By James Taranto and David B. Rivkin, Jr.
October 1, 2023, in the Wall Street Journal
One of America’s great First Amendment pieties holds that the Constitution protects “the principle of free thought—not free thought for those who agree with us, but freedom for the thought that we hate.”
That observation comes from Justice Oliver Wendell Holmes’s dissent in U.S. v. Schwimmer (1929). A subtly more sweeping variation—you might call it the anything-goes theory of the First Amendment—is that any limit on speech opens the door to broad censorship, and therefore if the courts protect speech that has no obvious value, we can be confident of their vigilance against limiting speech that really matters.
First Amendment lawyer Floyd Abrams appealed to that logic in a 2010 interview with the Journal. Amid the left’s denunciations of Citizens United v. FEC, he described his effort to persuade the American Civil Liberties Union’s board to continue opposing restraints on campaign speech.
“I said to them: Look, you bring cases, such as one to strike down a law of Congress which was aimed at ‘virtual child pornography’—not real children being filmed, but otherwise wholly pornographic,” Mr. Abrams recounted. “I said: You didn’t do it because you wanted to protect the folks who like to watch child pornography. You did it because you thought the government shouldn’t be trusted to make content decisions about who watches anything.”
If any recent member of the Supreme Court followed the anything-goes theory, it was Justice Anthony Kennedy, whom Mr. Abrams described as “all by himself on the court” as “the single most consistently protective jurist of First Amendment rights.” Justice Kennedy was the author of both Citizens United and Ashcroft v. Free Speech Coalition (2002), the other case to which Mr. Abrams referred.
Justice Samuel Alito, by contrast, vigorously rejects the anything-goes theory. “The First Amendment was not intended to prohibit any regulation of speech,” he said in a Journal interview on July 7. On occasion that view has left him alone in dissent against a free-speech claim.
Even so, in the vast majority of cases he’s a strong defender of the freedom of speech. He accepts Holmes’s dictum and cited it in Matal v. Tam (2017), in which the court held that the government had violated a rock band’s constitutional rights by denying its trademark application for its racially insensitive name.
In oral arguments, Justice Alito has a knack for posing scenarios that reveal the untenability of speech restrictions, particularly on political speech. In Minnesota Voters Alliance v. Mansky (2018), the court reviewed a statute banning “political” attire at polling places. Justice Alito asked if a National Rifle Association T-shirt would be permitted.
“No, it would not,” the state’s lawyer said.
“How about a shirt with the text of the Second Amendment?”
“I think that would be viewed as political.”
“How about the First Amendment?” The lawyer said that would be OK but couldn’t explain why. He lost the case.
When the court first heard Citizens United in 2009, Justice Alito asked Deputy Solicitor General Malcolm Stewart if federal campaign-finance laws applied to books. When Mr. Stewart said they did, Justice Alito got to the heart of the matter: “The government’s position is that the First Amendment allows the banning of a book if it’s published by a corporation?” Rearguing the case a few months later, then Solicitor General Elena Kagan admitted: “The government’s answer has changed.”
Yet Justice Alito has rejected free-speech claims when “what we were dealing with was speech that had little if any value, and there were established and cabined rules for saying that it shouldn’t be protected in those cases,” he says. He wasn’t yet on the court when it decided Free Speech Coalition but cites a “trilogy of cases” in which he dissented on this basis:
• In U.S. v. Stevens (2009), an 8-1 majority struck down a federal criminal statute against “knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain.” Justice Alito saw such videos as analogous to actual child pornography (as distinct from the virtual kind), which entails committing a violent act “in the process of creating the speech.”
• In Snyder v. Phelps (2011), also decided 8-1, the justices ruled that the First Amendment shielded a fringe religious group from liability for staging a lawful but grotesque protest outside the funeral of a U.S. Marine. “I thought this was an example of the established tort of the intentional infliction of emotional distress,” Justice Alito says.
• In U.S. v. Alvarez (2012), the justices struck down the Stolen Valor Act of 2005, which made it a crime to claim falsely “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” “Alvarez involved speech that was false,” Justice Alito says. “You could prove the falsity of it to a scientific, mathematical certainty.” Justices Antonin Scalia and Clarence Thomas joined his dissent, which said that such claims inflict “real harm on actual medal recipients and their families.”
As he deliberated over these cases, Justice Alito weighed the anything-goes approach. “I did think at the time of those decisions: You know, my colleagues might have something,” he says. “If we say that . . . free speech has to prevail even in these outrageous situations, maybe in a later case, when what’s involved is important speech, they’ll hold firm, they’ll resist the pressure to give in.”
But several of his colleagues who backed protection of outré speech in those cases have endorsed restrictions on core political speech in others. Justices Stephen Breyer and Sonia Sotomayor voted to let Minnesota’s T-shirt ban stand. Four justices dissented from the pro-free-speech holdings in Citizens United, and Justice Alito’s vote was pivotal: His predecessor, Justice Sandra Day O’Connor, had gone the other way in McConnell v. FEC (2003).
The ACLU was long a redoubt of free-speech absolutism, but today Justice Alito is a more resolute defender of core political speech. Mr. Abrams lost the internal debate over Citizens United as the board changed its position and endorsed “reasonable” limits on campaign contributions. “The ACLU doesn’t say what ‘reasonable’ means, so the government will doubtless supply the definition,” Mr. Abrams and two other ACLU dissenters wrote in an April 2010 Journal op-ed.
Then there’s 303 Creative v. Elenis (2023), in which the justices held 6-3 that the state of Colorado can’t compel a web designer to create sites celebrating gay weddings. “A lot of the dissent,” Justice Alito says, “involved providing public accommodations in the ordinary sense of the word—allowing someone to eat at a restaurant, allowing someone to rent a hotel room, or the sale of an off-the-shelf product.” Those aren’t expressive acts, and “the woman who operated the company said she didn’t discriminate in that way.”
He notes that both sides in the case “stipulated that this was pure speech.” The right to speak against same-sex marriage is important enough that Justice Kennedy’s majority opinion emphasized it in Obergefell v. Hodges (2015), even as it declared that gay couples have a constitutional right to wed. But the ACLU filed a friend-of-the-court brief in 303 Creative siding with the state on the grounds that its application of the law imposed only an “incidental burden” the owner’s constitutional rights.
By now it’s unsurprising that the ACLU would take such a position. A more poignant rebuttal of the anything-goes theory is that at an earlier stage of the case, six legal scholars made the same argument to the 10th U.S. Circuit Court of Appeals. The first signer of that April 2020 brief: Floyd Abrams.
Mr. Taranto is the Journal’s editorial features editor. Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.