Why the Marketplace of Ideas Needs Natural Law for Support and the Content-Neutrality Doctrine for Application

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A FOUNDATION FOR THE MARKETPLACE: WHY THE MARKETPLACE OF IDEAS NEEDS NATURAL LAW FOR SUPPORT AND THE CONTENT-NEUTRALITY DOCTRINE FOR APPLICATION

EUGENE MINCHIN

A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY

UNIVERSITY OF FLORIDA

2018

This dissertation is dedicated to Providence Mercy. May she do justly, love mercy and walk humbly.

ACKNOWLEDGEMENTS

I wish to thank my wife, Suzanne, who has been a delight to live and work with these last four years. She has been a constant source of grace, encouragement and stability. I would also like to thank Clay Calvert; this project would have never happened without his keen oversight.

TABLE OF CONTENTS page

ACKNOWLEDGEMENTS ...... 4

ABSTRACT ...... 7

CHAPTER

1 INTRODUCTION ...... 8

2 LITERATURE REVIEW ...... 26

Introduction to Chapter 2 ...... 26 Natural Law ...... 26 The Marketplace of Ideas Theory ...... 45 The Content-Neutrality Doctrine ...... 66

3 POSITIVISM, VALUE AND TRUTH ...... 86

Introduction to Chapter 3 ...... 86 Positivism and its Permutations ...... 86 Value and the Objective Turn ...... 97 Empiricism and Scientism ...... 99 Rights Prioritization ...... 104 Truth ...... 108

4 TETHERING PHILOSOPHY TO DOCTRINE ...... 119

Introduction to Chapter 4 ...... 119 R1: How does the Natural Law View of Truth Inform Freedom of Expression as Envisioned in the Marketplace of Ideas? ...... 120 Unlike Natural Law, Positivism does not Provide an Ontological Means to Assume Truth is Discoverable Because it does not Assume Rationality...... 121 Positivism Provides No Basis for Caring What the Truth is...... 124 Truth as consensus/instrumentality ...... 125 Truth as irrelevance ...... 128 Distinction between Ontological Skepticism and Epistemological Humility ...... 130 Judicial Recognition of Objective Truth ...... 132 R2: What Role do Value Judgments Play in Judicial Analyses Generally and the Freedom of Expression in Particular? ...... 141 Complete Neutrality is Philosophically Impossible ...... 142 Complete Neutrality is Practically Impossible ...... 146 Empiricism ...... 153 Harm principle ...... 156 Caprice and Power Rush to Fill the Void ...... 159

R3: When contrasted with positivist modes of legal reasoning, how does a natural law- informed approach affect the application of the content-neutrality doctrine in First Amendment jurisprudence? ...... 162

5 CONCLUSION...... 171

APPENDIX

A IMPORTANT CASES...... 182

B GLOSSARY ...... 186

LIST OF REFERENCES ...... 190

BIOGRAPHICAL SKETCH ...... 213

Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy

A FOUNDATION FOR THE MARKETPLACE: WHY THE MARKETPLACE OF IDEAS NEEDS NATURAL LAW FOR SUPPORT AND THE CONTENT-NEUTRALITY DOCTRINE FOR APPLICATION

By Eugene Minchin

December 2018

Chair: Clay Calvert Major: Mass Communication

This work examines the philosophical foundations that undergird the most prominent justification for free speech: the marketplace of ideas. Although first imported into constitutional jurisprudence nearly a century ago by Oliver Wendell Holmes, Jr., the marketplace of ideas theory currently rests on a tenuous foundation of positivism, a worldview that divorces law from metaphysics. This dissertation acknowledges the value the marketplace of ideas provides to constitutional law yet contends that positivism provides an inadequate basis for supporting the theory. Instead of positivism, this work argues, the philosophy of natural law provides a significantly more stable foundation both for the marketplace truth-seeking function and the content-neutrality doctrine that applies it.

CHAPTER 1 INTRODUCTION

In December 2015, the United States Court of Appeals for the Federal Circuit decided that Simon Tam could call1 his rock band “The Slants.”2 The decision came after a six-year legal battle in which Tam, an Oregonian of Asian ancestry, fought the United States Patent and

Trademark Office (PTO) for the right to register a trademark for his group that, in the eyes of the

PTO, disparaged Asians.3 The issue before the court involved competing rights: the First

Amendment right of free expression4 against the Lanham Act’s right to not be disparaged or offended.5 The statutory language under consideration stated:

1 Strictly speaking, Tam and his band could call themselves whatever they wished. The ruling in this case dealt with the Trademark Trial and Appeal Board’s interpretation of the Lanham Act, which prohibited the band from trademarking its name. This prohibition precluded the band members from attaining registration’s accompanying intellectual property rights, such as legal enforcement of the band’s brand within the marketplace. See In re Tam, 808 F.3d 1321,1328–29 (Fed. Cir. 2015) (identifying a comprehensive list of trademark-holders’ benefits). 2 Id. at 1358. 3 The PTO provided a plethora of linguistic and etymological evidence to suggest that the term, referring to the eye shape of Eastern Asians, featured “a long history of being used to deride and mock a physical feature” of people of Asian ancestry. Id. at 1331. 4 The First Amendment to the U.S. Constitution provides, in relevant part, that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” U.S. CONST. amend. I. The Free Speech and Free Press Clauses were incorporated more than ninety years ago through the Fourteenth Amendment Due Process Clause as fundamental liberties to apply to local and state government entities and officials. See Gitlow v. New York, 268 U.S. 652, 666 (1925) (explaining that “[f]reedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States”). 5 15 U.S.C. ch. 22 (2016). The purpose of the Lanham Act, which was passed by Congress in 1946, is to advance two trademark-related goals: First, the purpose of the Lanham Act is to protect the public so it may be confident that, in purchasing a product bearing a particular trademark which it favorably knows, it will get the product which it asks for and wants to get. Second, the Lanham Act ensures that a markholder can protect his investment from misappropriation by pirates and cheats. By applying a trademark to goods produced by one other than the trademark’s owner, the infringer deprives the owner of the goodwill which he spent energy, time, and money to obtain. At the same time, the infringer deprives consumers of their ability to distinguish among the goods of competing manufacturers.

No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it [c]onsists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.6

Writing for the majority, Judge Kimberly Ann Moore voided the disparagement clause of the Lanham Act and allowed Tam to register “The Slants.”7 In reaching her decision, Moore used the constitutional canon of content neutrality. At first blush, the doctrine appears straightforward: if a law targets a particular topic or subject matter for regulation, then it is considered content-based and is subject to strict judicial scrutiny.8 If, in contrast, a provision merely regulates the time, place or manner (TPM) of expression, then the much more government-friendly intermediate scrutiny standard applies.9 TPM laws are constitutional if they are “narrowly tailored to serve a significant governmental interest” and “leave open ample alternative channels for communication of the information.”10 As the U.S. Supreme Court first wrote in the 1980s and has repeated numerous times since, content-neutral laws, which include

TPM statutes, “are justified without reference to the content of the regulated speech.”11

In re Tam, 808 F.3d 1321, 1328 (Fed. Cir. 2015), internal citations omitted. 6 15 U.S.C. § 1052(a) (2016). 7 In re Tam, 808 F.3d at 1329. 8 See David S. Han, Transparency in First Amendment Doctrine, 65 EMORY L.J. 359, 396 (2015) (describing strict scrutiny as “the default rule” for “content-based regulation[s]”). See also infra notes 2, 220–2, 222 and accompanying text for a further explanation of strict scrutiny. 9 See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994) (articulating that “laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are in most instances content-neutral”). See also infra notes 2, 225–2, 227 and accompanying text for a further explanation of intermediate scrutiny. 10 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). 11 Id.

The impetus for this doctrine is simple: laws that single out certain ideas indicate illicit and censorial government intent.12 As constitutional scholar Cass Sunstein explains, “[w]hen government regulates content, there is a large risk that the restriction really stems from something illegitimate: an effort to foreclose a controversial viewpoint, to stop people from being offended by certain topics and views, or to prevent people from being persuaded by what others have to say.”13 The content-neutrality doctrine combats this problem by scrutinizing laws that target certain types of speech much more stringently than their content-neutral counterparts.

In Tam, Judge Moore applied this canon. She opined that if it is “the viewpoint of the message conveyed which causes the government to burden the speech . . . [then] the regulation cannot reasonably be argued to be content neutral or viewpoint neutral.”14 Under the strict scrutiny standard, therefore, the disparagement clause of the Lanham Act could not pass constitutional muster.15

When the case reached the U.S. Supreme Court in 2017, the justices unanimously upheld the Federal Circuit’s ruling and largely agreed with Judge Moore’s analysis.16 Writing for the majority, Justice Samuel Alito opined that the disparagement clause was little more than a

“happy talk clause” and struck it from the Lanham Act.17 Concurring, Justice Anthony Kennedy

12 See Turner Broad. Sys., Inc., 512 U.S. at 641 (explaining that “Laws [that discriminate based on content] pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or to manipulate the public debate through coercion rather than persuasion”). 13 CASS SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 169–70 (1993). 14 In re Tam, 808 F.3d at 1337. See also infra note 2, 245 and accompanying text (explaining that viewpoint-based regulations are an even more constitutionally egregious subset within content- based laws). 15 Id. at 1358. 16 Matal v. Tam, 137 S. Ct. 1744, 1765 (2017). 17 Id.

discussed the content-neutrality doctrine in even more depth and agreed with Judge Moore that the disparagement clause was, in fact, a viewpoint-based regulation.18

Just a few months before Simon Tam triumphed at the Federal Circuit, a federal district court in California applied the same doctrine to a completely different factual scenario in Pickup v. Brown.19 On remand from the U.S. Court of Appeals for the Ninth Circuit,20 the district court considered a First Amendment challenge to a California statute21 that prohibits licensed healthcare providers from engaging in sexual orientation change efforts (SOCE) with minors.22

In particular, the Golden State law subjects medical professionals “to discipline by the licensing entity”23 if they attempt to use any means, including conversation, to discourage minors from homosexual attraction or tendencies.24

The Ninth Circuit declared, prior to remand, that “[a]lthough some speech interest may be implicated, California’s content-neutral mental health licensing scheme is a valid exercise of its police power. . . . That psychoanalysts employ speech to treat their clients does not entitle them, or their profession, to special First Amendment protection.”25 Although both the district court and Ninth Circuit invoked the concept of content neutrality, they both categorized the law

18 Id. at 1765–67 (Kennedy, J., concurring). 19 2015 U.S. Dist. LEXIS 123881 (E.D. Cal. Sep. 15, 2015). 20 Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013). The Ninth Circuit subsequently affirmed and slightly amended its decision, and the plaintiffs soon thereafter appealed the ruling. Pickup v. Brown, 2014 U.S. App. LEXIS 1878 (9th Cir. Jan. 29, 2014). The Ninth Circuit denied an en banc rehearing, so the plaintiffs petitioned the U.S. Supreme Court for a writ of certiorari, which was later denied. Press Release, Liberty Counsel, Ninth Circuit Stays Ruling on California Change Therapy Ban (Feb. 4, 2014), http://www.lc.org/index.cfm?PID=14100&PRID=1403). 21 CAL. BUS. & PROF. CODE § 865.1 (2013). 22 Pickup, U.S. Dist. LEXIS 123881, at 5. 23 CAL. BUS. & PROF. CODE § 865.2 (2013). 24 Pickup v. Brown, 740 F.3d 1208, 1215 (9th Cir. 2014) (O’Scannlain, J., dissenting). 25 Pickup v. Brown, 2013 U.S. App. LEXIS 18068, at 19 (9th Cir. 2013).

as affecting conduct rather than speech.26 This maneuver allowed them to circumvent not only strict scrutiny, but also intermediate scrutiny.27 Under the most government-friendly of all standards, rational basis review, the law—after a litany of appeals—was upheld.28

The U.S. Supreme Court is also no stranger to the content-neutrality doctrine, having applied it at least twenty-five times in the last decade.29 In McCullen v. Coakley, for instance, the

Court recently considered provisions of a Massachusetts law30 that established thirty-five-foot buffer zones around abortion facilities. The buffer zones prohibited anyone except facility employees and patients from approaching women entering the clinics.31 Because the statute on its face did not regulate the content of expression—but rather the place it occurred—the five- justice majority determined the law was a content-neutral TPM law and therefore subjected it to intermediate scrutiny.32 Even so, the majority determined that the law was not narrowly tailored to serve the government interest of protecting women’s access to abortions, and so it declared the law unconstitutional.33

On the surface, these three cases appear to share little in common. Procedurally, they each occurred at different federal levels—district, intermediate appellate and court of last resort—and factually, they dealt with unrelated issues—trademarks, SOCE and buffer zones. Yet beyond their obvious dissimilarities, they possess important commonalities.

26 Id. 27 See id. at 32 (concluding that “any effect [the law] may have on free speech interests is merely incidental. Therefore, we hold that SB 1172 is subject to only rational basis review and must be upheld if it bears a rational relationship to a legitimate state interest”) (internal citation omitted). 28 Welch v. Brown, 2016 U.S. App. LEXIS 15444, at 15 (9th Cir. 2016). 29 Seth F. Kreimer, Good Enough for Government Work: Two Cheers for Content Neutrality, 16 U. PA. J. CONST. L. 1261, 1266 (2014). 30 MASS. GEN. LAWS, ch. 266 § 120E1/2(b) (2012). 31 134 S. Ct. 2518, 2541 (2014). 32 Id. at 2534 (stating that “the Act is neither content nor viewpoint based and therefore need not be analyzed under strict scrutiny”). 33 Id. at 2541.

First, as already indicated, they each employed the content-neutrality doctrine in reaching their conclusions. Second, they each appealed in some way to the venerable marketplace of ideas theory of free expression (MOI).34 The marketplace theory, which traces back to pre- enlightenment England,35 was first imported into First Amendment jurisprudence by Supreme

Court Justice Oliver Wendell Holmes, Jr. He wrote nearly a century ago that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”36 As the theory’s name suggests, it analogizes ideas to goods and essentially postulates that, given sufficient time and an open ideational forum, truthful ideas will emerge. As John Milton optimistically queried more than 350 years ago:

though all the winds of doctrine were let loose to play upon the earth, so Truth be in the Field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew truth put to the worse in a free and open encounter?37

In the case of Simon Tam, for example, Judge Moore appealed to this concept by framing the issue as one pitting the First Amendment right of freedom of expression in the marketplace of

34 Each of the three majority opinions explicitly referred to both the content-neutrality doctrine and the marketplace metaphor, except for the SOCE case, which only directly referred to content neutrality. By determining that SOCE is conduct rather than speech, both the Ninth Circuit and district court circumvented theoretical discussions of the marketplace of ideas altogether. Yet, as suggested by Clay Calvert and his colleagues in Conversion Therapy and Free Speech: A Doctrinal and Theoretical First Amendment Analysis 20 WM. & MARY J. OF WOMEN & L. 525, 564 (2014) the MOI was still implicated, as there was and still remains “a possible danger from a marketplace of ideas perspective is that normative beliefs regarding SOCE—not factual ones— held by the legislative majority in California are being used to silence expression in the form of speech-based SOCE on minors.” Id. This view was also expressed by Judge Diarmuid O’Scannlain, who declared in his Brown dissent that the decision “contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California’s prohibition—in the guise of a professional regulation—of politically unpopular expression”). Pickup v. Brown, 740 F.3d 1208, 1215 (9th Cir. 2014) (O’Scannlain, J., dissenting). 35 See generally N. H. KEEBLE, MILTON AND PURITANISM (Thomas N. Corns ed. 2001). 36 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 37 JOHN MILTON, AREOPAGITICA 126 (J.C. Suffolk ed., 1968) (1644).

ideas against the Lanham Act’s right to not be disparaged in the marketplace of goods and services.38 “Underpinning the First Amendment’s protection of core speech that is disparaging,” a separate dissenting opinion in Tam explained, “is the fundamental constitutional value of preserving an uninhibited marketplace of ideas in which truth will ultimately prevail, a marketplace that provides suitable access to social, political, esthetic, moral, and other ideas and experiences.”39 Although courts commonly use several other free-speech rationales, such as democratic self-governance40 and autonomy,41 the MOI theory is the most prevalent justification in contemporary jurisprudence for freedom of expression.42 Indeed, as of this dissertation’s

38 See In re Tam, 808 F.3d 1321, 1355 (Fed. Cir. 2015) (summarizing that “[d]iscrimination against a mark by virtue of its offensive, disparaging nature discriminates against the mark’s political or social message should be subject to strict scrutiny, and be invalidated for its undisputed inability to survive such scrutiny”). 39 In re Tam, 808 F.3d 1321, 1364 (Fed. Cir. 2015) (Dyk, J., dissenting). 40 The democratic self-governance theory is generally associated with philosopher Alexander Meiklejohn. He argued that the primary focus of the freedom of expression is to create an atmosphere conducive to people governing themselves in an orderly, democratic fashion. Meiklejohn wrote, “the principle of the freedom of speech springs from the necessities of the program of self-government.” ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 26 (1948). 41 Unlike the marketplace theory, which views free expression as a means to an end (the attainment of truth), the autonomy theory (alternatively known as the self-fulfillment theory) sees self-expression as an end in and of itself. As Professor Rodney Smolla writes, “It is a right to defiantly, robustly, and irreverently to speak one’s mind just because it is one’s mind” (emphasis original). RODNEY SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 9 (1992). 42 See generally W. Wat Hopkins, The Supreme Court Defines the Marketplace of Ideas, 73 JOURNALISM & MASS COMM. Q. 40 (1996) (providing a rather comprehensive review of the high court’s predominant use of the marketplace metaphor to justify the freedom of expression); see also C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 7 (1989) (stating that the MOI theory “consistently dominates the Supreme Court’s discussion of freedom of speech”); but see MATTHEW D. BUNKER, CRITIQUING FREE SPEECH 1–2 (2001) (suggesting that the “United States Supreme Court has not singled out one overriding theoretical justification for free speech,” although the marketplace metaphor “represents one of the most powerful images of free speech”).

completion in fall 2018, the two most recent free expression opinions authored by the U.S.

Supreme Court expressly referred to the marketplace metaphor.43

Beyond the content-neutrality doctrine and the MOI theory, the third commonality among these three cases is that each implicated philosophical issues regarding value judgments, objectivity and truth—as well as the judiciary’s relationship with them.

This dissertation focuses on the interactions among these three concepts—First

Amendment doctrine, free speech theory and broadly applicable philosophy. It makes two fundamental assumptions. First, in common-law jurisdictions, judicial opinions generally rely on time-honed canons and doctrines.44 These legal principles, in turn, neither originate nor evolve in a vacuum; they are, instead, reciprocally engaged in both influencing and being influenced by the societal mores within which they exist.45 The second assumption, which builds on the first,

43 See Janus v. AFSCME, 138 S. Ct. 2448, 2464 (2018) (“Free speech serves many ends. It is essential to our democratic form of government, and it furthers the search for truth. Whenever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends”) (internal citations omitted); Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2374 (2018) (holding that “when the government polices the content of professional speech, it can fail to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail”) (internal citation omitted). 44 Each of these common law doctrines, Judge Learned Hand famously pontificated, are like a “monument slowly raised, like a coral reef, from the minute accretions of past individuals, of whom each built upon the relics which his predecessors left, and in his turn left a foundation upon which his successors might work.” Learned Hand, Book Review, 35 HARV. L. REV. 479, 479 (1922). 45 See Steven Lubet, Law and Popular Culture: Slap Leather! Legal Culture, Wild Bill Hickok, and the Gunslinger Myth, 48 UCLA L. REV. 1545, 1545 (2001) (explaining at length that It is undeniable that culture influences law, as is inherent in a democracy. Elected legislators enact statutes that reflect collective social preferences. Judges, and juries more so, though admonished to be neutral and detached, cannot divorce themselves from the milieu in which they live. The very legal tests required for adjudication resound with cultural references—reasonable person, due care, rational basis, appearance of impropriety, immediate fear. These standards, and others like them, can only be applied against a backdrop of assumed cultural values. But law is not merely the object or result of popular culture. In a familiar

suggests that, whether expressly acknowledged or not, generally applicable (that is, broad, non- legal) philosophical concepts often wield significant influence on legal theories and doctrines.46

Based upon these descriptive assumptions, the normative contention offered by this dissertation is that the most stable, just and equitable judicial paradigms47 exist when legal doctrines such as content-neutrality comport with more comprehensive judicial theories which, in turn, are premised upon even broader philosophical principles. The simply imagined model, then, forms a pyramid, with a generally applicable philosophy providing the foundation and a narrowly applied legal doctrine at the apex. The nexus between the two is judicial theory.

As illustrated by the cases of Tam, Pickup and McCullen, the content-neutrality doctrine and the MOI are well entrenched in First Amendment jurisprudence, as courts commonly employ

dialectic, law also exercises its own agency, both shaping norms and enabling conduct consistent with those norms).

46 See BERYL H. LEVY, ANGLO-AMERICAN PHILOSOPHY OF LAW xxiii (1991) (featuring legal pragmatist and Columbia Law Professor Beryl Levy explaining that “[l]egal theory has always been inspired by forces outside the law in philosophy”). 47 Popularized by physicist Thomas Kuhn in his seminal work, The Structure of Scientific Revolutions, the concept of a “paradigm” suggests that under normal circumstances, people who operate within specific fields of knowledge function within a common frame of mind, allowing them to possess a mutually acknowledged set of commensurable reference points from which to work. See generally THOMAS KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1962). As for the existence of a judicial paradigm, Professor Charles Collier observed that: a glance at contemporary—particularly interdisciplinary—legal scholarship reveals a state of what might charitably be termed “pre-revolutionary” turmoil. Legal scholars today seem to be competing much like seventeenth and eighteenth century explorers seeking new discoveries: competing to promote new theories and new ideas around which fields of law will be reorganized, and competing to write the longest, most theoretical, and most profoundly deconstructive monographs possible.

Charles Collier, Interdisciplinary Legal Scholarship in Search of a Paradigm, 42 DUKE L.J. 840, 844 (1993).

both when providing rationales for their decisions.48 Importantly, however, the mere fact that courts often use these ideas has not correlated to employing them uniformly or consistently.

Two recent U.S. Supreme Court decisions, for example, cast current confusion concerning the content-neutrality doctrine into high relief. In McCullen, as well as Reed v. Town of Gilbert49 in 2015, the high court had difficulty determining whether the statutes under consideration were content-based or content-neutral.50 These difficulties have percolated for years, prompting scholars as far back as the early 1980s to suggest that the doctrine should be significantly tweaked or even jettisoned entirely.51 More recent scholarship repeats these proposals, suggesting that unless something is done to clear matters up, the content-neutrality canon may be in trouble. For example, Professor R. George Wright recently opined, especially in light of McCullen, that the doctrine has “diminished in clarity, coherence and practical significance, such that further attempts to establish any clear hierarchical distinction are no longer worth the effort.”52 Although such drastic measures as doctrinal abandonment are

48 See Kreimer, supra note 1, 29, at 1266 (explaining, for example, that more than half the First Amendment cases adjudicated in the last decade have employed the content-neutrality doctrine). See also supra Chapter 2, Section C (providing descriptions of three such cases that employed both the marketplace metaphor and the content-neutrality doctrine). 49 135 S. Ct. 2218 (2015). 50 In McCullen, the Court ruled five-to-four in favor of content neutrality. 134 S. Ct. 2518, 2541 (2014). In Reed, the Court decided that the law in question was content-based, although three separate concurrences were filed specifically to quibble over the doctrine’s application. 135 S. Ct. at 2233 (Alito, J., concurring); id. at 2234 (Breyer, J., concurring); id. at 2236 (Kagan, J., concurring). 51 See, e.g., Martin H. Redish, The Content Distinction in First Amendment Analysis, 34 STAN. L. REV. 113 (1981). 52 R. George Wright, Content-Neutral and Content-Based Regulations of Speech: A Distinction that is no Longer Worth the Fuss, 67 FLA. L. REV. 2081, 2082 (2015).

unlikely,53 the Supreme Court’s fracturing in McCullen and Reed strongly suggests that added clarity is critical for the doctrine’s continued utility.54

The lack of consistent application of the marketplace theory, although not as fragmented as the content-neutrality doctrine, is nonetheless remarkable. The dissent in Tam, for instance, spends more time discussing MOI than the majority, yet it reached a completely different conclusion about the theory’s application.55 This is not uncommon, contends Saby Ghoshray.

Ghoshray points out that the metaphor not only is frequently invoked by competing sides within individual cases, but that as a whole, “First Amendment jurisprudence continues to suffer from inconsistencies of periodic embrace and discard of [MOI,] borne out of exigencies of specific desired outcomes.”56

Although scholars offer many reasons for such inconsistency and unclearness within these judicial spheres,57 one often-overlooked possibility is that the theory and doctrine, while plainly linked to one another, may not rest upon a broader philosophical rationale that adequately supports them. To use another metaphor, a doctrine may be reasonably well tethered to a theory, but the theory may drift aimlessly upon a roiling sea of jumbled and often-contradictory ideas, un-moored from a unifying philosophical basis.58 One goal of this dissertation, then, is to suggest a tenable philosophical paradigm upon which to base the content-neutrality doctrine via the marketplace theory.

53 Minch Minchin, A Doctrine at Risk: Content-Neutrality in a Post-Reed Landscape, 22 COMM. L. & POL’Y 123, 150 (2016). 54 Id. at 151. 55 In re Tam, 808 F.3d 1321, 1364–65 (Fed. Cir. 2015) (Dyk, J. dissenting). 56 Saby Ghoshray, Examining Citizens United’s Expansive Reach: Looking Through the Lens of the Marketplace of Ideas and Corporate Personhood, 57 WAYNE L. REV. 373, 408 (2011). 57 See infra Chapter 2, Sections B and C (analyzing various critiques of the marketplace metaphor and the content-neutrality doctrine). 58 See infra Chapter 3, Section A (expounding upon the evolution of the judicial philosophies of positivism, pragmatism and utilitarianism).

The primary criterion for evaluating the superiority of any legal paradigm is the one that provides the greatest degree of both internal consistency within59 the judicial structure and external rationality without.60 With that in mind, this dissertation contends that the most suitable foundation for the content-neutrality doctrine, by way of the MOI theory, is natural law philosophy.

Although variations and permutations of its application exist, the essence of natural law is that there are certain foundational truths that any person of reason “can’t not know.”61 These

“self-evident” truths, as Thomas Jefferson called them,62 have been variously described as first principles, a priori knowledge, the law of nature or the law of reason.63

These fundamental ideals, under the natural law paradigm, are innately valuable; that is, they need no further justification for their goodness because they are inherently good, in and of themselves, and are worth pursuing for their own sake.64 Such truths, according to natural law adherents, transcend time and culture and are universal.65 At its most basic level, natural law philosophy encompasses a large degree of teleological “oughtness”;66 that is, good actions are those that comport with proper human functioning and flourishing, while bad actions are those that contradict it.67

In the legal context, the natural law ideal further presupposes that law and morality are inextricably entwined, and that in order for a law to be legitimate, it must further the general

59 See infra Chapter 3, Section C for a discussion of the coherence conceptualization of truth. 60 See id. for an explanation of the correspondence conceptualization of truth. 61 J. BUDZISZEWSKI, NATURAL LAW FOR LAWYERS 44 (2006). 62 Thomas Jefferson, The American Declaration of Independence (1776). 63 See generally, JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1980). 64 J. BUDZISZEWSKI, WHAT WE CAN’T NOT KNOW 83 (2003). 65 Id. at 15–16. 66 LEVY, supra note 1, 46, at 5. 67 Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 YALE L.J. 907, 923–930 (1993).

goals of helping humanity fulfill its human nature.68 This view contrasts with other judicial philosophies such as positivism, realism, utilitarianism and pragmatism, which assert that laws have no necessary connection to morals and are “good” by virtue of their general acceptability or predictive properties.69

With the above in mind, this dissertation seeks to answer the following three research questions and, in so doing, align philosophy, theory and doctrine in a unified paradigm.

 R1. How does the natural law view of truth inform freedom of expression as envisioned in the marketplace of ideas?

 R2. What role do value judgments play in judicial analyses generally and the freedom of expression in particular?

 R3. When contrasted with positivist modes of legal reasoning, how does a natural law- informed approach affect the application of the content-neutrality doctrine in First Amendment jurisprudence?

The impetus for these questions is twofold. First, scant scholarship exists tying natural law to either the MOI or the content-neutrality doctrine.70 Second, as previously indicated, the marketplace metaphor and (to a larger degree) the content-neutrality doctrine need further clarification for their continued usefulness in constitutional law. The extant scholarly vacuum, coupled with the indeterminate state of the content-neutrality doctrine vis-à-vis the marketplace metaphor, make the above questions significant and timely.

68 Id. 69 LEVY, supra note 1, 46, at 29–31, 56–59. 70 Although no scholarship, as of the time of this writing, explicitly ties the philosophical concept of natural law to content-neutrality, a smattering of works do refer to the Holmesian concepts of truth, the marketplace metaphor and natural law—usually by way of problematizing the MOI within other theoretical contexts. See, e.g., Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 SUP. CT. REV. 1, 14 (conflating the truth-seeking function of the MOI with other marketplace benefits, such as checking government power, yet also discussing in passing Holmes’ “utter disdain for absolutist modes of thought”). Very little writing exists, however, that attempts to re-situate the MOI upon a natural law foundation.

One potential reason for the lack of research in this area is its decidedly interdisciplinary nature, which may discourage would-be researchers. The relationship between philosophical and legal studies, however, is nothing new. Nearly a century ago, Harvard Law School Dean Roscoe

Pound, perhaps overstating the matter, suggested that “the philosophy of law has taken a leading role in all study of human institutions.”71 Pound expounded that even the ancient Greeks sought to align their legal structure with larger philosophical principles.72

More recently, Professor Matthew Bunker points out, “[l]egal scholars, political and moral philosophers . . . have, over the years and particularly in the 20th century, contributed to

First Amendment theory.”73 Although the fields of law and philosophy may go hand-in-hand,

Bunker explains, “[i]nterdisciplinarity is not an unalloyed good.”74 Particularly problematic are

“claims that law or legal theory can be ‘reduced’ to the language and concepts of other disciplines,” and that “law would be better accounted for by using the explanatory tools or vocabulary of another discipline.”75 If mishandled, therefore, interdisciplinary legal scholarship can be rightly accused of bootstrapping, misunderstanding, misapplying and reductionism. This encourages researchers, in the words of communication scholars Jeremy Cohen and Timothy

Gleason, “to become snared in a trap that leaves social scientists calling for law based on the truths of their craft.”76

If handled prudently, however, “[i]nterdisciplinary thinkers can deploy new models and vocabularies that allow us to look at legal phenomena in new and intellectually fruitful ways.

71 ROSCOE POUND, INTRODUCTION TO THE PHILOSOPHY OF LAW 1 (1922). 72 Id. at 4–7. 73 MATTHEW D. BUNKER, CRITIQUING FREE SPEECH xiii (2011). 74 Id. 75 Id. at 19. 76 JEREMY COHEN & TIMOTHY GLEASON, SOCIAL RESEARCH IN COMMUNICATION AND LAW 13 (1990).

These new approaches can strip away some of the blind spots of the received tradition and open up a new space for debating the merits of established approaches.”77 Properly done, Cohen and

Gleason further explain, interdisciplinarity helps to raise questions about “assumptions inherent in law. . . . [T]here is a need to find suitable means for identifying those assumptions and for testing both their scientific and legal validity.”78

The means of testing these assumptions—or the general methodology used in this dissertation—follow standard legal research analysis. It is a method described by Professor

Michael Lynch as “primarily a struggle for understanding,”79 and by the American Bar

Association-backed MacCrate Report as “a process of problem-solving.”80 In the endeavor of solving the three problems posed in the research questions, dozens of primary and secondary documents are scrutinized. For primary sources, the texts of case law, books, letters and philosophical essays are heavily featured. For additional insight, secondary sources such as treatises and law journal articles are woven throughout. This mode of research—examining text and extracting principles—is rational rather than empirical, qualitative rather than quantitative.

By rationally considering and analyzing perspectives from disparate fields of study, logical connections may form between seemingly unrelated concepts, thereby re-formulating old ideas and fostering the creation of new ones.

77 BUNKER, supra note 1, 73, at 18. 78 COHEN & GLEASON, supra note 1, 76, at 12. Another possible advantage, according to Francis Mootz, is that the merging of law and philosophy can help draw both disciplines from the ivory tower into more practically helpful realms. Francis J. Mootz, III, Roundtable on Legal Hermeneutic: Law and Philosophy, Philosophy and Law, 26 U. TOL. L. REV. 127, 146 (1994). 79 Michael J. Lynch, An Impossible Task but Everybody Has To Do It—Teaching Legal Research in Law Schools, 89 LAW LIBR. J. 415, 415 (1997). 80 REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP, LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT 163 (1992).

In using this method to answer the above-mentioned research questions, this dissertation breaks down into multiple chapters. Specifically, Chapter II features a three-section literature review. The first section explains the philosophy of natural law and highlights its history and development, stretching from its origins among the ancient Hebrews and Greeks to its more recent popular denunciation and subsequent renaissance in the twentieth century.81 This section prominently features the commentary of Thomas Aquinas, C.S. Lewis, John Finnis and J.

Budziszewski.

The second section of Chapter II examines MOI, tracing its roots from pre-enlightenment

England to its importation into First Amendment jurisprudence in the early twentieth century.82 It then briefly outlines several popular philosophical constructs of truth that have informed the

MOI, as well as several enduring critiques of the theory. Lastly, the section focuses on several seminal free speech cases from the U.S. Supreme Court to illustrate how the truth-seeking theory has evolved during its first century of judicial employment.83 The works of John Milton, John

Stuart Mill and Oliver Wendell Holmes, Jr., factor heavily here.

The third section of Chapter II overviews the content-neutrality doctrine, discussing not only the canon’s origins nearly fifty years ago, but also recent Supreme Court developments that have changed its applicatory scope.84 This section also sheds light on several problems courts have experienced in attempting to apply the doctrine, as well as recently authored scholarly proposals to fix them.85

81 Infra Chapter 2, Section A. 82 Infra Chapter 2, Section B. 83 Id. 84 Infra Chapter 2, Section C. 85 Id.

To provide contrast to natural law, Chapter III then explores the metaphysical perspectives of prevailing twentieth and twenty-first century judicial philosophies.86 The first section is descriptive, detailing the history and principles of legal positivism and its permutations. The second and third sections examine the relationships between law and morality and law and truth, respectively.87 This chapter prominently highlights the writings of Jeremy

Bentham, John Austin and John Rawls. The works of both John Stuart Mill and Oliver Wendell

Holmes, Jr., are also featured heavily in Chapter III.

Chapter IV, the analytical heart of the dissertation, answers the three research questions.

The first section discusses the nexus between natural law and the truth-seeking function of the marketplace.88 The second offers suggestions regarding the proper role of neutrality in adjudication, demonstrating the philosophical and practical difficulties with complete neutrality.89 The third section then examines how a natural law-influenced approach to the content-neutrality canon (as informed by the MOI) differs from the contemporary vision of the doctrine.90

In sum, Chapter IV argues that natural law provides a solid basis for condemning evils while protecting goods, encouraging rational discourse and incentivizing truth seeking. It demonstrates that the presence of a priori values and objective truths means that certain states of being are good for their own sake. This, in turn, means that standards exist to which sovereigns’ wills and majority consensus are beholden—regardless of their subjective feelings about them.

These standards, reason dictates, are the foundation of law.

86 Infra Chapter 3. 87 Infra Chapter 3, Sections B & C. 88 Infra Chapter 4, Research Question 1. 89 Infra Chapter 4, Research Question 2. 90 Infra Chapter 4, Research Question 3.

With this philosophical foundation in place, the marketplace theory can then posit that the best way to discover truth is to keep the market as robust and wide-open as possible, free from governmental intervention. A proven way to achieve this objective, in turn, is to create neutral principles, such as the content-neutrality doctrine, that stymie government efforts to interfere.

Each level, from philosophy to theory to doctrine, builds on the previous level. None stands alone.

Collectively, this three-layered approach provides a means through which judges can logically and purposefully protect free expression. Although speech interests can, and must, be weighed against other compelling interests, the eminence of truth discovery is more acute with a natural law foundation than it is with positivism. This is because the natural law approach— which recognizes the value of truth discovery through free expression—helps inoculate the freedom of speech against Holmesian “felt necessities of time,”91 transient utilitarian considerations, ontological skepticism and the axiological inclinations of morally relativistic judges.

Chapter V briefly concludes by summarizing the key findings of the dissertation.92 It also responds to a pair of likely criticisms against these findings, acknowledges apparent weaknesses in them, and suggests possible avenues for taking them in different directions with future research.

91 OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1–2 (1881). 92 Infra Chapter 5.

CHAPTER 2 LITERATURE REVIEW

Introduction to Chapter 2

This chapter provides an overview of the three central concepts discussed throughout the dissertation. Section A outlines the philosophy of natural law, a concept that, in the words of

David Adams, describes a set of “principles and standards not simply made up by humans but rather part of an objective moral order, present in the universe and accessible to human reason.”1

The next section discusses the marketplace of ideas theory of free speech, which assumes, as proffered by Learned Hand, that “right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.”2 The third and final section of this chapter explains the content-neutrality doctrine within First Amendment jurisprudence. The content-neutrality canon, as described by Barry McDonald, allows judges to

“ferret out illegitimate government motives for restricting speech” by strictly scrutinizing laws that discriminate based on content.3

Natural Law

At its most basic level, natural law supposes the existence, in all times and places, of a base set of moral knowledge that is attainable and comprehendible by any reasonable person.4

1 DAVID M. ADAMS, PHILOSOPHICAL PROBLEMS IN THE LAW 20 (1992). 2 United States v. AP, 52 F. Supp. 362, 372 (S.D.N.Y. 1943). 3 Barry P. McDonald, Speech and Distrust: Rethinking the Content Approach to Protecting the Freedom of Expression, 81 NOTRE DAME L. REV. 1347, 1349 (2006). 4 As explained by Cicero, the definitive classical locus for natural law, [t]here is in fact a true law—namely right reason—which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties. By its prohibitions, it restrains them from doing wrong. Its commands and prohibitions always influence good men, but are without effect upon the bad. To invalidate this law of human legislation is never morally right, nor is it permissible ever to restrict its operation, and to annul it is impossible. Neither the Senate nor the people can absolve us from our obligation to obey this law. . . . It will not lay down one rule

This view dominated popular and judicial philosophy from the beginnings of recorded history5 until the early nineteenth century, when utilitarian philosopher Jeremy Bentham and his disciple

John Austin6 introduced legal positivism into mainstream juridical thought.7 After falling into general disfavor for the better part of two centuries, however, a renaissance of natural law thinking emerged in the latter part of the twentieth century.8 As Robert George explained in the

1980s, “long relegated to merely historical interest . . . [the natural law perspective] is once again a competitor in contemporary philosophical debates about law, politics, and morals.”9

Before delving into the central concepts of natural law, it is first necessary to establish a few key definitions and explain some terms of art that may otherwise cause confusion. The first term is positive law. Also called black-letter law, positive law is the law as it appears on the

at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law, eternal and unchangeable, binding at all times and upon all peoples.

MARCUS TULLIUS CICERO, ON THE COMMONWEALTH 215 (George Holland Sabine & Stanley Barney Smith, trans., Ohio State Univ. Press 1929). 5 One of the first recorded articulations of the concept of law-as-reason came from stoic philosopher Zeno of Citium in the third century, B.C. (not to be confused with philosopher and mathematician Zeno of Elea). See Christopher A. Ford, Preaching Propriety to Princes: Grotius, Lipsius, and Neo-Stoic International Law, 28 CASE W. RES. J. INT’L L. 313, 323 (1996) (writing that Zeno “believed that principles of natural justice and natural law constituted guiding principles immanent in the universe derived from and ascertainable through the exercise of human reason”) (internal citations omitted). Zeno helped provide the language for conflating reason with nature and wrote that “men are obligated to follow this universal natural law.” LEVY, supra note 1, 46, at 4. 6 Ellis Washington, The Death of the Rule of Law (In International Law), 49 LOY. L. REV. 471, 481 (2003). 7 See infra Chapter 3. 8 Jack B. Sarno, A Natural Law Defense of Buckley v. Valeo, 66 FORDHAM L. REV. 2693, 2693 (1998). 9 See Robert P. George, Recent Criticism of Natural Law Theory, 55 U. CHI. L. REV. 1371, 1371 (1988) (stating that natural law has “again found an audience” in the academy); see also Steven D. Smith, Natural Law Theory: Contemporary Essays, 10 CONST. COMMENT 489, 490 (1993) (book review) (noting that recent scholarship on natural law has fostered “new vigor to academic thinking on this subject”); Kevin M. Staley, New Natural Law, Old Natural Law, or the Same Natural Law?, 38 AM. J. JURIS. 109, 109 (1993) (taking stock of the “renewal” of natural law thinking in the works of John Finnis, Joseph Boyle and others).

books, as it were.10 Essentially, positive laws are decrees that have been promulgated, or publically documented, to the point that the people bound by them are put on notice of their existence. As Ellis Washington explained, positive laws comprise “a system of orders, commands or rules as opposed to principles, made by man for man,”11 and they are likely what generally spring to mind when one thinks of law. In common-law systems, such as the United

States, positive laws often take the form of statutes, administrative rules or codes, constitutions and judicial opinions.12

The next term is positivism. Although legal positivism shares some general similarities with logical positivism, the empirically driven philosophy that flourished in pre-World War II

Europe,13 the two have very little in common. Legal positivism, at its core, maintains that no necessary nexus exists between positive law and morality.14 Put another way, positivism posits that a law is legitimate because it exists, not because it is morally good.15 Positivism and its associated legal concepts (such as realism and utilitarianism) remain the most influential legal philosophies in the twenty-first century West, and stand in direct contrast to natural law.16

Renowned positivist thinker H. L. A. Hart explained the basic factors undergirding the positivistic perspective when he wrote that

10 THOMAS AQUINAS, THE TREATISE ON LAW 38–39 (R.J. Henle, trans., 1993) (1274). 11 Washington, supra note 2, 6, at 479. 12 Black’s Law Dictionary defines common law as a “body of law derived from judicial decisions, rather than from statutes or constitutions,” though civil, or legislature-made law may co-exist within a common-law system. “Common law,” BLACK’S LAW DICTIONARY (10th ed. 2014). 13 See LEVY, supra note 1, 46, at 31 (explaining that legal positivism possesses “no connection with the philosophical positivism of the nineteenth-century philosopher, Auguste Comte, though doubtless Austin could have subscribed to Comte’s suggestion that the movement of Western philosophic thought had been from a theological stage through a metaphysical stage to a positivistic or scientific stage”). 14 See generally H.L.A. HART, THE CONCEPT OF LAW (1961). 15 See infra Chapter 3, Section A for a more in-depth look at positivism. 16 LEVY, supra note 1, 46 , at 30–115.

