or a personal computer. Nor does all money constitute speech; we do not speak when we buy an apple at the supermarket. Not all money given to candidates even goes towards electoral speech.


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