“positivism” is used in contemporary Anglo-American literature to designate one or more of the following contentions: (1) that laws are commands of human beings; (2) that there is no necessary connexion [sic] between law and morals, or law as it is and law as it ought to be; (3) that the analysis or study of meanings of legal concepts is an important study to be distinguished from (though in no way hostile to) historical inquiries, sociological inquiries, and the critical appraisal of law in terms of morals, social aims, functions, &c [sic]; (4) that a legal system is a “closed logical system” in which correct decisions can be deduced from predetermined legal rules by logical means alone; (5) that moral judgments cannot be established, as statements of fact can, by rational argument, evidence or proof.17

Another important term is law itself. A law in the natural law tradition contains four elements. In particular, a law is “(1) a dictate of reason, (2) for the common good, (3) made by him who has the care of the community, and (4) promulgated.”18 If all elements are met, then the result is, in the language of thirteenth-century philosopher Thomas Aquinas, a law simpliciter, to wit, a legitimate law. If any of these elements are missing—for instance, if the

“law” were not created by someone who has the care of the community or if it were not made known to the people whom it was supposed to bind—then the result is not a law in the actual sense, but a mere shadow of it—a law secundum quid.19

Importantly, sanction (or threat of sanction) is not an element of law in the natural law tradition. Aquinas, who in The Treatise on Law explained the philosophy in more detail than any person previously, argued that in order for a law to practically be effective, it should have accompanying penalties for violation.20 Yet sanctions are not essential, he wrote, to the nature of

17 HART, supra note 2, 14, at 253. 18 AQUINAS, supra note 2, 10, at 51. See also Louis v. Nelson, 544 F. Supp. 973, 1003 (S.D. Fla. 1982) (quoting Aquinas for the proposition that a law must be promulgated to be valid). 19 See AQUINAS, supra note 2, 10, at 51 (featuring translator R.J. Henle commenting that “if a piece of legislation has been passed by Congress and signed by the President, it can be called a law. But if it fails in some other respect, e.g., if it is contrary to the common good, it is not a law simpliciter but only secundum quid”). 20 Id. at 162.

law itself. Put differently, sanctions are necessary for laws to be effective, but they do not define—even partially—what a law is.21 L. Ron Fuller analogized this distinction to the physical realm, writing that

given the facts of human nature, it is perfectly obvious that a system of legal rules may lose its efficacy if it permits itself to be challenged by lawless violence. Sometimes violence can only be restrained by violence. Hence it is quite predictable that there must normally be in society some mechanism ready to apply force in support of law in case it is needed. But this in no sense justifies treating the use or potential use of force as the identifying characteristic of law. Modern science depends heavily upon the use of measuring and testing apparatus; without such apparatus it could not achieved what it has. But no one would conclude on this account that science should be defined as the use of apparatus for measuring and testing. So it is with law. What law must foreseeably do to achieve its aims is something quite different from law itself.”22

The final term of art is natural law—the focus of this section. Also known as the law of nature or the law of reason, natural law has multiple meanings. For the purposes of definitional clarity, natural law in philosophy must be distinguished from the law(s) of nature in the physical sciences. Physical natural laws refer to broadly generalizable, overarching theories, such as gravitation, about the ways in which the physical world operates.23 In the philosophical context, however, natural law refers to “a set of principles and precepts, worked out by human insight and reflection, based on the concrete nature and activities of human beings which ought to guide human conduct.”24

At its core, then, the natural law perspective starts with the recognition that a human is comprised of both a physical body and a metaphysical soul, containing both the mind and the will.25 The mind, natural law assumes, is rational, inclined to differentiate between good and

21 Id. 22 L. RON FULLER, THE MORALITY OF LAW 108 (1969). 23 “Natural law,” Oxford English Dictionary, 2d ed. 2006. 24 AQUINAS, supra note 2, 10, at 39. 25 Id. at 55.

bad.26 Furthermore, natural law presumes the existence of values that are, at their most fundamental levels, objectively good for their own sake and not mere instrumentalities for furthering other values.27

In 1943, philosopher C.S. Lewis authored a short volume called The Abolition of Man.

He sought to explain the objectivity of good and bad by contrasting natural law with a then- popular perspective called “subjectivism.” Subjectivism is a philosophy that holds that the words used to communicate metaphysical concepts such as beauty and goodness contain no inherent meaning beyond the subjective emotions of the individual who uttered the word.28 The primary thrust of subjectivism was summarized succinctly by Friedrich Nietzsche, who declared that

“[w]ords relating to values are merely banners planted on those spots where a new blessedness was discovered—a new feeling.”29

Lewis stated that something more than a feeling30 was represented by value-laden words—something transcendent and objective.31 He wrote that his subjectivist colleagues who eschewed referring to good or bad qua good or bad—and instead referred in their books to all values by way of feelings or qualified by words such as “necessary” or “efficient”—were

26 Id. at 56–57. 27 Sarno, supra note 2, 8, at 2730. 28 Lewis wrote in large part to respond to specific subjectivist works by University of Western Australia Professor Walter Murdoch—great uncle to media mogul Rupert Murdoch—(author of THE CONTROL OF LANGUAGE, (1939)) and Cambridge University Professors C.K. Ogden and I.A. Richards. C.K. Ogden & I.A. Richards, (authors of THE MEANING OF MEANING: A STUDY OF THE INFLUENCE OF LANGUAGE UPON THOUGHT AND THE SCIENCE OF SYMBOLISM, (1922)). JUSTIN BUCKLEY DYER & MICAH J. WATSON, C.S. LEWIS ON POLITICS AND NATURAL LAW, 74 (2016). 29 FRIEDRICH NIETZSCHE, THE WILL TO POWER, AN ATTEMPTED TRANSVALUATION OF ALL VALUES, 714 (1910). 30 BOSTON, More than a Feeling, on BOSTON (Epic Records 1976). 31 C.S. LEWIS, THE ABOLITION OF MAN 4–12 (1943).

engaging in an intellectually dishonest and ultimately self-refuting enterprise.32 Considering the intent behind the subjectivist authors’ manuscripts, Lewis declared:

The important point is not the nature of their end, but the fact that they have an end at all. They must have, or their book (being purely practical in intention) is written to no purpose. And this end must have real value in their eyes. To abstain from calling it ‘good’ and to use, instead, such predicates as ‘necessary’ or ‘progressive’ or ‘efficient’ would be subterfuge. They could be forced by argument to answer the questions, ‘necessary for what?’; ‘progressing toward what?; ‘effecting what?’; in the last resort they would have to admit that some state of affairs was in their opinion good for its own sake. And this time they could not maintain that ‘good’ simply described their own emotions about it.”33

Ultimately, Lewis concluded, any worldview that rejects the recognition of objective morality necessarily fills the void with raw power; that is, “goodness” can only be referenced from some kind of subjective appeal to the naked will.34 Or, as stated by Socrates’ foil

Thrasymachus—and recorded by Plato in his Republic—“What I say is that ‘just’ or ‘right’ means nothing but what is to the interest of the stronger party.”35

A few years after he wrote The Abolition of Man, Lewis used the recently concluded

Second World War as a moral backdrop to make the point that if the natural law perspective were false,

then all the things we said about the war were nonsense. What was the sense in saying that the enemy were in the wrong unless right is a real thing which the Nazis at bottom knew as well as we did and ought to have practised? If they had had no notion of what we mean by right, then, though we might still have had to fight them, we could not more have blamed them for that than for the color of their hair.”36

32 Id. at 40. 33 Id. 34 See id. at 74 (writing that “[w]hen all that says, ‘it is good’ has been debunked, what says ‘I want’ remains”). 35 PLATO, THE REPUBLIC 18 (Francis M. Cornford, trans. 1945) (380 B.C.). 36 Lewis expounded on this thought when he wrote that Everyone is indignant when he hears the Germans define justice as that which is to the interest of the Third Reich. But it is not always remembered that this

Indeed, as pointed out by Ellis Washington, judges from France, Great Britain, the Soviet

Union and the United States during the Nuremburg trials were forced to recognize a law that transcended the positive law of Germany and any international treaty as they prosecuted twenty- four Nazi officials for crimes against humanity.37

This recognition of a so-called “higher law” that supersedes positive law is rooted in antiquity.38 In an often-referenced39 passage of Sophocles’ classic play Antigone, the titular heroine answers those who accused her of knowingly violating an anti-mourning statute by stating that

it was not Zeus that had published me that edict; not such are the laws set among men by the justice who dwells with the gods below; nor deemed I that thy decrees were of such force, that a mortal could override the unwritten and unfailing statutes of heaven. For their life is not of today or yesterday, but from all time, and no man knows when they were first put forth.40

In American jurisprudence, this perspective—that might does not make right, as it were, and that the will or opinion of a wide majority may be objectively wrong, even if codified by a

indignation is perfectly groundless if we ourselves regard morality as a subjective sentiment to be altered at will. Unless there is some objective standard of good, overarching Germans, Japanese, and ourselves alike whether any of us obey it or no, then of course the Germans are as competent to create their ideology as we are to create ours. If “good” and “better” are terms deriving their sole meaning from the ideology of each people, then of course ideologies themselves cannot be better or worse than one another. Unless the measuring rod is independent of the things measured, we can do no measuring.

C.S. LEWIS, MERE CHRISTIANITY 5 (1952). 37 See Washington, supra note 2, 6, at 513 (explaining that even though most of the judges and prosecutors were positivists, they had to at the very least pay lip service to natural law to provide a rational basis for their legal contentions). 38 See HUGO GROTIUS, THE LAW OF WAR AND PEACE 1 (1625) (pointing to the long-standing recognition of the concept that “[t]he law of nature is a dictate of right reason which points out that an act, according as it is or is riot in conformity with rational nature, has in it a quality of moral baseness or moral necessity”). 39 See, e.g., Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 168 (2004) (referring to “the universal acceptance of the heroine’s right to insist on respect for the body of her brother”). 40 Antigone of Sophocles, 8 HARVARD CLASSICS: NINE GREEK DRAMAS 255 (C. Eliot ed. 1909).

government agency—has played a seminal role.41 In the country’s founding document, the

Declaration of Independence, Thomas Jefferson referred to the self-evident truth that the purpose of government is to secure for its citizens an environment conducive to fostering life, liberty and the pursuit of happiness, and that when a government violates its moral obligation to its duty, then “it is the right of the people to alter or to abolish it.”42

In the nearly 250 years since the country’s founding, the government has not been abolished, yet the invocation of natural law has indeed been used to significantly alter the positive law. Perhaps nowhere was this more evident than in the abolitionist and civil rights movements.43 Following the U.S. Supreme Court’s decision in Scott v. Sandford,44 in which

Justice Roger Taney opined for the majority that black Americans had no standing to sue in federal court, Frederick Douglass, in one of the most oft-quoted declarations of the natural law by any American, stated that

41 See LEVY, supra note 1, 46, at 12–15 (explaining the importance of the concept in the early days of the American republic). 42 Thomas Jefferson, Declaration of Independence, 1776. 43 In his Letter from a Birmingham Jail, Martin Luther King, Jr. wrote that [o]ne may want to ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.” Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law. . . . An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality.

Martin Luther King, Jr. Letter from a Birmingham Jail, 1963, https://kinginstitute.stanford.edu/king-papers/documents/letter-birmingham-jail. 44 60 U.S. 393 (1857).

Judge Taney can do many things, but he cannot perform impossibilities. He cannot bale out the ocean, annihilate the firm old earth, or pluck the silvery star of liberty from our Northern sky. . . . He cannot change the essential nature of things—making evil good, and good evil. Happily for the whole human family, their rights have been defined, declared, and decided in a court higher than the Supreme Court. ‘There is a law,’ says Brougham, ‘above all the enactments of human codes, and by that law, unchangeable and eternal, man cannot hold property in man.’ Your fathers have said that man’s right to liberty is self-evident. There is no need of argument to make it clear. The voices of nature, of conscience, of reason, and of revelation, proclaim it as the right of all rights, the foundation of all trust, and of all responsibility. Man was born with it. It was his before he comprehended it. The deed conveying it to him is written in the center of his soul.45

In the United States, recognition of natural law is also reflected within the positive law itself, as thousands of statutes and procedural rules, both at the federal and state levels, suggest a law above positive law. One example is found in provisions that cite to the so-called “interests of justice” as being outcome-determinative.46 Such laws recognize that justice cannot be fully accounted for by positive codification and must sometimes rely on something more elemental and universally understood.47 Another prominent example is the legal doctrine of promissory estoppel, which requires promisors to fulfill their ends of bargains even in the absence of contracts. In particular, the doctrine requires the enforcement of a non-contractual promise, after certain elements are met, “if injustice can be avoided only by enforcement of the promise.”48

Thus, natural law assumes a universally understood base of morality that is naturally understood by any reasonable person, and that when governments promulgate so-called “laws”—secundum

45 Frederick Douglass, Speech on the Dred Scott Decision, 1857, http://rbscp.lib.rochester.edu/4399. 46 See, e.g., 18 U.S.C. § 922(y)(3)(C) (1998) (stating that, in the context of certain categories of persons waiving rights related to the importation or sale of firearms, the Attorney General shall approve petitions if he “determines that waiving the requirements of subsection (g)(5)(B) with respect to the petitioner would be in the interests of justice”). 47 J. BUDZISZEWSKI, WHAT WE CAN’T NOT KNOW 135 (2003). 48 RESTATEMENT (SECOND) OF CONTRACTS § 90(1).

quid—that do not comport with key, underlying moral premises, then such decrees may be disregarded as illegitimate.49

The exact canon of what is precisely contained within this set of underlying moral premises has never been completely agreed upon by natural law proponents.50 Furthermore, a facial comparison between natural law’s putative assumptions and the obvious moral disagreements among individuals and cultures has led many opposing scholars to doubt the philosophy as a whole.51 Indeed, natural law assumes that: (a) certain moral truths are known by all reasonable people, (b) reason can be trusted and (c) reason impels people to morality— despite the fact that moral depravity remains pervasive by almost any standard.52 Put more simply, the natural law philosophy must account for irrationality and immorality despite the claimed inclination toward rationality and morality. Furthermore, it must reconcile its claim to universality with an apparently pervasive lack of agreement over what is moral, right and good.

Natural lawyers rejoin this critique by acknowledging that people are indeed inclined to know and recognize good when they see it, even if they are not always inclined to do it.53 A large gap often exists between what one knows he ought to do and what he actually does—between the mind and the will.54 As explained by Robert P. George, “The claim that [certain truths] are self- evident does not imply that they are undeniable or, still less, that no one denies them. What it

49 AQUINAS, supra note 2, 10, at 90 (featuring translator R.J. Henle stating that “[h]uman laws embody, almost directly, the general precepts of the Natural law, e.g., in the statutes against murder, fraud, etc.”). 50 See LEVY, supra note 1, 46, at 1–15 (explaining the “Varieties of Natural Law”). 51 See infra Chapter 4 and accompanying text (discussing various sorties launched against natural law). 52 AQUINAS, supra note 2, 10, at 261. 53 Id. at 55. 54 Id.

does imply is that the practical intellect may grasp them, and practical judgment can affirm them without the need for a derivation.”55

Unlike philosophies that assume every human inclination is the result of some combination of either bio-chemical pre-determination or social conditioning, natural law posits the existence of self-evident truths, undergirded by morality.56 This is not to say that such knowledge is acknowledged by all. The natural law tradition holds that this knowledge is often suppressed, stunted or actively avoided due to hubris, pride or selfishness.57 As Aquinas wrote:

the natural law can in no way be abolished from the hearts of men in general; but it is abolished in some particular actions insofar as reason is prevented from applying the general principles to the particular action, because of concupiscence or some other passion. . . . However, as for the other secondary precepts, the natural law can be abolished from the hearts of men either because of evil passions . . . or because of depraved customs or corrupt habits.58

For example, natural law assumes that every rational person knows, at his core, that behaviors such as killing an innocent person or taking that which does not belong to him are unequivocally wrong.59 Problems frequently arise, however, because the mind often finds itself at odds with the will, which leads to rationalization and avoidance. Terminology and even language itself, then, may be employed in arguing that an individual is not a person,60 that a person is not innocent61 or that something someone else possesses is not rightfully theirs.62

55 George, supra note 2, 9, at 1389. 56 See C.S. Lewis, The Poison of Subjectivsm, appearing in THE TIMELESS WRITINGS OF C.S. LEWIS 229 (2004) (describing how “[m]any a mild-eyed scientist in a democratic laboratory . . . believes that ‘good’ means whatever men are conditioned to approve”). 57 AQUINAS, supra note 2, 10, at 262. “[S]ome people have a depraved understanding due to passion or a bad custom or a bad natural disposition.” 58 Id. at 273. 59 See generally, J. BUDZISZEWSKI, THE REVENGE OF CONSCIENCE (1999). 60 See AQUINAS, supra note 2, 10, at 263. (featuring translator R.J. Henle stating that [i]n all societies there is some general sense of justice. But in many particular cases, particular rules and decisions can be found which are incompatible with that general sense. A tribe may particularize the precept, ‘harm no man’ to apply

Universal understanding and acknowledgement of the natural law is therefore not

“innate,” as its knowledge is often avoided.63 What natural law presumes to be universal, however, is the capacity to use reason, which then leads one to recognize the reality of a super- positive set of laws.64 The evidence for this presumption comes from two sources, one empirical and one rational.

For empirical support, natural lawyers turn to sociological and anthropological evidence that illustrates striking similarities among positive moral and civil codes throughout history and across national and cultural borders.65 In an appendix to The Abolition of Man, Lewis consolidated excerpts from statutes, proverbs and maxims from ancient Chinese, Greek, Roman,

Norse, Babylonian, Native American Indian, Egyptian, Australian-Aboriginal, Hindu, Jewish

to fellow tribesmen but not to the people of the tribe across the river. The particularization of them as enemies impedes the general principle. Thomas Jefferson was a man of strong convictions about liberty, rights, and justice, yet he was a slaveholder. In a way he justified slavery because of the alleged intellectual and moral incapacity of Black people).

61 One of the most prominent and often-cited examples of this phenomenon is that of Adolf Hitler deeming all Jews guilty and deserving of death for their alleged “crimes” against the Gentiles of Germany. ADOLF HITLER, MEIN KAMPF 550 (James Murphy, trans. 1939) (1925). 62 J. BUDZISZWESKI, supra note 2, 47, at 39–41. 63 AQUINAS, supra note 2, 10, at 262. 64 Id. at 261. 65 See, e.g. JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 83 (1980) (explaining that [a]ll human societies show a concern for the value of human life; in all, self- preservation is generally accepted as a proper motive for action, and in none is the killing of other human beings permitted without some fairly definite justification. All human societies regard the procreation of human life as in itself a good thing unless there are special circumstances. No human society fails to restrict sexual activity; in all societies there is some prohibition on incest, some opposition to boundless promiscuity and rape, some favour for stability and permanence in sexual relations. All human societies display a concern for truth, though education of the young in matters not only practical (e.g. avoidance of dangers) but also speculative (e.g. religion)).

Finnis further notes the universality of property, respect for the dead, cooperation and friendship as well as reciprocal obligation and justice. Id.

and Christian sources.66 He then grouped them according to similarities and established the following, putatively self-evident categories of duties: to beneficence; to parents, elders and ancestors; to children and posterity; of good-faith and truth; and of mercy and magnanimity.67 As anthropologist Robert Redfield noted:

Everywhere there are recognized obligations, commitments, sentiments and judgments of what is good and what is bad. No people is morally indifferent. If we let ‘morality’ stand in for all such judgments and commitments as to what it is felt right or wrong to do, not because it is merely prudential or expedient but because it is in itself right and obligatory, then morality is universal.68

Although the natural law perspective seemingly accounts for widespread moral correspondences better than many competing views, relying solely on empirical support in this case would be to engage in the fallacy of attempting to derive, as articulated by John Austin, an ought from an is.69 To complement the empirical evidence, natural law’s rational support starts by recognizing and acknowledging metaphysical realities.70 That is, the natural law perspective is decidedly non-materialist because it assumes that reason itself lies beyond the competence of what the physical sciences can account for.71 As R.J. Henle explained, “Modern physical science is limited by its formal nature, its presuppositions and its methodology to dealing only with material reality.”72 Henle opined that attempting to use physical techniques in the metaphysical realm is as nonsensical as “trying to paint a picture with a violin.”73

66 LEWIS, supra note 2, 31, at 93–121. 67 Id. 68 Robert Redfield, Anthropological Understanding of Man, 32 ANTHROPOLOGICAL QUARTERLY, 3, 16 (1959). 69 LEVY, supra note 1, 46, at 29. 70 AQUINAS, supra note 2, 10, at 46 (featuring translator R.J. Henle stating that “[a]ll other things are determined by physical laws; man alone is free . . . transcending the material world”). 71 Lewis, supra note 2, 31, at 224. 72 AQUINAS, supra note 2, 10, at 54. 73 Id.

Natural law posits that a world in which matter in motion constitutes the entirety of reality provides no basis for individuals to assume the veracity of their own contentions.74 Just as the subjectivists in Lewis’ day must have eventually acknowledged that some state of affairs was good for its own sake in order to avoid an infinite regress, natural law likewise assumes that physical scientists must acknowledge a super-physical reason to trust reason in order to be reasonable. As Lewis wrote, if physical material is all that exists, “[t]here is no reason for suppose it yields truth. The scientist has to assume the validity of his own logic (in the stout old fashion of Plato or Spinoza) even in order to prove that it is merely subjective.”75 He continued:

No account of the universe can be true unless that account leaves it possible for our thinking to be a real insight. A theory which explained everything else in the whole universe but which made it impossible to believe thinking was valid, would be utterly out of court. For that theory would itself be reached by thinking and if thinking is not valid that theory would, of course, be itself demolished. It would have destroyed its own credentials. It would be an argument which proved that no argument was sound—a proof that there are no such things as proofs—which is nonsense.76

The proposition, therefore, that reason provides real insight—and that it is a trustworthy guide for conducting human affairs—is a central tenet of natural law.77 Once reason, a priori, can be trusted, it can then be applied to every human endeavor, ranging from interpersonal relationships to law and government on the national scale. These realizations, along with recognition of the moral repercussions that follow, are commonly called “first principles.”78

74 See generally Austin L. Hughes, The Folly of Scientism, 37 NEW ATLANTIS, 32 (2012) (explaining some of the problems with a worldview that espouses the “universal competence” of physical science). 75 Lewis, supra note 2, 31, at 223. 76 C.S. LEWIS, MIRACLES 21-22 (1947). 77 Sarno, supra note 2, 8, at 2727. 78 George, supra note 2, 9, at 1390.

They are the starting point from which virtually all other intellectual and moral79—and subsequently legal—inquiries are launched.80 Natural lawyers posit that without an implicit recognition of first principles, all further rational efforts suffer unsteadiness. As J. Budziszewski explained, many a would-be intellectual

wants to know how we know before deciding what we know; he demands a critique of the faculty of knowing before conceding he knows anything at all. This suspicion is partly reasonable and partly unreasonable. The reasonable part is that up to a point, we can certainly investigate how we know things. The unreasonable part is that in order to do so, we have to know something already—otherwise we have no equipment for investigation. There must be some first principles that are not derived from other principles, some first knowledge that comes to us without prior investigation.81

Natural law thought claims that not every concept can be defined by way of reference to another definable concept, noting the logical impossibility of everything being definable by cross-referentiality.82 If all terms were defined by way of reference to something else, then a spiral of infinite regression inevitably results.83 First principles provide the means of escaping

79 The first moral principle is exceptionally general and can be summed up by the phrase, “good is to be done, and evil avoided.” See AQUINAS, supra note 2, 10, at 247, (stating that The first principle of the practical reason is based on the notion of good which is that which we all desire. Therefore the first principle of natural law is this, that good should be done and sought and evil is to be avoided. And on this principle are based all the other precepts of the law of nature so that all the things that practical reason apprehends as human goods belong to the law of nature.)

On its face, this may appear to be an entirely unhelpful tautology; yet its generality may obfuscate its profundity, in that it makes the weighty assumption of the inherent rationality of humans to ascertain good from bad. Furthermore, it provides flexibility to use practical reason to apply goodness to an endless variety of circumstances. See infra Chapters 4 and 5 (explaining the some of ways in which the a priori good of truth-seeking may be applied). 80 See BUDZISZEWSKI, supra note 2, 47, at 16 (declaring that “[t]o penetrate the unknown, the mind must begin with what is known already”). 81 Id. at 83. 82 AQUINAS, supra note 2, 10, at 21. For example, people intuitively know what it means to be “conscious.” Yet, as Henle explained, “consciousness can only be understood from experience and cannot be analyzed into simpler or broader intelligibilities.” Id. 83 Id. at 20–37.

the spiral. As Aquinas wrote, “nothing stands firm according to speculative reason unless it is reduced to the first indemonstrable principles.”84

Subsequently, the natural law position holds that within every form of intellectual argumentation, from elementary school essays to sophisticated academic treatises, one cannot discuss the arcane and esoteric without first establishing what is commonly understood. In other words, the unknown will forever remain unknowable unless the known is first acknowledged.85

Natural law posits that the only way to avoid turtles all the way down,86 as it were, is to recognize an immutable and ultimately undeniable foundation of knowledge from which other intellectual pursuits flow.87 Such are the first principles. Aquinas used the example of the sun to illustrate this point, writing that “[a] thing can be known in two ways. One way, in itself, another way in its effect in which some similitude of it is found, as a person who does not see the sun in its substance knows it in its irradiation.”88 In the same way, Lewis referred to a similar concept when he wrote that “I believe [natural law-derived truths] as I believe that the sun has risen: not only because I see it, but because by it I see everything else.”89

84 Id. at 130. 85 Comprehension of basic logical rules such as the Aristotelian law of non-contradiction—that the same thing cannot be simultaneously affirmed and denied—is such an example. “Human beings implicitly know this principle as soon as they intellectually confront reality,” wrote Henle; “[h]ence the habit of the first principle does not have to be acquired.” Id. at 68. 86 See Rapanos v. United States, 547 U.S. 715, n.14, (2006) (featuring Justice Antonin Scalia explaining the classic story of the Eastern guru [who] affirms that the earth is supported on the back of a tiger. When asked what supports the tiger, he says it stands upon an elephant; and when asked what supports the elephant he says it is a giant turtle. When asked, finally, what supports the giant turtle, he is briefly taken aback, but quickly replies ‘Ah, after that it is turtles all the way down’).

87 Lewis, supra note 2, 31, at 230. 88 AQUINAS, supra note 2, 10, at 209. 89 C.S. LEWIS, IS THEOLOGY POETRY? 140 (1944).

The first principles, then, provide a foundation of reason for both action and choice that refer to some basic human goods as being intrinsically—as opposed to merely instrumentally in a utilitarian sense—valuable. Put differently, natural law assumes that reason can determine that certain values are good for their own sake, rather than as ends to other goods.90 Importantly, such goods are not first principles in and of themselves. They are, instead, the result of applied practical reason. Aquinas first spoke of certain universal precepts that are known to all. These are the first principles. 91 Following thereafter, he stated, are secondary precepts, which are more detailed conclusions that track closely behind the first principles.92

Henle explained the difference between the two when he commented that the “primary principles, which are abstract and very general, cannot be changed[;] principles like ‘good is to be done, evil avoided,’ or ‘give every man his due’ or ‘harm no man’. . . . The secondary particular principles are quasi-conclusions from the primary principles.”93

Opponents of natural law often suggest that such a framework is illogical because, if it were true, then it stands to reason that all laws would be the same everywhere, with little to no variation.94 Even more particularly, in the judicial context, natural law critics contend that “if a meta-rule or trans-modal standard did exist, there would in theory be no place for judicial decision-making—only straightforward rule-obedience.”95 Yet as Henle explained, “[g]uided by these primary precepts, human beings have to work out the detailed and particularized rules,”96 meaning broad latitude exists to apply practical reason to particular circumstances in an infinite

90 Sarno, supra note 2, 8, at 2730. 91 AQUINAS, supra note 2, 10, at 269. 92 Id. 93 Id. 94 Sarno, supra note 2, 8, at 2727. 95 Ian Bartrum, Constitutional Value Judgments and Interpretive Theory Choice, 40 FLA. ST. L. REV. 259, 286 (2013). 96 AQUINAS, supra note 2, 10, at 90.

number of ways.97 Aquinas put it this way: “The natural law contains certain universal precepts which endure forever, while law made by man contains certain particular precepts according to the different situations that arise.”98

In American jurisprudence, this phenomenon was well illustrated by the U.S. Supreme

Court in Calder v. Bull.99 In Calder, Justice Samuel Chase’s opinion differed from that of his colleague, Justice James Iredell, regarding how to practically apply natural law principles to the concept of judicial review.100 Chase declared that “[a]n act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.”101 He added that judges ought to rely directly upon first principles in decision-making.102 Iredell took a more restrained approach. He acknowledged the veracity of first principles, but reasoned that because their application in individual cases may vary, justice would be better served if the Court only declared statutes void if the enacting legislature transgresses the boundaries of its constitutional authority.103

Indeed, as Henle writes,

97 See George, supra note 2, 9, at 1388 (explaining how two prominent professors who grounded their work in natural law disagreed over the issue of the morality of the death penalty, yet that they “both understand the question as one to be resolved by argument, not by an appeal to self- evidence”) emphasis in original. 98 AQUINAS, supra note 2, 10, at 344. 99 3 U.S. 386 (1798). 100 Judicial review, which essentially posits that the Supreme Court possesses the ultimate authority to determine constitutionality—or “to say what the law is”—was settled by the Supreme Court several years after Calder in Marbury v. Madison, 5 U.S. 137, 177 (1803). 101 Calder, 3 U.S. at 388. 102 Id. 103 A variation on Justice Iredell’s perspective—that neutral principles, predictability and stability foster justice better than ad hoc decision-making—eventually gained widespread popularity and became the dominant jurisprudential perspective, albeit usually without reference to natural law itself. See infra Chapter 4 (explaining the jurisprudence of Oliver Wendell Holmes, Jr.).

there are many things that the natural law, in its high generality, does not determine. These are left to the determination by the human lawgiver. Thus the natural law has nothing determinate to say about driving on the right or left, speed limits, income tax percentages, the requirements of a valid will, etc., although the natural law does require that all human determinations be just and serve the common good. 104

A practical result of a legal scheme that recognizes first principles, therefore, is that it is unequivocally not value-neutral because it supposes that value-neutrality is impossible.105 This nexus between morality and law necessarily leads, at some level, to an overt moral calculus when creating, enforcing and adjudicating laws because a natural law perspective calls on all lawmakers—from legislators to judges to administrative bureaucrats—to use practical reason to ascertain good from bad and to influence public policy accordingly.106 Such recognition poses direct consequences for constitutional jurisprudence in general.

The Marketplace of Ideas Theory

Two of the five rights guaranteed by the First Amendment to the United States Constitution are the freedoms of speech and press.107 These liberties are often conflated under the general concept of freedom of expression.108

104 AQUINAS, supra note 2, 10, at 91. 105 See LEWIS, supra note 2, 31, at 91 (determining that a person cannot go on seeing through things for ever. The whole point of seeing through something is to see something through it. It is good that the window should be transparent, because the street or garden beyond it is opaque. How if you saw through the garden too? It is no use trying to see through first principles. If you see through everything, then everything is transparent. But a wholly transparent world is an invisible world. To ‘see through’ all things is the same as not to see).

106 See infra Chapter 4, however, discussing the reasonableness in some circumstances of enforcing neutral principles that are themselves based on a moral calculus. 107 The First Amendment to the U.S. Constitution contains five provisions. In full, it states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST. amend. I.

A cornerstone of any liberal society, free expression has been justified throughout the centuries by multiple rationales.109 The most prominent, long lasting theory, however, is the marketplace of ideas.110 “If any area of constitutional law has been defined by a metaphor,” Joseph

Blocher explained, “the First Amendment is the area, and the ‘marketplace of ideas’ is the metaphor. . . . [A]cademic and popular understandings of the First Amendment have embraced the notion that free speech, like the free market, creates a competitive environment in which the best ideas ultimately prevail.”111 Or, as Thomas Emerson articulated, he “who seeks knowledge and truth must hear all sides of the question, consider all alternatives, test his judgment by exposing it to opposition, and make full use of different minds.”112

In order to make this possible, the rationale goes, governments should permit a large degree of diverse communication, allowing truth to emerge via market competition.113 The result is sometimes chaotic, with immoral, false, treasonous or vulgar speech drowning out the truth.114 Yet the prevailing sentiment among marketplace theory adherents is that although such expression may

108 See, e.g., Jack M. Balkin, Freedom of the Press: Old-School/New School Speech Regulation, 127 HARV. L. REV. 2296, 2301 (2014) (explaining that, “[i]n practice, freedom of speech and freedom of the press require an infrastructure of free expression”). 109 See infra notes 2, 200–2, 205 and accompanying text, (comparing briefly the marketplace of ideas with other popular justifications for the freedom of expression). 110 See generally W. Wat Hopkins, The Supreme Court Defines the Marketplace of Ideas, 73 JOURNALISM & MASS COMM. Q. 40 (1996) (explaining the theory’s pervasive and long-lasting influence on the country’s highest court). 111 Joseph Blocher, Institutions in the Marketplace of Ideas, 57 DUKE L.J. 821, 822 (2008). 112 THOMAS L. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 7 (1970). 113 In re Tam, 808 F.3d 1321, 1364 (Fed. Cir. 2015) (Dyk, J., dissenting), aff’d, Matal v. Tam, 137 S. Ct. 1744 (2017). 114 See, e.g., Snyder v. Phelps, 562 U.S. 443, 461 (2011) (describing the “great pain” that some constitutionally protected speech may cause).

be undesirable, any government-centered approach to regulate it would be more problematic than the speech itself. Put more simply, the cure would be worse than the disease.115

This line of reasoning has resonated strongly within the American judicial system, especially at the U.S. Supreme Court. The high court has invoked the theory “in several dozen . . . opinions after the 1970s, [and it] appear[s] now in almost every First Amendment case. Today, usage of the ‘marketplace’ metaphor is not only dominant in the Supreme Court since the 1970s, it is frequently cited without any examination.”116

Yet this was not always the case. The marketplace of ideas concept slowly evolved from its origins in seventeenth-century England to its current form. This section takes an historical approach—highlighting key points in the idea’s development between 1642 and the realization of its present manifestation in 1974—to explain the major tenets of the marketplace of ideas within

American law.

Historians generally trace the origins of the marketplace theory to British philosopher and author John Milton, who wrote a 1642 pamphlet titled The Doctrine and Discipline of Divorce.117

Unfortunately for Milton, British Parliament had, just weeks earlier, re-instituted a “system whereby books, pamphlets, newspapers, and even posters could not be published legally without a license of

115 See generally Steven Gey, The First Amendment and the Dissemination of Socially Worthless Untruths, 36 FLA. ST. U. L. REV. 1 (2008) (writing that attempts to squelch Holocaust-denying speech, for example, puts the government in the dangerous business of establishing reality). 116 Darrel C. Menthe, The Marketplace Metaphor and Commercial Speech Doctrine: Or How I Learned to Stop Worrying About and Love Citizens United, 38 HASTINGS CONST. L.Q. 131, 144– 45 (2010). 117 J. MAX PATRICK, THE PROSE OF JOHN MILTON (1967), re-published in IDEAS OF THE FIRST AMENDMENT 42 (Vincent Blasi, ed., 2009). See, e.g., Matal v. Tam, 137 S. Ct. 1744, 1766 (2017) (Kennedy, J., concurring) (declaring that “the law here might silence dissent and distort the marketplace of ideas”). See also Reed v. Town of Gilbert, 135 S. Ct. 2218, 2234 (2015) (Breyer, J., concurring) (stating that “whenever government disfavors one kind of speech, it places that speech at a disadvantage, potentially interfering with the free marketplace of ideas and with an individual’s ability to express thoughts and ideas that can help that individual determine the kind of society in which he wishes to live”).

approval obtained prior to publication from any one of a small group of officials appointed for that purpose.”118 This law, bluntly described by J. Max Patrick as placing “a major means of influencing men’s ideas into the hands of mediocre men and those who appointed them,”119 stood in Milton’s way. Because his tract violated contemporary orthodoxy and was thought to spawn public discontent, it was denied a license.120 Defying the law, Milton published the pamphlet anyway,121 followed quickly thereafter by Aeropagitica, a full-throated attack on prior restraint as a means of enforcing cultural orthodoxy.122

Milton, who surely did not doubt the veracity of his own perspective on divorce, contended in Aeropagitica that even if he were wrong, allowing the dissemination of falsehoods serves a justifiable social good. “[A]ll opinions,” he wrote, “yea errors known, read and collated, are of main service and assistance toward the speedy attainment of what is truest.”123 Although Milton conceded the necessity of subsequent punishments for criminal printed material, his primary concern was with pre-publication restraint that would not even permit certain fledgling ideas to take flight. In what is perhaps the most famous excerpt from Aeropagitica, Milton dramatically inquired:

And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the

118 PATRICK, supra note 2, 117, at 45. 119 Id. 120 Id. at 51. 121 Id. at 55. 122 JOHN MILTON, AREOPAGITICA (1644), re-published in AREOPAGITICA AND OF EDUCATION (George H. Sabine ed. 1951). Intuitively, the difference between the two primary types of expression regulations, prior restraints and subsequent punishments, was explained by Martin Redish. He wrote that “[u]nder the prior restraint doctrine, the government may not restrain a particular expression prior to its dissemination even though the same expression could be constitutionally subjected to punishment after dissemination.” Martin H. Redish, The Proper Role of the Prior Restraint Doctrine in First Amendment Theory, 70 VA. L. REV. 53, 53 (1982). 123 Redish, supra note 2, 122, at 64.

worse in a free and open encounter? Her confuting is the best and surest suppressing.124

Inherent in Milton’s understanding of the marketplace of ideas were two assumptions. The first was that objective, knowable truths exist.125 The second was that people are generally rational creatures who, if given sufficient facts, will usually come to logical and correct conclusions regarding the matters before them.126 Overarching these twin premises, as vividly illustrated in

Milton’s famous “grappling” sequence, stood a markedly optimistic outlook about the inevitability of truth’s ultimate triumph over lies. In the centuries since Milton, this perspective waned significantly.127

Nevertheless, Milton’s early-Enlightenment, democratic-friendly ideals slowly gained currency over several centuries, cropping up intermittently in academic and political discourse regarding not only prior restraints, but also targeting governmental censorship in general.128

President Thomas Jefferson, for example, referred to the theory in response to the lapse of the

124 MILTON, supra note 2, 122, at 50. 125Thomas W. Joo, The Worst Test of Truth: The “Marketplace of Ideas” as Faulty Metaphor, 89 TUL. L. REV. 383, 386 (2014). 126 Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 31. But see Vincent Blasi, Milton’s Areopagitica and the Modern First Amendment, republished in Blasi, supra note 2, 117, at 102–03 (narrowing the scope of this assumption by suggesting that although Milton’s work may be, to some degree, correctly appropriated by contemporary liberal, secular scholarship, Milton’s primary aims for the marketplace of ideas had religious interests in mind. Noting Milton’s keen grasp of history, astronomy, poetry, linguistics and philosophy, Blasi made the case that “Milton’s sweeping generalization about the strength of truth was not offered in the sprit of empirical demonstration, nor even of didactic history. Milton was simply affirming, once again, his faith in divine providence”). 127 See infra notes 2, 182–2, 190 (discussing the contemporary marketplace criticism that truth may not inevitably overcome falsehood). 128 See William P. Marshall, In Defense of the Search for Truth as a First Amendment Justification, 30 GA. L. REV. 1, 13 (1995) (explaining that the Miltonian “truth justification was commonly advanced in support” of the freedom of expression in America’s early years).

infamous Sedition Act129 in the early days of the American republic. In his first inaugural address after a public repudiation against a criticism-averse Federalist Party at the ballot box, Jefferson declared, “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”130

During the eighteenth and much of the nineteenth century, the conceptual essence of the marketplace theory remained mostly untouched. In 1859, however, British philosopher John

Stuart Mill contributed significantly to the theory’s development in his seminal work, On Liberty.131

Unlike Milton, Mill’s defense of free expression did not focus on the inevitability of truth’s triumph over falsity—or, as Gregory Brazeal explained, that “little need be feared from the expression of false but dangerously seductive ideas.”132 Mill delineated beliefs into three types: false, partially true and wholly true.133 All three, he contended, deserve protection from censorship. His rationale is worth quoting at length.

First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that

129 The Sedition Act of 1798 (1 Stat. 596 [ch.74] (expired 1801)), criminalized “writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government.” 130 Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), republished in THOMAS JEFFERSON, WRITINGS 492, 493 (Merrill D. Peterson ed. 1984). See also Bill for Establishing Religious Freedom, republished in THE PAPERS OF THOMAS JEFFERSON 545 (Julian P. Boyd ed. 1950) (declaring that “[t]ruth is great and will prevail, if left to herself. . . . She is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them”). 131 JOHN STUART MILL, ON LIBERTY (Great Books Foundation, 1st ed. 1955) (1859). 132 Gregory Brazeal, How Much Does a Belief Cost?: Revisiting the Marketplace of Ideas, 21 S. CAL. INTERDIS. L.J. 1, 5, n. 16 (2011). 133 MILL, supra note 2, 131 at 65.

the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds.134

Thus, the utilitarian philosopher found value in constantly checking accepted cultural dogma—regardless of the source—because he believed people can never be absolutely certain of anything.135 To illustrate his point, Mill offered several poignant examples of the censorial actions of authorities throughout history who were sure they were correct—authorities whom today would be considered unequivocally wrong, not only in their censorship, but also in the ideals they promoted.136 Even “the most intolerant of churches, the Roman Catholic Church,” he wrote, “listens patiently to a devil’s advocate”137 for this very reason. Summing up Mill’s position, Brazeal noted that even lies are beneficial because truth, when in a “contest with falsity will strengthen our conviction in the truth, if we possess it; and if we do not possess it, will lead us to refine our opinions, rendering them truer than they otherwise would have been.”138

At bottom, Mill’s primary contributions to the marketplace theory are the re-affirmation that falsehoods can serve positive functions in heightening public perception to truth and error, and, perhaps more importantly, that dogmas of infallibility are necessarily problematic.139 Although Mill spent significant effort in On Liberty’s second chapter providing historical instances when rulers

134 Id. at 65–66. 135 Id. at 26. 136 Id. at 20–41. 137 Id. at 26. 138 Brazeal, supra note 2, 132 at 5, n. 16. 139 See ISAIAH BERLIN, JOHN STUART MILL AND THE ENDS OF LIFE, FOUR ESSAYS ON LIBERTY 187 (1969) (critiquing John Milton (and implicitly approving of Mill) by stating that “[t]hese are brave and optimistic judgments, but how good is the empirical evidence for them today? Are demagogues and liars, scoundrels and blind fanatics, always, in liberal societies . . . refuted in the end?”).

assumed their own infallibility to the detriment of their subjects and progeny, he nonetheless suggested that truth—or something approaching it—would prevail over time if provided a free forum.140

In making these observations, Mill shifted the focus of the theory. From his perspective, the free dissemination of ideas was critical not because objective truths necessarily emerge quickly, but because men likely can never be sure of what the truth is, even if they have found it. So to punish or censor for the perceived lack of truth, which is often inscrutable, turns one generation into a laughingstock for the next.141 On this score, Frederick Schauer points out that “On Liberty can be read as assuming that there is some objective truth, even if we are never sure we have found it. . . . If we are always uncertain, [critics] say, then we never know if we have identified truth.”142 Although contemporary scholars often suggest Mill overstated his case, his ideas were and are exceptionally influential.143

It is not unusual for prevailing philosophical concepts to manifestly emerge through tangible societal outlets and express themselves in obvious ways.144 Mill’s cautiously optimistic version of the marketplace metaphor was no different. About half a century after On Liberty was published,

U.S. Supreme Court Justice Oliver Wendell Holmes, Jr., introduced the concept into mainstream legal thought in Abrams v. United States.145

140 MILL, supra note 2, 131 at 30–43. 141 Id. at 20–41. 142 FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL INQUIRY 24 (1982). 143 See id. (stating that “[a]lthough Mill’s argument is too strong, there is value in his observations”); see also Derek E. Bambauer, Shopping Badly: Cognitive Biases, Communications, and the Fallacy of the Marketplace of Ideas, 77 U. COLO. L. REV. 649, 652 (2006) (questioning Mill’s contention that truth “inevitably succeed[s] in the long run”). 144 Lubet, supra note 1, 45, at 1545. 145 250 U.S. 616 (1919).

Abrams featured the prosecution of several anarcho-socialist defendants who were arrested for throwing from a New York City high-rise window leaflets that criticized U.S. efforts to intervene in Russia following the October Revolution.146 This action, calling for a nationwide strike and cessation of munitions production, landed the defendants on the wrong side of the recently enacted Espionage Act of 1917. The Act prohibited the use of “disloyal, profane, scurrilous, or abusive language” 147 about the United States government. A seven-to-two majority upheld the conviction and found that allowing such expression would further the defendants’ alleged goals—namely to “excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the Government in Europe.”148

Holmes dissented. Although expressing no affinity for the revolutionary visions of the defendants, he sympathized with the expressive rights he thought the Espionage Act violated.149

Explaining his rationale, Holmes made the case that the

ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.150

Unlike Mill’s version of the theory, Holmes’ vision of the marketplace in Abrams featured less ambivalence about the existence vel non of per se truth. In fact, Holmes was rather clear about his view: per se truth is illusory.151 His decision-making was founded upon a pragmatic,

146 Id. at 617–18. 147 Espionage Act of 1917, Pub. L. No. 110-180, 40 Stat. 217. 148 250 U.S. at 623. 149 Abrams v. United States, 250 U.S. 616, 624–31 (1919) (Holmes, J., dissenting). 150 Id. at 630. 151 See Michael F. Duggan, The Municipal Ideal and the Unknown End: A Resolution of Oliver Wendell Holmes, 83 N. DAK. L. REV. 463, 502–13 (2007) (summarizing Justice Holmes’s epistemic perspectives).

coherence theory of truth.152 Truth, he articulated several years after Abrams, is “the majority vote of the nation that can lick all others.”153 Holmes adapted the Millian concept of the need for constant orthodoxy-checking—a concept he referred to as a perpetual “experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”154 Holmes therefore reasoned that even if the marketplace of ideas does not necessarily produce truth as such, at least it protects the deliberative process. Simply stated,

Holmes was more interested in the process of truth finding than the product of truth itself.155 The influence of Holmes’s ideals was dramatic. Within twenty-five years, the marketplace justification for freedom of expression gained widespread acceptance in the American judicial system.156

The next quantum leap for the marketplace theory occurred during World War II when the Supreme Court took on an issue that would become thematic for the next three decades: the government’s role in furthering marketplace expansion.157 There are two primary trains of thought regarding governmental involvement within the marketplace of ideas, both of which

152 See, e.g., Brain D. Haig & Denny Borsboom, Truth Science & Psychology, 22 THEORY AND PSYCHOL. 272, 273 (2012) (defining the coherence theory of truth to be that which “assert[s] that the truth of a proposition results from its cohering with other propositions”). This model, which prizes internal consistency with similarly situated concepts, is distinct from the correspondence theory of truth, which gauges the veracity of any concept by measuring it against external, transcendent and objective states of being. 153 OLIVER WENDELL HOLMES, JR., THE NATURAL LAW: COLLECTED LEGAL PAPERS 310 (1920). 154 Abrams, 250 U.S. at 630. 155 Holmes’s preoccupation with process, Gregory Brazeal suggests, may have been influenced by the evolutionary zeitgeist in which Holmes came of age, spurred by the economic libertarian ideals of British Economist Herbert Spencer. “Given the centrality of Spencer’s thinking to the economic ideology of laissez-faire, as well as Justice Holmes’s own belief in social Darwinism,” Brazeal speculates, “we might even wonder whether Justice Holmes, in invoking the language of laissez-faire economics to defend free expression, was not already in some sense invoking Spencer’s philosophy.” Brazeal, supra note 2, 132, at 4. 156 See, e.g., Bridges v. State of Cal., 314 U.S. 252, 283 (1941) (featuring Justice Hugo Black discussing Holmes’s metaphor in the contempt-of-court context). 157 Associated Press v. United States, 326 U.S. 1 (1945).

feature the same goal: broad dissemination and accessibility of a wide array of ideas. Yet their desired techniques to arrive at that point differ significantly.

The first is a libertarian, laissez-faire, hands-off approach to the market—the idea being that, left uninterrupted by government interference, the market maintains itself and course- corrects when necessary.158 The second line of thinking, which the Court adopted in 1945 in

Associated Press v. United States, is an interventionist (or “access”)159 approach. It purports that governments should actively participate in the marketplace to eliminate obstacles to market growth. The fact that the Court—which in 1945 was eight-ninths President Franklin Delano

Roosevelt appointees—adopted the interventionist approach is not surprising, considering the significant culture of interventionism that characterized all branches of government during the

1930s and early 1940s.160

Associated Press concerned the AP’s internal policies during World War II. In particular, the AP banned member papers from selling AP news to non-member entities (whether the information was supplied by the AP itself or provided by a member newspaper—also known as

“spontaneous news”) and also made attaining membership into the AP exceptionally difficult.161

A six-justice majority held that these anti-competitive behaviors violated the Sherman Antitrust

158 See Blocher, supra note 2, 111, at 825 (discussing “Holmes’s laissez-faire marketplace”). 159 See generally Jerome A. Barron, Access to the Press – A New First Amendment Right, 80 HARV. L. REV. 1641 (1967) (outlining, as the article’s title implies, an innovative First Amendment perspective). 160 See, e.g., Nebbia v. New York, 291 U.S. 502 (1934) (permitting—in groundbreaking fashion—the state of New York to regulate the price of milk). 161 Associated Press, 326 U.S. at 6–7.

Act.162 Articulating a interventionist vision of the marketplace, the Court explained that the First

Amendment

rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non- governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.163

The Court continued its theoretical development six years later in Dennis v. United

States.164 There, the justices blended the interventionist approach from AP with Holmesian epistemological agnosticism to make what was, then, a bold claim about the nature of truth and the government’s relationship to it. In finding that Communist sympathizers did not have a right to express the more extreme elements of their ideology—and were therefore criminally liable for doing so—the Supreme Court stated that

[n]othing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature. . . . To those who would paralyze our government in the face of impending threat by encasing it in a semantic straight jacket we must reply that all concepts are relative.165

162 Sherman Antitrust Act, 15 U.S.C. §§ 1–7 (2016). The fact that other wire services also existed, which meant the AP was not a monopoly, did not dampen the Supreme Court’s trust- busting vigor. 163 326 U.S. at 20. This line of reasoning echoes the rationale used by the trial court in this case. See United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943) (opining that courts should promote “the dissemination of news from as many different sources, and with as many different facets and colors as is possible [because] right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection”). 164 341 U.S. 494 (1951). 165 Id. at 508.

By the early 1970s, the Court (which by this time had only one remaining Roosevelt appointee) shifted the theory’s application away from the interventionist model toward a libertarian one. In Miami Herald v. Tornillo, the Supreme Court examined in depth the assumptions undergirding the marketplace theory.166 The Court’s extensive theoretical analysis deserves lengthy consideration.

The Tornillo Court evaluated the constitutionality of a Florida right-of-reply statute that provided “that if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper’s charges.”167 Near the beginning of his unanimous opinion, Chief Justice Warren

Burger recognized the marketplace theory’s interventionist past. He wrote that “advocates of an enforceable right of access to the press vigorously argue that government has an obligation to ensure that a wide variety of views reach the public.”168 The Chief Justice also addressed the burgeoning problem of media consolidation, acknowledging that lack of newspaper competition and “concentration of control of media that results from the only newspapers being owned by the same interests which own a television station and a radio station, are important components of this trend toward concentration of control of outlets to inform the public.”169 In light of this problem, he continued, “we are told [that] on national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis. The abuses of bias and

166 418 U.S. 241 (1974). 167 FLA. STAT. § 104.38 (1973). 168 418 U.S. at 247–48. 169 Id. at 249–50.

manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires.”170 “From this premise,” he concluded,

it is reasoned that the only effective way to insure fairness and accuracy and to provide for some accountability is for government to take affirmative action. The First Amendment interest of the public in being informed is said to be in peril because the ‘marketplace of ideas’ is today a monopoly controlled by the owners of the market.171

Although the Court recognized a definite logic in this line of reasoning, it nevertheless determined that the interventionist model, though well intentioned, was counterproductive to an open ideational forum. The Court determined that the most likely result of sustaining the right- of-reply statute was that many editors would avoid covering political issues entirely, just to circumvent the headache of moderating campaign mudslinging.172 This type of chilling—or self- censorship—contravenes the ideals of a wide-open and robust market. Furthermore, the Court expressed, a

newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment.173

Compelling participation in the ideological marketplace—characterized by the Court as a direct governmental intrusion into editorial discretion—violates core First Amendment ideals.174

Thus, Tornillo generally repudiated the interventionist/access vision of the marketplace theory for most media applications. Yet interventionism still maintains currency in at least one medium: broadcasting. Because the stated purpose of both terrestrial radio and television is to serve

170 Id. at 250. 171 Id. at 251. 172 Id. at 257. 173 Id. at 258. 174 Id.

the “public interest, convenience and necessity,”175 the access branch of the marketplace theory holds sway in these media, while simultaneously losing favor in other contexts, such as newspapers, cable and satellite television, satellite radio and online media.176

Tornillo was a watershed moment in the marketplace theory’s development, not only in its decidedly libertarian interpretation—which continues mostly to this day—but also in its general importance. Since 1974, the majority of free expression cases at the Supreme Court refer expressly to the marketplace as a theoretical base. As Darrel Methe explains, “the evidence is that the judiciary is now in terminal embrace with those ideas. The phrase ‘marketplace of ideas’

. . . appear[s] now in almost every First Amendment Case,”177 rendering the metaphor well entrenched in contemporary jurisprudence.

Yet the theory has its critics. One enduring denunciation of the marketplace theory is that analogizing a market of goods and services to a market of ideas is fundamentally flawed. “Ideas,”

Gregory Brazeal cheekily said, “are rarely purchased like toasters.”178 Ideas cost nothing to purchase and generally are not sold in any conventional form.

Furthermore, even if the metaphor is conceptually appropriate, ideational economic market failures nonetheless may arise. At the heart of the marketplace of ideas theory rests the assumption

175 See 47 U.S.C. § 309(a) (2015) (mandating that, when granting broadcast licenses, the FCC must consider “whether the public interest, convenience, and necessity will be served by the granting of such application”). 176 See, e.g., Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (upholding the Fairness Doctrine and remarking that “the purpose of the First Amendment [is] to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee”); see also Turner Broad. v. FCC, 512 U.S. 622 (1994) and FCC v. Pacifica Found., 438 U.S. 726 (1978) (re-affirming the public-good perspective of the airwaves). 177 Menthe, supra note 2, 116, at 144–45. 178 Brazeal, supra note 2, 132, at 13.

that people are somewhat rational in discriminating between truth and error.179 Yet in the twentieth century, two world wars and a global battle against communism apparently cast a greater pall of doubt for Westerners upon the presumed inevitability of truth’s triumph over lies—as well as human capacity to distinguish between the two. “It is naive to think that truth will always prevail over falsehood in a free and open encounter,” Harry Wellington wrote in the 1970s, “for too many false ideas have captured the imagination of man. The zealot and the ideologue too often have overwhelmed the truth-teller.”180 Indeed, as the recent growth of behavioral economics suggests,

John Milton’s unbridled optimism that, given a level playing field, truth will always emerge victorious over falsity, seems demonstrably untrue. In certain contexts, people consistently and reliably tend to prefer falsity over empirically verifiable truth, such as when evaluating risk.181

But even more tempered, cautious iterations of the theory have been attacked in recent decades. Wellington, for example, conceded that truth eventually does overcome falsehood in the majority of cases.182 However, in the mean time, many problems can occur.183 “Most of us do be

179 Ingber, supra note 2, 126, at 17–25. 180 Harry H. Wellington, On the Freedom of Expression, 88 YALE L.J. 1105, 1130 (1979). 181 See Bambauer, supra note 2, 143, at 674 (writing that Humans are natural optimists. People believe that they are more likely to succeed in their careers and finances than others, and that they are at lower risk of contracting disease or suffering environmental harms. Like the residents of the fictional town of Lake Wobegon, somehow we each believe that we are strong, good-looking, and above-average. Statistically, though, a large number of us are quite wrong, and this persistent error means we fail to select information that could improve our lives. Medical research . . . shows we evince a consistent, optimistic bias regarding personal risks).

(Internal citations omitted). 182 This eventual optimism approach also traces back to Justice Holmes, who wrote that “[i]f in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” Gitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting). 183 See Wellington, supra note 2, 180, at 1132 (stating that in “the long run, true ideas do tend to drive out false ones. The problem is that the short run may be very long, that one short run

believe that the book is closed on some issues,” Wellington explained. “Genocide is an example.

[Truth] may win, and in the long run it may almost always win, but millions of Jews were deliberately and systematically murdered in a very short period of time. [Before] those murders occurred, many individuals must have come to false beliefs.”184 With this in mind, interventionist economist John Maynard Keynes’ maxim that “in the long run, we’re all dead”185 provides impetus for government intervention to correct market failures not only in the economic marketplace of goods and services, but also in the marketplace of ideas.

Commenting on such market failures in “a radical leftist critique”186 of the marketplace theory, Stanley Ingber stated that American “laws are, at best, essentially indifferent to creating opportunities for expression. Telling an unpopular speaker that he will incur no criminal penalty for his expression is of little value if he has no effective means of disseminating his views.”187 As the

Supreme Court in Tornillo acknowledged, a handful of powerful moguls control the key means of communication—telecasts and newspapers, at the time—leaving the poor and lonely pamphleteer to fight for attention via less effective means.188 “[W]e must pierce the myth of a neutral marketplace of ideas,” Ingber concluded, “and expose the flawed market model assumptions of objective truth and the power of rationality.”189

follows hard upon another, and that we may become overwhelmed by the inexhaustible supply of freshly minted, often very seductive, false ideas”). 184 Id. at 1130. 185 ROBERT SKIDELSKY, JOHN MAYNARD KEYNES: THE ECONOMIST AS SAVIOR, 1920-1937, 62 (1992). 186 Brazeal, supra note 2, 132, at 7. 187 Ingber, supra note 2, 126, at 47. 188 See Branzburg v. Hayes, 408 U.S. 665, 704 (1972) (pontificating romantically about the freedom of expression being “the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photo composition methods”). Of course, the recent proliferation of internet usage and availability— and the viral opportunities they provide—mitigates the effects of this phenomenon somewhat. 189 Ingber, supra note 2, 126, at 90.

Notably, Ingber’s proposed solution is not increased governmental involvement in the marketplace, but a heightened recognition of the right of individual autonomy—“allowing people to choose among lifestyles offering differing roles and relationships.”190 This “aid to those with truly deviant ideas,” as well as an emphasis on John Stuart Mill’s harm principle,191 is Ingber’s answer to the market failures.192 Indeed, Ingber is not alone in his call for a new free speech theory, as autonomy theory—also known as human dignity theory or self-fulfillment theory—remains a popular justification for free expression.193

As opposed to the marketplace theory, autonomy theory views speech not as a means to an end, but as a good in and of itself. As Thomas Emerson explained, the “proper end of man is the realization of his character and potentialities as a human being. For the achievement of this self- realization, the mind must be free.”194 The rationale is that restrictions on expression violate basic human dignity and “elevate society and the state to a despotic command over him and

[places mankind] under the arbitrary control of others.”195 Autonomy theory pioneer C. Edwin

Baker explained it this way:

The legitimacy of the legal order depends, in part, on it respecting the autonomy that it must attribute to the people whom it asks to obey its laws. Despite the plethora of values served by speech, the need for this respect, I claim, provides the proper basis for giving free speech constitutional status.196

190 Id. at 86. 191 The basic premise of Mill’s harm principle, as summed up by Rebecca Brown, is that it “allows government to limit liberties as necessary to prevent harm.” Rebecca L. Brown, The Harm Principle and Free Speech, 89 S. CAL. L. REV. 953, 954 (2016). 192 Ingber, supra note 2, 126, at 69, 87. 193 SCHAUER, supra note 2, 142, at 61–66. 194 EMERSON, supra note 2, 112, at 6. 195 Id. 196 C. Edwin Baker, Autonomy and Free Speech, 27 CONST. COMMENTARY 251, 251 (2011).

Given the close relationship between thought and speech, Rodney Smolla contends that curtailing expression often violates individuals’ dignity and autonomy as independent, rational actors.197

Although autonomy theory presents several attractive features, scholars have noted that it poses significant problems.198 Aside from its hedonistic implications, the theory also runs into issues of scope. If speech for the sake of speech deserves protection, then governments experience difficulty reigning in socially worthless expression—from statements of fraud to child pornography—all of which, under autonomy theory, hold equal value.199

Another popular alternative theory is democratic self-governance or Meiklejohnian theory, so named for its progenitor, Alexander Meiklejohn.200 Meiklejohn’s main concern was the protection of speech related to political issues of public concern. As Pierre Shlag put it,

Meiklejohn believed that “in a democratic society self-government is an important value and that

197 RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 10–11 (1993). 198 See generally Guy E. Carmi, The Enemy from Within: A Theoretical and Comparative Analysis of Human Dignity as a Free Speech Justification, 9 U. PA. J. CONST. L. 957 (2007) (dedicating an entire article to the multiplicity of theoretical problems with entrusting dignity with the protection of the freedom of expression). 199 It also presents difficulties in articulating what makes speech special. See Robert Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 25 (1971) (writing that the autonomy theory does not distinguish speech from any other human activity. An individual may develop his faculties or derive pleasure from trading in the stock market, [working] as a barmaid, engaging in sexual activity, [or] any of thousands of other endeavors. Speech [can] be preferred to other activities [on the basis of this rationale] only by ranking forms of personal gratification. [One] cannot, on neutral grounds, choose to protect speech [on this basis] more than he protects any other claimed freedom).

200 See generally ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF- GOVERNMENT (1948) (expounding upon his theory that prizes the furtherance of town hall-style deliberative democracy).

political or public speech is essential to self-government.”201 For Meiklejohnians, the First

Amendment acts not as a means to protect speech as a good in and of itself, but as a “positive enterprise of cultivating the general intelligence upon which the success of self-government so obviously depends.”202

This logic often crops up in court opinions,203 yet it has not reached the eminence of the marketplace of ideas, perhaps because—some scholars have argued—it is also somewhat nebulous in scope. As Shlag articulated, democratic self-governance theory leaves judges with a vague conception of what is included in the sphere of political speech.204 Indeed, speech related to everything, even matters as ostensibly benign or banal as the weather, can be construed as political in nature.205

It bears noting that, in general, these three theories are not mutually exclusive, and they can often be easily harmonized with one another.206 Perhaps nowhere is this syncretization better illustrated than in the relationship between the marketplace and Meiklejohnian theories.207

201 Pierre J. Shlag, An Attack on Categorical Approaches to Freedom of Speech, 30 UCLA L. REV. 671, 707 (1983). 202 MEIKLEJOHN, supra note 2, 200, at 17. 203 See Snyder v. Phelps, 562 U.S. 443 (2011) (suggesting that political expression is at the height of First Amendment protection). 204 Shlag, supra note 2, 201, at 708. 205 See generally Donald G. Gifford, Climate Change and the Public Law Model of Torts: Reinvigorating Judicial Restraint Doctrines, 62 S.C. L. REV. 201 (2010) (explaining the political nature of discussions concerning climate change). 206 Although other free speech justifications beyond these three exist, they are comparably obscure and are rarely employed by scholars and judges. See GEOFFREY STONE ET AL., THE FIRST AMENDMENT 14 (2016) (stating that “courts and commentators have focused primarily on the search for truth, self-governance, and self-fulfillment/autonomy rationales for the protection of free expression”). 207 In fact, Stanley Ingber, in his seminal article critiquing the marketplace metaphor, went so far as to characterize the democratic self-governance theory as a subset within the marketplace of ideas. See Ingber, supra note 2, 126, at 8 (explaining that [c]lassic marketplace theory recognizes the search for truth as the primary goal of free speech. In the United States, however, constitutional theorists also view free

Furthermore, the Supreme Court has repeatedly affirmed the compatibility of these concepts via continued employment of both the marketplace theory and the idea that political discourse lies at the heart of First Amendment protection—implicitly suggesting that non-political expression resides at the periphery.208

Despite challenges from competing/complementing free-speech justifications, the marketplace of ideas theory dominates all others today. To provide a handful of contemporary examples, the Supreme Court in Citizens United v. Federal Elections Commission warned against the dangers of self-censorship by stating that people may “choose simply to abstain from protected speech—harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas.”209 In United States v. Alvarez, the Court provided the general proposition that

“false statements of fact are particularly valueless because they interfere with the truth-seeking

speech as a corollary to democratic theory. For example, Professor Alexander Meiklejohn perceives freedom of speech as an outgrowth of the American consensus that public issues shall be decided by universal suffrage. The only truth that self-governing individuals can rely upon is that which they themselves devise in the give and take of public discussion and decision). See also Linda Berger, Government-Owned Media: The Government as Speaker and Censor, 35 CASE W. RES. 707, 715–16 (1985) (writing that the “access theory promotes both the instrumental and the autonomy values of the First Amendment. . . . Societal values are furthered by guaranteeing greater diversity of expression, creating competition in the search for truth, and promoting intelligent self-government”). 208 The U.S. Supreme Court has established a de facto tiered system of value for speech, with political speech/speech of public concern at the top (Connick v. Myers, 461 U.S. 138 (1983)) and socially worthless speech somewhere near the bottom. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) (declaring that There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality).

209 558 U.S. 310, 335 (2010) (quoting Virginia v. Hicks, 539 U.S. 113, 119 (2003)).

function of the marketplace of ideas.”210 In Walker v. Texas Division, Sons of Confederate Veterans, the Court determined that “First Amendment rules [are] designed to protect the marketplace of ideas,”211 and it further underscored in Sorrell v. IMS Health, Inc. “the constitutional importance of maintaining a free marketplace of ideas, a marketplace that provides access to social, political, esthetic, moral, and other ideas and experiences.”212 And in McCullen v. Coakley, the Court bluntly asserted that “the First Amendment’s purpose [is] to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail”213

Although the marketplace theory is far from perfect, it is arguably superior to any rival justification, and its longevity is a testament to its tenability and utility. As Jared Schroeder recently wrote, it is “one of the most enduring and popular metaphors of the Supreme Court of the United

States.”214

The Content-Neutrality Doctrine

The content-neutrality doctrine provides a tool for evaluating government regulations of speech.215 It exists within a larger tiers-of-scrutiny framework the Supreme Court first adopted eighty years ago. In 1938, the Court in United States v. Carolene Products216 formally introduced tiers of scrutiny, which today is a dominant doctrinal paradigm within constitutional

210 567 U.S. 709, 718, (2012) (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52, 108 (1988)). 211 135 S. Ct. 2239, 2245-46 (2015). 212 564 U.S. 552, 583 (2011) (quoting Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969)). 213 134 S. Ct. 2518, 2529 (2014) (quoting FCC v. League of Women Voters of Cal., 468 U.S. 364, 377 (1984)). 214 Jared Schroeder, Shifting the Metaphor: Examining Discursive Influences on the Supreme Court’s Use of the Marketplace Metaphor in Twenty-First-Century Free Expression Cases, 21 COMM. L. & POL’Y 383, 383 (2016). 215 See Enrique Armijo, Reed v. Town of Gilbert: Relax, Everybody, 58 B.C. L. REV. 66, 100 (2017) (describing that the “doctrine relies on the law’s references to content—or lack thereof— as proxies for [government] purpose”). 216 304 U.S. 144 (1938). The Court in this case considered the constitutionality of a federal law banning shipments of filled milk (skim milk with added oil) in interstate commerce.

jurisprudence.217 Under this parent doctrine, when laws are subjected to judicial review,218 they are categorized by their genera and assigned different levels of legislative deference depending upon the rights implicated. The more fundamental the right that a statute putatively abridges, the less deference it receives.219

Since Carolene Products, three main tiers of scrutiny have emerged: rational basis, intermediate and strict.220 Under strict scrutiny, the most difficult standard to hurdle, a law is constitutional only if it is necessary to achieve a compelling government interest and uses the least-restrictive means of achieving that interest.221 This structure assumes that compelling government interests (most often related to fundamental rights such as equal protection and free expression) are not as common as their less-important counterparts.222

217 The idea appears in “footnote four,” described as “the most famous footnote in constitutional law.” Felix Gilman, The Famous Footnote Four: A History of the Carolene Products Footnote, 46 S. TEX. L. REV. 163, 165 (2004). This footnote, as distilled by Gilman, stated that the highest level of scrutiny is reserved for “legislation affecting rights specifically mentioned in the constitution; legislation which interferes with the democratic process; and legislation which affects those discrete and insular minorities.” Id. 218 See supra note 2, 100 (explaining Marbury v. Madison and judicial review). 219 ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 567 (5th ed. 2015). 220 But see Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 21 (1972) (further breaking down the three-leveled approach to include “rational basis with bite”). 221 See, e.g., Adarand Constructors v. Pena, 515 U.S. 200 (1995) (declaring that that racial classifications imposed by the federal government must be reviewed under strict scrutiny). It bears noting that the relationship between natural law-informed, a priori goods and compelling government interests is strongly correlated. See Stephen E. Gottleib, Compelling Government Interests: An Essential but Unanalyzed Term in Constitutional Adjudication, 68 B.U.L. REV. 917, 919 (1988) (“the source and basis for fundamental rights and compelling interests are essentially the same”). 222 See Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1273 (2007) (stating that the “overall doctrinal structure presupposes that such interests are not only extremely weighty, possibly urgent, but also rare—much rarer than merely legitimate interests and rarer too than important interests”).

On the other end of the spectrum, rational basis review deems a law constitutional if it is merely reasonably related to a legitimate government purpose.223 Even more deferentially, as

Erwin Chemerinsky explains, the government’s putative goal under rational basis review does not need to be the “actual purpose of the litigation but, rather, any conceivable legitimate purpose is sufficient. The means chosen need be only a reasonable way to accomplish the objective. . . . [It] is enormously deferential to the government, and only rarely has the Supreme

Court invalidated laws as failing rational basis.”224

Intermediate scrutiny, therefore, falls between the extremely deferential rational basis test and the stringent strict scrutiny standard.225 This middle tier, which requires a law to be

“narrowly tailored to achieve an important government interest,”226 has recently “attained central importance in the overall structure of free speech law.”227

Because the freedoms of speech and press are fundamental rights enumerated in the First

Amendment, expression-abridging laws generally must survive strict scrutiny. Specifically, they must serve a compelling government interest and be the least-restrictive means of achieving the

223 See, e.g., Day-Brite Lighting Inc. v. Missouri, 342 U.S. 421 (1952) (upholding under rational basis a Show-Me State statute that permitted employees to leave work for a specified period of time on election days without penalty). 224 CHEMERINSKY, supra note 2, 219, at 566. 225 See Leslie Kendrick, Nonsense on Sidewalks: Content Discrimination in McCullen v. Coakley, 2014 SUP. CT. REV. 215, 238 (describing how the intermediate scrutiny standard in the free expression context often contains an extra element; in particular, the test “has historically required that the law be ‘narrowly tailored to serve a significant governmental interest’ and that it leave open ‘ample alternative channels of communication’”) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). 226 Ward, 491 U.S. at 791. 227 Ashutosh Bhagwat, The Test that Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. ILL. L. REV. 783, 785.

interest.228 The content-neutrality doctrine, however, provides an important caveat to the rule that permits certain expression-limiting statutes to undergo only an intermediate-scrutiny analysis.

Under the content-neutrality doctrine, if a statute singles out or targets a particular type of expression, then it is considered content based and is subject to strict scrutiny.229 If, however, the law only regulates the time, place or manner of speech, then the much more government-friendly intermediate-scrutiny standard applies.230 As Leslie Kendrick explained:

The two basic ideas behind the content-discrimination principle are that it is usually wrong for the government to regulate speech because of what it is saying and that it is usually acceptable, as a First Amendment matter, for the government to regulate speech for reasons other than what it is saying.231

Content-neutral laws regulate expression “without reference to the content of the regulated speech.”232 As indicated above, they are often called “time, place, manner”233 restrictions because they are less concerned with the who, why or what of the expression than with the when,234 where235 or how.236 Time, place and manner restrictions undergo a lesser form of scrutiny and greater deference from courts because they are necessary for a well-ordered

228 See Fallon, supra note 2, 222, at 1270 (describing how the Supreme Court justices have created a laundry list of “preferred” rights). 229 Barry P. McDonald, Speech and Distrust: Rethinking the Content Approach to Protecting the Freedom of Expression, 81 NOTRE DAME L. REV. 1347, 1348 (2006). 230 Id. 231 Kendrick, supra note 2, 225, at 235. 232 Va. Pharm. Bd. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976). 233 See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 115 (1972) (declaring that “[g]overnment has no power to restrict such activity because of its message. Our cases make equally clear, however, that reasonable time, place and manner regulations may be necessary to further significant governmental interests, and are permitted”). 234 Such as the hours upon which a parade may be conducted on city streets. Id. at 115–16. 235 Such as the number of feet from a historical building a billboard may stand. S.B. 533, 2001 REG. SESS. (ALA. 2001). 236 Such as how many decibels of volume may music be played in a national park. United States v. Doe, 296 U.S. App. D.C. 350, 968 F.2d 86, 91 (D.C. Cir. 1992).

society.237 Imagine, for example, the potential havoc that would ensue if the government could not ban parades down Main Street at rush hour or 130-decibel vehicular music in residential neighborhoods at 3:00 a.m.

The rule distinguishing time, place and manner laws from content-based regulations developed roughly thirty years after the tiers-of-scrutiny concept was first adopted by the

Supreme Court. In United States v. O’Brien,238 the Court articulated the O’Brien test—a modified version of intermediate scrutiny—which asks whether the law in question: (1) advances either a substantial or important government interest; (2) is unrelated to suppression of speech; and (3) is narrowly tailored to achieve the government interest with only an incidental restriction of free expression.239 When applied, this deferential, tripartite test usually spells victory for the statute in question because virtually all governmental interests can be characterized as important.240

The Supreme Court first explained the flip side of the doctrinal coin—content-based laws—four years after O’Brien in Police Department of Chicago v. Mosley.241 In Mosley, the court nullified a Chicago ordinance242 that prohibited all picketing except for labor-dispute picketing within 150 feet of a school. Although the 150-feet stipulation appeared to be a place

237 See Cox v. New Hampshire, 312 U.S. 569, 574 (1941) (explaining that “[c]ivil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses”). 238 391 U.S. 367 (1968). 239 Id. at 377. 240 See Ward v. Rock Against Racism, 491 U.S. 781 (1989). In addition, this test has essentially evolved into the standard intermediate scrutiny analysis, and not all statutes adjudicated under intermediate scrutiny survive. See, e.g., McCullen v. Coakley, 134 S.Ct. 2518 (2014). (KENT MIDDLETON & WILLIAM LEE, THE LAW OF PUBLIC COMMUNICATION 90–91 (2014)). See also infra note 2, 336 (discussing briefly another important intermediate scrutiny component: the alternative channels doctrine). 241 408 U.S. 92, 96 (1972). 242 CHICAGO, ILL. MUN. CODE ch. 193-1 (i) (1968).

regulation on its face, the labor-dispute exception landed the law squarely in content-based territory. The Court declared that “[a]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.”243

Thus, O’Brien and Mosley ushered in a new era. Until that point, as described by Martin

Redish, “regardless of the nature of the regulation, the concern [was] with its effect on the dissemination of expression.”244 The new doctrine, however, shifted the analysis away from a general preferred-position balancing test and toward an easy-to-define, yet hard-to-apply, categorical approach.245

The rationale behind the new, content-oriented doctrine is straightforward. As explained by Justice Anthony Kennedy in Turner Broadcasting System v. Federal Communications

Commission, content-based laws “pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or to manipulate the public debate through coercion rather than persuasion.”246 Cass Sunstein elaborated on this sentiment, writing that “[w]hen government regulates content, there is a large risk that the restriction really stems from something illegitimate: an effort to foreclose a

243 Mosley, 408 U.S. at 95–96. 244 Martin H. Redish, The Content Distinction in First Amendment Analysis, 34 STAN. L. REV. 113, 122 (1981). 245 Id. In addition, a sub-category of content-based laws are viewpoint-based statutes, which, as the name suggests, categorically discriminate against expression based upon the viewpoint of the speaker. They are often considered to be a subset within content-based regulations and are virtually always considered unconstitutional. Clay Calvert, Free Speech and Content-Neutrality: Inconsistent Applications of an Increasingly Malleable Doctrine, 29 MCGEORGE L. REV. 69, 76– 78 (1997). 246 512 U.S. 622, 641 (1994).

controversial viewpoint, to stop people from being offended by certain topics and views, or to prevent people from being persuaded by what others have to say.”247

The result of such government interference, the rationale goes, is distortion in the marketplace of ideas. Indeed, as most contemporary free expression cases at the Supreme Court employ both the content-neutrality doctrine alongside the marketplace of ideas theory, the two concepts are often intertwined.248 As the high court opined during the 1990s, content-based restrictions “raise[] the specter that the government may effectively drive certain ideas or viewpoints from the marketplace.”249 Undergirding the content-neutrality doctrine, therefore, is the presumption that governments are not the best arbiters of right and wrong and, instead, should remain neutral regarding socially and politically contentious issues.250 The Supreme

Court explained that “[t]o allow a government the choice of permissible subjects for public debate would be to allow the government the control over the search for political truth.”251

The Supreme Court in Boos v. Barry252 provided a quintessential example of this theory/doctrine combination during the content-neutrality doctrine’s formative stage of the

1980s. The Court in Boos overturned part of the District of Columbia Code253 that criminalized both the congregation of three or more people within 500 feet of a foreign embassy and the display of any sign within 500 feet of a foreign embassy that tended to cast that foreign

247 SUNSTEIN, supra note 1, 13, at 169–70. 248 See, e.g., Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (providing a prototypical example of how both theory and doctrine are often deployed at the Supreme Court). 249 Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991). 250 See Redish, supra note 2, 244, at 118 (explaining that the Supreme Court “reserves its closest scrutiny for laws distinguishing between the expression of particular viewpoints”). 251 Consolidated Edison Co. of N.Y. Inc. v. Pub. Serv. Comm., 447 U.S. 530, 538 (1980). 252 485 U.S. 312 (1988). 253 D.C. CODE § 22-1115 (1981).

government into “public odium” or “public disrepute.”254 Writing for the majority, Justice

Sandra Day O’Connor applied the strict scrutiny standard and found the governmental interest of protecting the dignity of dignitaries not compelling, especially when weighed against the expression of politically oriented, public-venue speech.255

By 1989, the Court had fully embraced the content-neutrality doctrine. Each new case, however, seemingly required added clarification and doctrinal modification. Not every case was so cut-and-dried as Boos, and the justices struggled with how to practically apply the doctrine.

In Ward v. Rock Against Racism, for example, the Court wrestled with how to distinguish between “innocent” yet textually explicit content-based laws and craftily drafted, textually neutral laws that obviously were intended to target certain ideas.256 The Ward Court held that the government’s purpose for a law—irrespective of the regulated content or message—is an additional doctrinal factor. This more nuanced position did not necessarily consider governmental mal-intent cloaked surreptitiously in a time, place and manner statute, as was the case in Boos.257 Unlike Boos, the government in Ward apparently held no ideological animosity for the speakers, who challenged an ordinance that mandated the use of an independent sound technician for any entity wanting to use a certain Central Park bandshell.258 The law had nothing to do with the government intending to discourage certain types of speech, but had everything to do with the city’s purpose of managing noise levels.259 The plaintiffs’ First Amendment claims were rebuffed by Justice Anthony Kennedy, who summed up the majority opinion by stating:

254 Boos, 485 U.S. at 312. 255 Id. 256 491 U.S. 781 (1989). 257 Marc Rohr, De Minimus Content Discrimination: The Vexing Matter of Sign-Ordinance Exemptions, 7 Elon L. Rev. 327, 340–41 (2015). 258 491 U.S. at 786. 259 Id. at 792.

The principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.260

Ward, then, shifted the focus of content-neutrality analyses slightly away from a pure textual evaluation of a statute toward a more subjective examination of the government’s intent and purpose.

The pendulum, however, swung back toward a more textualist approach in 2000. That’s when the Court decided Hill v. Colorado.261 The case pivoted on a Centennial State statute262 that created a “floating buffer zone” prohibiting anyone from approaching within eight feet of a person who was within 100 feet of a facility providing abortions.263 Although the law’s264 intended “effect was unquestionably content-based . . . to stop antiabortion speech,”265 two-thirds of the Court nonetheless determined the law was content neutral and constitutional.266 Writing for the majority, Justice John Paul Stevens explained that the law was neutral because the

“[r]estrictions apply equally to all demonstrators, regardless of viewpoint, and the statutory language makes no reference to the content of the speech.”267 Some scholars assert the Colorado law was a hybrid type of law similar to the one in Boos: it was technically a time, place and manner restriction, but it included strong overtones of governmental disagreement with a

260 Id. at 791 (internal citations omitted). 261 530 U.S. 703 (2000). 262 COLO. REV. STAT. § 18-9-122(3) (1999). 263 Hill, 530 U.S. at 707. 264 On its face, the law proscribed “protest, education or counseling.” Id. 265 CHEMERINSKY, supra note 2, 219, at 983. 266 Id. at 735. 267 Id. at 720.

particular message.268 Furthermore, Justice Kennedy contended in dissent that the Colorado law was a “textbook example of a law which is content based.”269 Yet the majority saw it differently.270

Fourteen years later, the Supreme Court revisited Hill in McCullen v. Coakley.271 The

Court there analyzed the constitutionality of a Massachusetts statute that was strikingly similar to the one at issue in Hill, except that instead of floating buffer zones, the provision prohibited anyone except members of a specified class of persons from engaging with anyone else within a thirty-five-foot radius of an entrance or exit to an abortion facility.272 The petitioners, pro-life counselors, contended the law was content-based, and therefore deserved strict scrutiny, for two reasons. First, they argued the law discriminated against abortion-related speech (both pro- abortion and anti-abortion) by creating buffer zones only at abortion facilities.273 Second, they asserted that because the statute exempted clinic employees (who presumably would be pro- abortion), it was viewpoint-discriminatory.274 Chief Justice John Roberts’ evaluation of the second claim was rather succinct. He reasoned “[t]here is nothing inherently suspect about providing some kind of exemption to allow individuals who work at the clinics to enter or remain within the buffer zones.”275 The fact that the clinic employees would likely be speaking, if at all, in favor of abortion was immaterial.276

268 See, e.g., Rohr, supra note 2, 257, at 348 (stating morosely that “[t]he astute reader may already have surmised that, in the opinion of your humble author, Hill was wrongly decided, and that it has left the law of content discrimination in an unclear and unpredictable state”). 269 530 U.S. at 766 (Kennedy, J., dissenting). 270 Id. at 720. 271 134 S. Ct. 2518, 2541 (2014). 272 Id. at 2526. 273 Id. at 2530. 274 Id. 275 Id. at 2533. 276 Id.

The more significant proposition was the first claim: that the law was not content neutral because it blocked speech outside abortion clinics and was therefore a direct proxy for banning abortion-related speech.277 After determining that the statute was facially neutral,278 Roberts outlined a seemingly simple test for determining whether a non-facially discriminatory law could nonetheless be content based.279 “The Act,” he wrote, “would be content based if it required enforcement authorities to examine the content of the message that is conveyed to determine whether a violation has occurred.”280 Simply put, Chief Justice Roberts’ test suggested that a law is content-based if, in order to tell whether a crime is occurring, law enforcement officers must listen to what is actually being said.281 In this case, merely stepping across an invisible line while speaking would be sufficient cause for criminal activity. Police officers, in other words, would not need to hear what the counselors said to ascertain a violation.282

Roberts suggested that an otherwise facially neutral law may be content-based “if it were concerned with undesirable effects that arise from the direct impact of speech on its audience or listeners’ reactions to speech.”283 Such would be an impermissible example of a fear-of-audience reaction, otherwise known as “a heckler’s veto.”284 The constitutional proscription of hecklers’ vetoes has existed for almost twice as long as the content-neutrality doctrine.285

277 Id. at 2530. 278 Id. at 2531. 279 Id. 280 Id. 281 Id. 282 Id. 283 Id. at 2532–33. 284 The concept of the heckler’s veto, which first appeared in Harry Kalven’s book, THE NEGRO AND THE FIRST AMENDMENT 140–60 (1965), describes speech censorship that comes from listeners’ reactions to a particular message. Generally, hecklers’ vetoes are anethema under the First Amendment. See generally Brett G. Johnson, The Heckler’s Veto: Using First Amendment Theory and Jurisprudence to Understand Current Audience Reactions Against Controversial

Under almost any set of circumstances, a fear-of-listener reaction is insufficient for abridging speech by either prior restraint or subsequent punishment. As Justice Louis Brandeis stated roughly ninety years ago, “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of free speech to free men from the bondage of irrational fears.”286 Yet because the Massachusetts law was, on its face, not fearful of listener reaction but concerned with women’s healthcare access, the law was not considered content-based.287 Nodding to Ward’s focus on governmental intent, Roberts concluded that “a facially neutral law does not become content-based simply because it may disproportionately affect speech on certain topics.”288 He added, however, that content-neutral laws “need not be the least restrictive or least intrusive means of serving the government’s interests. But the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”289

Although the Massachusetts statute was analyzed under intermediate scrutiny, the majority considered it too broadly drafted to serve the significant governmental interest of protecting the abortion access.290 Because other laws291 already protected that right by prohibiting per se obstruction of access, the statute was determined to be more a matter of convenience than necessity.292 Thus, the Court struck it down while declining to overrule Hill.293

Speech, 21 COMM. L. & POL’Y 175 (2016) (providing a more contemporary outlook on the concept as applied to extreme expression within private fora). 285 Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring). 286 Id. 287 McCullen, 134 S. Ct. at 2532. 288 Id. at 2531. 289 McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014) (internal citations omitted). 290 Id. at 2534. 291 See, e.g., MASS GEN. LAW, ch. 266 § 120E (1993). 292 See McCullen, 134 S. Ct. at 2540, (stating that “[a] painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency”).

The McCullen concurrence, however, applied the Ward standard and held that the law was content based. Justice Antonin Scalia, joined by Justices Clarence Thomas and Anthony

Kennedy, asked whether “a statute become[s] justified without reference to the content of the regulated speech simply because the statute itself and those defending it say it does[.] Every objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.”294 Furthermore, Justice Samuel Alito, in a separate concurrence, determined the statute was not only content based, but also viewpoint based because the only view that it affected was pro-life speech.295

The Supreme Court’s next term again failed to conclusively clarify the content-neutrality doctrine. Reed v. Town of Gilbert296 visited the constitutionality of an ordinance that allowed certain types of signs, including political, ideological and advertising ones, to remain in place for months,297 while limiting “temporary directional signs relating to a qualifying event” to only a twelve-hour window before the event and one hour afterward.298 For the pastor of a building-less church who challenged the law, complying with this statute meant having to wait until the late hours of Saturday night each week before putting up a handful of signs to let passersby know where the church would meet that week.299

The Ninth Circuit had ruled that the law was content neutral because “the kind of cursory examination that would be necessary for an officer to classify it as a temporary directional sign

293 See id. at 2545 (Scalia, J., concurring). 294 Id. at 2544 (Scalia, J., concurring) (internal citations omitted). 295 Id. at 2549 (Alito, J., concurring). 296 135 S. Ct. 2218 (2015). 297 GILBERT, ARIZ. SIGN CODE § 4.402(I) (2005). 298 Id. at § 4.402(P). 299 See Comments on Supreme Court Oral Arguments in Reed v. Town of Gilbert, Alliance Defending Freedom (Jan. 12, 2015) (quoting pastor Clyde Reed who said that the ordinance meant “placing [the signs] in the dark of night the evening before our services”), http://www.adfmedia.org/News/PRDetail/9478.

was not akin to an officer synthesizing the expressive content of the sign.”300 The majority of the

Supreme Court disagreed with the Ninth Circuit’s analysis, and it unanimously held the ordinance was unconstitutional. However, as evidenced by the fact that four separate opinions were filed, the Court failed to coalesce around a single reason.

Writing for the majority, Justice Clarence Thomas noted that content-based laws, which trigger strict scrutiny, come in two forms.301 The first are those that are facially discriminatory, while the second are those, as described in Ward, that are not necessarily discriminatory on their face. The second type often suggests a discriminatory government intent and “cannot be justified without reference to the content of the regulated speech or that were adopted by the government because of disagreement with the message the speech conveys.”302 Gilbert’s law, Thomas wrote, falls squarely into the first category because it “singles out specific subject matter.”303 The Court therefore had “no need to consider the government’s justifications or purposes for enacting the

Code.”304 The law was facially discriminatory, thereby demanding strict scrutiny.305

Although each justice agreed with Thomas that Gilbert’s ordinance was facially unconstitutional, Thomas’ insistence that all content-based laws of either variety trigger strict scrutiny gave pause to the concurring justices. Even Justice Elena Kagan, who wrote when she was a law professor at the University of Chicago in the 1990s that “[t]he distinction between content-based and content-neutral regulations of speech serves as the keystone of First

300 Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015) (internal citations omitted). 301 Id. at 2227. 302 Id. at 2227 (internal citations omitted). 303 Id. at 2230. 304 Id. at 2227. 305 Id. at 2232.

Amendment law,”306 found that such a pronouncement would ultimately lead to undesirable consequences.307 She wrote that

[t]here is no need to decide in this case whether strict scrutiny applies to every sign ordinance in every town across this country containing a subject-matter exemption. I suspect this Court and others will regret the majority’s insistence today on answering that question in the affirmative. As the years go by, courts will discover that thousands of towns have such ordinances, and many of them entirely reasonable. . . . This Court may soon find itself a veritable Supreme Board of Sign Review.308

Some of the facially discriminatory yet “entirely reasonable” ordinances cited by Justice

Kagan included: 1) a Truth or Consequences, New Mexico ban on illuminated signs in residential neighborhoods for every topic except address identification;309 2) an Athens, Georgia requirement to obtain a permit for all signs except for safety signs, such as “Blind Pedestrian

Crossing”;310 3) a Dover, Delaware exemption of historical markers, such as “George

Washington Slept Here,” from generally applicable sign ordinances;311 and 4) even the federal

Highway Beautification Act’s limitation on signs placed alongside interstate highways, unless

“they direct travelers to ‘scenic and historical attractions’ or advertise free coffee.”312 Kagan wryly stated that Gilbert’s ordinance “does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test,”313 yet she argued that declaring all laws that “single out specific subject

306 Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L REV. 413, 443 (1996). 307 Reed, 135 S. Ct. at 2237 (Kagan, J., concurring). 308 Id. at 2239 (Kagan, J., concurring) (internal citation omitted). 309 TRUTH OR CONSEQUENCES, N.M., CODE OF ORDINANCES Ch. 16, Art. XIII §§ 11-13-2.3 (2014). 310 ATHENS-CLARKE CO. GA., CODE Pt. III, §7-4-7(1) (1993). 311 DOVER, DEL., CODE OF ORDINANCES, Pt. II, App. B, Art. 5, §4.5(F) (2012). 312 Reed, 135 S. Ct. at 2236 (Kagan, J., concurring) (citing 23 U.S.C. §§ 131(b), (c)(1), (c)(5) (2015)). 313 Id. at 2239 (Kagan, J., concurring).

matter”314 as presumptively unconstitutional is far too broad a proposition. “Unless courts water down strict scrutiny to something unrecognizable,” she wrote, an honest application of the majority’s position on the doctrine would place local governments around the country in a difficult position. Specifically, she opined that “[t]hey will have to either repeal the exemptions that allow for helpful signs on streets and sidewalks, or else lift their sign restrictions altogether and resign themselves to the resulting clutter.”315

In a separate concurrence, Justice Stephen Breyer appeared to distance himself from the other justices. He reasoned that although the majority’s application of the content-neutrality doctrine “sometimes makes perfect sense,”316 it is not, as Justice Kagan declared, a “keystone of

First Amendment law.”317 Instead, Breyer rather squishily called it a “rule of thumb.”318 He contended that the “greater judicial sensitivity”319 provided by using content neutrality as a

“supplement,”320 alongside a traditional balancing test, would provide municipalities with more room to enact common-sense statutes. This posture, he reasoned, would give the justices more flexibility to weigh governmental interests against core First Amendment values.321

Reed is the Court’s most recent word on the content-neutrality doctrine.322 Despite Justice

Thomas and the majority’s clarification of the doctrine, the wide range of opinions in the Reed concurrences illustrates the doctrine’s volatility.

314 Id. at 2236. 315 Id. 316 Id. at 2234 (Breyer, J., concurring). 317 Kagan, supra note 2, 306, at 443. 318 Reed, 135 S. Ct. at 2234 (Breyer, J., concurring). 319 Id. 320 Id. at 2235. 321 Id. 322 Matal v. Tam, 137 S. Ct. 1744 (2017), relied heavily upon the doctrine, yet the Court did not clarify it to any significant degree beyond what was already explained in Reed. Notably, Justice

First Amendment scholars, meanwhile, are no more unified on the matter than are the members of the Supreme Court.323 Even as far back as the early 1980s, Professor Geoffrey Stone questioned the doctrine for essentially incentivizing governments to create broad-sweeping censorial provisions. Stone noted that “in many instances, a content-neutral restriction may more substantially reduce the sum total of information or opinion disseminated than a related content- based restriction. For example, a law banning all billboards restricts more speech than a law banning Nazi billboards.”324

Seth Kreimer more recently described the lack of doctrinal consensus as existing along a spectrum, with judges and professors falling along the continuum between “weak” and “strong” positions.325 The weak approach, exemplified by Justice Kagan’s calls for common-sense judicial sensitivity,326 looks straight to the perceived government intent to ascertain whether a statute is content-based and subject to strict scrutiny.327 This technique turns to Ward and

“focuses solely on government motivation and/or justification and holds that the principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.”328 This method, according to

Kagan, allows courts to “ferret out impermissible motives.”329

Neil Gorsuch took no part in the decision, thus providing no indication of what his addition to the Supreme Court portends for the doctrine. 323 See generally Calvert, supra note 2, 245 (discussing the lack of agreement among legal experts about the proper role and scope of the doctrine). 324 Stone, supra note 2, 206, at 197. 325 Seth F. Kreimer, Good Enough for Government Work: Two Cheers for Content Neutrality, 16 U. PA. J. CONST. L. 1261, 1268 (2014). 326 See supra notes 2, 308–2, 315 and accompanying text. 327 Kreimer, supra note 2, 325, at 1269. 328 Id. (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). 329 Kagan, supra note 2, 306, at 437.

On the other hand, the “strong” approach,330 once championed by the late Justice Scalia, is more rigid. It draws from a textualist preference for avoiding legislative intent whenever possible.331 Like the weak method, the strong approach is also concerned with governmental justifications for the law in question, as well as any speech-squelching motives. Instead of attempting to get into the heads of legislators, however, it champions using facial analysis as a proxy for legislative mal-intent and only delves into the murky area beyond when the non-facial effects are profoundly obvious.332

One problem with the weak approach, Kreimer noted, is that “[p]erhaps a sufficiently astute (Sherlock) Holmesian, or Freudian judge can accurately ‘ferret out’ when unconscious motives are ‘afoot’ by seeking to infer them from behavior. But on the street it seems more likely that the effort will devolve into a projective test.”333 The strong approach is not devoid of problems either. That is because justices sometimes cannot even get to the actual analysis of a law due to disagreement on whether it contains a facially discriminatory or mere incidental effect on expression. What was obvious to Justice Scalia, for instance, was apparently not so clear to

Chief Justice Roberts and the McCullen majority.334

330 Kreimer, supra note 2, 325, at 1269. 331 See Enrique Schaerer, What the Heller?: An Originalist Critique of Justice Scalia’s Second Amendment Jurisprudence, 82 U. CIN. L. REV. 795, 796 (2014) (stating that “[t]extualism is Justice Scalia’s preferred interpretive philosophy because, in a democracy, it is the law that governs, not the intent of the lawgiver”) (internal citation omitted). 332 See 134 S. Ct. 2518, 2544 (2014) (featuring “strong method” proponent Justice Scalia calling for strict scrutiny to be applied to the Massachusetts abortion-access statute because, “Every objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion”) (Scalia, J., concurring). 333 Kreimer, supra note 2, 325, at 1315. 334 See McCullen, 134 S. Ct. 2518, 2548–49 (2014) (Scalia, J., concurring) (expressing the position that “[t]he obvious purpose of the challenged portion of the Massachusetts Reproductive Health Care Facilities Act is to ‘protect’ prospective clients of abortion clinics from having to hear abortion-opposing speech on public streets and sidewalks”).

Beyond Kreimer’s spectrum paradigm, some professors, such as R. George Wright, suggest jettisoning the doctrine entirely.335 The lack of consistency with which the doctrine has been applied, he wrote, renders content-based regulations “no longer uniformly subjected to unequivocally more demanding judicial scrutiny than content-neutral restrictions.”336 Therefore, he argued, “[t]he clarity, coherence, and the practical significance of the content-neutral/content- based regulation distinction have eroded beyond the point of recoverability.”337

Other academics are ambivalent or warily optimistic. Cass Sunstein, for example, wrote that the “current approach might seem too mechanical, even misdirected. . . . But I think that the system has major advantages. It is probably superior to any possible alternative.”338 First

Amendment scholars such as Kreimer339 and Stone340 have essentially echoed this sentiment,

335 Wright, supra note 1, 52, at 2082. 336 Id. One of Wright’s primary concerns with the doctrine is not expounded upon in this dissertation. Notably, he laments the unjust application of the alternative channels doctrine for content-neutral speech. The alternative channels doctrine, which is well-entrenched in content- neutral jurisprudence, holds that judges should defer to speakers who have no other means of expressing their ideas than the ways for which they have been censored for expressing them. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (finding that governments ought to “leave open ample alternative channels for communication of the information” regarding time, place and manner regulations for expression that take place in public fora). Wright then juxtaposes that doctrine against the least-restrictive means test used in content-based cases— which asks if a government can theoretically re-tailor the law to be more speech-friendly. See, e.g., Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759 (2014) (explaining that one aspect of strict scrutiny is that a governmental entity may not abridge a fundamental liberty “unless that action constitutes the least restrictive means of serving a compelling government interest”). Weighing the alternative channels doctrine alongside the least restrictive means test, therefore, it is theoretically possible for some content-neutral laws to face a higher level of scrutiny than content-based laws. As Wright argues, “even if a compellingly vital and precisely tailored content-neutral speech regulation fails, on a rigorous interpretation, to leave available ample alternative speech channels, then the hierarchy, and the meaningfulness, of the content- based/content-neutral distinction evaporates.” Wright, supra note 1, 52, at 2096. 337 Wright, supra note 1, 52, at 2082. 338 SUNSTEIN, supra note 1, 13, at 168. 339 Kreimer, supra note 2, 325, at 1264–65. 340 See Stone, supra note 2, 206, at 193 (arguing of the doctrine that “[o]ne may quarrel with some of the Court’s results, but the overall analysis is defensable).

suggesting that the doctrine is flawed, but when properly applied, it remains an effective and valuable doctrine.

Considering the Supreme Court’s frequent use of the content-neutrality doctrine in recent years, it appears that most justices, at least theoretically, agree the doctrine is useful. Indeed, just prior to Reed, the Roberts Court had declared the doctrine to be a “defining element of First

Amendment doctrine in no less than twenty-two of the thirty-seven free expression cases”341 that it decided in the previous eight years. It is safe to say that the doctrine is well entrenched in First

Amendment jurisprudence, and, if anything, Reed and the Roberts Court’s continued reliance upon it suggest an increased role for it in the future.

Although certainly not as well established as the marketplace of ideas theory that undergirds it, the content-neutrality doctrine appears to be here to stay. What is less certain, however, is the philosophical basis that supports both the marketplace theory and the content- neutrality doctrine. The next chapter begins to explain some of the differing perspectives on this issue and introduces the primary philosophical rival to natural law, legal positivism.

341 Kreimer, supra note 2, 325, at 1265–66.

CHAPTER 3 POSITIVISM, VALUE AND TRUTH

Introduction to Chapter 3

This chapter, which describes and explains the legal philosophy of positivism, is divided into three sections. The first section is historical and descriptive. It traces the evolution of positivism from utilitarian philosopher Jeremy Bentham in the eighteenth century to its present form almost a quarter-millennium later. Along the way, the section highlights seminal thinkers in the philosophy’s development—which began in part as a reaction to legitimate moral and epistemological concerns—and touches on positivism’s main corollary, legal realism. Each of these perspectives, this section shows, is an attempt to shift the legal focus away from morals and rules and toward goals such as practicality, predictability and utilitarian social considerations.

The second and third sections discuss two developments accompanying the rise of positivism: fundamental changes in the relationships between law and morality/values and between law and truth. The second section explains the repercussions of extracting values from the legal profession and depicts various twentieth-century attempts to fill the void values once held. The third section then describes various truth theories and analyzes the link between truth and positivism.

Positivism and its Permutations

Before discussing the history of positivism, it bears noting that attaining a consensus about the contours of many of the concepts discussed in this section—formalism, positivism, realism and utilitarianism—has proven difficult for legal scholars. Even among well-known proponents of various schools of thought, vast disparities exist as to the elements that separate

and define each concept.1 For the purposes of this dissertation, “positivism” serves as an umbrella term to describe the various legal philosophies that distinguish themselves from natural law by separating law from morality and values.

Although scholars may disagree on the precise definition of positivism, legal historians almost universally trace the founding of modern-day positivism to British philosopher Jeremy

Bentham.2 At bottom, Bentham’s primary contention was that when a judge or legislator contemplates the effect of an opinion or proposed law, her primary goal should be maximizing happiness and pleasure while minimizing pain and unpleasantness for the most people. This position, often shortened to “the greatest good for the greatest number,”3 provides the basis for utilitarian thought—within or without the legal context.4

Utilitarians such as Bentham are concerned with consequences of both private actions and publically enforceable laws.5 Bentham’s moral philosophy, therefore, is reducible to the axiom that happiness is what is good, and what is bad is pain and suffering.6 Undergirded by

1 See, e.g., Anthony J. Sebok, Misunderstanding Positivism, 93 MICH. L. REV. 2054, 2096 (1995) (stating that Henry “Hart was an excellent example of someone who suffered a specific kind of confusion about legal positivism. He equated legal positivism with legal realism, which is peculiar—legal positivism was the object of realism’s attack in the 1920s and 1930s.” Furthermore, Sebok continued, the “great irony is that the values that Hart championed in the face of [Oliver Wendell] Holmes’s separation of law and morality were themselves central to legal positivism”). 2 See Frederick Schauer, Jurisprudence and (its) History: The Path-Dependence of Legal Positivism, 101 VA. L. REV. 957, 960 (2015) (writing that “the individual most associated with the origins of legal positivism in the modern and analytic jurisprudential tradition is Jeremy Bentham”). 3 Corey A. Ciocchetti, Tricky Business: A Decision-Making Framework for Legally Sound, Ethically Suspect Business Tactics, 12 CARDOZO PUB. L. POL’Y & ETHICS J. 1, 10 (2013). 4 Jeremy Bentham, Principles of Penal Law, in THE WORKS OF JEREMY BENTHAM 399 (John Bowring ed. 1962). 5 See generally Russell L. Christopher, Deterring Retributivism: The Injustice of “Just” Punishment, 96 NW. U.L. REV. 843 (2002) (explaining the consequentialist perspective in the criminal punishment context). 6 LEVY, supra note 1, 46, at 23.

these consequentialist ideals—and precursing John Stuart Mill’s harm principle7 by roughly a century—Bentham expressed frustration with criminal laws that prosecuted individuals who did not directly cause the pain of a third party.8 Similarly, he decried the absence of laws to account for situations in which individuals proximately caused suffering.9

Rejecting the natural law perspective that the morality of a law could be abstractly understood prior to the law’s enactment, Bentham opined that actions and laws were morally uncharacterizable until their consequences were understood.10 Bentham often decried natural law lawmakers who legislated with a preconceived notion of right and wrong.11

“As one of history’s great haters,”12 Bentham also mocked the American Declaration of

Independence, which was based on John Locke’s natural rights theory (which, in turn, was partially based on a natural law foundation).13 Relying on David Hume’s is/ought dichotomy,14

Bentham stated that America’s founding document was a question-begging statement of an ideal,

7 Mill’s harm principle is a foundational liberal/libertarian ideal that states “[t]hat the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” MILL, supra note 2, 131, at 21. 8 Bentham wrote On Paederasty in 1785, yet he never published it, apparently due to fear of violating social taboos of the time. In this book, Bentham wrote, among other things, that sodomy repulsed him but that overall social utility—the greatest good for the greatest number— was not furthered by anti-sodomy laws. Louis Crompton, Jeremy Bentham: On Paederasty 4 J. HOMOSEXUALITY 91, 91 (1978). 9 LEVY, supra note 1, 46, at 22. 10 Id. 11 Id. 12 Schaeur, supra note 3, 2, at 960. Schauer’s complete thought was that “[a]s one of history’s great haters, Bentham was unrelenting in his hatred of the English legal system, especially its common law design and the lawyers and judges who populated it. Never one to mince words, he described the use of legal fictions, for example, as pestilential and syphilitic.” Id. 13 See generally Hamburger, supra note 1, 67 (explaining the close but imperfect relationship between natural law and natural rights). 14 See DAVID HUME, A TREATISE OF HUMAN NATURE, 469 (L.A. Selby-Bigge & P.H. Nidditch eds., 1978) (1739) (explaining the distinction between the “ought” and the “is”; that is, between an evaluation of what should be (the normative) and a declaration of what actually happens to be the case (the empirical or factual). According to Hume—and to Bentham—the two were often muddled, leading to a lack of clarity wherever the conflation occurred).

rather than an accurate representation of political philosophy.15 In particular, he asserted that

Jefferson’s proclamation that all men are created equal is aspirational. Why, Bentham queried, was a revolution needed against a government to recover rights that were ostensibly inalienable by a government? Encapsulating his disdain, Bentham famously dismissed the Declaration—and the natural law undergirding it—as “nonsense upon stilts.”16

Based on Bentham’s perspective that natural lawyers often assume the very answers they putatively attempt to question, Beryl Levy wrote:

If we say that natural law imposes a duty upon the legislature to refrain from making certain laws, then that would mean for Bentham that we were talking about some kind of duty which was not a legal duty—not a duty for which one could be punished. In that case, it could be nothing but a moral duty. He had no objection to talking about “moral duties.” A moral duty is not unimportant or negligible, but it is simply not a legal duty and should not be considered an integral part of law.17

In separating legal validity from morality,18 Bentham wrote that “the authenticity of a law is a question exterior to, and independent of, that of its content.”19 He articulated the concept that morals, or value judgments, are simply the normative expression of one claiming authority.

Indeed, Bentham wrote that so-called “moral leaders” generally operate in the following fashion:

“Whatsoever it would be [the leader’s] pleasure they should do, he tells men that they ought to

15 Conor Gearty, Reflections on Human Rights and Civil Liberties in Light of the United Kingdom’s Human Rights Act of 1988, 35 U. RICH. L. REV. 1, 4–6 (2001). 16 Jeremy Bentham, Anarchical Fallacies, in JEREMY WALDRON, NONSENSE UPON STILTS: BENTHAM, BURKE AND MARX ON THE RIGHTS OF MAN 53 (1987). Bentham went on to say: “What should it have done, then? To this question an answer is scarcely within the province of this paper: the proposition with which I set out is, not that the Declaration of Rights should have been worded differently, but that nothing under any such name, or with any such design, should have been attempted.” Id. at 63. 17 LEVY, supra note 1, 46, at 26. 18 Bentham expressed his general disdain for most moral discourse when he wrote, “while Xenophon was writing History, and Euclid teaching geometry, Socrates and Plato were talking nonsense, on pretence of teaching morality and wisdom.” JEREMY BENTHAM, DEONTOLOGY 135 (Ammon Goldworth ed. 1983) (1834). 19 GERALD J. POSTEMA, BENTHAM AND THE COMMON LAW TRADITION 3 n.1 (1986).

do it; whatsoever it would his pleasure to see them forbear from doing, he tells them that they ought not do it.”20 Rather than looking to practical reason and morals, Bentham couched legal authority in power, writing that “every law must come from a sovereign.”21

Bentham explained that “[n]ature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as determine what we shall do.”22 This outlook, Dan Priel wrote, was “meant to rid us of much of the fiction that bedeviled existing moral discourse. It was meant to be a scientific discovery, one that was grounded in turn in Bentham’s materialist metaphysical worldview.”23

Thus, Bentham “conceived of his utilitarianism as part of an attempt to ground the domain of morals and politics on the same foundations and conducted with the same rigor as the natural sciences. His empiricism implied that the principles of morals and legislation had to be based on observation.”24 Succinctly expressing his materialist metaphysical worldview, Bentham famously concluded that “[p]hysical sensibility [is] the ground of law—[a] proposition the most obvious and incontestable.”25

Bentham’s pupil, John Austin, took his teacher’s ideas and codified them into a three-part test. The definition of a law, he argued, has three elements: (1) the desire of a sovereign, (2) the

20 BENTHAM, supra note 3, 4, at 253. 21 JEREMY BENTHAM, OF LAWS IN GENERAL 43 (H.L.A. Hart ed. 1970). Further clarifying his position, Bentham wrote that “[t]here is no such thing as an offence against the Law of Nature: because there is no such thing as any Law of Nature.” JEREMY BENTHAM, PREPARATORY PRINCIPLES 122. 22 JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 11 (J.H. Burns & H.L.A. Hart eds., 1996) (1789) (hereinafter MORALS AND LEGISLATION). 23 Dan Priel, Jurisprudence and (its) History: Toward Classical Legal Positivism, 101 VA. L. REV. 987, 998 (2015). 24 Id. at 987. 25 BENTHAM, MORALS AND LEGISLATION, supra note 3, 22, at 10.

expression of that desire, and (3) and “evil” (punishment or sanction) for those who violate that desire.26 This test is now known as the “command theory.”27

Austin explained further that a successful sovereign is characterized by two elements.

The first is habitual obedience from a majority of the population, and the second is habitual noncompliance with the commands of other human superiors.28 He wrote, rather bluntly, that

“[l]aw, simply and strictly so called [is] law set by political superiors to political inferiors.”29

“Superior,” Austin expounded, is synonymous with “might,”30 essentially meaning that he who wields power is the law unto himself.

Across the Atlantic during the latter part of the nineteenth century, young jurist Oliver

Wendell Holmes, Jr.31 was heavily persuaded by Bentham and Austin.32 Decades before his rise to the U.S. Supreme Court, Holmes constructed a personal judicial philosophy that “defined the law, not by its nature or structure or morality, but simply as a prediction of what a court will do.”33

Always practical-minded, Holmes seemed more concerned with framing the law to help practitioners in their trade than with high-minded theorizing. In other words, Holmes emphasized

26 LEVY, supra note 1, 46, at 33. 27 Claire Finkelstein, Hobbes and the Internal Point of View, 75 FORDHAM L. REV. 1211, 1211 (2006). 28 JOHN AUSTIN, LECTURES ON JURISPRUDENCE 1 (John Murray 5th ed. 1885). 29 Id. at 220-22. 30 LEVY, supra note 1, 46, at 36. 31 See id. at 49 (explaining that “Holmes is so preeminent and pivotal a figure in the development of legal thought in America that it would be futile to try to summarize the magnitude of his revisionist books, articles, addresses, judicial opinions and correspondences”). 32 See id. at 27 (describing the nexus among the three men thusly: “From Bentham to Austin to Holmes is the triple play of Anglo-American jurisprudence”). 33 Id. at 49.

the law as a profession34 and described it as “the prediction of the incidence of the public force through the instrumentality of the courts.”35 Holmes continued: “A legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court.”36

To make his point of distinguishing prediction-oriented legal duty from morality, Holmes invented the so-called “bad man.”37 “If you want to know the law and nothing else,” Holmes explained, “you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”38 He continued:

The first thing for a business-like understanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness. You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.39

34 See Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 460 (1897) (noting that “when we study law we are not studying a mystery but a well-known profession”). 35 Id. at 457. 36 Id. at 458. In claiming that the common law is a body of systematized predictions, Holmes famously wrote that “[t]he life of the law has not been logic: it has been experience.” O.W. HOLMES, JR., THE COMMON LAW 1 (1881). Put another way, he wrote that “[t]he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” Holmes, supra note 3, 34, at 460-61. 37 See Marco Jimenez, Finding the Good in Holmes’s Bad Man, 79 FORDHAM L. REV. 2069, 2073 (2011), (explaining that “with these immortal words [quoted below], Holmes, who was perhaps the greatest jurist this country ever produced, breathed life into what was arguably his most enduring contribution to jurisprudence: the ‘bad man’”). 38 Holmes, supra note 3, 34, at 459. 39 Id.

Levy expounded upon the Holmsian position by comparing a government lawfully taking private property by eminent domain against a private person who illegally steals another’s property, converts it, and then must be forced to make restitution.40 In both scenarios, Levy writes, the

redress is the same: the party taking his property (whether it is the state or a private converter) must pay fair value—as determined by a jury. What is the significance, asks Holmes, of calling one taking of property “right” and the other taking of the property “wrong”? We are giving the takings a moral characterization that has no legal effect.41

Morality may have properly influenced the formations of law at some point, Holmes wrote, but in his enlightened age,42 moral infusions did little but obfuscate clarity of thought. “I often doubt,” Holmes concluded,

whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought.43

Much of the fuzzy thinking that Holmes criticized was the formalism that dominated legal education at the time.44 The formalist system of deductive rules, which applied the law

40 LEVY, supra note 1, 46, at 60. 41 Id. To provide another example, the Holmesian bad man does not care when parking his car whether he pays a garage fee or an equally priced parking fine. Id. at 61. 42 Holmes was particularly interested in what he called “enlightened skepticism.” Holmes, supra note 3, 34, at 461. Because public perceptions of morals changed faster than the black-letter law could keep up, Holmes was interested in historical legal inquiry only to the extent that it could be questioned in light of current social realities. Analogizing common-law rules to reptilian beasts, Holmes wrote that “[w]hen you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal.” Id. at 469. 43 Id. at 464. 44 Formalism is often associated with Harvard Law Dean Christopher Columbus Langdell, who pioneered the case method of legal education in mid-nineteenth century. Bruce A. Kimball, The

much like a geometer applies mathematical formulae, unduly ignored many practical public policy considerations undergirding the law in the first place.45 “What is needed instead, said

Holmes, the realists, [and] the pragmatists . . . is a concrete focus upon considerations of social advantage and disadvantage. Legal decisions should not proceed then from fidelity to the heaven of legal concepts, but rather from consideration of the consequences of alternative decisions.”46

As the twentieth century progressed, influential scholars such as John Dewey and Roscoe

Pound pushed the anti-formulist, outcome-driven envelope a bit further. Pound defined law as social engineering,47 while Dewey called it a process of evolutionary activity.48 Karl Llewellyn took it one step further.49 A self-described “legal realist,”50 Llewellyn argued that judicial rules, standards and canons give the law no necessary stability, and that practical considerations such

Langdell Problem: Historicizing the Century of Historiography, 1906-2000s, 22 LAW & HIST. REV. 277, 279 (2004). Langdell declared that it is indispensable to establish at least two things; first that law is a science; secondly that all the available materials of that science are contained in printed books . . . The library is . . . to us all that the laboratories of the university are to the chemists and physicists, all that the museum of natural history is to the zoologists, all that the botanical garden is to the botanists. Address by Christopher Columbus Langdell to the Harvard Law School Association, 1886, quoted in Thomas C. Grey, Langdell’s Orthodoxy, 45 U. PITT. L. REV. 1, 1 (1983). 45 Richard A. Posner, The Meaning of Judicial Self-Restraint, 59 IND. L.J. 1, 3–4 (1983). 46 Paul N. Cox, An Interpretation and (Partial) Defense of Legal Formalism, 36 IND. L. REV. 57, 61 (2003). 47 Roscoe Pound, A Survey of Social Interests, 57 HARV. L. REV. 1, 4 (1943). 48 LEVY, supra note 1, 46, at 83. 49 See Sebok, supra note 3, 1, at 2059 (describing how L. Ron Fuller popularized the concept “that legal realism and legal positivism were part of the same jurisprudential family tree”). Levy wrote that “Llewellyn launched legal realism as a movement by sparking and consolidating a trend among advanced law professors toward looking at what is actually being done, rather than being beguiled by rules alone.” LEVY, supra note 1, 46, at 119. 50 KARL LLEWELLYN, JURISPRUDENCE: REALISM IN THEORY AND PRACTICE 3 (1962). According to Geoffrey Shaw, realists such as Llewellyn “argued that judges and officials in fact exercise tremendous power of choice. While realists hoped that this power of choice could be deployed progressively to improve social conditions, they never developed a theory to direct or constrain choice in law.” Geoffrey C. Shaw, Discretion and the Legal Process School, 127 HARV. L. REV. 666, 668 (2013).

as individual judges’ biases and the persuasiveness of attorneys may be more important.51

Llewellyn, according to Michael Ansaldi, “evince[d] a certain agnosticism about the part, if any, that rules actually play in the decision-making process. In the individual case, the ‘legally incalculable’ human factor, the judge’s personality, may be dispositive. Over the run of cases, social and economic forces may be at work.”52 Indeed, for the Llewellynian realist who takes all possible factors into consideration, even morals may constitute part of law—but only to the extent morality influences lawmakers and jurists on an individual level.53

The most famous positivist of the twentieth century, H.L.A. Hart, started with Austin’s command theory and conceptualized the law as furthering justice—with justice defined as proportionality and balance.54 Although Hart’s position shared major similarities with his ideological predecessors, he criticized Austin’s command theory for lacking sophistication. In particular, Hart discussed Austin’s ideas by analogizing the role of government to that of a gunman in a bank. Hart attempted to establish the distinctions between the gunman’s orders and those made by legislators and judges. The gunman, Hart wrote, forces those in the bank to obey him despite their unwillingness to do so.55 Presumably, he wrote, obedience to the law is

51 LEVY, supra note 1, 46, at 90-91. 52 Michael Ansaldi, The German Llewellyn, 58 BROOKLYN L. REV. 705, 723 (1992). The realist position was also advocated by celebrated jurist and scholar Benjamin Cardozo. Cardozo’s view, wrote Levy, “might be characterized as the ‘brew’ theory,” as the judge “mixes into the brew many elements: precedents, logical consistency, customs, morality. The brew results from the judge’s choices.” LEVY, supra note 1, 46, at 94. 53 And even then, such a situation would be merely descriptive rather than normative. See LEVY, supra note 1, 46, at 131 (explaining a possible difference between positivism and realism in that “realism departs from legal positivism in making this pragmatic recognition that fact and value are brought together when the judge has to decide a hard case”). 54 LEVY, supra note 1, 46, at 111. 55 See Priel, supra note 3, 23, at 1015 (commenting that although early positivists such as Austin saw the law as coming only from a sovereign, “[l[ater legal positivists have modified this view, maintaining that social conventions, and not the facts about sovereignty, constitute the grounds of law”).

accompanied by a different feeling than obedience to a gun-wielding burglar.56 This feeling is important, Hart wrote, because it adds a psychological layer to mere obligation through power.57

Continuing his discussion of the gunman and the lawmaker, Hart identified three other important distinctions: content, origin and range. For content, he wrote, all laws are not inherently coercive; some exist for facilitative purposes and permit citizens, for example, to establish contracts and other legal rights and responsibilities.58 A definition of law that only accounts for obligation, therefore, was too narrow. As far as origin and range, Hart further distinguished himself from Austin.59 As discussed above, Austin wrote that each legal scheme needed a sovereign to create law (the origin) while remaining outside its scope (the range); the gunman, for example, is the source of commands and is not subject to anyone else’s commands.60 Under Austin’s rubric, the definition of law would be satisfied by the gunman’s desires. Yet such a simplistic perspective is problematic, Hart wrote, because laws frequently have multiple sources and lawmakers are often subject to the commands they make.61

As for the relationship between values and law, Hart remained squishily agnostic. “I still think legal theory,” he wrote, “should avoid commitment to controversial philosophical theories

56 See Kenneth Einar Himma, Book Review, Substance and Method in Conceptual Jurisprudence and Legal Theory, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory, 88 VA. L. REV. 1119, 1160 (2002) (stating that this “attitudinal requirement is absolutely crucial in understanding Hart’s theory of obligation”). 57 See id. (opining that the “great difference between Austin and Hart was that the former believed the obligation arose from the threat of sanction, while the latter thought it arose from a more complex psychological phenomenon called the ‘internal point of view’”). This internal view gives law a distinctive normative quality. People must be inclined to obey laws, Hart wrote, as obedience is the tangible benchmark of legal efficacy. Laws cannot be efficacious unless they are followed by at least majority of the population. 58 H.L.A. HART, THE CONCEPT OF LAW 79 (1961). 59 Id. 60 Id. at 116. 61 Id.

of the general status of moral judgments and should leave open . . . the general question of whether they have objective standing.”62

When Hart’s ideas achieved peak influence during the mid- to late twentieth century, positivism was the “ruling theory of law” in the United States, a position it maintains today.63 Several decades’ worth of judicial opinions have now issued since positivism’s initial ascendency, providing scholars with much fodder for examination.

The next two sections build on the background this section provides and examine the practical effects of positivism’s influence in two particular areas: values and truth.

Value and the Objective Turn

The fields of ontology, epistemology and axiology work together to provide practitioners in any intellectual discipline with the philosophical tools necessary to perform their crafts.64 Law is no exception, as each is necessary to answer the most fundamental questions that inform the purpose of any further inquiry. As Eric Engle writes, “What is the nature of being? (Ontology)

What is truth? (Epistemology) What are our fundamental values? (Axiology). [The] answers to

62 Id. at 253–54. 63 RONALD DWORKIN, TAKING RIGHTS SERIOUSLY vii (1977). During the 1960s and ’70s, positivism became associated with political conservatism, often cloaked in the concept of “judicial restraint.” Id. at 131-32. Sebok discussed the irony of this development and pointed out that the earliest proponents of positivism were exclusively social liberals and reformers. See Sebok, supra note 3, 1, at 2055, n. 6 (describing the fact that “Jeremy Bentham and H.L.A. Hart, positivism’s chief spokespersons in England in the nineteenth and twentieth centuries, were also outspoken liberal reformers of the law”). But see infra note 2, 9 and accompanying text (discussing the revival of natural law thought during the late twentieth century). 64 See generally Eric Engle, Ontology, Epistemology, Axiology: Bases for a Comprehensive Theory of Law, 8 APPALACHIAN J. L. 103 (2008) (expressing the necessity of all three in order to be logically coherent). This point, however, may be contested by materialists and positivists, some of whom believe that axiology is helpful but ultimately unnecessary. Chapter 4 of this dissertation discusses the fallacies of this perspective. See also LARRY LAUDAN, SCIENCE AND VALUES: THE AIMS OF SCIENCE AND THEIR ROLE IN SCIENTIFIC DEBATE (1984) (breaking the inquiry down into the elements of factual, methodological and axiological).

these three questions determine more or less where we stand when it comes to law.”65 Ontology and epistemology, which address knowledge and truth, are briefly discussed in the next section.66

This section focuses on positivism’s relationship to axiology.

For all judges, positivist or otherwise, the ever-present tension lies at the fault line between recognizing the law’s axiological values while simultaneously adjudicating neutrally and impartially.67 How explicit must those values be recognized, and where in judicial analyses ought the values be considered?68

As the previous section illustrated,69 the positivist perspective on values—which often attempts to minimize any axiological recognition—differs significantly from the natural law perspective.70 Generally speaking, natural law holds to a cognitivist axiological perspective while positivism adopts a relativist view.71 Engle explained the difference, writing that axiology

“may be either relativist (values are subjective and relative) or cognitivist (moral choice is possible and objective). Moral relativism usually argues that morals are purely intellectual

65 Engle, supra note 3, 64, at 105. 66 See infra Chapter 3, Section C (discussing the relationship between ontology and epistemology). 67 Put in a different, more familiar, metaphor, the calibration of Lady Justice’s balanced, empty scale represents the axiological composition of the court. 68 For example, one popular view, coming from the critical cultural perspective, is that values should be explicitly stated from the onset and that attaining social justice is the ultimate goal of the law. See, e.g., Spencer Rand, Lawyers Who Ignore Social Justice are Incompetent: Teaching Law Students the Competency to Practice Law Through a Social Justice Lens (forthcoming, 2018). 69 Supra Chapter 3, Section A. 70 See Eric Engle, Knight’s Gambit to Fool’s Mate: Beyond Legal Realism, 41 VAL. U.L. REV. 1633, 1635 (2007) (discussing how the legal profession “adopted moral relativism as early as the 1930s in the work of the legal realists”). 71 See David Wiggins, Moral Cognitivism, Moral Relativism and Motivating Moral Beliefs, 91 PROCEEDINGS OF THE ARISTOTELIAN SOC. 61, 61–72 (1991) (providing a basic overview of the two perspectives).

constructs having no material existence. Cognitivism usually argues that moral values are expressions of the intellect and are ‘real’ (intentional) entities.”72

In the legal context, Erin Englebrecht writes, “[T]he emergence of moral relativism in

Western thought, in which it is believed that there are no objective truths and that morals are relative and subjective, has led contemporary legal theories to reject natural law and other normative concepts.”73 This section thus discusses two methods used by positivist judges and legal philosophers during the twentieth and twenty-first centuries to oust metaphysical, axiological value judgments from the legal equation. The first is empiricism/scientism and the second is rights prioritization. Each is briefly discussed in turn. Although the methods are consolidated here into two discrete groupings for purposes of simplicity, they often complement one another and even appear together in certain circumstances.74 That is, they are not mutually exclusive.

Empiricism and Scientism

Jeremy Bentham’s initial push to oust morality from law was accompanied by an

“attempt to ground the domain of morals and politics on the same foundations and conducted with the same rigor as the natural sciences. His empiricism implied that the principles of morals

72 Engle, supra note 3, 64, at 107. See also generally, Robert P. George, A Defense of the New Natural Law Theory, 41 AM. J. JURIS. 47 (1996) (explaining the relationship among cognitivism, positivism and natural law). 73 Erin Englebrecht, Three Fallacies of the Contemporary Legal Concept of Environmental Injury: An Appeal to Enhance “One-Eyed Reason” with a Normative Consciousness, 18 TUL. ENVTL. L. J. 1, 38 (2004). As discussed the previous chapter, Justice Holmes preferred a purely descriptive, rather than normative, legal analysis. 74 See, e.g., Planned Parenthood of Southeastern Pa. v. Casey 505 U.S. 833 (1992) (featuring both the avoidance and rights prioritization techniques).

and legislation had to be based on observation.”75 Indeed, Bentham’s work was on the cusp of a larger empirical turn that would sweep through much of the West during the 1800s.76

Yet during the latter part of the nineteenth century—about the time Justice Holmes began his legal career—a new wave of interest developed, propelled by industrial-driven, scientific innovation. The resulting impetus swung the empirical pendulum beyond a mere appreciation for the role scientific inquiry plays in the traditionally metaphysical fields of philosophy and law.77

This momentum led to widespread Western adoption of scientism—the belief that physical science is the standard model for all human inquiry and the source of all human progress.78

Generally, as explained by Austin Hughes, scientism exists in the “work of professional philosophers and in popular writings by natural scientists, [where] it is frequently claimed that natural science does or soon will constitute the entire domain of truth . . . [thus suggesting] that an advanced degree in some area of natural science confers the ability to pontificate wisely on any and all subjects.”79 Put differently by J.P. Moreland,

Scientism is the view that science is the very paradigm of truth and rationality. If something does not square with currently well-established scientific beliefs, if it is not within the domain of entities appropriate for scientific investigation, or if it is not amenable to scientific methodology, then it is not true or rational. Everything outside of science is a matter of mere belief and subjective opinion, of which

75 Priel, supra note 3, 23, at 987. 76 The late eighteenth century and much of the nineteenth century were characterized by the tremendous technological growth and scientific discovery of the industrial revolution. Joel Mokyr, Why was the Industrial Revolution a European Phenomenon?, 10 S. CT. ECON. REV. 27, 31 (2002). 77 See generally JAMES LADYMAN & DON ROSS, EVERY THING MUST GO: METAPHYSICS NATURALIZED (2009) (defending the general proposition that all metaphysical inquiries must be based on physics if they are to have any probative value). 78 See generally RICHARD OLSON, SCIENCE AND SCIENTISM IN NINETEENTH-CENTURY EUROPE (2008) (explaining, as the title implies, the extent to which this phenomenon influenced European thinking during the nineteenth century). 79 Hughes, supra note 2, 74, at 41.

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rational assessment is impossible. Science, exclusively and ideally, is our model of intellectual excellence.80

The empirical-to-scientism turn manifested itself across a range of disciplines, including law.81 Jeremy Bentham’s calls for empirical rigor within the law82 were quickly followed by the legal realist movement’s reluctance to embrace all things metaphysical.83 Yet the contemporary positivist rejection of metaphysics in favor of scientific methods,84 wrote J. Budziszewski, is entirely understandable.85 By adding scientific inquiry and methodology to the law, jurists and practitioners bring a touch of objectivity to a historically subjective enterprise. Lawyers and judges feel pressure to deal

with empirical realities, not airy imaginings. Other kinds of scientists are allowed to have facts; so should we. I saw a bumper sticker in a university parking lot one day: “Get out of my way, man, I’m a physicist.” We long perhaps, for the day when we, too, could get away with that.86

In the years since Holmes left the bench in 1932, this physics envy87 fostered by the scientific revolutions during his three-decade tenure on the Court has only escalated.88 As

80 J.P. MORELAND, CHRISTIANITY AND THE NATURE OF SCIENCE 14 (1989). 81 See Patrick J. Kelley, Theories of Legislation and Statutory Interpretation: Natural Law and the Intention of the Legislature, 1 WASH. U. JUR. REV. 97, 111 (2009) (explaining that “modern scientific theories of legislation developed after the rise of scientism have completely omitted any notion of an objectively determinable common good discoverable by reason”). 82 See supra notes 3, 1– 3, 25 and accompanying text, explaining the contribution of Jeremy Bentham to the legal profession. 83 See supra notes 3, 52–3, 53 and accompanying text, outlining legal realism in American Jurisprudence. 84 See Holmes, supra note 3, 34, at 469 (stating that “the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics”). 85 J. BUDZISZEWSKI, THE LINE THROUGH THE HEART 145 (2009). 86 Id. 87 See generally Fritz Malchup, Are the Social Sciences Really Inferior? 27 SOU. ECO. J. 173 (1961) (articulating the general concept that practitioners within the social sciences (if not the law) often aspire to be more like their physical-scientist counterparts). 88 See generally Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107 YALE L.J. 1535 (1998) (explaining the increase of empirical evidence in both federal and state cases).

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Timothy Zick recently explained, “[m]ost federal judges, including most members of the

Supreme Court, do not adhere to any overarching normative theory of constitutional interpretation.”89 Instead, “a pragmatic bench increasingly looks . . . to data and scientific conventions for objective measures of constitutionality. Constitutional law is now in the throes of a widespread empirical turn, a quantitative mood swing that is consistent with a more general societal turn toward all things scientific.”90

Among the recent constitutional issues receiving empirical analysis at the Supreme Court are whether: there is a “direct causal link” between violent video games and harm to minors;91 the federal legislature had sufficient data to predict that an increase in regulation within the cable television market was required to prevent widespread station failure;92 quantifiable data about voucher programs for religiously oriented schools suggested a First Amendment violation;93 and, under the Fourteenth Amendment, a specific dollar amount for damages exists that, once passed, leaps the chasm from compensatory to punitive damages.94

Lower federal courts have also sought to add a dash of objectivity to their jurisprudence.

One conspicuous example is embodied in the most-cited legal authority in the United States,95 prominent “law and economics” champion Richard Posner.96 Recently retired from the Seventh

89 Timothy Zick, Constitutional Empiricism, Quasi-Neutral Principles and Constitutional Truths, 82 N.C. L. REV. 115, 118 (2003). 90 Id. 91 Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 799 (2011). 92 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 225 (1997); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 668 (1994). 93 Zelman v. Simmons-Harris, 536 U.S. 639 (2002). 94 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S 408 (2003). 95 Fred R. Shapiro, The Most-Cited Legal Scholars, 29 J. L. STUD. 409, 424 (2000). 96 As explained by Matthew Bunker, the law and economics perspective looks at the law “with an eye toward overall wealth maximization.” BUNKER, supra note 1, 73, at 40. “In its positive guise,” Gary Lawson states, “law and economics purports to predict legal events, such as the

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Circuit Court of Appeals, Posner made a career of explaining virtually every legal concept in terms of balancing two ideals: John Stuart Mill’s harm principle97 and numbers-oriented wealth maximization.98 As Matthew Bunker explains, Posner decries moral philosophizing in favor of

“‘pragmatic adjudication,’ which he defines somewhat vaguely, but which seems to consist, at least in part, of a good bit of social scientific investigation.”99 Science-based pragmatic adjudication falls on the other end of the spectrum from the naked appeals to stare decisis mechanism described below.100 Indeed, “[p]ragmatic adjudication also eschews precedent for precedent’s sake, preferring to identify case-by-case results that will improve social conditions rather than worship at the altar of stare decisis.”101

Improving social conditions, Posner writes, can be accomplished by enforcing the opinions held by a majority of judges: “Pragmatism will not tell us what is best; but, provided there is a fair degree of value consensus among the judges, as I think there is, it can help judges seek the best results unhampered by philosophical doubts.”102

By shying away from metaphysical matters and instead relying on numbers, Posner and other law-and-economics proponents joined the overall positivist trend of objectivity and quantifiability. Among this group, Engle expounds, axiology is “ignored as being subjective

general trend of outcomes of common law adjudications, or to describe the consequences or legal rules.” Gary Lawson, Efficiency and Individualism, 42 DUKE L.J. 53, 56 (1992). 97 Mill’s harm principle is a foundational liberal/libertarian ideal that states “[t]hat the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” MILL, supra note x, at 21. 98 RICHARD POSNER, OVERCOMING LAW viii (1995). 99 BUNKER, supra note 1, 73, at 163. 100 See infra notes 3, 120–3, 129 and accompanying text (explaining the naked appeals to stare decisis technique). 101 BUNKER, supra note 1, 73, at 163. 102 RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 262 (1999).

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and/or indemonstrable and/or unscientific in contemporary legal discourse.”103 The result, he says, is that “economic analysis is ascendant. This is because economic analysis can claim to be objective, and thus scientific. Economic arguments appear to be objective because they appear to be empirically quantifiable, therefore verifiable, and thus objective.”104

Rights Prioritization

Another anti-metaphysical tack deployed by positivist practitioners during the last century is rights prioritization. This position asserts that rights precede values, thus rendering rights self-justifying.105 Rights prioritization has two components, as described by Michael

Sandel. The first facet is “the sense that certain individual rights ‘trump,’ or outweigh, considerations of the common good.”106 The second is that “the right is prior to the good in that the principles of justice that specify our rights do not depend for their justification on any particular conception of the good life.”107

The most influential articulation of rights prioritization was authored by moral and legal philosopher John Rawls in his book Political Liberalism.108 More an anti-philosophy than a traditional, comprehensive one,109 Rawlsian political liberalism does not endorse any particular

103 Engle, supra note 3, 64, at 76. 104 Id. 105 John Rawls, The Priority of Right and Ideas of the Good, 17 PHIL. & PUB. AFF. 251, 252 (1988). 106 Michael J. Sandel, Book Review: Political Liberalism, 107 HARV. L. REV. 1765, 1767 (1994). 107 Id. 108 JOHN RAWLS, POLITICAL LIBERALISM (1993). 109 See id. at 154–58 (distinguishing political liberalism from traditional liberalism in the John Stuart Mill tradition. Whereas traditional liberalism promotes liberal political arrangements to further particular moral ideals, including individuality and autonomy, political liberalism remains agnostic about the worth of any preconceived moral good. Instead, political liberalism only ventures so far as to say that justice is good, and justice equals fairness). Rawls’s perceptions of fairness were explained in his book A Theory of Justice, in which he created the famous thought experiment known as the veil of ignorance. Within this experiment, justice can be defined as the consensus reached by persons who find themselves in a position of initial equality—one where every person is ignorant of his or her race, class, religion, gender or life goals. JOHN RAWLS, A

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notion of good or what the good life entails.110 “To maintain impartiality between comprehensive doctrines,” Rawls wrote, “[political liberalism] does not specifically address the moral topics on which those doctrines divide.”111

Rawls founded political liberalism in part to account for the fact that within contemporary Western democracies, people often disagree about what good is. So instead of arguing about what is right and wrong, it is better to focus on areas of consensus.112 Where consensus emerges, wrote Rawls, rights can be established.113 Consensus is necessary, Rawls further explained, because individuals are independent and unencumbered by inherent moral realities. Untethered from any moral moorings, humans are capable of determining the ends for themselves.114 Rawls expounds:

We should not attempt to give form to our life by first looking to the good independently defined. It is not our aims that primarily reveal our nature but rather the principles that we would acknowledge to govern the background conditions under which these aims are to be formed and the manner in which they are to be pursued. For the self is prior to the ends which are affirmed by it; even a dominant end must be chosen from among numerous possibilities. . . . We should therefore reverse the relation between the right and the good proposed by teleological doctrines and view the right as prior.115

THEORY OF JUSTICE 11–12 (1971). Rawls saw political liberalism as existing outside the realm of philosophy, untethered and “freestanding.” Id. at 10. Rights prioritization vis-à-vis political liberalism therefore “applies the principle of toleration to philosophy itself.” Id. 110 Id. at 560. 111 RAWLS, supra note 3, 108, at xxviii. 112 See Sandel, supra note 3, 106, at 1771 (stating that the Rawlsian perspective is “a practical response to the familiar fact that people in modern democratic societies typically disagree about the good. Because people’s moral and religious convictions are unlikely to converge, it is more reasonable to seek agreement on principles of justice that are neutral with respect to those controversies”). 113 RAWLS, supra note 3, 108, at 134. 114 Id., at 29–35. 115 RAWLS, supra note 3, 109, at 560.

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Thus, according to rights-first political liberalism, human capacity to decide ends is more important and fundamental than the ends ultimately chosen.116 And as free and unencumbered agents, humans are “self-authenticating sources of valid claims.”117 From a political liberalism perspective, the fact that some claims may reflect notions of morality and the common good while others are purely self-serving is irrelevant. All claims are equally valid.118 Within political liberalism, Sandel details, claims that are “founded on duties and obligations of citizenship or solidarity or religious faith are just things people want—nothing more, nothing less. Their validity as political claims has nothing to do with the moral importance of the goods they affirm, but consists solely in the fact that someone asserts them.”119

One practical way for judges to apply Rawlsian rights prioritization is to appeal to precedent without considering the values or public policy considerations that originally gave rise to the precedent. This permits a judge to avoid the appearance of making value judgments while seeming neutral and disinterested.120

One prominent example121 of this phenomenon in recent decades is the jurisprudence of

Supreme Court Justice Anthony Kennedy. In 1992, Kennedy applied both empirical scientific

116 See id. (explaining that “[i]t is not our aims that primarily reveal our nature but rather the principles that we would acknowledge to govern the background conditions under which these aims are to be formed. . . . [T]he self is prior to the ends which are affirmed by it”). 117 RAWLS, supra note 3, 108, at 32. 118 One of the principles upon which Rawls builds his contentions is that the personal and the public should be separate. This dualism purports that personal ideals are fine, but they simply should not be acted upon in the public sphere. Miriam Galston, Rawlsian Dualism and the Autonomy of Political Thought, 94 COLUM. L. REV. 1842, 1843–49 (1994). 119 Sandel, supra note 3, 106, at 1773–74. 120 Although all lower federal courts must apply the rules set forth by the Supreme Court, the Supreme Court itself has no such limitation and may change its collective mind any time it wishes. 121 Rights prioritization is most vividly seen in the context of hot-button topics in the culture wars, such as the freedom of speech, reproductive/privacy rights and firearm rights. H.L.A. Hart, Between Utility and Rights, in THE IDEA OF FREEDOM 77 (Alan Ryan ed., 1979). A practical

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claims and naked122 stare decisis appeals in Planned Parenthood of Eastern Pennsylvania v.

Casey,123 a case that revisited the constitutionality of abortion nineteen years after Roe v.

Wade.124 Instead of appealing to policy rationales, as the Roe Court had done, Kennedy, along with opinion-co-author Justice Sandra Day O’Connor, simply looked to precedent. They opined that overturning Roe would be to “surrender to political pressure . . . [because] to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.”125 Justice Kennedy set the tone for the rest of the opinion in the first sentence, writing “Liberty finds no refuge in a jurisprudence of doubt.”126 By employing this method, he dodged the moral and public-policy questions of the case’s merits in favor of a less controversial, less axiologically divisive tactic. Thus, the moral rightness or wrongness of the underlying policy considerations, under this line of reasoning, is less important than maintaining judicial legitimacy through adherence to precedent.127

application of this concept in the pop-culture realm is the popular internet image macro that posed the question, “Why do I need an AR-15?” The answer, rather than an appeal to public policy, morality or even constitutional theory, comes in the form of a question: “Why did Rosa Parks need to sit in the front of the bus? In a free country, there is no requirement to show ‘need’ to exercise a right.” Image macro on file with author. See also Meredith Bennett-Smith, Ted Nugent: Gun Owners Next Rosa Parks, Will Sit Down on ‘Front Seat of the Bus,’ HUFFINGTON POST, Jan 10, 2013, www.huffingtonpost.com/2013/01/10/ted-nugent-gun-owners-next-rosa- parks-front-seat-bus_n_2448750.html (articulating the concept in similar fashion). 122 See Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 576 (1987) (writing that an appeal to stare decisis, when employed by itself, is a “naked argument from precedent urg[ing] that a decisionmaker give weight to a particular result regardless of whether that decisionmaker believes it to be correct and regardless of whether that decisionmaker believes it valuable in any way to rely on that previous result”). 123 505 U.S. 833 (1992). 124 410 U.S. 113 (1971). 125 Planned Parenthood of Southeastern Pa., 505 U.S. at 867. 126 Id., at 843. 127 On multiple other value-laden occasions, however, Kennedy has expressed no qualms about subverting public perception of the high court’s legitimacy. In both Lawrence v. Texas, 539 U.S. 58 (2003) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015), for instance, Kennedy wrote

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In summary, empiricism/scientism and rights prioritization are two common value- avoidance techniques employed by positivist practitioners, judges and scholars.128 Chapter IV discusses both in more detail. Although empirical evidence and preferred-position129 rights- recognition must play critical jurisprudential roles, their current, positivist applications—the next chapter argues—are fundamentally misguided.

Truth

The rise of legal positivism was accompanied not only by varying conceptions of values, as described above, but also of the nature of knowledge and truth.130 Traditionally, the philosophies of truth divide into two discrete yet related fields: ontology,131 which concerns the broad matters of reality and what is knowable and epistemology,132 which deals with knowledge

majority opinions—in accordance with shifting and prevailing political norms—that directly contradicted centuries of previously uncontroverted precedent. 128 Although in reality, as explained in the next chapter, values can only be superficially avoided. 129 Preferred-position balancing, which was introduced into American jurisprudence by Chief Justice Harlan Stone, purports that some rights are more important than others and should be presumptively given an extra thumb’s weight on the judicial scale. Alpheus Thomas Mason, The Core of Free Government, 1938-40: Mr. Justice Stone and “Preferred Freedoms,” 65 YALE L.J. 597, 625-26 (1956). 130 The two issues of value and truth, however, often go hand-in-hand. See Engle, supra note 3, 64, at 105 (claiming that “I think there are objective values, that these values flow from objective truth, and that this objective truth is nothing more than a reflection of material reality”). In another article, Engle explained the interrelatedness of ontology, epistemology and axiology when he wrote that A correct and coherent epistemology is needed to find a well-founded theory of moral choice, which is necessary for legal reforms. To obtain a correct epistemology, a correct ontology is required. Determine the correct ontology, and the epistemology basically falls into place. Rectify the epistemology, and the axiology falls into place. Rectify the axiology, and legal methodology and political agenda fall into place. Eric Engle, Knight’s Gambit to Fool’s Mate: Beyond Legal Realism, 41 VAL. U. L. REV. 1633, 1635-36. 131 See Scott DeVito, The Ontology of Copyright Infringement: Puzzles, Parts, and Pieces, 35 CONN. L. REV. 817, 817 (2003) (explaining that ontology is “the study of what is”). 132 See Jeffrey M. Lipshaw, Contingency and Contracts: A Philosophy of Complex Business Transactions, 54 DEPAUL L. REV. 1077, 1102, n.110 (2005) (paraphrasing ANTHONY FLEW, A

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itself and answers the questions of how we know what we know. Both carry direct implications for the marketplace of ideas theory.

Ontology seeks to answer the question of what is knowable. It is, in the words of James

Anderson and Geoffrey Baym, “the scaffolding upon which structures of scholarship are hung.”133 For purposes of truth-finding, the imperative ontological concern is whether reality is independent of observation.134 The two main views on this question, not surprisingly, answer affirmatively and negatively. Those who believe reality is independent of observation are generally known as realists.135 They stand in contrast to idealists, who believe reality exists only in the human mind and that the mind creates reality.136 The first view generally aligns more with the natural law perspective, while the latter with positivism, postmodernism, and deflationary/discursive philosophy. Most idealists affirm that no absolute truth can exist because reality is a human construct and, in turn, truth exists exclusively in the mind of the individual.137

DICTIONARY OF PHILOSOPHY 109 (2d ed., 1999) for the proposition that epistemology is “the branch of knowledge concerned with how knowledge is derived”). 133 James A. Anderson & Geoffrey Baym, Philosophies and Philosophic Issues in Communication, 54 J. COMM., 589, 603 (2004). 134 Michael J. Madison, Law as Design: Objects, Concepts, and Digital Things, 56 CASE W. RES. L. REV. 381, 404–05 (2005). 135 Michael S. Moore, Moral Reality Revisited, 90 MICH. L. REV. 2424, 2432–37 (1992). 136 Id. 137 Although most ontological realists are also correspondence theorists, and most idealists are not correspondence theorists, exceptions exist. It is possible to hold, for instance, that the realities humans experience are nothing but a collection of ideas in the mind of a supreme being. One of the most famous exemplifications of this view is expressed in a pair of limericks, often associated with Irish philosopher George Berkeley. The limericks consider the issue of whether a tree within a university quadrangle continues to exist in the absence of any person taking mental note of it: There was a young man who said “God Must find it exceedingly odd To see that this tree Still continues to be When there’s no one about in the quad.”

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At various times, the Supreme Court has expressed strong idealist tendencies within its constitutional jurisprudence. Two notable examples are Gertz v. Welch, in which the Court held that “[t]here is no such thing as a false idea,”138 and Planned Parenthood of Southeastern

Pennsylvania v. Casey.139 In Casey, Justices O’Connor and Kennedy intimated that reality is malleable, the differing definitions of which exist in the minds of each individual: “At the heart of liberty,” they wrote, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”140

Yet assuming that truth—in some form—is attainable, the next enquiry is epistemological: what is true and how do we know what we know is true? During recent centuries, proponents of three141 distinct theories—correspondence, coherence and utilitarian/pragmatism—have sought to answer this question.

-- Dear Sir, Your astonishment’s odd; I am always about in the quad; And that’s why the tree Still continues to be Since observed by, Yours faithfully, God. George Berkeley, STANFORD ENCYCLOPEDIA OF PHILOSOPHY, https://plato.stanford.edu/entries/berkeley/ (last visited Nov. 10, 2017); Noel Fleming The Tree in the Quad, 22 AM. PHIL. Q., 25, 25 (1985). 138 418 U.S. 323, 339 (1974). 139 505 U.S. 833 (1992). 140 Id. at 851. At other times, however, the Supreme Court has suggested that a reality— independent of the human mind—exists. See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) (distinguishing between facts and mere opinion by appealing to the existence of an objective reality). See also THE BIG LEBOWSKI (Polygram 1998) (featuring the titular character rejoining an antagonist with the following retort: “Yeah, well, that’s just, like, your opinion, man”). 141 Some epistemologists may also add a fourth truth theory, deflationary theory, into the mix. Yet, if anything, the deflationary theory of truth is more an anti-theory than a theory proper, because it minimizes truth to practical insignificance. It purports that “truth” is merely a rhetorical tool (at best, or a linguistic aberration at worst) that has no bearing on utility, reality, or logic. At bottom, it attributes the truthfulness of a statement as expressing nothing beyond the statement to which it is attributed. See generally A.J. AYER, LANGUAGE, TRUTH AND LOGIC

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The correspondence theory of truth, the oldest of the three described here, enjoyed predominant popularity between ancient times and the nineteenth century.142 As explained by

Brian Haig and Denny Borsboom, the correspondence theory claims that “a proposition is true if and only if the world is as the proposition says it is.”143 That is to say, a truth refers to an objective fact that is independent of the mind.144 The correspondence theory of truth is illustrated by CNN’s recent “Facts First” advertising campaign. It mocks the idea that an apple could actually be a banana simply because people repeatedly misidentify it.145 Thus, if a concept or statement does not reflect or correspond with the external reality to which it refers, then it is not true.146

(1952) (featuring an early exemplification of this line of reasoning). Importantly, just as with the free speech theories described in Chapter 2, these truth theories are not mutually exclusive. A correspondence theorist, for instance, would likely not think highly of an internally inconsistent proposition (a perspective prized by coherence theorists), if only because the actual states of affairs—as they exist in an objective reality—are so often consistent with one another. 142 See ARISTOTLE, METAPHYSICS 1011 (Delta, Gamma, Epsilon ed., Christopher Kirwan, trans. 1993) (explaining, somewhat roundaboutly, that “[t]o say that that which is, is not, and that which is not, is, is a falsehood; therefore, to say that which is, is, and that which is not, is not, is true”). 143 Haig & Borsboom, supra note 2, 152, at 271. 144 See PAUL CARUS, TRUTH ON TRIAL 7, 12 (1911) (stating that “[t]rue ideas are those that we can assimilate, validate, corroborate and verify. False ideas are those that we can not. That is the practical difference it makes to us to have true ideas; that, therefore, is the meaning of truth, for it is all that truth is known as,” and “Truth is not made by man, but must be discovered. . . . the nature of truth is pre-determined. Truth must be found; it is rigid and not plastic, it is independent of our likes and dislikes, and there is a pre-established harmony of all truths”). Although Paul Carus was a correspondence theory adherent, the latter part of the phrase also hints at the internal consistency so prized by coherence theorists. 145 See John McCarthy, CNN Proves an Apple is not a Banana in Fake News Ad Drive, DRUM, Oct. 23, 2017, http://www.thedrum.com/news/2017/10/23/cnn-proves-apple-not-banana-fake- news-ad-drive (relating the text of a CNN advertisement that states, “[people] might scream banana, banana, banana, over and over again. They might put BANANA in all caps. You might even start to believe that this is a banana. But it’s not. This is an apple”). It is possible that this campaign could fit within the coherence truth theory, as well, provided that, within at least some alternative reality, the red or green fruit that English-speaking people typically refer to as an apple happens to go by the name “banana.” Yet that is a stretch of the imagination. 146 See Madison, supra note 3, 134, at 405 (writing “that the world as it is and the world as we define it are congruent [is] the so-called correspondence theory of truth”).

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CNN uses this commercial campaign to suggest, in the face of repeated charges by President

Donald J. Trump it peddles fake news, that it, in fact, deals in objective truths.

The second truth theory is coherence. It prizes internal consistency to the exclusion of any external standard; to wit, a proposition is true if it comports with associated propositions.147

This view gained significant currency in the mid-twentieth century with the rise of positivistic thought.148 As explained by Dan Priel, “[t]he hallmark of contemporary legal positivism is its internality: It seeks to offer a theory of law from within legal practice, and as such one that is built around the way law is understood by lawyers.”149 Thus, the legal profession, when seen as a discrete, insular entity, aligns well with the coherence theory because the law contains thousands of inter-related concepts. Lawyers, working inductively, often attempt to analogize and internally harmonize the law, rather than merge it with external considerations.150 Kenneth Kress provides the following comparison between correspondence and coherence and shows that the two may sometimes be compatible:

Consider the proposition that comparative negligence is valid law because it coheres better with the rest of the law, and especially with general negligence principles, than any alternative (including contributory negligence). That proposition will be true according to the correspondence theory of truth just in case that proposition corresponds to the facts. The relevant factual questions are: first, does comparative negligence cohere better with negligence principles than contributory negligence or other alternatives and, second, assuming it does cohere better, does that mean it is valid law? If both questions are answered affirmatively, the correspondence theory will declare the proposition “comparative negligence is valid law” true by virtue of correspondence with

147 Haig & Borsboom, supra note 2, 152, at 272–73. 148 See, e.g., RICHARD POSNER, THE ECONOMICS OF JUSTICE (1981) (explaining an internally consistent perspective of justice by analogizing the law to the wealth-maximization principles of capitalistic markets). 149 Priel, supra note 3, 23, at 995. 150 Id. See also Benjamin C. Zipursky, Legal Coherentism, 50 SMU L. REV. 1679 (1997) (suggesting that widely held contemporary perspective that the law prize internal coherence more than external correspondence).

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‘facts’ about the coherence of comparative negligence with general negligence, and about coherence as the criterion for legal validity.151

In short, the coherence theory is entirely self-referential and views truth as a means of gauging internal validity.

The third truth theory is pragmatism/utilitarianism. It presumes that while truth exists, determining it “involves the validation of assertions by showing their cognitive usefulness in the world, or [that truth] is what is reached by agreement in the long run.”152 In short, truthfulness and utility are synonymous in the epistemological context. As pragmatist William James contended, “[y]ou can say of it then either that it is useful because it is true or that it is true because it is useful. Both these phrases mean exactly the same thing.”153 Paul Carus further explained that the pragmatist position holds that “[a]n idea is true so long as to believe it is profitable to our lives,”154 and “[t]he truth of an idea is not a stagnant property inherent in it. Truth happens to an idea. It becomes true, is made true, by events.”155

151 Ken Kress, Coherentist Methodology is Morally Better Than Either its Proponents Or its Critics Think (But Still Not Good Enough), 12 CAN. J.L. & JURIS. 83, 86 (1999). 152 Haig & Borsboom, supra note 2, 152, at 273. This line of reasoning was explicitly articulated by the U.S. Supreme Court when it determined that [n]othing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature. . . . To those who would paralyze our government in the face of impending threat by encasing it in a semantic straight jacket we must reply that all concepts are relative. Dennis v. United States, 341 U.S. 494, 508 (1951). This statement comports not only with utilitarian theory, but also with the deflationary anti-theory. In short, so-called “truths” are the rhetorical tools in the hands (or mouths) of the users, the purposes of which are independently defined by the users themselves, untethered from any external reality. 153 WILLIAM JAMES, A NEW NAME FOR SOME OLD WAYS OF THINKING 32 (1907). 154 CARUS, supra note 3, 144, at 8. 155 Id. Carus went on to say, by way of example, that by the “very plasticity of its view of truth, pragmatism is at a great advantage in the religious field. If one finds it profitable to believe in God, very well, to him the existence of God is a truth. If another finds a scientific satisfaction in the non- existence of God, to him atheism is true.” Id.

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During the first decade of the twentieth century, philosophers and scientists began to hold that scientific laws and theories do not reflect an actual objective reality but are, instead, mere tools of “a man-made language.”156 As Carus suggested in 1911, scientific laws in chemistry, astronomy, physics and biology “have grown so numerous that there is no counting them; and so many rival formulations are proposed in all the branches of science that investigators have become accustomed to the notion that no theory is absolutely a transcript of reality, but that any one of them may from some point of view be useful.”157

In the First Amendment context—especially in the realm of political speech—the utilitarian158 view was explained by Judge Robert Bork, who wrote:

Truth is what the majority thinks it is at any given moment precisely because the majority is permitted to govern and to redefine its values constantly. “Political truth” . . . has no unchanging content but refers to the temporary outcomes of the democratic process. Political truth is what the majority decides it wants today. It may be something entirely different tomorrow.159

This uncertainty described by Bork in the 1970s is the ideological grandchild of Justice

Holmes’s pragmatism. As Holmes famously declared, “[c]ertainty generally is an illusion, and repose is not the destiny of man.”160 During Holmes’s tenure on the Court, one scholar suggested that this uncertainty may be partly due to the fact that reality is necessarily interpreted by individuals, each of whom possesses biases.161 “It is very difficult to obtain objective statements of

156 Id. at 13. 157 Id. 158 Once again, this quotation could also comport with the deflationist anti-theory. 159 Bork, supra note 2, 199, at 30–31. 160 See Holmes, The Path of the Law, supra note 3, 34, at 466. 161 See CARUS supra note 3, 144, at 41 (explaining the position by way of asking the rhetorical question, “[w]hy are [ideas] not all true, in so far as they are really genuine and really express human nature, then and there. . . . Truth is at best experimental”).

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fact,” he wrote, “because a subjective element enters into every observation and consequently also into every presentation of fact.”162

As the twentieth century progressed, so too did the evolution of Holmesian skepticism.

Whereas Holmes stated that salvation rests on nothing but an “imperfect knowledge,”163 this doubt morphed in subsequent decades into the idea that truth is in the eye of the beholder. Within the postmodern movement in the 1960s, for example, many thought leaders ontologically denied that truth can be known—making the case that any person who claimed truth was only doing so under delusion or animus-driven duplicity.164

The irony of Holmes’s ontological agnosticism, then, is the riddle of why the distinguished jurist fought so hard to introduce a theory the purported purpose of which is to discover something that he did not even believe existed. The frequent answer to this riddle is that the marketplace theory supports—or should support—the process, not the product.165 As noted in the previous chapter,166 Justice Holmes subscribed to the Spencerian and Darwinian survival-of-the-fittest notion that evolution is a purposeless process.167 Thus, it seems only natural that within the epistemological marketplace of ideas—just as his influencers had done in the fields of economics and biology—Holmes placed greater emphasis on procedure than substance.

162 Id. at 25. 163 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 164 Steven G. Gey, The Case Against Postmodern Censorship Theory, 145 U. PA. L. REV. 193, 197–99 (1995). 165 See SCHAEUR, supra note 2, 142, at 19–20 (discussing the popularity of “defin[ing] truth as that which survives the process of open discussion. Whatever is rejected after full, open inquiry is, by definition, false, wrong, or unwise. Whatever is agreed or accepted is, conversely, true”). 166 See supra note 2, 155, and accompanying text (mentioning how Holmes was heavily influenced by the evolutionary zeitgeist of the late nineteenth century). 167 Steven D. Smith, Skepticism, Tolerance and Truth in the Theory of Free Expression, 60 S. CAL. L. REV. 651, 668 (1987).

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Taken at face value, the process-over-product view is rather unsatisfactory because the marketplace theory, under such conditions, becomes a road with no destination: an ever- meandering journey without any conclusion. But beyond the prima facie dissatisfaction, the more troubling matter is that the process-only perspective of the marketplace forces the theory into a conundrum between either tautological inanity or irrelevance.168 As Steven Smith noted, under the process view, “ideas that survive in the struggle of the marketplace are ‘true’ by definition because that is all that ‘truth’ means. . . . [This] reduces the marketplace rationale to a mere tautology.”169 Under this logic, a concept is deemed true for the very reason that it is favorably viewed. This majoritarian perspective further comports with Justice Holmes’s stance that the truth is nothing more than “the majority vote of that nation that could lick all others.”170 Yet if truth is the majority view, then what is the point of protecting dissenting, minority viewpoints, which by definition are untrue? The answer falls back to the rationale that today’s untruth could become tomorrow’s truth. The tautological cycle thus spins around once again.

The only remaining option left for process marketplace proponents is to concede that, ultimately, Justice Holmes was simply disingenuous, using language to obfuscate his actual thoughts. As Smith explains:

To say that Holmes believed in a “survival theory of truth” may still cover his unbelief in a thin verbal veil. A more accurate description of his position . . . might be that there is no objective truth or, if there is, that we can never know it; and therefore we may as well let people believe whatever they are inclined to believe. If that is Holmes’ real position, however, then the value of truth is, for

168 See SCHAUER, supra note 2, 142, at 20 (explaining that the process-driven view “begs the question” and “suffers from crippling weaknesses.” He further opined that “[i]f truth is defined by reference to and in terms of a process, then why is the process of open discussion preferable to any other process, such as random selection or authoritarian fiat? . . . In refusing to acknowledge independent criteria for truth, [this view] provides no guidance for preferring one method of decision to any other”). 169 Smith, supra note 3, 167, at 668. 170 Holmes, The Natural Law, supra note 2, 153, at 310.

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him, simply illusory, and it can provide no reason either to restrict or to protect expression. . . . Thus, Holmes’ marketplace rationale seems in the end to dissolve into a mere existential commitment—a leap of faith, but a faith of the most gloomy, despairing kind. Such a faith hardly provides a secure foundation for protecting freedom of expression.171

Considering the tautology-or-irrelevance conundrum faced by a process-driven marketplace theory, famed legal scholars such as C. Edwin Baker and Stanley Ingber have sought to place the locus of the freedom of expression on less tenuous footing by shifting the ontological focus.172

By acknowledging that the most tenable view of the marketplace of ideas is that the theory operates to protect both the process of truth-finding and product of truth itself, these scholars, and others, have simply thrown the baby out with the bathwater and disavowed the entire theory.173

While Baker bluntly articulated that “[t]ruth is not objective,”174 Ingber likewise wrote that the marketplace of ideas theory is a “legitimizing myth.”175 “The assumption of the existence of objective truth is crucial to classic marketplace theory,” Ingber posited, although

“almost no one believes in objective truth today.”176 To bolster his claim, Ingber referred to the earth-centric, pre-Copernican model of the solar system that he suggested was more or less

171 Smith, supra note 3, 167, at 669. 172 See Schroeder, supra note 2, 214, at 392 (stating that, after looking at the Holmesian view, “Baker found the rationale behind the marketplace of ideas theory to be ‘not persuasive,’ concluding that such substantial problems exist within the framework of the theory that it is ‘unworkable, dangerous, and inconsistent with a reasonable interpretation of the purpose of the First Amendment’”) quoting C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 3 (1989). 173 See generally C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH (1989) (abandoning the marketplace of ideas perspective and instead outlining an autonomy-driven approach to the freedom of expression). 174 Id. at 12; C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 974 (1978). 175 Ingber, supra note 2, 126, at title. 176 Id. at 25.

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“true” 600 years ago. He then asserted that no one can ever really know anything, and so objective truths, such as the earth revolving around the sun, are non-existent.177

The next chapter, the analytical heart of the dissertation, agrees with Ingber and Baker that the marketplace of ideas assumes an objective reality. Yet instead of dismissing the theory as untenable for this reason, the dissertation embraces it. In discussing these ideas in greater detail and offering a natural law-based alternative view, it distances itself from both Ingber’s and Baker’s perspective, as well as Holmes’s epistemological agnosticism. Indeed, the next chapter’s purpose is to rationally align the three issues discussed in this chapter—axiology, ontology and epistemology.

Ultimately, it suggests that some measure of truth and morality is indeed knowable, bolstering the marketplace metaphor as a justification for free expression.

177 Id. at 25, n.125. He went on to explain that “history is founded on the selective perception of historians rather than on any objective historical truth. The same can be said for the pursuit of truth in any academic, scientific, or professional discipline. The ‘truth’ of a theory depends on . . . its aesthetic appeal to th[e] individual.”

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CHAPTER 4 TETHERING PHILOSOPHY TO DOCTRINE

Introduction to Chapter 4

This chapter, the analytical core of the dissertation, builds on the descriptive legal and philosophical treatment from the proceeding chapters to construct normative arguments. It features three sections, each answering the research questions posed in the Introduction.

R1. How does the natural law view of truth inform freedom of expression as envisioned in the marketplace of ideas? This section describes various contemporary legal attempts to handle the truth.1 In so doing, it illustrates that the interplay between the law and commonly understood notions of truth is inextricable. What’s more, this relationship is both proper and, in fact, the sine qua non of a functioning legal system. With that foundation in place, this section argues that the Holmesian marketplace metaphor rationally fits into the natural law’s concept of truth better than it does within the venerated jurist’s worldview.

R2. What role do value judgments play in judicial analyses generally and the freedom of expression in particular? In answering R2, this section argues that complete judicial neutrality— as it is often defined—is both philosophically and practically impossible. It further contends that positivism-driven neutrality provides insufficient grounds to condemn actual evils and that artificial neutrality has rushed in to fill the resulting values void. The result, this section argues, is that caprice and brute force are legitimized as tenable judicial conventions, leaving the freedom of expression on an unstable foundation.

R3. When contrasted with positivist modes of legal reasoning, how does a natural law- informed approach affect the application of the content-neutrality doctrine in First Amendment jurisprudence? Building on the previous two sections, this section contends that the content-

1 This apparently is something not everyone can do. See generally A FEW GOOD MEN (Columbia Pictures 1992).

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neutrality doctrine, when framed through the lens of the marketplace metaphor, is a helpful first step in analyzing undesirable restrictions on the freedom of expression. Lastly, it argues that even though the canon should not be the alpha and omega of free speech analysis, it nonetheless comports with the Thomastic model of applying right reason to thorny legal questions.

Ultimately, at least in this context, this chapter seeks to bring a philosophy, a theory and a doctrine into harmonious alignment.

R1: How does the Natural Law View of Truth Inform Freedom of Expression as Envisioned in the Marketplace of Ideas?

Short answer: Because it assumes rationality is at least sometimes trustworthy and offers a legitimate basis for preferring truth over falsehood, a natural law vision of truth provides a cogent basis for protecting truth discovery vis-à-vis the freedom of speech.

In answering this question more fully, this section features several subsections that compare the natural law and positivist approaches to truth. The first tackles positivism’s lack of ontological assumptions of truth; the second discusses how positivism provides no basis for caring what the truth is. The section then discusses the distinction between ontological skepticism and epistemological humility before concluding with an overview of how the justice system relies on objective truth. In all, this section demonstrates why a natural law-informed perspective of the marketplace of ideas is superior to a positivist vision of the theory and—by extension—a positivist vision for any other free-speech theory.

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Unlike Natural Law, Positivism does not Provide an Ontological Means to Assume Truth is Discoverable Because it does not Assume Rationality.

The marketplace of ideas theory rests on two necessary assumptions that only a natural law basis can provide. The first—and the subject of this subsection—is that the human mind is capable of rational thought. The second is that objective truths are indeed knowable. Unless both pillars are in place, the theory disintegrates into an unintelligible mess. The positivist vision of the marketplace cannot satisfactorily account for either pillar.

As detailed in Chapter III, the utilitarian and positivist philosophical tradition of

Bentham, Austin and Holmes is characterized predominantly by metaphysics-less materialism.2

Ever practical and pragmatic, this view asserts that physical matter and motion—and humans’ subjective reactions to them in an ordered society—constitute the foundational basis of law. Such a position leaves little place for metaphysical assumptions of rationality. Yet without this key metaphysical assumption, the marketplace theory inevitably collapses, as it requires the rational exchange of information to function.

Recognizing that the marketplace theory requires rationality, many positivist scholars have abandoned the theory altogether in favor of other free speech justifications.3 When critiquing the marketplace of ideas theory—and its necessary assumption of rationality—these theorists often point to the empirically demonstrable irrationality of humans—such as systemic cognitive biases—to demonstrate why the theory is untenable. Yet such critiques are facially unavailing because, not surprisingly, they invariably apply some level of rational appeal. Stanley

Ingber, in his distaste for the marketplace metaphor and its assumption of rationality, could have simply grabbed a club and bludgeoned anyone who disagreed with him. But he instead went to

2 Chapter 3, Section A. 3 See, e.g., BAKER, supra note 3, 173 at 3; Frederick Schauer, The Role of the People in First Amendment Theory, 74 CAL. L. REV. 761, 776–77 (1986).

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the trouble of writing a lengthy, sophisticated law journal article questioning both the theory and rationality itself.4 In short, he appealed to reason and opened up a booth in the ideational marketplace.

Put similarly (and partially conflated with the normative point below), Steven Smith explains that, “According to [C. Edwin] Baker, Holmes’ marketplace rationale for free expression assumes the existence of objective truth, whereas modern science and philosophy recognize that truth is chosen, not found. . . . [This] argument collapses upon itself.”5 Smith continues:

The contention that beliefs are chosen, and thus not objectively true, must itself be seen as chosen and thus not objectively true. Baker’s rejection of objective truth must be viewed merely as a notion that appeals to Baker (and possibly to some other people). That is the most that can be said for it. But Baker clearly assumes that his essays are more than lengthy outpourings of his subjective theoretical tastes, and that his reasons for rejecting the notion of objective truth have some force which should cause others to adopt the same position. He assumes, in other words, that his argument that “truth is not objective” is true in some objective sense. Thus, if Baker is right, then Baker is wrong. At the very least, Baker has chosen an infirm position from which to criticize either Holmes or, more significantly, anyone else who happens to have “chosen” a “truth” other than skepticism (or the self-realization theory, or freedom of expression).6

Contrasted against positivism’s facial assaults on rationality, a marketplace theory grounded in natural law can account for lapses in rationality by duly recognizing them for what they are: failures in an otherwise tenable and valid assumption. In other words, rationality is the

4 See Ingber, supra note 2, 126, at 90 (contending that the legal profession must “expose the flawed market model assumptions of objective truth and the power of rationality”). 5 Steven D. Smith, Skepticism, Tolerance, & Truth in the Theory of Free Expression, 60 S. CAL. L. REV. 651, 671 (1987). 6 Id. See also Eric Blumenson, Mapping the Limits of Skepticism in Law and Morals, 74 TEX. L. REV. 523, 537–38 (1996) (opining that this “thesis cannot hold that such language is untrue without invoking a kind of correspondence theory in reverse, by which our language should correspond to the nonmetaphysical-way-the-world-really-is.” Blumenson adds that “since the thesis starts with a rejection of the correspondence theory of truth, there remain only ‘language games’ and ‘forms of life’ which can be neither true nor false”) (internal parenthetical omitted).

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default yet many exceptions exist. Indeed, rationality—through hypothesizing, instrument creation, data collection and results interpretation within social science—enables the very discovery of cognitive biases. Despite the various cognitive flaws that plague rational thought, rationality itself cannot be critiqued any more than a lever-bearing Archemedes could have moved the earth without a place to stand.7 Rationality is the tool by which everything else may be critiqued. It cannot critique itself. As Lewis explained, an argument not grounded on the metaphysical foundation that acknowledges the rational capacity of the human mind is itself

“reached by thinking[,] and if thinking is not valid that [argument] would, of course, be itself demolished. It would have destroyed its own credentials. It would be an argument which proved that no argument was sound—a proof that there are no such things as proofs—which is nonsense.”8

Positivist scholars who work to obviate the necessity of human rationality, Eric

Blumenson explains, “provide a mixed message in this regard . . . mostly written in the vocabulary they seek to abolish. They are, after all, arguments, a medium which presumes that reasons and evidence can have objective weight and are not merely revelations about the people who proffer them. And they are arguments that invoke an extracultural standard to tell us that our culture’s . . . discourse has gone wrong.”9 In short, whatever benefits the marketplace provides, it

7 E.J. DJKSTERHUIS, ARCHIMEDES 15 (C. Dikshoorn trans., 1987) (quoting Archimedes’ famous statement about the power of simple machines: “Give me a lever and a place to stand and I will move the earth”). Lewis put it another way: “After studying his environment man has begun to study himself. Up to that point, he had assumed his own reason and through it seen all other things. Now, his own reason has become the object: it is as if we took out our eyes to look at them.” C.S. Lewis, The Poison of Subjectivism, https://www.calvin.edu/~pribeiro/DCM-Lewis- 2009/The-Poison-Of-Subjectivism.htm. 8 C.S. LEWIS, MIRACLES 21–22 (1947). 9 Blumenson, supra note 4, 6, at 547.

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does so because the human mind is capable of functioning rationality.10 A positivist approach, in the tradition of Bentham, Holmes and Hart, encounters difficulty when accounting for human rationality. But by providing for rationality, a natural law approach to the marketplace at least permits—if not ensures—the intelligibility of the truth-seeking process.

Positivism Provides No Basis for Caring What the Truth is.

Yet even if positivism could account for how, and why, the human mind features the capacity of rational thought, another problem arises: Positivism offers scant legitimate reasons to prefer truth over falsehood. As explained above, the marketplace theory (or any intellectual pursuit, for that matter) can only work if we assume the human mind is capable of reasoned thought. Yet equally important to the capacity of rationality is the teleological and normative claim that humans should function rationally.

The natural law tradition features the metaphysical assumption, based on teleology, that truth is preferable to falsehood: that people should apply right reason to believe what is true, reject what is false and proportion their beliefs to the evidence.11 For metaphysics-less positivism, however, truth-seeking is a problem; absent the inherent “goodness” of truth and knowledge, why should humans care about it in the first place, especially when lies are often much more attractive? Placing the freedom of expression on such a tenuous foundation seems unwise. Contemplating governmental censorship, Budziszewski queries, “[c]an the utter skeptic

10 Creating a free speech scheme that expressly accounts for human stupidity has vexed scholars for decades. One of the more prominent examples comes from Cass Sunstein’s “libertarian paternalism,” which “set[s] out to show that state control over the structure of choice options can improve the welfare of citizens without reducing personal autonomy.” Gregory Mitchell, Libertarian Paternalism is an Oxymoron, 99 NW. U.L. REV. 1245, 1245 (2005). 11 Timothy Hsiao, Consenting Adults, Sex, and Natural Law Theory, ACADAMIA.EDU (July 20, 2015), https://www.academia.edu/23301482/Consenting_Adults_Sex_and_Natural_Law_Theory.

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say, ‘Because all is in doubt, all should be heard”? No, he must rather say, ‘the rightness of hearing and the rightness of silencing are equally in doubt; I cannot tell you which to choose.’”12

The positivist predicament on this score stems largely from the anti-metaphysical assumption that objective truth does not exist. As explained in the previous chapter, Holmes repeatedly denied that transcendent truth was discoverable, noting that “truth is the majority vote of the nation that can lick all others.”13 If this is the case, why do we expend so much energy and time applying a theory, the ostensible purpose of which is to find something that does not exist?

The pragmatic positivist has two basic options in answering this question. The first is to suggest that truth does matter, but that “truth” refers merely to consensus and that it is mere instrumentality—a means to other ends.14 The second is to logically conclude that truth does not much matter. Each is addressed below.

Truth as consensus/instrumentality

Under the first option, the goalposts for the theory shift. Instead of seeking truth, qua truth, the marketplace becomes about “instruction,” or, in the marketplace context, the deliberative, presumptively educational process of discussion and the consensus that emerges therefrom. Yet the means have no ends.

Joan Williams, for instance, argues that references to “truths” tell us about the speaker, not about the object described or discussed. She takes pains to circumvent the position that even

12 BUDZISZEWSKI, supra note 2, 59, at 42. 13 HOLMES, supra note 2, 153, at 310. See also Posner, supra note 3, 102, at 1640 (“[C]onsensus is the only basis on which truth claims can or should be accepted, because consensus makes ‘truth’ rather than truth forcing consensus”). 14 Once again, this option runs into the infinite regress problem—so prevalent in positivist thinking—that by merely making everything means instead of ends, then the inter-connected web of supporting means becomes an end in and of itself. Yet as explained elsewhere in this dissertation, without states of being (or values) that are good for their own sake, then the entire house of cards collapses. Yet solving the problem by recognizing a priori objectivity is antithetical to the entire positivist premise, which abhors the concept of non-subjective, transcendent truth and value.

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her own arguments—contentions against objective truth—are true, stating, “I am not asserting that the new epistemology is an objective thing that exists in the outside world. Rather, I am offering a new reading of well-known texts to suggest that connections formerly thought unimportant (or nonexistent) are in fact interesting and instructive.”15 Under this model,

“instruction” (or “interest”) are the apparent goals of discourse in the marketplace. Yet what good is instruction without something to instruct?

The actual purpose of the instruction remains unanswerable, because instruction, just like

“truth” itself, under this position, is simply a means, unattached to any ultimate end. Each means serves another means, which in turn serves another, more basic means. Eventually, then, after digging through a series of stated means, the spade strikes some putative, essential end, such as the survival of the human species.16 On this point, and describing this utilitarian, truth-as-a- means concept, Timothy Hsiao suggests that “we should pursue truth and avoid error only because doing so is conducive to our survival. Since we are interested in surviving, then it makes

15 Joan C. Williams, Critical Legal Studies: The Death of Transcendence & the Rise of the New Langdells, 62 N.Y. U.L. REV. 429, 430 n. 6 (1987). 16 As a noteworthy aside, often times the putative ends stated by positivists are contrary even to biological notions of survival. See Eric J. Miller, Permissive Justification, 47 IND. L. REV. 689, 733 (2014) (highlighting positivist thinker Joseph Raz’s predilection for the “predictable” and “orderly.” Yet “order,” first of all, is an axiological preference. Secondly, history seems to belie its utility as a foundational good, as the alleged 14 billion-year history of the world has gotten along just fine without it. According to the widely held evolutionary paradigm, the constants of instability, punctuated equilibrium, war and bloodshed have sustained life itself for the last 4.5 billion years. See Niles Eldredge & S. J. Gould, Punctuated Equilibria: An Alternative to Phyletic Gradualism, appearing in MODELS IN PALEOBIOLOGY. 82-115 (Freeman Cooper ed., 1972) (first contemplating the widely-accepted theory that because evidence for gradual biological evolution does not exist in the fossil record, species must have evolved through rapid, violent and virtually imperceptible jumps); See also ERASMUS DARWIN, THE TEMPLE OF NATURE Canto IV 66 (1803) (quoting the famed botanist and zoologist Carl Linnaeus’ description of the imbalance that occurs as species struggle to procure for themselves the earth’s finite resources: “bellum omnium perpetuum in omnes, et horrenda laniena” (a perpetual war of all against all, and horrible massacre). This, of course, necessitates the question of why, suddenly, in the last 0.000000027 percent of the earth’s putative history, the values that have guided existence for so long must now be abandoned.

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sense to be rational.”17 Hsiao acknowledges that this much is true, but that the answer is inadequate because it does not account for why we should care about survival itself. Nor does it account for the norm that right-thinking people generally do value truth over falsehood.

It is arguable that some people, such as slaves or cognitively deficient, insane or perverse persons, have no interest in their well-beings and are not thinking as they should. Yet making the claim that such people lack a mental state that they should have is sensible only if epistemic norms are grounded in something more elementary than mere survivability. Hsiao elucidates:

It appears to be a category mistake to ground epistemic norms in the possession of a particular mental state (such as the will to live), since these norms are supposed to govern the very faculty that gives rise to these particular mental states. Truth and rationality do have survival value,18 but they also have inherent value that is independent of their utility value. Rather, epistemic norms are rooted in the inherent function of our rational faculties. It is good for us to pursue truth and reject error because the pursuit of truth is the function of our intellect. Since something’s good consists in fulfilling its function, and since we are essentially rational animals, it follows that we ought to be rational. . . . Being rational isn’t a game that we can freely choose to enter or exit, it is a requirement to which we are all unconditionally held.19

The utilitarian/positivist posture that renders reason optional, therefore, is philosophical subterfuge. The best it can do is postulate that if mankind can all just come together and mutually pretend as though objective truths exist, then we all are better off. Indeed, from a perspective of pure Benthamite utility, mankind could apparently find that acting in this way promotes stability, equality and general welfare.20 Natural law instructs, though, that the charade of ignorance is

17 Hsiao, supra note 4, 11. 18 The natural law tradition also assumes that life, ergo survival, is preferable to death. 19 Hsiao, supra note 4, 11. 20 But even these are goods that must be considered worthwhile for their own sake, an admittance that positivists cannot make. In the moral context, a practical conflation of both utilitarian and postmodern elements (that similarly requires people to feign amnesia) is John Rawls’s “veil of ignorance.” See supra note 3, 109 and accompanying text (describing this famous thought experiment).

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unnecessary and dangerous. Truths exist, and rational discourse in the marketplace of ideas helps us find them.

Thus, for those who subscribe to the marketplace theory, but only as a process, the metaphor transmogrifies into a Rube Goldberg device that, following a needlessly complex series of motions, ultimately accomplishes nothing. Spectacular though it may be, this road-to- nowhere approach is hardly a worthy justification for freedom of expression. Indeed, a democratized and consensus-driven command theory of law—as described by H. L. A. Hart— still does not provide any reason to prefer truth over falsehood. For if a majority of people suddenly decided “truth” were less important than, say, happiness, personal fulfillment, individual satisfaction or any of a thousand other transient goals, then truth—and the freedom of expression—are jeopardized.

Truth as irrelevance

The second (and somewhat more intellectually honest) approach is to abandon the marketplace of ideas and simply acknowledge that truth, as it is commonly known, really does not matter. A certain strand of positivism—often associated with critical-cultural legal studies— acknowledges that other considerations, such as the locus of power structures, supersede notions of objective or correspondent truth.21 Yet this option encounters all the same problems as the first approach and even adds a few of its own.

21 See, e.g., Rosemary J. Coombe & Jonathan Cohen, The Law and Late Modern Culture: Reflections of Between Facts and Norms from the Perspective of Critical Cultural Legal Studies, 76 DENV. U. L. REV. 1029, 1031 (1999) (referring to truth only when accompanied by modifiers such as “local” and “alternative” and explaining that in the critical-cultural realm of “the legal academy, traditional understandings of cultural lifeworlds have been transformed by developments in anthropology . . . [thus] shifting focus to the study of power and meaning in everyday life. Culture has been largely reconceptualized as involving activities of expressive struggle rather than singular symbolic contexts, socially located in conflictual signifying practices”).

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This tack abandons “truth” altogether, thus permitting each person—in radical self- autonomy—to live out his or her “own truth,” free from government intervention.22 Legally, this commits adherents to a scheme in which judges, attorneys, witnesses, parties, prosecutors, law enforcement officers, lawmakers and juries say whatever they wish, based on individual whim, caprice or preference. The repercussions of such a system—if it could even be called that—are obvious, as individual power interests subsume all other considerations and opinion and fact have no distinction. As Eric Engle points out, in such a scheme,

there can be no science (episteme), but rather only opinion (doxa). If truth does not exist, then how can we know that truth does not exist? Logically speaking, we cannot. In this way, relativism leads us to truth nihilism. And truth nihilism, in turn, either disintegrates on the paradox or degenerates into a pure volonte de puissance (i.e., brute force). Relativist thought thus risks degeneration into fascism—if truth is unknowable . . . then only force exists. And if force is the only real argument, then why not be fascist? This paradox plagues post-modern thought and dooms it to irrelevance—or worse. This also explains why the relativist position must be rejected. Its foundational presumptions are wrong, and it leads us nowhere we want to go.23

An objective-less approach therefore cannot, without violating the conditions of its own dogma, posit that fascism is inferior to democracy, or that lies are inferior to truths. For if concerns about power overwhelm any irreducible commitment to the inherent goodness of truth for its own sake,24 then lies that combat existing power structures (or further any goal anyone has at any given time) are preferable to truths that putatively entrench such structures.25 Pragmatic

22 See, e.g., Robinson v. Chefs’ Warehouse, No. 3:15-cv-05421, 2017 U.S. Dist. LEXIS 40824, at *26 (N.D. Cal. Mar. 21, 2017) (featuring a lawyer verbally combatting a judge because his “my truth” diverged from apparent reality); Wilson v. State, 951 So. 2d 1039, 1041 (Fla. Dist. Ct. App. 2007) (detailing a similar type of exchange between a defendant and judge who disagreed on the distinction between “my truth” and what actually occurred). 23 Engle, supra note 3, 70, at 1649–50. 24 Williams, supra note 4, 15, at 430 n. 6. 25 Once again, the concept of “fake news” in the political arena illustrates this point well. The temptation to further one’s political power often impels individuals to, quite simply, make things up and publish them (or at least publish them without any attempt at verification). Absent a

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positivists believe truth to be whatever is useful. Yet, as Paul Carus wrote more than a century ago, equating the utility of a proposition and the truth of a proposition renders “truth” meaningless.

When the Rothschilds lied about Napoleon’s defeat at Waterloo to further their own economic interest, he asked, were they speaking the truth? 26 Affirming this question seems indefensible.

Distinction between Ontological Skepticism and Epistemological Humility

To be sure, some propositions, such as proposed locations of Jimmy Hoffa’s corpse, are more contentious than whether a certain general won a certain battle at a certain time and place.

Playing off this legitimate uncertainly, and as noted elsewhere in this dissertation,27 many who reject the existence of objective truth also consider the marketplace theory an unsuitable locus for protecting the freedom of expression.28 Refuting the tenability of the marketplace, these legal scholars often point to both cognitive biases (as discussed above) and to any of a thousand ontological or epistemological uncertainties. Autonomy theorist C. Edwin Baker is one such scholar. He suggests that despite Holmes’ contention that humans often wager their salvation on uncertain knowledge,29 the famous jurist “was not skeptical enough.”30 Utilitarian positivism is entirely skeptical because it makes the anti-ontological claim that nothing is knowable. Because nothing is knowable, skepticism of all factual statements is warranted. predisposition to prefer truth, this is a perfectly legitimate enterprise if it furthers one’s own power. 26 CARUS, supra note 3, 144, at 56–57. In a bit of succulent irony, whether Nathan Mayer Rothschild actually speculated heavily on the stock exchange following Waterloo is not historically certain. Its truth is unknown. See generally NAILL FERGUSON, THE WORLD’S BANKER: THE HISTORY OF THE HOUSE OF ROTHSCHILD 1998 (providing historical commentary on the veracity of the well-known speculation claims). 27 Chapter 3, Section C. 28 See Schroeder, supra note 2, 214, at 393 (“If truth is subjective, rather than objective, then the nature of how individuals come to conclusions becomes substantially different as each person’s understandings of the world around them are based on personal histories and experiences”). 29 See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge”). 30 Smith, supra note 4, 5, at 671.

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Conversely, the natural law approach offers a simple ontological framework to help parse through the metaphysical gloom. In the propositional realm (especially in the sciences), this framework presents three levels: propositions that are true, false or uncertain.31

Within this framework, natural law distinguishes epistemological humility from Baker- style ontological skepticism. Epistemological humility recognizes that what we think we know may change, depending on the introduction of additional information. Ontological skepticism denies anything is even knowable in the first place. Two people, therefore, can be uncertain of the same proposition for entirely different reasons. Thus, the famous statement by Bertrand

Russell, “Not to be absolutely certain is, I think, one of the essential things in rationality,”32 could, without context, potentially exemplify the ethos of either category. Yet the former position is uncertain because humans are imperfect in their attempts to observe and explain what foundationally and positively corresponds with a reality independent of observation; the latter perspective projects no certainty on anything because nothing is, by definition, certain.

Unlike the false humility of complete skepticism, true epistemological humility is a desirable trait for any jurist, academic or scientist—because what we think we know may not be true. Even within the physical sciences (putatively among the most objective of enterprises), large numbers of scientists currently say that bacteria cause ulcers, the earth is warming and consumption of certain fats is healthy. Natural law presumes that scientists should say these

31 See Christopher P. Guzelian, False Speech: Quagmire?, 51 SAN DIEGO L. REV. 19, 38 (2014) (referring to GOTTLOB FREGE, UBER SINN UND BEDEUTUNG, 100 ZEITSCHRIFT FUR PHILOSOPHIE UND PHILOSOPHISCHE KRITIK 25 (1892), in THE FREGE READER 151, 157–58 (Michael Beaney ed., 1997). The realm of opinion, discussed elsewhere in this dissertation, falls beyond the bounds of this three-part model. 32 BERTRAND RUSSELL, ESSAYS IN SKEPTICISM, 83 (1962). Due to this skeptical uncertainty of everything, Russell famously declared, “I would never die for my beliefs because I might be wrong.” John Morreall, Humor, Philosophy and Education, appearing in 46 EDUCATIONAL PHILOSOPHY & THEORY 120, 127 (2014).

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things if they truly believe them and have germane evidence to bolster their assertions. But they must do so humbly; after all, large numbers of scientists not long ago stated that the earth was cooling,33 that stress caused ulcers34 and that fat-consumption was unhealthy.35

The natural law tradition’s answer to such oscillation is not to say that nothing is ever knowable—or, worse yet, that it was once “true” that stress caused ulcers or the sun revolved around the earth.36 It is that the answers to certain types of questions, even if currently unknown, are knowable. Truths that exist outside the subjective mind form the very basis of all mental endeavors,37 including—as shown below—the American legal system.

Judicial Recognition of Objective Truth

Despite the prevalent positivist creed that objective reality does not exist—and notwithstanding inroads made by pragmatism, utilitarianism and postmodernity on the American legal system—vestigial strongholds of the natural law endure in American law.38 One of the more prominent natural law bastions is the legal system’s persistent—and necessary— preoccupation with truth.

From a natural law perspective, this fixation with truth is understandable. Yet natural law ontology—that, at the very least, some concepts, ideas and facts are knowable—is so ingrained in Western juridical thought that most legal professionals likely never give it a second—much

33 Doug Struck, How the Global Cooling Story Came to be, SCIENTIFIC AM. (Jan. 10, 2014), https://www.scientificamerican.com/article/how-the-global-cooling-story-came-to-be/. 34 Helicobacter Pylori & Peptic Ulcer Disease, CTR. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/ulcer/history.htm. 35 See Fats and Cholesterol, HARV. SCH. OF PUB. HEALTH, https://www.hsph.harvard.edu/nutritionsource/what-should-you-eat/fats-and-cholesterol/ (offering a brief breakdown of the contemporary consensus on the seemingly ever-changing perspectives regarding cholesterol and “bad” fats). 36 Ingber, supra note 2, 126, at 125 n. 25. 37 See CARUS, supra note 3, 144, at 51 (“If objective truth does not exist, science is a chimera”). 38 See Chapter 3, supra (detailing some of the ways utilitarianism, pragmatism, realism and similar ideas filtered down into legal thought beginning in the nineteenth century).

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less a first—thought. Indeed, American law relies pervasively on commonly understood notions of truth. One prominent example is sworn testimony. In both civil and criminal cases, the oft- repeated oath asks (with slight variation), “Do you solemnly swear that the testimony which you will give in this proceeding will be the truth, the whole truth, and nothing but the truth, so help you God?”39 This reliance on individuals to accurately and faithfully state the facts forms the records from which judges and juries render their decisions.

In keeping with this frame of mind, the federal government has enacted more than 100 laws that create lie liability.40 It is a crime, for instance, to falsely and willfully claim to be a citizen of the United States,41 just as it is to make a knowingly false statement for the purpose of establishing eligibility to vote.42 It is also a crime to knowingly make: false statements in connection with purchasing and owning firearms;43 willfully untrue statements on any report involving export and import of arms;44 false statements related to citizenship and naturalization;45 false statements in records required by the Employee Retirement Income

Security Act;46 false statements in connection with assignment of federally insured student loans47 or to willfully and deceitfully use a false social security number.48 Congress has

39 NLRB JUDGES’ MANUAL § 17008 (1984). 40 See United States v. Wells, 519 U.S. 482, 505 (1997) (“At least 100 federal false statement statutes may be found in the United States Code.”) (Stevens, J., dissenting). 41 18 U.S.C. § 911 (2018). 42 52 U.S.C. § 10307(c) (2018). 43 18 U.S.C. §§ 922(a)(6) (2018), 924(a)(1)(A) (2018). 44 22 U.S.C. § 2778(c) (2018). 45 18 U.S.C. § 1015(a) (2018). 46 Also known as ERISA: 18 U.S.C. § 1027 (2018). 47 20 U.S.C. § 1097(b) (2018). 48 42 U.S.C. § 405 (2018); see also United States v. Gaudin, 28 F.3d 943, 959 n.3 (9th Cir. 1994) (Kozinski, J., dissenting) (featuring a concise enumeration of more than forty more such statutes that criminalize making knowing (or willful), material and false statements to a U.S. government agency).

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furthermore enacted several laws that ban falsely purporting to speak on behalf of the government or a government agency.49

More sweepingly, 18 U.S.C. § 1001(a) bans “knowingly and willfully” asserting any

“materially false, fictitious, or fraudulent statement or representation” in “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United

States.”50 To illustrate the apparent seriousness with which lawmakers view truth qua truth (at least in this context), this provision initially proscribed only intentionally false statements. In

1934, however, Congress amended the statute to remove the deceptive-intent requirement.51 Not only does this provision not necessitate the presence of any particular state of mind, but convictions under § 1001 also do not require actual property or monetary loss by the government.52

In addition to the scores of federal statutes criminalizing or creating civil liability for uttering false statements, dozens of states have similar laws.53 State court reporters are replete with appellate courts opinions upholding laws that keep individuals from falsely claiming to possess certain professional licenses or college degrees.54 Still more, many states have upheld

49 It is illegal, for example, to falsely claim to be a federal officer (18 U.S.C § 912 (2018)) or to create a false impression of governmental endorsement in regards to Social Security (42 U.S.C. § 1320b-10(a)) (2018). 50 18 U.S.C. § 1001(a) (2018). 51 United States v. Yermian, 468 U.S. 63, 70–71 (1984). 52 See United States v. Gilliland, 312 U.S. 86, 93 (1941) (explaining that the government need only show that “perversion might result from deceptive practices”); see also 18 U.S.C. § 1623 (2018) and 18 U.S.C. § 1621 (2018) (demonstrating that not all truth-sensitive laws even consider scienter or harm. Like § 1001, these two provisions criminalize false statements uttered under oath, even when the statements are made with no intent to mislead and when no harm comes to the inquiring tribunal). 53 One such common type of enactment is the anti-fraud provision. Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (2003). 54 Long v. State, 622 So. 2d 536 (Fla. Dist. Ct. App. 1993); People v. Kirk, 310 N.Y.S.2d 155 (Cnty Ct. 1969); State v. Marino, 929 P.2d 173 (Kan. Ct. App. 1996).

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statutes barring political candidates from knowingly making untrue statements while campaigning.55 Other states have banned lies in a multitude of contexts, such as punishing “false report[s] to a peace officer that a crime has occurred or is about to occur”;56 banning a knowingly

“false report of sexual assault involving a spouse”;57 prohibiting lies about receiving military awards;58 punishing falsely claiming to be a member of a veterans’ club or organization;59 proscribing any willful “unqualified statement of that which the person does not know to be true”;60 punishing knowingly telling lies in relation to “a credential issued by an institution of higher education that is accredited” while seeking to gain employment or promote a business.61

This legal truth fixation penetrates to the core of the judicial process, with the U.S.

Supreme Court routinely determining that the adversarial legal system—used in the United

States and inherited from England—endures largely to further its “truth-seeking function.”62

Such dedication to factual veracity makes little sense absent a deep-seated understanding, derived from right reason, that objective, transcendent truths do, in fact, exist. All except the

55 See, e.g., Treasurer of the Comm. to Elect Gerald D. Lostracco v. Fox, 389 N.W.2d 446 (Mich. Ct. App. 1986) (upholding a law criminalizing false claims that one is an incumbent); State v. Davis, 27 Ohio App. 3d 65 (Ohio Ct. App. 1985) (affirming a conviction for one who knowingly made false factual statements during a campaign); Ohio Democratic Party v. Ohio Elections Comm’n, No. 07AP-876, 2008 Ohio App. LEXIS 3553 ** (Ohio Ct. App.) (upholding a law banning political candidates from claiming they hold offices that they do not actually hold). 56 ALASKA STAT. § 11.56.800(a)(2) (2017). 57 ARIZ. REV. STAT. § 13-2907.03 (2017). 58 CONN. GEN. STAT. § 53-378(b) (2014); but see infra notes 4, 79–4, 93 and accompanying text (discussing the U.S. Supreme Court’s treatment of a similar provision in United States v. Alvarez). 59 KAN. STAT. § 21-4309 (repealed 2011). 60 NEV. REV. STAT. § 199.145 (2017). 61 REV. CODE WASH. § 9A.60.070 (2018). 62 ABF Freight Sys. v. NLRB, 510 U.S. 317, 323 (1994). See also United States v. Mandujano, 425 U.S. 564, 576-577, (1976); United States v. Knox, 396 U.S. 77 (1969); Bryson v. United States, 396 U.S. 64 (1969); Dennis v. United States, 384 U.S. 855 (1966); Kay v. United States, 303 U.S. 1 (1938); United States v. Kapp, 302 U.S. 214, (1937); Glickstein v. United States, 222 U.S. 139, 141-142 (1911).

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most committed believers in postmodern ideals likely harbor deep reservations about the prospect of a judiciary that ignores “facts” while furthering other, perhaps pragmatic or utilitarian, considerations.63

Despite the high court’s necessary commitment to objective truths, it periodically detaches from its natural law moorings to drift toward the twin postmodern views that all ideas are equally valid and there is no absolute truth. It has found, for example, that “[n]othing is more certain in modern society than the principle that there are no absolutes,”64 “all concepts are relative,”65 “[a]t the heart of liberty is the right to define one’s own concept of existence”66 and

“there is no such thing as a false idea.”67

Part—yet certainly not all—of this apparent dissonance is explained by the fact/opinion dichotomy.68 Sixteen years after Gertz, the Court appeared to backtrack somewhat69 in Milkovich

63 The legal context is, of course, not the only place mankind seems generally uneasy with truth taking a backseat to other concerns. In the journalism field, the so-called era of “fake news” has cast this unease into high relief. See, e.g., Bret Stephens, Trump, MS-13, and Fake News, N.Y. TIMES, May 18, 2018, www.nytimes.com/2018/05/18/opinion/trump-ms13-fake-news.html (describing how politically motivated falsehoods, often picked up by media outlets and reported as factual, undermine journalistic integrity). But see Michael Specter, Russia’s Purveyor of ‘Truth,’ Pravda, Dies After 84 Years, N.Y. TIMES, July 31, 1996, www.nytimes.com/1996/07/31/world/russia-s-purveyor-of-truth-pravda-dies-after-84-years.html (illustrating that media-driven falsehoods, although always teleologically deviant, are nothing new; in this piece, Specter talks of the irony of the Communist newspaper PRAVDA and refers to it as “probably history’s most inaccurately named publication (Pravda means truth in Russian.”). 64 Dennis v. United States, 341 U.S. 494, 508 (1951). The Court made this statement to support its ultimate holding that on the list of U.S. values, national security was relatively more important than freedom of expression. 65 Id. 66 Planned Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833, 851 (1992). 67 Gertz,, 418 U.S. at 339. Another less philosophically involved explanation is that facts and opinions derived from those facts are simply different and that “ideas” a-la Gertz pertain to opinions only. Indeed, the context of the “no such thing . . .” dictum seems to support this view. 68 The dichotomy, at least as applied by the Supreme Court, pertains only to defamation claims. It has no bearing on situations such as those in Dennis, where the Court considered the constitutionality of a sedition and conspiracy statute.

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v. Lorain Journal Co.70 Assessing the false idea/pernicious opinion declaration from Gertz, the

Milkovich Court determined that, in the defamation context,

the fair meaning of the passage is to equate the word “opinion” in the second sentence with the word “idea” in the first sentence. Under this view, the language was merely a reiteration of Justice Holmes’ classic “marketplace of ideas” concept. See Abrams v. United States, 250 U.S. 616, 630 (1919) (dissenting opinion) (“The ultimate good desired is better reached by free trade in ideas . . . the best test of truth is the power of the thought to get itself accepted in the competition of the market”). Thus, we do not think this passage from Gertz was intended to create a wholesale defamation exemption for anything that might be labeled “opinion.” The “marketplace of ideas” origin of this passage “points strongly to the view that the ‘opinions’ held to be constitutionally protected were the sort of thing that could be corrected by discussion”. Not only would such an interpretation be contrary to the tenor and context of the passage, but it would also ignore the fact that expressions of “opinion” may often imply an assertion of objective fact.71

Thus, the Milkovich Court continued, “we think the breathing space which freedoms of expression require in order to survive is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between opinion and fact.”72 The relevant question, constitutionally speaking, is not whether a statement is an opinion or is labeled as an opinion, but whether it “is sufficiently factual to be susceptible of being proved true or false.”73

In other words, verifiable or provable truth or falsity is what matters.

69 See, e.g., Robert D. Sack, Protection of Opinion Under the First Amendment: Reflections on Alfred Hill, “Defamation and Privacy Under the First Amendment,” 100 COLUM. L. REV. 294, 325 (2000) (“Milkovich rejected the notion that the second part of the Gertz dictum, ‘however pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas,’ established a privilege for defamatory opinion.” Furthermore, “the decision left the first part of the Gertz dictum, ‘under the First Amendment there is no such thing as a false idea,’ reduced to the even simpler proposition that there is no such thing as false pure opinion”). 70 497 U.S. 1 (1990). 71 Id. at 18 (internal citation and parenthetical omitted). 72 Id. at 19. 73 Id. at 21. The court found no difference, for example, between the statements “Jones is a liar” and “In my opinion Jones is a liar.” Id. at 19.

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Although the Milkovich decision worried some free speech proponents at the time,74 it nonetheless comported with the obvious proposition that all concepts cannot be completely relative among one another.75 Indeed, a concept capable of being proven true—or even communicated—by one party to another necessarily exists outside the subjective mind of the proving party.76 Regardless, the U.S. Supreme Court has never ruled that false speech—factual

74 See, e.g., Andrew K. Craig, The Rise In Press Criticism Of The Athlete And The Future Of Libel Litigation Involving Athletes And The Press, 4 SETON HALL J. SPORTS L. 527, 543 (1994) (referring to “the protests of our nation’s media, and the warnings of the demise of free speech” because Milkovich failed to constitutionally solidify the protection of opinion). 75 Courts routinely rely on the distinction between facts and opinions heuristically without elaborating further on what is or is not provable—presumably because they assume everyone instinctively knows the difference. See, e.g., United States v. Strandlof, 667 F.3d 1146, 1155 (10th Cir. 2012) (“just because Congress can criminalize some lies does not imply it can attack opinions (e.g., ‘You look beautiful today’), ideologically inflected statements (e.g., Holocaust denial or climate change criticism), or anything else that is not a knowingly false factual statement made with an intention to deceive”). But see Amy Mitchell et al., Distinguishing Between Factual and Opinion Statements in the News, PEW RESEARCH CENTER, June 18, 2018, http://www.journalism.org/2018/06/18/distinguishing-between-factual-and-opinion-statements- in-the-news/ (showing empirically that Americans experience difficulty differentiating facts (defined in the study as “something that’s capable of being proved or disproved by objective evidence”) from opinions). Many formal attempts have been made to demonstrate the difference between the two. (See, for example, Karl Popper’s focus on falsifiability as a test for determining that which is within the realm of scientific knowledge.) For the purposes of this dissertation, the generally held distinction between the two as mentioned above—that facts are what are “capable of being proved or disproved by objective evidence”—is sufficient). 76 See generally ALEXANDER KING & MARTIN KETLEY, THE CONTROL OF LANGUAGE: A CRITICAL APPROACH TO READING AND WRITING (1939) (describing attempts in the early twentieth century to reduce the realm of human communication to the mere articulation of personal, subjective feelings. The book’s authors illustrate their point by telling a tale of two men standing before a waterfall. One man says, “the waterfall is sublime,” and the other says, “looking at this waterfall, I have sublime feelings.” Only the second man, according to the authors, has conveyed a meaningful proposition). Yet C.S. Lewis pointed to the folly of this position, explaining that The man who says “This is sublime” cannot mean “I have sublime feelings.” Even if it were granted that such qualities as sublimity were simply and solely projected into things from our own emotions, the emotions which prompt the projection are the correlatives, and therefore almost the opposites, of the qualities projected. The feelings which make a man call an object sublime are not sublime feelings but feelings of veneration. If “This is sublime” is to be reduced at all to a statement about the speaker’s feelings, the proper translation would be “I have

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or otherwise—is categorically unprotected by the First Amendment.77 It has only gone so far as to say that “[f]alse statements of fact are particularly valueless.”78

The Supreme Court thoroughly examined the value of false factual statements in United

States v. Alvarez.79 There, the Court evaluated the constitutionality of the Stolen Valor Act, which criminalized lies about receiving service medals.80 Although the Court has often decreed that false speech holds little value, it has proscribed lies only where there is “legally cognizable harm associated with [the] false [speech].”81 In other contexts, bans on false speech would be considered content-based regulations subject to strict scrutiny review.82 In Alvarez, the Court agreed that the government had a compelling state interest in protecting the integrity of the

Congressional Medal of Honor, but it held that the restriction was not narrowly tailored to serve that interest.83

Appealing, it seems, to both the marketplace of ideas and democratic-self-governance justifications, the Court opined that “[s]ociety has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.”84 It added, evoking the notion of

humble feelings.” If the view held by [the Greenbook authors] were consistently applied it would lead to obvious absurdities. It would force them to maintain that “You are contemptible” means “I have contemptible feelings.” In fact, “Your feelings are contemptible” means “My feelings are contemptible.”

LEWIS, supra note 2, 31, at 2–3. 77 Citizens United v. FEC, 558 U.S. 310, 341 (2010). 78 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988). 79 567 U.S. 709 (2012). 80 18 U.S.C. § 704 (2005). 81 Alvarez, 567 U.S. at 719. 82 See Chapter 2, supra (detailing the content-neutrality doctrine). 83 Alvarez, 567 U.S. at 725–26. 84 Id. at 727.

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counterspeech, that “[t]he remedy for speech that is false is speech that is true.”85 Ultimately, the

Alvarez plurality concluded that false speech is protected if it is not defamatory and causes no direct, cognizable harm.86

Writing separately, Justices Breyer and Kagan argued that intermediate scrutiny should be applied to false speech.87 They asserted that lies about “philosophy, religion, history, the social sciences, [or] the arts” should receive the highest level of protection.88 Yet because

Alvarez’s speech constituted “false statements about easily verifiable facts” instead of one of the above-mentioned categories, Breyer and Kagan concurred with the majority’s holding.89 In dissent, however, Justices Alito, Scalia and Thomas argued for the bright-line proposition that

“false statements of fact merit no First Amendment protection in their own right.”90 Although the

Court fractured greatly on how to appropriately handle lies, each of the three opinions expressly assumed that false speech about facts or historical events—and by extension, true speech— exists.

Thus the Alvarez Court demonstrated, despite its intermittent protestations to the contrary, that objective, transcendent truths not only exist, but also form the foundation for free- expression law. Because metaphysics-less positivism, at its core, cannot distinguish true speech from false speech or facts from opinions,91 adjudication of censorship-related laws provides an

85 Id. 86 The Alvarez court found that the government had not satisfactorily illustrated that the alleged harm—that of “demeaning the high purpose” of valor recognition—was caused by people lying about having received medals. Id. at 726. 87 Id. at 730 (Breyer, J., concurring). 88 Id. at 731–32. 89 Id. at 732. 90 Id. at 748–49 (Alito, J., dissenting). 91 CARUS, supra note 3, 144, at 19 (“Sometimes it will be difficult to distinguish between facts and our interpretation of facts, but pragmatism offers no objective criterion for a distinction between the two”).

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excellent illustration of why positivism is inherently duplicitous. Indeed, for positivism—or any of its related progeny92—to work, it must implicitly accept that which it explicitly denies. Even

John Stuart Mill, whose utilitarian ideas93 remain foundational in positivist legal thought, presupposed a discoverable truth. In his On Liberty, the first rationale Mill gives opposing censorship is that it may inadvertently ban expression that is true.94 This rationale is senseless absent the existence of true expression.

R2: What Role do Value Judgments Play in Judicial Analyses Generally and the Freedom of Expression in Particular?

Short answer: Because legitimate laws are founded directly on moral claims,95 value judgments are critical, and indeed inherent, to lawmaking96 and, to a lesser extent, construction.

In answering the question more completely, this section proffers that complete neutrality is philosophically impossible,97 legally untenable and incapable of condemning actual evils.

False neutrality, furthermore, has filled the resulting values vacuum with ersatz objectivity,

92 See Chapter 3, supra, explaining the interconnectivity among utilitarianism, positivism, realism, and other related ideas within the legal sphere. 93 See supra note 4, 157–4, 163 and accompanying text (explaining Mill’s ideas—and particularly the harm principle—and their influence on the legal utilitarian movement). 94 MILL, supra note 2, 131, at 50. Also, Holmes himself apparently recognized the difference between falsely and truthfully shouting “fire” in a crowded theater. Schenck v. United States, 249 U.S. 47, 52 (1919). The actual presence of a fire, outside the subjective mind of either the shouter or the theater-goers, is the dispositive legal fact. 95 The Thomastic definition of law is “(1) a dictate of reason, (2) for the common good, (3) made by him who has the care of the community, and (4) promulgated.” AQUINAS, supra note 2, 10, at 51. 96 As lawmaking in common law countries comes from both the bench and the legislature, judges must also understand the role of value judgments, even when only construing statutes or constitutions. See infra Chapter 4, Section 3 (discussing neutral principles founded on moral judgments). 97 It is theoretically possible to philosophically hold that morality has objective foundations but that morality has no bearing on the law. Yet because positivist stalwarts such as Holmes and Hart did not hold to such a position (and, indeed, few scholars apparently bifurcate morality’s philosophical objectivity and the legal implications derived therefrom), that position is not addressed in this dissertation.

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legitimizing caprice and brute force as tenable judicial conventions. The result is that freedom of expression rests on an unstable foundation. Each contention is addressed below.

Complete Neutrality is Philosophically Impossible

Just as reason must be assumed before appeals to reason are meaningful,98 so, too, must values be assumed before value-based contentions are meaningful. As virtually every non- descriptive statement contains a normative element, arguments and contentions are, by their very nature, not neutral because they are founded on axiological bases. “People may not agree about what is good and what is evil,” J. Budziszewski notes.99 “[T]hey may be mistaken about what is good and what is evil; they may even call evil good, and good evil. But every time someone wants to suppress something, we can be sure he is attempting to protect something he thinks, rightly or wrongly, to be good.”100 In short, one cannot decry a wrong unless a right exists from which a perceived deviation has occurred.101 In the free-speech context, such suppression— attempts at censorship—are founded on particularized moral visions.102 These foundational values appear not only in the First Amendment realm, but also all throughout the law. Contract law, for instance, is founded on the moral concept that men should keep their word and refrain

98 Supra Chapter 4, Research Question 1. 99 BUDZISZEWSKI, supra note 2, 59, at 42. 100 Id. 101 Positivistic moral relativism is attractive, Eric Engle postulates, because Western moral theory neither prevented nor sanctioned witch hunts, crusades, slavery, imperialism, and world wars (the most obvious evidence of failure of Western morality); it actually often encouraged such brutality and inhumanity. All too often, the old “moral” values were immoral. However, rejecting a failed moral system is itself a moral choice. Moral relativism can neither claim normative power nor reject other theories of morality—that would require a value judgment. Relativists regard value judgments as meaningless or impossible, and thus impermissible.

Engle, supra note 3, 64, at 61–62. 102 The moral vision undergirding the U.S. government’s prohibition on the creation, distribution or possession of child pornography, for example, is one that views minors as unsuitable subjects of sexual exploitation. 18 U.S.C. § 2256 (2018).

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from lying; laws prohibiting theft on the concept that men should not take what does not belong to them; tort law on the concept of general beneficence toward humanity; etc.103

A popular positivist notion, however, is that laws are not based on objective values, but are instead legitimized by the utility of consensus. Under this view, popularized most prominently in the twentieth century by John Rawls, a society first decides what rights it likes, and then morals are subsequently defined by the degree to which they comport with the rights.

Holding, therefore, that moral claims have no place in the public square, Rawls promoted a system in which values-agnosticism and neutrality guide policy considerations.104

This perspective is unavailing for several reasons. One is simply that the very act of promoting the value of neutrality is itself the recognition of a value: neutrality itself.105 Secondly

(presuming that neutrality actually is an axiological preference), it cannot satisfactorily answer why neutrality should be preferred over any other value.106 Thirdly, consensus-driven rights are

103 See LEWIS, supra note 2, 31, at 93–121 (listing the values that virtually every culture has promoted, including the value of general beneficence). As explained earlier, positivists claim that moral and legal considerations, though necessarily distinct, may practically overlap because they often are referred to using similar language. See, e.g., HART, supra note 2, 14, at 181–207 (separating himself slightly from John Austin’s brand of positivism by admitting the existence at least some—though not an essential—correlation between law and morals). 104 RAWLS, supra note 3, 108. 105 See Sandel, supra note 3, 106, at 1792–93 (“Although political liberalism refuses to weigh the political values it affirms against competing values that may arise from within comprehensive moralities, the case for restrictive rules of public reason must presuppose some such comparison”). 106 Another problem that Sandel finds with Rawls’s view—particular to the freedom of expression—is that the rights-before-goods model limits discourse and threatens the marketplace. Although [Rawl’s vision] upholds the right to freedom of speech, it severely limits the kinds of arguments that are legitimate contributions to political debate, especially debate about constitutional essentials and basic justice. This limitation reflects the priority of the right over the good. Not only may government not endorse one or another conception of the good, but citizens may not even introduce into political discourse their comprehensive moral or religious convictions, at least when debating matters of justice and rights.

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themselves derived from value-laden considerations about what makes the good life.107 Fourthly, majorities can be—and often are—wrong,108 rendering the positivist moral vision essentially analogous to the perdurable matronly question about what one would do if all his friends jumped off a cliff.109

But even more problematic than these issues is the simple fact that “there is no such thing as neutrality. It is not merely unachievable, like a perfect circle; it is inconceivable, like a square circle.”110 Anthony Esolen paints a colorful illustration of the inconceivableness of neutrality in the public policy context with what he calls the “nude beach principle.”111

Id. at 1789. 107 See id. at 1764 (“[O]ur reflections about justice cannot reasonably be detached from our reflections about the nature of the good life and the highest human ends. . . . [Nor can they] proceed without reference to the conceptions of the good that find expression in the many cultures and traditions in which those deliberations take place”). 108 This point is explored by Ellis Washington, who wrote: Boiled down to the lowest common denominator, Holmes and Posner are utilitarian in their legal philosophy that the idea that carries the day is the idea that the consensus or a majority of people happen to hold at that time. This is what they mean by the law, nothing more, nothing less. Moral issues of life and abstractions like truth, justice and law to Posner are determined by opinion polls. As a result, they are highly subjective, transitory, indeterminate and as Holmes frequently remarked, are in a constant state of flux.

Ellis Washington, Reply to Judge Richard A. Posner on the Inseparability of Law and Morality, 3 RUTGERS J. LAW & RELIG. 1, 1 (2001/2002) (internal quotation omitted). 109 See Marianne M. Jennings, The Last Word: “Everybody Does it,” 47 AZ ATTORNEY 84, 84 (2010) (referring to the question as how “[o]ur mothers put the lie to our ‘everybody’ whining” by suggesting that right and wrong exist independently of what a majority of one’s friends do or don’t do). 110 BUDZISZEWSKI, supra note 2, 59 at 40. 111 Anthony Esolen, The Illusion of Neutrality, PUBLIC DISCOURSE, (Sept. 11, 2014), http://www.thepublicdiscourse.com/2014/09/13462/. A prominent example of the nude beach principle at work can be found in the case of Planned Parenthood of S.E. Pennsylvania v. Casey (505 U.S. 833 (1992)), which upheld women’s right to terminate pregnancies. In his opinion, Justice Kennedy stated that he did not know when life began, so instead of ruling on the issue, he would remain neutral about it. To remain neutral on when in-utero life begins, one must start from the presupposition that whatever is happening in the womb is not life. Neutrality in this case was impossible, and relying on stare decisis alone was a temporarily tenable but ultimately

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Suppose that Surftown has one beautiful beach, where young and old, boys and girls, single people and whole families, have been used to relax, go swimming, and have picnics. Now suppose that a small group of nudists petitions the town council to allow for nude bathing. Their argument is simple—actually, it is no more than a fig leaf for the mere expression of desire. They say, “We want to do this, and we, tolerant as we are, do not wish to impose our standards on anyone else. No one will be required to bathe in the raw. Live and let live, that’s our motto.” But you cannot have a Half-Nude Beach. A beach on which some people stroll without a stitch of clothing is a nude beach, period. A councilman cannot say, “I remain entirely neutral on whether clothing should be required on a beach,” because that is equivalent to saying that it is not opprobrious or not despicable to walk naked in front of other people.112

unsatisfying answer to a matter that directly implicates core, value-laden concepts such as life and liberty. As Sandel states, the impossibility of bracketing the moral-theological question of when human life begins [means that] . . . the case for abortion rights cannot be neutral with respect to that moral and religious controversy. It must engage rather than avoid the comprehensive moral and religious doctrines at stake. [Rawlsian positivists] often resist this engagement because it violates the priority of the right over the good. But the abortion debate shows that this priority cannot be sustained. The case for respecting a woman’s right to decide for herself whether to have an abortion depends on showing—as I believe can be shown—that there is a relevant moral difference between aborting a fetus at a relatively early stage of development and killing a child.

Sandel, supra note 3, 106, at 1778. The precedent from which stare decisis develops—and to which Justice Kennedy appealed in Casey—does not spring from the ether. The utility of stare decisis is ultimately derived from the value choices that originally informed the first sets of precedential opinions, and it is sometimes subject to change. Stare decisis cannot, therefore, function as a completely neutral bedrock principle. See Adam J. Kolber Supreme Judicial Bullshit, 50 ARIZ. ST. L.J. 141, 164–176 (2018) (explaining how Casey’s “rhetorical flourish” in the ‘jurisprudence of doubt’ passage” was akin to “metabullshit”). As Justice Kennedy acknowledged in Citizens United v. FEC, “When neither party defends the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is diminished.” 558 U.S. 310, 363 (2010). Indeed, Justice Kennedy has appealed to value judgments in multiple cases while overturning constitutional precedent. Lawrence v. Texas, 539 U.S. 58 (2003); Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Naked appeals to stare decisis are therefore no more logical than naked appeals to science and numbers. Infra notes 4, 142–4, 156 and accompanying text. 112 Esolen, supra note 4, 111. Esolen offers another illustration. If “you say you are agnostic on the issue of whether you will recognize a man’s property as his own, you have just contradicted yourself. You are not agnostic at all; that is but a hand-washing distinction without a difference. You have in effect refused to recognize the right of property.” Id.

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Similarly, in his famous debates with Abraham Lincoln, Stephen Douglas feigned impartial, statesmanlike neutrality about the morality of slavery while simultaneously arguing to permit slavery in states whose citizens approved the practice.113 It was a disingenuous proposal.

A polity that permits some to own slaves is utterly different from one that prohibits slavery. As the Canadian rock band Rush observed, “If you choose not to decide, you still have made a choice.”114 And ultimately, whether it is recognized or denied, such choices are themselves invariably based on explicit moral foundations. As Budziszewski noted, “[t]he scandal of neutrality is that its worshippers cannot answer the question, ‘Why be neutral?’ without committing themselves to particular goods—social peace, self-expression, self-esteem, ethnic pride, or what have you—thereby violating their own desideratum of neutrality.”115

Complete Neutrality is Practically Impossible

Despite this philosophical impossibility of complete neutrality, judges of all political persuasions seemingly recognize the importance of objectivity and dispassionate neutrality in

113 Douglas contended that because people disagreed about the morality of slavery, the government should be neutral about it and permit popular sovereignty within each territory. “[T]o throw the weight of federal power into the scale, either in favor of the free or the slave states,” he wrote, would promote civil war. The best path forward, Douglas said, was to bracket the moral question and instead seek (in true Rawlsian form) political consensus. PAUL M. ANGLE, CREATED EQUAL?: THE COMPLETE LINCOLN-DOUGLAS DEBATES OF 1858, 369, 374 (1958). But, as Michael Sandel pointed out, “Lincoln’s point was that the political conception of justice defended by Douglas depended for its plausibility on a particular answer to the substantive moral question it claimed to bracket.” Sandel, supra note 3, 106, at 1780. 114 Rush, Freewill, on PERMANENT WAVES (Mercury 1980). 115 BUDZISZEWSKI, supra note 2, 59, at 40. Making the same type of argument against the positivism of Richard Posner, Ellis Washington wrote that “Posner’s great dilemma is this: although he despises moral theory, he is forced to use it to criticize/defend his own brand of moral theory-pragmatic moral skepticism and Holmesian legal realism.” Washington, supra note 4, 108, at 1. Another prominent example can be found in the work of Hart’s student Joseph Raz. Although he repeatedly denies a link between law and value claims, Raz constructs an apparent hierarchy in which certain legal goals, such as predictability, stability, access to courts and non- arbitrariness promote “natural justice” and “dignity.” JOSEPH RAZ, THE AUTHORITY OF LAW 219– 21 (2009). He even, ironically, notes the transcendence of certain values: “It is universally believed that it is wrong to use public powers for private ends.” Id. at 220.

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decision-making.116 At his Supreme Court confirmation hearings in 2005, for example, conservative117 Chief Justice John Roberts famously declared that he perceived his job as a federal judge to be nothing more than that of an umpire “call[ing] balls and strikes.”118 During her confirmation hearings four years later, liberal119 Justice Sonia Sotomayor expressed the necessity of objectivity in adjudication, explaining that judges and justices “apply law to facts.

We don’t apply feelings to facts.”120 When discussing the role of federal judges and justices, one commonly hears the sentiment that the judiciary should follow the law or apply the law—but not to make the law.121 So-called “activist” judging is decried, especially within conservative circles,122 as being inferior to judicial restraint. “Ideology,” observed Carolyn Shapiro, “is emphatically rejected as having any legitimate role in what judges do.”123

116 See, e.g., Dennis v. United States, 341 U.S. 494, 532 (1951) (referring to the high “public interest in dispassionate adjudication”); First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 793 (1972) (Brennan, J., dissenting) (underscoring “that decisions of our courts command respect as dispassionate opinions of principle. Nothing less will suffice for the rule of law”). 117 See Kiel Brennan-Marquez, The Philosophy and Jurisprudence of Chief Justice Roberts, 2014 UTAH L. REV. 137, 184 (stating that “Chief Justice Roberts is certainly a judicial conservative”). 118 Confirmation Hearing on the Nomination of Hon. John G. Roberts, Jr. to be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 55–56 (2005) (statement of J. John G. Roberts). This sentiment was also expressed in the Supreme Court confirmation hearings of Brett Kavanaugh, who stated, “a good judge must be an umpire—a neutral and impartial arbiter who favors no litigant or policy.” Jess Bravin, Kavanaugh Makes Opening Statement, WALL STREET J., Sept. 4, 2018, www.wsj.com/livecoverage/brett-kavanaugh- supreme-court-hearings?mod=article_inline?mod=hp_lead_pos1. 119 See David Fontana, The People’s Justice?, 123 YALE L.J. F. 447, 449 (2014) (referring to Justice Sotomayor as “a new kind of liberal Justice”). 120 Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 111th Cong. 121 (2009) (response of J. Sonia Sotomayor to Sen. Jon Kyl, S. Comm. on the Judiciary). 121 This sentiment only logically applies, of course, to matters of statutory or constitutional construction and interpretation. In a common law country such as the U.S., judge-made law is a staple of the legal system, regardless of ideology. 122 Critiques of judicial activism also regularly come from the left. See, e.g., Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 98 (2000) (Stevens, J., dissenting) (featuring traditionally leftward-leaning Justices Stevens, Souter, Ginsburg and Breyer decrying the majority’s “judicial activism”); New

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Would-be judges of all political stripes certainly recognize that some form of objectivity is a desirable characteristic for those who aspire to sit at the federal bench. Yet coinciding with this justices-should-leave-their-own-ideology-at-the-door concept is a complimentary and seemingly paradoxical understanding among much of legal academia that such an ideal is impossible.124 Copious amounts of legal research have been dedicated to the ostensibly inescapable normative element of jurisprudence. In its most extreme form, this position generally

“suggests that adjudication is neither neutral nor objective, and is better understood as a political contest that ends with an exercise of power in someone’s favor.”125

For more than a century, scholars—especially progressives—have attacked the concepts of textualism, formalism and originalism126 in the constitutional law context, writing that static, value-neutral interpretation is a pipe dream. Erwin Chemerinksy, the second-most-cited legal

Jersey v. T. L.O., 469 U.S. 325, 375 (1985) (Brennan, J., dissenting) (opining, along with Justices Marshall and Stevens, that “judicial activism undermines the Court’s power to perform its central mission in a legitimate way”). See Richard G. Wilkins et al., Supreme Court Voting Behavior 2004 Term, 32 HASTINGS CONST. L.Q. 909, 935 (2005) (referring to Stevens, Souter, Ginsburg and Breyer as “the traditionally liberal justices”); Brent E. Newton, The Supreme Court’s Fourth Amendment Scorecard, 13 STAN. J.C.R. & C.L. 1, 19 (2017) (placing Justices Marshall and Brennan on the left side of the spectrum). 123 Carolyn Shapiro, Claiming Neutrality and Confessing Subjectivity in Supreme Court Confirmation Hearings, 88 CHI-KENT L. REV. 455, 457 (2013). 124 See, e.g., William E. Nelson, History and Neutrality in Constitutional Adjudication, 72 VA. L. REV. 1237, 1238 (1986) (describing the increasingly popular concept that “law is difficult to craft from historical facts or neutral principles because the elaboration of both facts and principles depends upon an antecedent choice of non-neutral values”). 125 Blumenson, supra note 4, 6, at 529. See also Zick, supra note 3, 89, at 139 (“Relying on Kuhnian paradigm thought, for example, some scholars, echoing back to skeptical realists, went so far as to insist that objectivity was an impossible goal”). 126 Formalism and originalism favor adherence to the ostensible original meaning of the Constitution, rather than an application of a more open, “living constitution” style of jurisprudence. See generally Edward Cantu, Posner’s Pragmatism and the Turn Toward Fidelity, 16 LEWIS & CLARK L. REV. 69 (2012).

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professor in the United States,127 articulates this politically progressive position eloquently, writing that:

the continuing allure of formalism dominates constitutional law. This has led to the continuing misguided quest for value-neutral judging. The result has been purported adherence to undesirable theories of judging and interpretation. Value choices are hidden rather than defended and made explicit. Constitutional law is all about value choices in giving meaning to the majestic document written over 200 years ago. These choices should be transparent and explicit; they should be debated and discussed. They are the content of constitutional law.128

The originalist position, on the other hand, was perhaps best articulated by Alexander

Hamilton. As he wrote in The Federalist 78 under the pseudonym Publius, “[t]he courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.”129 To textualists and originalists, Congress should make the laws, and the federal bench should, when reviewing them, apply static constitutional meaning to ascertain whether they are constitutional. The federal bench, under this approach, should not generate law.130

Yet as Carolyn Shapiro avers, relying exclusively on textualism sometimes proves problematic, even for the staunchest of conservative formalists. When discussing Chief Justice

Roberts’ umpire metaphor, she said:

This version of the work of a Supreme Court justice is inaccurate at best. Many of the questions that judges decide do not have simple, logically deducible resolutions. This feature of judicial decision-making is particularly salient in the Supreme Court, both because cases with easy answers are less likely to be appealed than harder cases and are much, much less likely to be reviewed by the

127 Brian Leiter, Top Ten Law Faculty (by area) in Scholarly Impact, 2009–2013 (June 11, 2014) http://www.leiterrankings.com/faculty/2014_scholarlyimpact.shtml. 128 Erwin Chemerinsky, Getting Beyond Formalism in Constitutional Law 54 OKLA. L. REV. 1, 3 (2001). 129 ALEXANDER HAMILTON ET AL., THE FEDERALIST PAPERS; FEDERALIST 78 (1788). 130 Chemerinsky, supra note 4, 128, at 4. State courts, in the United States common law system, are often the progenitors of law. Since the 1930s in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), however, federal substantive common law is virtually non-existent.

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Supreme Court, and because district and circuit court judges are bound by precedent in a way that the Supreme Court is not. As a result, the justices can and must exercise subjective judgment, which inevitably involves political or ideological judgment, in deciding many cases. 131

Conservative and liberal judges, therefore, each encounter their own problems with value-neutrality and objectivity. Liberals—who historically have been more comfortable than conservatives with reaching beyond the four corners of the Constitution to insert normative judgments into their decision-making—are left attempting to find ways to appear objective in order to placate a public that generally is uncomfortable with the idea of a judiciary making up the rules as it goes.132 And conservatives—especially those such as Antonin Scalia, who did not believe in first principles133—are conflicted because they putatively desire objectivity vis-à-vis

131 Carolyn Shapiro, Claiming Neutrality and Confessing Subjectivity in Supreme Court Confirmation Hearings, 88 CHI-KENT L. REV. 455, 457 (2013). Shapiro is not alone in criticizing the umpire metaphor. See, e.g., Erwin Chemerinsky, Seeing the Emperor’s Clothes: Recognizing the Reality of Constitutional Decision Making, 86 B.U. L. REV. 1069, 1069 (2006) (stating that “[a]lthough both make decisions, it is hard to think of a less apt analogy.”); Susan N. Herman, Balancing the Five Hundred Hats: On Being a Legal Educator/Scholar/Activist, 41 TULSA L. REV. 637, 640–46 (2006) (castigating the metaphor for failing to consider inherent biases of judges); Richard A. Posner, The Role of the Judge in the Twenty-First Century, 86 B.U. L. REV. 1049, 1051 (2006) (proposing that “[t]he formalist conception of judging crudely depicted by Roberts is fancied up in versions intended for academic audiences,” and contending that “[n]o serious person thinks that the rules that judges in our system apply, particularly appellate judges and most particularly the Justices of the U.S. Supreme Court, are given to them the way the rules of baseball are given to umpires”); but see generally Michael Allen, A Limited Defense of (at Least Some of) the Umpire Analogy, 32 SEATTLE U. L. REV. 525 (supporting the metaphor as tenable). 132 See Donald L. Drakeman, What’s the Point of Originalism?, 37 HARV. J.L. & PUB. POL’Y 1123, 1134–41 (2014) (featuring the results of a survey describing what the American public thinks about constitutional interpretation). 133 Legal positivist and conservative Justice Antonin Scalia, for instance, occasionaly appeared to insert politically motivated value judgments into his decision-making. See, e.g, Gonzales v. Raich 545 U.S. 1 (2005) (providing one perspective on the Commerce Clause); but see United States v. Lopez 514 U.S. 549 (1995), and United States v. Morrison 529 U.S. 598 (2000) (providing a diametrically opposed perspective on the Commerce Clause). See also ANTONIN SCALIA, SCALIA SPEAKS 243–49 (Christopher J. Scalia & Edward Whalen eds., 2017) (discussing, at a meeting of Catholic students, how he disagreed with Thomas Aquinas on the issue of where values come into play in judicial decision-making).

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the Constitution, yet experience difficulty justifying their value judgments when the need for super-constitutional considerations inevitably arises. And the need arises often.

How, for example, may Eighth Amendment questions of what is “cruel and unusual” be answered aside from a normative value assessment of what constitutes cruelty?134 Or how would one know what the Fifth Amendment’s reference to “just compensation” means without some external knowledge of what constitutes justice?135 In the First Amendment context, Justice Scalia once commented that

Every banana republic has a bill of rights. Every president for life has a bill of rights. The bill of rights of the former evil empire, the Union of Soviet Socialist Republics, was much better than ours. I mean that literally. It was much better. We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff. Of course, they were just words on paper, what our Framers would have called “a parchment guarantee.”136

134 The Eighth Amendment to the United States Constitution provides, in full, that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST. amend. VIII. Some scholars, such as University of Florida Professor John Stinneford, have suggested that, for the originalist, “cruel and unusual” is a term of art with a precise meaning. See John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 NW. U. L. REV. 1739 (2008). See also Zick, supra note 3, 89, at 221 (discussing how bald appeals to science “pretends to provide neutral and objective content to normative constitutional concepts like ‘cruel and unusual punishment’ and ‘due process.’ Constitutional empiricism makes these claims because it is based upon a positivist view of scientific and empirical inquiry which accepts the notion of value-free fact-finding and determinate data”). 135 The Fifth Amendment to the United States Constitution provides, in pertinent part, that “Nor shall private property be taken for public use, without just compensation.” U.S. CONST. amend. V. Similar normative evaluations are found throughout many constitutional doctrines. To cite another example, one prong of the First Amendment-spawned Miller test, which evaluates obscenity, asks factfinders to consider whether an “average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.” Miller v. California, 413 U.S. 15, 24 (1973). 136 Considering the Role of Judges Under the Constitution of the United States: Hearing Before the S. Comm. on the Judiciary, 112th Cong. 6–7 (2011) (statement of Scalia, J.).

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Even a textualist such as Scalia, then, at least implicitly recognized that different judges impute value and meaning into similar words.137 Outside the constitutional context, the need is even more acute, as judges are often asked to perform tasks such as not “offend[ing] traditional notions of fair play and substantial justice”138 or “order[ing] that one or more of such charges be tried separately . . . in the interest of justice.”139 Such references are problematic for both the positivist and the strict textualist; for the positivist because it assumes knowledge of a metaphysical concept, and for the textualist because it requires adjudication in accordance with extra-textual values.

So how do judges manage to balance the need for recognizing or imputing value while simultaneously remaining neutral—or at least maintaining an apparent veneer of neutrality?

Judges are fantastic avoiders. Just as they dodge difficult questions during confirmation hearings140 and juke constitutional questions as a matter of course,141 they also possess a propensity to punt moral questions. But, as explained below, they’re often fake punts.

137 To be sure, Justice Scalia’s likely response would have pointed out that American judges actually applied the text as it is written and Soviet judges did not. Yet the broader point is that even the “freedom of speech,” a phrase that appears directly in the U.S. Constitution, can have many sincerely interpreted meanings. In the U.S., it once seemed to only entail a proscription of prior restraints, yet it now also includes limitations on subsequent punishments. Vincent Blasi, Toward a Theory of Prior Restraint: The Central Linkage, 66 MINN. L. REV. 11, 11–17 (1981). Even more striking, the author is reminded of a conversation he had with a Chinese citizen who, after hearing about James Madison’s vision of the Constitution and the First Amendment, replied—with complete sincerity—that Chinese citizens also “have the freedom of speech,” except that people will “lose their jobs if they criticize the government.” 138 This is the current test for federal in personam jurisdiction, as determined in Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). But see id. at 326 (Black, J., dissenting) (decrying the “elastic standard” as untenable: “For application of this natural law concept, whether under the terms ‘reasonableness,’ ‘justice,’ or ‘fair play,’ makes judges the supreme arbiters of the country’s laws and practices”). 139 O.C.G. § 16-1-7 (2017). 140 See, e.g., Tuan Samahon, The Judicial Vesting Option: Opting Out of Nomination and Advice and Consent, 67 OHIO ST. L.J. 783, 791–92, 798 (2006) (discussing how, during their

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Empiricism

Perhaps the most prominent value-masking judicial tactic today is raw, metaphysics-less empiricism. As discussed in a previous chapter,142 Justice Holmes’s successful attempts to separate rationalism and metaphysics from the legal practice coincided with the larger trend throughout the course of the twentieth century toward scientism, a phenomenon that promoted empiricism to the point of creating “an inflated role for science and an ancillary one for philosophy.”143 The practice of law was not immune from the onslaught of empirical infatuation, and by the 1930s some prominent legal philosophers, such as Yale’s Fred Rodell, advised that courts be replaced with bureaus of technocrat scientists that would possess the authority to impose a “Killing Commission” to judge and sentence murder and manslaughter cases.144

In the ensuing decades, judicial empiricism has accelerated at a rapid clip. The reason for this phenomenon, Timothy Zick observes, has been to “gain legitimization, objectivity, and neutrality. Empiricism is only the latest judicial effort to decide constitutional issues with reference to neutral principles. Constitutional empiricism borrows liberally from the principles

confirmation hearings, Justice Roberts “declined to answer many of the Judiciary Committee’s tough questions” and Justice Alito “dodged answering questions”). 141 See generally Clay Calvert & Matthew D. Bunker, Fissures, Fractures & Doctrinal Drifts: Paying the Price in First Amendment Jurisprudence for Half Decade of Avoidance, Minimalism & Partisanship, 24 WM. & MARY BILL OF RTS. J. 943 (2016) (discussing the Roberts Court’s penchant of circumventing constitutional questions). 142 Supra Chapter 3, Section C. 143 Hughes, supra note 2, 74, at 35. 144 See FRED RODELL, WOE UNTO YOU, LAWYERS! 176 (1939) (suggesting, in context, that cases be entrusted to a body of technical experts. . . . [A]s the Federal Trade Commission applies the Clayton Act, so each state would have, say, a Killing Commission to apply its laws about what are now called murder and manslaughter. Moreover, the decision of the technical experts who made up each commission would be final. There would be no appeals and super-appeals to other bodies of men who knew and understood less about the real matter in dispute than the original deciders).

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and methods of scientific and empirical inquiry to provide a purportedly neutral dynamic for constitutional adjudication and construction.”145

During the last century, this “hostile takeover from science” 146 has often manifested itself in a preoccupation with economic quantification. As Eric Engle notes, legal empiricist

“arguments have been so successful that contemporary values generally are only considered in market terms. Moral values are generally ignored as being subjective and/or indemonstrable and/or unscientific in contemporary legal discourse. . . . Economic arguments appear to be objective because they appear to be empirically quantifiable . . . and thus objective.”147

Yet naked appeals to science and numbers are not a satisfactory substitute for a lack of moral foundation.148 Numbers do not speak for themselves, and science is inherently limited.149

Its boundaries are implied by virtually every standard definition of the word, which limits it, as the Oxford English Dictionary does, to entail only “the systematic study of the natural world and

145 Zick, supra note 3, 89, at 220. 146 Priel, supra note 3, 23, at 1020. 147 Engle, supra note 3, 70, at 1633. However, differing shades of positivism are discernable on this point. See, e.g. Priel, supra note 3, 23, at 1020 (noting that opposed to the ideas of Bentham, the position “adopted by Hart and some of his contemporaries was to turn philosophy into a subject concerned with questions that, they thought, were beyond the ken of science.”) The fundamental commonality remains, however, that positivists of all eras seek to divorce law from morality. 148 As mentioned below, however, scientific data, in their proper context, are critical to normal adjudication. See, e.g., United States v. Phifer, No. 17-10397, 2018 U.S. App. LEXIS 27064, at *1 (11th Cir. Sept. 21, 2018) (commencing a decision dissecting the meaning of the term “isomer” with the statement, “There’s no easy way around it. We’re just going to have to science the heck out of this case. And when we’re done with that, we’re going to have to law the heck out of it”). 149 Also, relevant to the previous research question, science alone cannot address epistemological concerns, such as how or why scientists know what they know about the phenomena they observe. As Austin Hughes poignantly pointed out when discussing how the universe is governed by scientific laws, science—in and of itself—cannot address “why our universe is governed by scientific laws.” He further asks, “how is it that we mere collections of particles are able to discern those laws [and] [h]ow can we be confident that we will continue to discern them better until we understand them fully?” Hughes, supra note 2, 74, at 41 (emphasis added; internal citation omitted).

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its physical and biological processes, through observation, identification, description, experimental investigation, and theoretical explanations.”150 Definitionally absent from the domain of science is any allusion to axiology. Science, standing alone, can explain how to construct an intercontinental ballistic missile equipped with a nuclear warhead, but it has nothing to say regarding the axiological problem of determining at whom the device should be launched—or even if such a device should be created in the first place. Or, as articulated by

Jurassic Park’s Dr. Ian Malcolm at the thought of re-animating long-extinct creatures: “your scientists were so preoccupied with whether or not they could, that they didn’t stop to think if they should.”151

Judicial empiricism is often employed as a façade of objectivity or as a mask to avoid these kinds of difficult questions. As Zick pointed out, “Judicial review seems to be so controversial that courts would rather drape themselves in data than judge the practice of executing the mentally retarded on its merits” or take other “highly contested constitutional rights, such as the right to die,” head-on.152 But these types of matters are less scientifically than metaphysically contentious, and as such, they are beyond the purview of scientific inquiry. No matter how comprehensive and methodologically sound, all scientific data must be interpreted through axiological lenses to be in any meaningful way applied to law,153 and “[c]onstitutional

150 “SCIENCE,” OXFORD ENGLISH DICTIONARY (2d ed. 1989). 151 JURASSIC PARK (Universal Pictures 1993). 152 Zick, supra note 3, 89, at 122, 218. 153 These lenses are present at every stage of the scientific process, from inspiration, to hypothesis, to issue/question-framing, to experimentation, and, finally, to results-interpretation. And such lenses, as Clarence Thomas noted, are sometimes disastrously wrong-headed in their legal applications: “Both slavery and segregation found support in the scientific doctrines of the nineteenth century. . . . Apartheid too is based on what claims to be a science, derived as well from nineteenth-century notions of racial evolution.” Clarence Thomas and Natural Law, 137 Cong. Rec. S 10350 (1991). One of Justice Holmes’s most infamous scientific blunders was relying on spurious eugenic science to uphold a Virginia statute mandating the sterilization of

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issues cannot be divorced from consideration of broad notions of value and justice.”154 Thus,

Zick concludes, “constitutional empiricism, which claims the power to discover ‘reality’ and rights empirically, somewhat half-heartedly picks and chooses only certain elements of the scientific program.”155 Without any metaphysical support, these half-hearted attempts allow jurists to cloak actual moral claims beneath a mountain of numbers. In the end, “[l]ike any empirical endeavor, constitutional empiricism is susceptible to a host of subjective choices that affect not only the collection and categorization of data, but its ultimate interpretation.

Empiricism thus cannot function as a set of neutral principles.”156

Harm principle

Correlated with the twentieth century’s quantitative turn was an increased theoretical reliance on the harm principle. As previously noted, Richard Posner—a recently retired federal judge on the Seventh Circuit Court of Appeal and America’s most-cited legal authority157—made a career158 of explaining virtually legal concept in terms of wealth maximization159 and the harm principle.160

“feeble-minded” persons. See Buck v. Bell, 274 U.S. 200, 207 (1927) (holding that “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. . . . Three generations of imbeciles are enough”). 154 Zick, supra note 3, 89, at 219. 155 Id. at 183. 156 Id. at 221. 157 Fred R. Shapiro, The Most-Cited Legal Scholars, 29 J. L. STUD. 409, 424 (2000). 158 In addition to his hundreds of judicial opinions, Posner also wrote about forty books, many covering these two issues. In these manuscripts, Posner wrote in the positivist tradition of John Stuart Mill. See Bernard E. Harcourt, Criminal Law: The Collapse of the Harm Principle, 90 J. CRIM. L. & CRIMINOLOGY 109, 114 (explaining that “in the writings of John Stuart Mill, H.L.A. Hart and Joel Feinberg, the harm principle acted as a necessary but not sufficient condition for legal enforcement”). 159 See, e.g., RICHARD POSNER, OVERCOMING LAW viii (1995); see also BUNKER, supra note 1, 73, at 42–44 (pointing out some of Posner’s “most troubling . . . largely undiscussed presuppositions”). The natural law counter to Posner, as Engle notes, is that “[w]ith an objective measure of morality, we can make moral arguments that circumvent economism, as they look at

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Yet harm, like data, must have context, an axiological lens or worldview through which it is interpreted and applied.161 What would it take to successfully illustrate, for instance, that violent video games cause harm?162 And, more significant and metaphysically compelling, what even is harm in the first place? Absent metaphysical undergirding, the harm principle is a judicially unstable foundation. Unless a society can agree on what harm actually entails (or why, as a related aside, wealth maximization is a worthy societal goal), the harm principle is of little practical value. Posner himself admitted the limitations of his ideas when, in one of his books, he suggested that a complete adoption of his ideas would be logical grounds for the governmental

something more fundamental than money: inalienable human dignity. . . . Human dignity is not fungible. Basic human rights are inalienable. Thus, they cannot be comprehended in economic terms.” Engle, supra note 3, 70, at 1669. 160 Gerard Bradley highlighted the connection between neutrality and the harm principle by observing that “Posner clings to the harm principle of classical liberalism—whether rightly or wrongly, . . . [and] is pretty clear about what it comprises: the neutrality principle—the liberal state is neutral about substantive values—and the harm principle—the state may justifiably curtail liberty only to prevent palpable harms to third parties.” Gerard V. Bradley, Book Review, Law & Economics: Overcoming Posner, Posner: Overcoming Law. By Richard A. Posner, 94 MICH. L. REV. 1898, 1908–09 (1996). 161 In the non-constitutional context, other attempts to turn the law into an empirical enterprise have been Justice Learned Hand’s torts formulas for liability (PETER GROSSMAN, et al., UNCERTAINTY, INSURANCE AND THE LEARNED HAND FORMULA, LAW PROBABILITY AND RISK 5 (2006)) and Joseph Raz’s use of mathematical formulae for use in expediting value in adjudication (RAZ, supra note 4, 114, at 183). 162 In Brown v. Entertainment Merchants Association, the Supreme Court attempted to do just that, seeking to locate a “direct causal link” between the games and harm. 564 U.S. 786, 799 (2011). Yet such a link, especially in the social science context, is especially difficult to find. This raises a noteworthy aside about the distinction between the social and physical sciences. “The main difference,” according to Fritz Machlup, “lies probably in the number of factors that must be taken into account in explanations and predictions of natural and social events.” Fritz Machlup, Are the Social Sciences Really Inferior?, 27(3) SO. ECO. J. 173, 174 (1961). Because social sciences concern human behavior, they are irreducibly complex—more so than in the physical sciences. MICHAEL SCRIVEN, READINGS IN THE PHILOSOPHY OF SOCIAL SCIENCE 72 (1994). Yet the social sciences are not only more complex in terms of variables, they are also generally more complex in the expanse of extra-scientific presuppositions that necessarily accompany them; for instance, the geologist’s inquiry into the nature of an igneous rock in a valley is far less fraught with axiological assumptions than, for example, the sociologist’s inquiry into the relationship between listening to reggaeton music and deviance.

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issuance of rape licenses.163 Yet from a purely pragmatic, anti-metaphysical perspective, and with an ambiguous definition of harm as the only guideline, the granting of such licenses is not beyond the pale. Indeed, whose definition of harm should prevail when one who is genetically and psychologically pre-disposed164 to dominate unwilling sexual partners (a rapist, in contemporary parlance) has no outlet to express himself except through sexual domination?

Whose claim to harm is more legitimate, the person withholding sex from the rapist or the rapist infringing upon the dignity of the unwilling party?165 Or, as Justice Thomas asked, “How can it be that bigotry and tolerance are moral equivalents?”166

163 See RICHARD POSNER, THE ECONOMIC ANALYSIS OF LAW 216 (8th ed. 2011) (writing that Rape bypasses the market in sexual relations (marital and otherwise) in the same way that theft bypasses markets in ordinary goods and services, and it should therefore be forbidden. But some rapists derive extra pleasure from the fact that the woman has not consented. For these rapists, there is no market substitute . . . and it could be argued therefore that, for them, rape is not a purely coercive transfer and should not be punished if the pleasure to the rapist (as measured by what he would be willing to pay—though not to the victim—for the right to rape) exceeds the victim’s physical and emotional pain. There are practical objections . . . [b]ut the fact that any sort of rape license is even thinkable . . . is a limitation on the usefulness of that theory. What generates the possibility of a rape licenses is the fact that the rapist’s utility is weighted the same as his victim’s utility. If it were given a zero weight in the calculus of costs and benefits, a rape license could not be efficient. The only persuasive basis for such a weighting, however, would be a moral principle different from efficiency).

164 See, e.g., R. Thornhill & N.W. Thornhill, Coercive Sexuality of Men: Is there Psychological Adaptation to Rape?, appearing in E. GRAUERHOLZ, SEXUAL COERCION: A SOURCE BOOK ON ITS NATURE, CAUSES, AND PREVENTION 91 (1991). Noting the societal implications of the rape-as- adaptation concept, Katie Gillespie lamented: “I recognize that this science claims to be without value judgments or justifications of rape[.] [H]owever, regardless of whether it is free of value or not, non-evolutionary psychologists might not understand that and jump to the conclusions that this justifies or absolves men who rape women”). Katie Gillespie, “Not If You Were the Last Man on Earth” and Other Stressful Sexual Situations: A Critique of the Rape as a Psychological Adaptation Model, (March 25, 2003), http://www.anthropology.ua.edu/bindon/ant475/Papers/Gillespie.pdf. 165 See Harcourt, supra note 4, 158, at 113 (“Claims of harm have become so pervasive that the harm principle has become meaningless”). Although the concept of mutual consent, as Harcourt mentions (id. at 147), is sometimes seen as the harm principle’s savior, even the harm principle

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Caprice and Power Rush to Fill the Void

Because positivism cannot answer the above questions, Eric Blumenson argues, one

“badly misconstrue[s] the moral stakes to speak only of the ‘competing preferences’ of a rapist and his victim, or a slaveholder and a slave; these are conflicts which demand resolution according to the language of justice.”167 Yet the morally relativistic positivist cannot recognize the superiority of any preference or desire over another, which leads to breathtaking acknowledgements.168 According to Judge Posner, “[some may say that] a person who murders an infant is acting immorally in our society. . . . I might consider him a lunatic, a monster, or a fool, as well as a violator of the prevailing moral code. But I would hesitate to call him immoral.”169 Moreover, “It was right to try the Nazi leaders rather than to shoot them out of hand in a paroxysm of disgust. But it was politically right. . . . [I]t was not right because a trial could produce proof that the Nazis really were immoralists; they were, but according to our lights, not theirs.”170

plus consent cannot account for many types of obvious moral wrongs, such as certain types of conspiracy, bestiality or suttee (the millennia-held practice of widow self-sacrifice). 166 Clarence Thomas and Natural Law, 137 Cong. Rec. S 10350 (1991). Justice Thomas answered his own question: “The prevalent moral skepticism, that dogmatic skepticism that refuses to question its own pig-headed insistence on moral relativism, threatens to destroy all decency in society and then dissolve society itself.” Id. 167 Blumenson, supra note 4, 6, at 541. Such a “language of justice,” Blumenson continues, provides a “vocabulary that allows us to describe some choices as merely matters of taste (novels) and others as enjoined by objective moral obligations no matter how widespread or accepted. . . .We lose rather than gain opportunities for nuanced and contextual evaluation by treating all choices as merely matters of idiosyncratic preference.” Id. at 545–46. 168 As Joan Williams contends, for instance, one’s partiality for a firm mattress over a soft mattress is no more or less morally condemnable than preferring the protection of human life over engaging in human sacrifice: “Is Aztec sacrifice wrong? To us, of course it is. Does this mean it violated some eternal moral truth? No. . . . Saying the Aztecs were wrong simply means we do not want to change in the ways required to make their practices understandable.” Joan C. Williams, Rorty, Radicalism, Romanticism: The Politics of the Gaze, 1992 WIS. L. REV. 131, 137 (1992). 169 Posner, supra note 3, 102, at 1644. 170 Id. at 1644–45.

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This view, which “regard[s] Hitler as just a fellow with unstandard tastes,”171 logically follows from Justice Holmes’ famous declaration that “felt necessities of the time” and experience—not logic or reason—are the province of law.172 In the Holmesian tradition, positivist/realist Alf Ross, wrote, “A says: I am against this rule, because it is unjust. What he should say is: This rule is unjust because I oppose it. To invoke justice is the same thing as banging on the table: an emotional expression which turns one’s demand into an absolute postulate.”173 Thus, in common-law jurisdictions, judges’ “emotional expressions” are law, untethered from any limiting principle or moral considerations. As Justice Marshall lamented,

“Power, not reason, is the new currency of this Court’s decisionmaking.”174

171 Clifford Geertz, Distinguished Lecture: Anti Anti-Relativism, 86 AM. ANTHRO. 263, 264 (1984). 172 In context, Justice Holmes wrote: “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1–2 (1881). As explained elsewhere, Holmes’s purely descriptive evaluation of the law is inherently axiology-free and thus cannot answer questions about the law’s purpose or legitimacy. 173 ALF ROSS, ON LAW AND JUSTICE 274 (1958). An illustration of this concept in action is found in Nathan Adams’s satiric tale about a land called Idd, in which a law restricted driving to the right-hand side of the road. Nathan A. Adams, IV, Jurisprudence Without Moral Consensus: Constitutional Arguments in Idd for Driving on the Right or Left Side of the Road, 13 CONST. COMMENTARY 101, 101–06 (1996). Some in this land viewed driving on the right side of the road as divinely inspired, and driving on the left was inherently illogical and immoral. Others thought differently. Gradually, the law gave way to social revolt and failed. The story’s apparent point is that no moral truth exists regarding “which side [of the road] is the correct one to drive on.” In this tale, every law was founded solely on the arbitrary choices of those in power and were simply reflections of the ruling class’s political whims. By eliminating reason and morality while reducing every law to mere caprice and preference, this facile fable fails to recognize the very real distinction between laws based directly on first principles and those that are merely reasonable by of happenstance and habit. AQUINAS, supra note 2, 10, at 269. See also infra note 4, 178 (discussing the difference between malum prohibitum and malum in se). In the tale of Idd, these types of distinctions are obliterated behind the will of the powerful. See also Christopher P. Guzelian, True and False Speech, 51 B.C. L. REV. 669, 673 (2010) (discussing Idd in more detail). 174 Payne v. Tennessee, 501 U.S. 808, 844 (1991) (Marshall, J., dissenting).

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Yet if “felt necessities”—rather than syllogisms—are the province of law, then power necessarily fills the metaphysical void. “A simple reductio meets [Holmes’s] argument,” argues

Eric Engle. “If syllogisms are irrelevant why bother thinking? Why not just break out the billy clubs?”175 Furthermore, “[i]f law is nothing but passion and prejudice, then law has no moral force and I might as well go be a criminal. Of course, if one were a criminal one would have a bad life and society would be worse off. Actions follow ideas.”176

Holmes apparently recognized that people might as well “go be criminals,” which is why he stressed that the law should be concerned with the perspective of a “bad man.”177 Yet because his prediction-oriented, anti-metaphysical approach cannot distinguish a “good” man from a

“bad” man without the existence of laws that the man either breaks or keeps, the entire premise is self-referentially circular.178 Without explicit moral foundations, therefore, no system of law is situated on stable ground. And without any meaningful way to tackle problems of evil, only artificial objectivity and the whims of the powerful remain.

175 Engle, supra note 3, 70, at 1646, n. 59. 176 Id. 177 Holmes, supra note 3, 34, at 459. 178 The key issue here is that Holmesian positivism cannot account for the long-held distinction between malum prohibitum and malum in se. The first means something is wrong because it is prohibited (e.g., drug possession or jaywalking) and the second means something that is wrong in and of itself (such as murder or burglary). See, e.g., HANS KELSEN, GENERAL THEORY OF LAW AND STATE 52–53 (Anders Weberg trans., 1945) (1925) (featuring a Holmes contemporary who denied the difference between the two thusly: “There are no mala in se, there are only mala prohibita, for a behavior is malum only if it is prohibitum. . . . These principles are the expression of legal positivism in the field of criminal law”). Yet without this distinction, much of our law makes no sense. See, e.g., Morissette v. United States, 342 U.S. 246, 260 (1952) (relying on the malum prohibitum/malum in se distinction to read a specific intent element into a federal law banning conversion of government property).

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R3: When contrasted with positivist modes of legal reasoning, how does a natural law- informed approach affect the application of the content-neutrality doctrine in First Amendment jurisprudence?

Short answer: Because natural law provides a meaningful starting point, the content- neutrality doctrine can serve as a reasonable conduit through which truth may be sought, discussed and found.

“The two basic ideas behind the content-discrimination principle,” Leslie Kendrick explained, “are that it is usually wrong for the government to regulate speech because of what it is saying and that it is usually acceptable, as a First Amendment matter, for the government to regulate speech for reasons other than what it is saying.”179 When first creating the content- neutrality doctrine, the Supreme Court declared that the canon’s purpose was to comport with the broader free speech principle that, “[a]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.”180 Similarly, Justice Kagan articulated that purpose of the doctrine is to further First Amendment goals by “ferret[ing] out impermissible motives” of censorial government entities.181

The critical teleological principle derived from these pronunciations is that the content- neutrality doctrine is not itself an end; standing alone, it means nothing. It is a practical tool, generated by the Supreme Court justices in the 1970s, to help judges interpret the meaning of

“Congress shall make no law . . . abridging the freedom of speech, or of the press.”182 More specifically, when situated within the marketplace of ideas paradigm, the content-neutrality

179 Leslie Kendrick, Content Discrimination Revisited, 98 VA. L. REV. 231, 235 (2012). 180 Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95–96 (1972). 181 Kagan, supra note 2, 306, at 437. 182 U.S. CONST. amend. I.

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doctrine serves a narrower purpose: truth discovery. From this narrowing principle, two important propositions follow.

The first is that neutrality qua neutrality is not the point of the content-doctrine. The second, more general, principle is extracted from the first: neutrality in any context can never serve as a meaningful or reasonable goal.

Neutrality, like the similar concepts of moderation and tolerance, are not ends. They are balancing tools to achieve other ends. One might, perhaps, consider the positions in which neutrality is a generally desirable trait, such as in a referee, educator, journalist or judge. In such cases, the neutrality’s desirability is limited to specific, relevant contexts and is the handmaiden of other goods. In the case of the referee, because sport is itself deemed a commendable good; for education and journalism, that knowledge and truth discovery are worthwhile ends, and so on. In short, neutrality must always be understood to fit within the context of furthering first principles—principles that are decidedly non-neutral.

It follows, despite what the Supreme Court has sometimes insinuated,183 that the First

Amendment itself is not a value-free provision. As Learned Hand rightly described,

The interest, which [the First Amendment] guards, and which gives it its importance, presupposes that there are no orthodoxies—religious, political, economic, or scientific—which are immune from debate and dispute. Back of that is the assumption—itself an orthodoxy, and the one permissible exception—that truth will be most likely to emerge, if no limitations are imposed upon utterances that can with any plausibility be regarded as efforts to present grounds for accepting or rejecting propositions whose truth the utterer asserts, or denies.184

183 See Meyer v. Grant, 486 U.S. 414, 419 (1988) (“The First Amendment is a value-free provision whose protection is not dependent on the truth, popularity, or social utility of the ideas and beliefs which are offered”) (internal citation omitted). Charitably, this statement may be seen as superficially true. Yet behind any façade of neutrality lie very real moral foundations. 184 Int’l Bhd. of Elec. Workers v. Labor Bd., 181 F.2d 34, 40 (2d Cir. 1950).

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This orthodox “assumption” that is “back of” the First Amendment pre-supposes both that truth is worth pursuing for its own sake and that “not every type of speech occupies the same position on the scale of values.”185 As Marc DeGirolami commented, “[t]he political morality that the . . . First Amendment has facilitated, promoted, and entrenched is not neutral on the question of virtue and vice. It is neck deep in it.”186 This recognition is why jurists inherently recognize that some speech is more valuable than others, and, therefore, why the political speech vs. commercial speech vs. other kinds of speech model is an awkward but necessary appendage to the complete body of First Amendment doctrine.187

The non-neutrality of the First Amendment is further manifested in the government speech doctrine. As Charlotte Taylor detailed, “norms of content-and viewpoint-neutrality do not apply when the government is itself a participant in public debate. . . . As the Supreme Court wrote . . . ‘when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes [and] it may take . . . appropriate steps to ensure that its message is neither garbled nor distorted.’”188

Whenever governmental entities speak, they surely possess an idea of superior and inferior values, as well as conceptions of the good life.189 Unwed, teenage pregnancies are sub-

185 Dennis v. United States, 341 U.S. 494, 544 (1951). 186 Marc O. DeGirolami, Virtue, Freedom, and the First Amendment, 91 NOTRE DAME L. REV. ONLINE 1465, 1516 (2016). 187 See, e.g., Thomas H. Jackson & John Calvin Jeffries, Jr., Commercial Speech: Economic Due Process and the First Amendment, 65 VA. L. REV. 1, 5–6 (1979) (arguing that certain types of expression are of lesser value because they do not further self-government or self-realization); Frederick Schauer, Commercial Speech and the Architecture of the First Amendment, 56 U. CIN. L. REV. 1181, 1185–94 (1988) (making similar claims). 188 Charlotte H. Taylor, Hate Speech and Government Speech, 12 U. PA. J. CONST. L. 1115, 1144 (2010) (quoting Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 833 (1995)). 189 Justice Scalia made the following observation:

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optimal;190 recycling is good;191 don’t drink and drive;192 buy war bonds;193 verbal sexual orientation change efforts are proscribable;194 trademarks that disparage individuals or communities are bad;195 citizens should not lie to the government196 or lie to anyone about earning military medals.197 Thus, when the government speaks in the marketplace of ideas, the marketplace purser’s thumb inevitably rests heavily on one side of the scale. This nonneutral allowance belies the canard that government entities must remain morally neutral. Indeed, as detailed in the previous section, complete neutrality is both a philosophical and practical impossibility.198

It is the very business of government to favor and disfavor points of view on innumerable subjects—which is the main reason we have decided to elect those who run the government, rather than save money by making their posts hereditary. And it makes not a bit of difference, insofar as either common sense or the Constitution is concerned, whether these officials further their favored point of view by achieving it directly or by advocating it officially or by giving money to others who achieve or advocate it. None of this has anything to do with abridging anyone’s speech.

Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concurring) (parenthetical omitted). 190 See Angel Watson, Florida Actual Versus Expected Teen Births and Repeat Teen Births by County 2013 through 2015, FLA. DEP’T. OF HEALTH, http://www.floridahealth.gov/programs- and-services/womens-health/family- planning/teen%20birth%20actual%20vs%20%20expected%202013-2015%2009-08-16.pdf (describing how the “Healthy People 2020 objective is to reduce teen pregnancy”). 191 See Recycling, FLA. DEP’T. OF ENVIRONMENTAL PROTECTION, https://floridadep.gov/waste/waste-reduction/content/recycling (mentioning the “50 percent target rate specified in Florida statute” for recycling). 192 Be Responsible. Don’t Drink and Drive, FLA. HIGHWAY SAFETY & MOTOR VEHICLES, https://www.flhsmv.gov/safety-center/driving-safety/be-responsible-dont-drink-and-drive/. 193 C. Frederick Childs, United States Government Bonds, 88 ANNALS OF THE AM. ACADEMY OF POL. & SOC. SCI. 43, 43–50 (1920). 194 CAL. BUS. & PROF. CODE § 865.2 (2013). 195 15 U.S.C. § 1052(a) (2016); but see Matal v. Tam, 137 S. Ct. 1744, 1765 (2017) (striking the anti-disparagement language from the Lanham Act). 196 18 U.S.C. § 1001(a) (2018). 197 18 U.S.C. § 704 (2005); but see United States v. Alvarez, 567 U.S. 709 (2012) (nullifying the statute). 198 Supra Chapter 4, Research Question 2.

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What is not impossible, however, is constructing neutral principles atop morally overt foundations.199 The content-neutrality doctrine is one such principle, as are textualism and appeals to stare decisis, empirical data and the harm principle. Yet within constitutional jurisprudence, all such attempts to maintain neutrality, whether doctrinal or theoretical, share a single commonality: they each necessarily pre-suppose the existence of foundational source material—some kind of “stuff”—from which to work. Textualism requires a text.200 Appeals to stare decisis or the harm principle or science require a body of case law, mutually understood harms, and empirical data, respectively.201 None of these spring from the ether, ex nihilo. Yet all

199 See generally Bork, supra note 2, 199 (examining various attempts to find neutrality in First Amendment jurisprudence). 200 Michael Moore described constitutional adjudication as being “hermeneutic” in nature. “All such hermeneutic enterprises,” he wrote, “are distinct from the normal scientific enterprises of explaining phenomena, natural or social, in that they depend upon the existence of a text that requires interpretation.” Michael S. Moore, A Natural Law Theory of Interpretation 58 S. CAL. L. REV. 279, 281 (1985). This hermeneutic, internal approach of normal constitutional jurisprudence is analogous to the “lower criticism” of ancient religious texts. Lower, internal criticism dictates that questions about the text begin with a presupposition that the text is self- explanatory and self-revelatory. (This concept is also referred to as “textual criticism.” “Lower Criticism,” RANDOM HOUSE COLLEGE DICTIONARY (1973)). In lower criticism, any inquiry about a text can be satisfactorily answered by examining within the text’s own four corners, without considering other factors, such as historical context or an author’s motivations. This is contrasted with higher criticism, which seeks to assimilate the relevant text into broader interpretive contexts. As expressed previously when discussing constitutional concepts such as “freedom,” “just” and “cruel and unusual,” laws often cannot interpret themselves and require some kind of external consideration or interpretive lens. Natural law-informed values, as expressed in the Declaration of Independence, provide the necessary axiological context for constitutional interpretation. As Clarence Thomas explained, “American politics and the American Constitution are unintelligible without the Declaration of Independence, and the Declaration of Independence is unintelligible without the notion of a higher law by which we fallible men and women can take our bearings.” Clarence Thomas & Natural Law, 137 Cong. Rec. S 10350 (1991). 201 And, in turn, each of these is based on overt axiological tenets. In the case of stare decisis, for example, justices in the early days of the republic appealed often to natural law principles, basing their decisions on explicitly espoused axiological values. David C. Bayne, Supreme Court and the Natural Law, 1 DEPAUL L. REV. 216, 218–26 (1952). Yet throughout the early- to mid- nineteenth century, as precedent based on those values accumulated, the need to directly appeal to values diminished. “These thirty-five years were not as expressive of natural law reasoning as

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of them, when built upon proper axiological bases, are critical components of constitutional adjudication because they enhance judicial legitimacy and predictability.

Appealing directly to any of these conventions while not recognizing the moral foundations that undergird them is mere value avoidance and is inherently nonsensical. Yet natural law, with its metaphysical base, establishes a port in which neutral principles can dock.

Positivists have no such port in which they can appropriately harbor both neutral objectivity and recognition of value. As such, legal practitioners may oscillate between complete value avoidance, as described above,202 or simply strip pretensions of objectivity away, as is most prevalent in the critical/cultural legal studies faction, and admit that law is merely concerned with recognizing and legitimizing power structures.203 Neither option is tenable.

Seeking middle ground, sincere positivist jurists intuitively recognize the need for value judgments in their decision-making, but are often at a loss for how to do so while still maintaining a necessary appearance of objectivity. Supreme Court Chief Justice Earl Warren would often express this tension when, after listening to morally questionable yet legally persuasive oral arguments at the bar, he would concede the ostensible “correctness” of the attorneys’ contentions yet simply interject, “Yes, counsel, but is it fair?”204

those proceeding . . . . From 1830 until the Civil War the Court hardly needed to do more than apply the canons of constitutionalism already laid down.” Id. at 227. The passage of time does not assuage the essential nature of the moral claims that inform precedential cases, and a periodic evaluation of these moral claims is instructive. 202 Though this avoidance only masks actual axiological positions, because—regardless of whether they are acknowledged—axiological positions are unavoidable. 203 Coombe & Cohen, supra note 4, 21, at 1034. 204 See, e.g., Ed Cray, Chief Justice: A Biography of Earl Warren (1997) http://www.judicialmonitor.org/summer2015/inreview.html.

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The positivist difficulty about how to handle conceptions such as fairness, harm,205 justice, and any other normative concept is that each is intrinsically tied to one’s own metaphysical inclinations, regardless of whether they are acknowledged. As Budziszewski pointed out, “not thinking about metaphysics doesn’t mean that one won’t have any beliefs about the structure of reality. It only means one will be a slave to those beliefs, because he won’t be fully aware that he holds them. They may even be inconsistent and jerk him different directions.”206

Natural law accounts for both value judgments and the need for neutrality in a way positivism simply cannot. It solves the metaphysical problem of allowing value judgments into the system207 while remaining tethered to legitimizing, predictable and objective moorings.208 As one such tether, the content-neutrality doctrine is an application of Thomastic right reason.

Created by the Supreme Court in the 1970s to better serve free speech interests, it has proven a

205 In First Amendment jurisprudence, harm has been especially hard to explicate. Erica Goldberg commented that Describing the Supreme Court’s approach to content-based restrictions on speech is superficially simple. . . . But in operation, the doctrine is much more complex— it incorporates considerations of harm in multiple ways. In a variety of cases, different groups of concurring and dissenting Justices have shown willingness to relax the strict scrutiny applied to content-based restrictions in order to account for the harm from depictions of animal cruelty, violent video games, and lies about military honors. The Supreme Court is not even clear on at what point in its First Amendment analysis, or at what level of abstraction, this balancing should be performed, if at all, when free speech doctrine intersects with both criminal and tort law.

Erica Goldberg, Free Speech Consequentialism, 116 COLUM. L. REV. 687, 691–92 (2016). 206 J. BUDZISZEWSKI, THE LINE THROUGH THE HEART 145 (2009). 207 The law is not, despite Hart and other’s protestations, a “closed system.” Anthony J. Sebok, Misunderstanding Postivism, 93 MICH. L. REV. 2054, 2067–70 (1995). The law and the society within which it exists are mutually self-informing. 208 Just as in navigation, steadfast reference points are essential in constitutional law. As Justice Robert Jackson expressed, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

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worthwhile tool to ensure that governments do not unduly interfere with the marketplace of ideas. Those who apply the doctrine must, therefore, understand that the doctrine’s putative neutrality is founded upon very real value judgments.209

Although the natural law foundations of the content-neutrality doctrine must be understood and recognized, they need not be explicitly stated in every case. It would be superfluous, annoying and wasteful for every district judge, when determining whether a city commission is engaged in content-based discrimination, to routinely begin his opinion with a primer on Thomastic doctrine. Yet from time to time, the philosophical underpinnings of our legal system are worth express acknowledgment and repetition.210 As George Orwell lamented,

“We have now sunk to a depth at which re-statement of the obvious is the first duty of intelligent men.”211

If we do not continually remind ourselves of these self-evident truths, the short-term risk is that we begin following doctrines and precedents without knowing why.212 The longer-term

209 Considering the fact that the content-neutrality doctrine arose during an era of positivistic dominance at the Supreme Court, one can confidently say that positivism in one sense can support the doctrine on its own. The problem is that positivism, inherently pragmatic as it is, will only offer support to the doctrine so long as contrary consensus, “can’t helps” or “felt necessities” do not intervene. Natural law helps assuage this instability by offering a dependable judicial point of reference from which to work. 210 This type of acknowledgment was once commonplace in common law opinions. 7 Edward Coke, Calvin’s Case, in REPORTS (1608), as reprinted in EDWARD COKE, SELECTED WRITINGS 166 (Steve Sheppard ed., 2005). 211 Edith H. Jones, Book Review: Religion, Rights and American History The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, Stephen L. Carter, 35 S. TEX. L. REV. 469, 483 (1994). 212 An oft-told tale that lightheartedly cautions against doing things without knowing why centers on the stereotypical young wife who habitually sliced the ends off her beef roasts before putting them in the oven. This she did because her mother had done so. When the young wife’s curiosity got the better of her and she eventually asked her mother why she cut the ends off her roasts, her mother replied that it was because her roasting pan was not large enough to hold the entire roast. See John T. Blankenship, Developing your ADR Attitude: Med-Arb, A Template for Adaptive ADR, 42 TENN. B.J. 28, 38 (2006) (re-telling a variant of this story).

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problem, it seems, is that the law detaches from its metaphysical basis and drifts away, disconnected from anything but majority opinion and judicial whim.

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CHAPTER 5 CONCLUSION

If “nothing is more certain,” as Chief Justice Vinson opined, than the idea “that all concepts are relative,”1 and if every judge appeals to no other value system than her own subjective ideals, as Judge Posner pontificated, then the law is simply an ouroboros. A judiciary that cannot say without hesitation that rape, slavery or Adolf Hitler’s genocidal ideologies are inherently, a priori wrong is a self-consuming system that surely should not be tasked with protecting the freedom of expression or any other civil liberty.2

Natural law provides a foundation to sanction these types of evils while robustly protecting goods, encouraging rational discourse and incentivizing truth seeking. Indeed, the practical implications of a priori values and objective truths are profound. For if any state of affairs is good for its own sake, then there exists is a standard against which the will of the sovereign and the consensus of the majority are held—something that exists outside their subjective feelings about it. Something upon which, reason dictates, laws must comport.

Natural law provides that one of these inherently good states of affairs is the pursuit of truth. It holds that the capacity for reason exists and that, though flawed, it cannot not be trusted because without reason, every mental endeavor is pointless. Thus, because the purpose of the human mind is to function rationally, pursuing truth is good for its own sake. With this philosophical foundation in place, the marketplace theory can then posit that the best way to discover truth is to keep the market as robust and wide-open as possible, free from governmental

1 Dennis v. United States, 341 U.S. 494, 508 (1951). 2 The positivist push to separate law from metaphysics is driven in part by the fact that “[m]orality seems mushy, ineffective, and unreal. Law seems structured, hard-bodied, and real. Many practicing lawyers try to use law—divorced from morality—to somehow make social life better. . . . [Yet] the law is, of necessity, linked to moral considerations. It is not possible to specify an account of the Rule of Law without a full-blooded commitment to some version of the Doctrine of Natural Law.” Michael Sean Quinn, Argument and Authority in Common Law Advocacy and Adjudication: An Irreducible Pluralism of Principles, 74 CHI.-KENT L. REV. 655, 775 (1999).

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intervention. An effective way to achieve this objective, in turn, is to create neutral principles, such as the content-neutrality doctrine, that thwart government efforts to interfere. Each level, from philosophy to theory to doctrine, builds on the previous level. None stands alone.3

Taken as a whole, this tri-layered approach provides a means through which judges can logically and purposefully protect the freedom of speech. Although expression can—and must— be weighed against other compelling interests, the eminence of truth discovery is more acute with a natural law foundation than it is on positivism. The natural law paradigm, which recognizes the value of truth through expression, helps inoculate the freedom of speech against

Holmesian “felt necessities of time,”4 transient utilitarian considerations, feelings and emotions, concerns of power structures, naked appeals to stare decisis or numbers, or the strong axiological inclinations of judges.

3 The content-neutrality doctrine has proven an excellent tool for parsing through censorial governmental motives while permitting time, place and manner restrictions (which are necessary for a functioning civil society) to endure. The judiciary must have tools such as precedent reliance and the content-neutrality doctrine to keep judges from basing each decision directly on first principles or individual conceptions of how the marketplace should work. But, despite its name, the content-neutrality doctrine is ultimately founded on that which is not neutral. It is based on the axiological principle that truth is worth pursuing for its own sake. Acknowledging this principle puts the freedom of speech on much safer footing and allows competing interests and harms to be balanced with increased clarity. When the federal government drafted a law banning “disparaging” trademarks, it did so under the perception that such marks cause harm. 15 U.S.C. ch. 22 (2016). Likewise, when the States of California and Massachusetts promulgated statutes banning certain kinds of verbal sexual orientation change efforts and discussions located around abortion facilities, respectively, they did so under the perception that SOCE and verbal exchanges located near abortion clinics cause harm. CAL. BUS. & PROF. CODE § 865.1 (2013); MASS. GEN. LAWS, ch. 266 § 120E1/2(b) (2012). These laws are fraught with moral considerations (such as the meaning of harm and the social desirability of abortion, homosexuality and anti-disparagement;) and scientific/epistemological ones (degree of harm— however explicated—caused; innateness of homosexuality; efficacy of communicative efforts; etc.). All of these considerations, both moral and epistemological, filter into judicial considerations of these provisions, regardless of how “neutral” the courts attempt to be. Courts should acknowledge these considerations when contemplating whether to allow closure of these corners within the marketplace. 4 OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1–2 (1881).

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With objective realities in place, the pursuit of truth becomes meaningful. Sometimes, we may be virtually certain that we have located a truth. Other times, we’re sure we have not. In yet other times, unfortunately, we may act as though we are certain, though we perhaps should not be. In these gray areas, while discussing, applying and adjudicating policies and ideas, we may, as Holmes correctly noted, stake our salvation on uncertain knowledge. But it is an epistemological uncertainty, not an ontological skepticism, that drives the marketplace.5

Thus, despite his misguided metaphysical approach, Holmes contributed mightily to constitutional jurisprudence by importing the marketplace metaphor into his Abrams dissent.6

The truth—for its own sake, not as a process—is worth pursuing as we debate and discuss policy, history, science and everything else. The promulgated laws that accompany such discussions are: based on objective moral foundations, discovered by rationality, informed by scientific knowledge (epistemologically uncertain though it may be), aligned to comport with existing precedent, applied with reason and interpreted as neutrally as possible.

The goal, then, is a marketplace of ideas—informed by the values of natural law and applied with the guidance of the content-neutrality doctrine—that is unencumbered by government censorship and “uninhibited, robust and wide-open.”7 As the Supreme Court recently declared,

when the government polices the content of . . . speech, it can fail to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail. . . . [T]he best test of truth is the power of the thought to get itself accepted in the

5 One cannot be a skeptic about everything. As GK Chesterton said, “Merely having an open mind is nothing. The object of opening the mind, as of opening the mouth, is to shut it again on something solid.” G.K. CHESTERTON, AUTOBIOGRAPHY OF G.K. CHESTERTON (Ignatius ed., 2006) (1936). 6 Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). 7 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

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competition of the market, and the people lose when the government is the one deciding which ideas should prevail.8

Although acknowledging the natural law foundations underneath the First Amendment would, as illustrated above, help solve several existing and potential problems in contemporary jurisprudence, natural law is certainly no panacea for every judicial ailment. Even though natural law informs jurists that truth is worth purusuing for its own sake, it has little to say, for instance, about what to do when competing, compelling interests collide, such as when weighing the freedom of expression against due process9 or national security10 concerns.

Another apparent weakness to the natural law approach is that when objective truths are recognized, governments could employ such truths as ready rationales to censor expression that does not comport with orthodoxy. Indeed, some commentators have argued that because objective truths exist (such as the factual reality of the Holocaust), once those truths are found, then the government should be able to censor speech contrary to it (such as Holocaust denial).11

This approach is unwise and does not align with Thomas Aquinas’ ideals. Even ignoring the difficulty of navigating the fact/opinion dichotomy, finding principled distinctions among various types of speech (social science, historical, physical science) as well as truth gradients

(whole truths, substantial truths, partial truths, outright lies) would be extremely difficult.

Creating a scheme that grants a government entity the authority to regulate even completely, verifiably false expression necessitates the creation of some type of grid that differentiates

8 Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361, 2374–75 (2018) (quoting McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) and Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting)). 9 Neb. Press Assoc. v. Stuart, 427 U.S. 539, 570 (1976). 10 N.Y. Times Co. v. United States, 403 U.S. 713, 732 (1971) (White, J. concurring). 11 See Kenneth Lasson, Holocaust Denial and the First Amendment: The Quest for Truth in a Free Society, 6 GEO. MASON L. REV. 35, 84–86 (1997) (making this exact claim).

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among the above-mentioned types of expression. This would be nearly impossible. Yet even beyond these logistical concerns, giving the government the authority to arbiter the truth of expression is an enormous risk, as the temptation to squelch politically disadvantageous speech is simply too great to ignore.12

Using Holocaust denial as a potential case study demonstrates this difficulty.13 Unless the hypothetical lawmaker were operating arbitrarily—which is problematic in its own right—he must work within some kind of chart or grid that categorizes expression by type, specifying the genera of proscribed speech (such as “false statements of historical facts that tend to cause anguish or dignitary harm”14) and placing Holocaust denials within it.15 Other types of similarly situated expression,16 presumably, would then be more regulatable while whatever kinds of

12 As one district court put it, “We can all agree that lies are bad. The problem is, at least with respect to some political speech, that there is no clear way to determine whether a political statement is a lie or the truth, and we certainly do not want the Government (i.e., the OEC) deciding what is political truth anyway, for fear that the Government might persecute those who criticize the Government or its leaders.” List v. Ohio Elections Comm’n, 45 F. Supp. 3d 765, 77– 79 (S.D. Ohio 2014). See also Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring) (“The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind . . . . In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us”). 13 For a worthwhile philosophical treatment of this exact issue, see Ioanna Tourkochoriti, Should Hate Speech be Protected? Group Defamation, Party Bans, Holocaust Denial and the Divide Between (France) Europe and the United States, 45 COLUM. HUMAN RIGHTS L. REV. 552, 611– 20 (2014) (concluding that “[a]ny regulation concerning the debate among historians about historical fact is . . . inappropriate and ineffective”). 14 Yet even proscribing something as seemingly straightforward as this cannot be done, as virtually all lies, by their very definition, misstate the reality of past occurances—to wit, false statements of historical facts. Even creating such a chart raises questions such as how strong would the historical consensus have to be to push something from one side of the scale to the other? Whose opinion would count toward that consensus? How would the consensus be explicated? Who would oversee and enforce the meanings of the words? Etc. 15 This, on its face, would raise red flags under the contemporary content-nuetrality doctrine. 16 Perhaps, under the hypothetical tort (or crime) of “false statements of historical facts that tend to cause dignitary harm,” the descendants of Neil Armstrong would have a cause of action against those who claim the Appolo 11 mission was faked, or survivors of the September 11,

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speech that fell on the opposite end of the grid would be less proscribable. Next, the lawmaker should identify the harms to be avoided and the goods promoted (presumably something dignity- related, in this case), as well as the likelihood of the law’s furthering the goal(s) and any other possible—less restrictive—ways of furthering them.17 He must then clearly define the specific expressive conduits (verbal, written, broadcast, etc.) through which the denials may be proscribed and the type or number of hearers necessary to trigger a cause of action or liability.

He must also contemplate appropriate scienter and determine whether to create a bright line by simply banning the utterance of certain combinations of words (possibly with ironic-use, joking or negation exclusions) or some amorphous, totality-of-the-circumstances standard. He furthermore must construct a mechanism to distinguish factual assertions about the Holocaust from derived inferences, implications or hypotheticals. Lastly, he must decide how much

Holocaust denial is too much (e.g., “the Holocaust did not happen” versus “the staff of

Buchenwald employed no Zyklon B during August of 1943”). All this he must do while avoiding vagueness, underinclusivisty or overbreadth.18

The Thomastic solution to Holocaust denial is much simpler: let the marketplace function, answering false speech with counterspeech. Roughly seven hundred years before the

U.S. Supreme Court admonished governments to avoid burning houses to roast pigs,19 Thomas

Aquinas noted that “human law cannot punish or forbid all evil deeds, for, while it aims at

2001 attacks (and certain governmental personnel) against those who simililarly claim the plane hijackings were an inside job. 17 Yet as explained earlier, demonstrating causal linkages in the social sciences, especially when considering intangible matters such as emotion and dignity, is notoriously difficult. 18 See Steven G. Gey, The First Amendment and the Dissemination of Socially Worthless Untruths, 36 FLA. ST. U. L. REV. 1, 1–22 (2008) (examining, under several free speech rationales, the practical and theoretical problems with governmental regulation of Holocaust denial). 19 Butler v. Michigan, 352 U.S. 380, 383 (1957).

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repressing all evils, it would follow that many good things would be lost[,] and the service of the common good, which is necessary for human association, would be impeded.”20 Because crafting a law that comports with the host of above-mentioned stipulations cannot be done, repressing the evil of Holocaust denial certainly would impede many good things, necessary for human association.

Both John Stuart Mill and Oliver Wendell Holmes, Jr. implicitly understood this

Thomastic principle and persuasively applied it to the realm of expression. As Mill articulated in

On Liberty, even things we as a society think we can be sure about and have consensus about are sometimes proven wrong in the long run.21 And Holmes, though for ontologically dubious reasons, correctly understood that sometimes we as a society stake our salvation on imperfect knowledge—and that is the best we can do.22

Thus, even though the natural law approach does not look kindly on the social utility of lies argument,23 the Thomastic approach admonishes governments—unless they have a truly compelling interest—simply to leave the false speech alone and let the market work.24 Aquinas noted that

20 AQUINAS, supra note 2, 10, at 171. 21 MILL, supra note 2, 131, at 40–67. 22 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 23 Helen Norton, Lies and the Constitution, 2013 SUP. CT. REV. 161, 163 (2012) (“lies have First Amendment value in their own right”). 24 While discussing the need to tolerate evil for the sake of a greater good (and simultaneously noting the problems with utter ontological skepticism), Budziszewski explained, We see that only the non-skeptic and the partial skeptic can deal with debate. Neither does it because of what he doubts; each does it because of what he does not doubt. Each tolerates falsehood for the sake of truth. Once we see this, the real reason that we sometimes tolerate evils or put up with injuries to good becomes clear: we do it to prevent greater evils, or to advance greater goods. For there is a certain paradox in this business of suppressing evils: The act of suppression itself may be evil or give rise to evils. In fact, it often does.

BUDZISZEWSKI, supra note 2, 59, at 43.

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[h]uman law . . . does not impose immediately upon the multitude of imperfect men those things which the virtuous already possess, namely, that they abstain from all evils, otherwise these imperfect men, being unable to bear such precepts, would break forth into worse evils. . . . [T]herefore human law does not prohibit all vices from which the virtuous abstain but only the more serious ones from which it is possible for the majority to abstain and especially those which are harmful to others and which, if not prohibited, would make the preservation of human society impossible.25

The ontological and epistemological recognition of objective, transcendent truth, therefore, is no reason to give governments the authority to sanction lies, absent the most compelling circumstances.

Another potential concern about the natural law’s explicit recognition of moral goods is that it may tempt judges to insert personal value choices into their opinions.26 As discussed in the answer to the third research question, natural law jurisprudence prizes objective, legitimizing efforts such as textualism and adherence to stare decisis. The vast majority of the time, this means that, when such efforts are applied, their axiological foundations be acknowledged.

Thomas Aquinas explained that

[h]uman law is rightly changed insofar as the common good is thereby promoted. However, a change in law, simply in itself, is somewhat detrimental to the common welfare inasmuch as the observance of law is greatly supported by custom. Hence, when law is changed, the binding power of law is diminished inasmuch as the custom is abolished. Hence, human law should not be changed

25 AQUINAS, supra note 2, 10, at 313–316. Beyond the general point that only egregious harms should be governmentally sanctioned, it is also worth noting Thomas Aquinas’ references to both the harm principle (which pre-supposes harm is knowable) and the safety-valve theory of expression. 26 This question also does not apply to the critical/cultural realm because that line of reasoning has no problem with overtly inserting axiological preferences into normal adjudication. Also, the opposite charge—that recognizing transcendent truths will lead to rigid, rule obedience—is also frequently raised. That issue is addressed directly in the dissertation text. Supra Chapter 2, Section A.

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unless the damage done thereby to the common welfare is compensated for by some other benefit.27

The bottom line, according to Thomas Aquinas, is that judges should respect the precedent they receive and, absent a compelling reason28 that promotes the common good, the rule of law should not be changed.29

27 AQUINAS, supra note 2, 10, at 352. Budziszewski, while commenting on this concept, related a personal story from when he was growing up in Texas and the state legislature decided to make right-hand turns legal. His town, however, started putting up “no right turn on red” signs, which prompted a back-and-forth local policy oscillation in which sometimes right turns on red were permissible at certain intersections, and other times they were not. Many drivers, he said, “seemed to lose respect for traffic regulations altogether, and some even began making left turns on red. What had gone wrong here? The law had been changed too many times, unsettling people’s expectations, weakening their respect for authority and undermining their habits of obedience.” J. BUDZISZEWSKI, WRITTEN ON THE HEART 84 (1997). 28 The natural law tradition, on account of its moral framework to address these compelling reasons when they arise, has a rich history of civil disobedience against laws secundum quid. Not only was it the framework within which abolitionists such as Frederick Douglass fought slavery in the nineteenth century, but the twentieth and twenty-first centuries have also seen natural law appeals within the civil rights movement. It is likely not coincidental that the two most famous politically oriented proponents of first-principles recognition during the last sixty years have been black—Martin Luther King, Jr., and Clarence Thomas; especially considering that the general alternative to first principles has been a Holmsian majoritarianism, appeals to natural law have been an effective means promoting equality for minorities since the founding of the country. 29 Near-strict adherence to precedent—often at the cost of individual value choices—was a bedrock feature of natural law-informed common law. John Stinneford’s explanation is worth quoting at length: The customary nature of the common law was thought to ensure that it comported with principles of reason. Common law thinkers . . . believed that real moral principles inhered in nature and that such principles could be discerned by reason. Laws that failed to comport with moral reality were not truly “law” but were mere acts of power or violence. Common law thinkers did not claim, however, that moral principles could easily be identified in the abstract and applied to given cases. At any given time, an individual judge engaging in abstract moral reasoning might get the moral principle wrong, might fail to weigh it properly against competing principles, or might fail to apply it properly to the facts of a given case. The common law was thought to minimize these risks because it presented to judges an intergenerational consensus about the application of moral principles in practice. Prior cases revealed which moral principles were relevant to a given issue, how they were to be balanced against each other, and how they were to be applied in specific factual situations. Though any one person might

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The positivist position on the matter, as articulated by Richard Posner, is that a judge can overturn a law or precedent based on either strong majority preference or strong feelings. When a moral issue faces a judge, Posner writes, she has two options:

One is to say that if public opinion is divided on a moral issue, judges should refuse to intervene, should leave resolution to the political process. The other is to say, with Holmes, that while this is ordinarily the right way to go, every once in a while an issue on which public opinion is divided will so excite the judge’s moral emotions that he simply will not be able to stomach the political resolution that has been challenged on constitutional grounds, and would feel immoral in rejecting the challenge. . . [M]oral skeptics [and] moral relativists[] have the same moral emotions as everyone else and differ only in not thinking that moral disagreements can be resolved by moral reasoning. I prefer the second route. It leaves a place for conscience. If judges are carefully selected, as is generally true of federal judges, a judge’s civil disobedience—his refusal to enforce a law “as written” because it violates his deepest moral feelings—is a significant datum.30

More alarmingly, Posner further declared, “I pay very little attention to legal rules, statutes, constitutional provisions. A case is just a dispute. The first thing you do is ask yourself—forget about the law—what is a sensible resolution of this dispute?”31 Not only is such adjudication philosophically incongruent because it explicitly rejects metaphysical concerns while implicitly embracing them,32 but it also seems far more likely than the natural law

make a mistake, the consensus of multiple generations was likely to reach a just conclusion.

John F. Stinneford, Punishment without Culpability, 102 J. CRIM. L. & CRIMINOLOGY 653, 662 (2012). 30 Posner, supra note 3, 102, at 1708. 31 Adam Liptak, An Exit Interview with Richard Posner, Judicial Provocateur, N.Y. TIMES (Sept. 11, 2017), https://www.nytimes.com/2017/09/11/us/politics/judge-richard-posner- retirement.html. 32 Gerard Bradley is troubled by Posner’s declaration that “in the end a judge must decide open cases on instinct, not analysis.” These instincts, Bradley avers (and quoting Posner) are formed “on the basis of his or her own values that, like everyone else’s, are ‘can’t helps’. . . . But treating value judgments as ‘can’t helps’ does not save them from nonneutrality, even if one holds that ‘imposing’ them is somehow inevitable. The exercise becomes the entirely nonneutral one of imposing values one cannot rationally defend.” Gerard V. Bradley, Book Review, Law & Economics: Overcoming Posner, Posner: Overcoming Law. By Richard A. Posner, 94 MICH. L.

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approach to produce judges who rule by whim or caprice rather than precedent or some other, more objective, measure.33 Concerns that natural law-informed judges will appeal to their own values rather than established rules are therefore unfounded, because—more than positivist jurists—natural law-informed judges have rational reasons for preferring precedent and the law

“as written.”34

As for potential future research built upon this dissertation, one might examine the effect of natural law on judicial treatment of the First Amendment itself versus the treatment of case law interpreting First Amendment-inspired doctrines. There may be a distinction between them, and ascertaining its practical repurcussions would be worthwhile. Because this dissertation paints with broad strokes while discussing several nuanced philosophical matters, futher research could also bore deeper into a natural law treatment of issues such as epistemological certainty in various academic fields, as well as a more thorough explication of compelling government interests and their relative weight when balanced against free speech interests. More research into these areas would be welcome additions in what will hopefully be a burgeoning field of natural law-informed, First Amendment jurisprudence.

REV. 1898, 1908 n. 21 (1996). Posner adopted the “can’t helps” concept from Holmes himself. Oliver Wendell Holmes, Natural Law, 32 HARV. L. REV. 40, 40 (1918). 33 See Geoffrey C. Shaw, H.L.A. Hart’s Lost Essay: Discretion and the Legal Process School, 127 HARV. L. REV. 666, 668 (2013) (“Rule by arbitrary choice is not rule by law, and thus the lasting legacy of legal realism became a challenge: explain how legal indeterminacy can be reconciled with the rule of law”). 34 Posner, supra note 3, 12, at 1708.

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APPENDIX A IMPORTANT CASES

Abrams v. United States, 250 U.S. 616 (1919) Known for Justice Oliver Wendell Holmes, Jr.’s dissent against the enforcement of an anti-sedition statute under which socialist activists were prosecuted for disseminating pro-Soviet leaflets. Dissenting, Holmes imported the marketplace metaphor into constitutional law, writing [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas. . . . The best test of truth is the power of the thought to get itself accepted in the competition of the market.

Associated Press v. United States, 326 U.S. 1 (1945) Known as a prototypical example of the U.S. Supreme Court’s interventionist approach in the marketplace of ideas. The Court voided the AP’s rigid membership standards because the organization’s strict rules about sharing news stories with non-AP entities violated the Sherman Antitrust Act and inhibited the free flow of information. Boos v. Barry, 485 U.S. 312 (1988) Known for the Court’s application of the content-neutrality doctrine to a vague, content- based Washington, D.C., ordinance that banned within 500 feet of any embassy signs that cast foreign governments into “public odium” or “public disrepute.” The majority determined that protecting the feelings of foreign dignitaries was an insufficiently compelling government interest to satisfy strict scrutiny. Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786 (2011) Known both for holding that video games are protected expression under the First Amendment and for invalidating a California statute that proscribed the sale and rental of violent video games to minors. Applying strict scrutiny (and finding the law both over- and under-inclusive), the Court opined that governments enacting such content-based laws must demonstrate an “actual problem in need of solving” and prove there is a “direct causal link” between the expression and that problem. Calder v. Bull, 3 U.S. 386 (1798) Known for Justices Samuel Chase’s and James Iredell’s disagreement on the role of natural law in judicial review. Chase wrote that judges should rely directly on natural law principles when considering whether to invalidate statutes; Iredell countered that they should first consider the procedural correctness—specifically contemplating whether the lawmaking entity overstepped its constitutionally specified boundaries. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) Known for its clear articulation of the content-neutrality doctrine in upholding a National Park Service ban on people sleeping in tents on the National Mall. Applying intermediate scrutiny, the Court held that the regulation was a reasonable time, place, and manner restriction because it was narrowly tailored to fit the government’s substantial interest in maintaining attractive parks for visitors’ enjoyment and left open alternative channels for communication. Dennis v. United States, 341 U.S. 494 (1951)

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Known for espousing the postmodern concept that “[n]othing is more certain in modern society than the principle that there are no absolutes” because man does not find meaning in the world around him, he gives meaning to it. The Court upheld the conviction of communists who violated a federal anti-conspiracy statute by espousing a putatively radical socialist ideology. Gertz v. Welch, 418 U.S. 323 (1974) Known for the metaphysical statement that “[u]nder the First Amendment, there is no such thing as a false idea.” The Court held that as long as they do not impose strict liability, states are permitted to establish their own standards of liability for libelous statements made about private persons. Gitlow v. New York, 268 U.S. 652 (1925) Known for incorporating the First Amendment into the Fourteenth Amendment Due Process Clause as a fundamental liberty. This made state and local regulations subject to First Amendment review. In doing so, the Court upheld a socialist’s conviction for violating a New York criminal anarchy statute by printing a revolutionary document titled “Left Wing Manifesto.” Grayned v. City of Rockford, 408 U.S. 104 (1972) Known for holding that time, place and manner restrictions are subject to intermediate scrutiny. The Court reversed an Illinois Supreme Court finding that an anti-picketing statute was facially constitutional; the Supreme Court affirmed, however, the lower court’s finding that an accompanying anti-noise statute was constitutional because it was a narrowly tailored and reasonable time, place, manner restriction that furthered the Rockford’s important interest of uninterrupted education. Hill v. Colorado, 530 U.S. 703 (2000) Known for upholding a Colorado statute banning literature-distribution or counseling within eight feet of persons entering health-care facilities. Although the Supreme Court essentially reversed its rationale fourteen years later in McCullen v. Coakely (which applied intermediate scrutiny to a similar law that it struck down), the Hill Court determined that the Centennial State law was a time, place, manner restriction subject to intermediate scrutiny. Louis v. Nelson, 544 F. Supp. 973 (S.D. Fla. 1982) Known for applying the Thomistic principle that laws must be promulgated before they are valid. The court in this case held that immigrant plaintiffs’ incarceration under an Immigration and Naturalization Service policy was unlawful because the policy was enacted with inadequate notice. (“Thomistic” means that which pertains to the ideas of Thomas Aquinas.) Matal v. Tam, 137 S. Ct. 1744 (2017) Known for holding that trademarks are private speech rather than government expression, the opinion allowed an Asian-American rock group to register its name, “The Slants,” with the U.S. Patent and Trademark Office. The Court applied heighted scrutiny to—and subsequently invalidated—a content-based provision of the Lanham Act that banned the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” McCullen v. Coakley, 134 S. Ct. 2518 (2014) Known for applying intermediate scrutiny to a Massachusetts law that banned counseling or protesting within fixed buffer zones outside abortion clinics. Finding the provision

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content-neutral but overbroad, the Court’s decision striking down the law cast into doubt Hill v. Colorado, in which the Court, only fourteen years before, upheld a similar statute. Miami Herald v. Tornillo, 418 U.S. 241 (1974) Known for nullifying a Florida right-of-reply law requiring newspapers to give equal space, free of charge, to political candidates to respond to criticisms by newspapers of their personal character or official record. The case represents a noted shift in Supreme Court jurisprudence away from an interventionist application of the marketplace of ideas toward a more libertarian, hands-off approach that left the editing of newspapers to editors. Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) Known for upholding a California law that banned state-licensed mental health professionals from engaging in sexual orientation change efforts for minors. Finding that therapist counseling is conduct and not speech, the court applied rational basis review. Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972) Known as an early example of the content-neutrality doctrine in action. In Mosley, the Court struck down an ordinance that banned all types of picketing near schools except for labor picketing. By carving out the labor exemption, the Court said, the city “slips from the neutrality of time, place, and circumstance into a concern about content.” Planned Parenthood of Southeastern Pa. v. Casey 505 U.S. 833 (1992) Known for embracing the postmodern view, similar to the Court’s approach in Dennis v. United States, that reality and truth are generated in the mind, not found independently of it. The Court here ruled that states may regulate abortions as long as the regulations do not unduly burden abortion access. Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) Known for clarifying the content-neutrality doctrine by mandating strict scrutiny for facially content-based laws. Although the Court fractured on its rationale—with a minority calling for a lesser form of scrutiny—the justices unanimously nullified a municipal ordinance that imposed more lenient limitations on signs promoting political or ideological messages than other types of expression. Snyder v. Phelps, 562 U.S. 443 (2011) Known for holding that speech in a public forum about matters of public concern— regardless of how offensive the speech is and even if the plaintiff is a private figure— cannot be actionable under the tort of intentional infliction of emotional distress. The Court ruled in favor of defendant picketers who claimed a divine retributory nexus between tolerance of homosexuality and dead soldiers while protesting the funeral of an Iraq War veteran. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) Known for upholding a federal statute requiring cable television system operators to allocate space for local, over-the-air broadcast stations. The second of two Turner cases to reach the Supreme Court, the decision found the so-called must-carry provision was a content-neutral regulation on speech, subject to intermediate scrutiny. United States v. Alvarez, 567 U.S. 709 (2012) Known for striking down the Stolen Valor Act, a federal statute that criminalized lying about receiving military medals. Although the Court recognized that “false statements of fact are particularly valueless because they interfere with the truth-seeking function of the

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marketplace of ideas,” a plurality of justices concluded that a statement’s falsity is not sufficient, on its own, to preclude First Amendment protection. United States v. Carolene Products, 304 U.S. 144 (1938) Known for its introduction in famous “Footnote Four” of the tiers-of-scrutiny concept into American jurisprudence. The Court applied the rational basis test in upholding a federal statute that banned the sale of filled milk (skim milk with non-dairy fat re-added) in interstate commerce. United States v. O’Brien, 391 U.S. 367 (1968) Known for creating a four-step variant of the intermediate scrutiny standard that requires a scrutinized law (1) be within the constitutional power of the government to enact; (2) further an important or substantial government interest that is (3) unrelated to the suppression of speech; and (4) prohibit no more speech than necessary. The Court held that a federal ban on draft-card burning did not violate the First Amendment. Va. Pharm. Bd. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) Known for the implementation of the commercial speech doctrine that protects both advertisers’ rights to speak and consumers’ rights to receive speech. Applying intermediate scrutiny, the Court struck down a Virginia law that banned pharmacists from advertising drug prices. Ward v. Rock Against Racism, 491 U.S. 781 (1989) Known for Justice Kennedy’s now-axiomatic statement that “[t]he principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” The Court applied intermediate scrutiny to a content-neutral, noise-limiting law that required users of a government-owned bandshell to use sound systems and technicians provided by the city. Whitney v. California, 274 U.S. 357 (1927) Known for Justice Louis Brandeis’s eloquent concurrence that featured an extensive soliloquy offering multiple rationales for safeguarding free expression. The majority upheld a woman’s conviction for violating a California anti-syndicalism statute for allegedly advocating communism and violent overthrow of the government.

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APPENDIX B GLOSSARY

Autonomy Theory A justification for free expression that views speech not as a means to any external goal, but as a good in and of itself. Popularized by C. Edwin Baker in the late twentieth century, it is sometimes known as human dignity theory or self-fulfillment theory. Axiology The philosophical study of value. Axiology, along with ontology (the study of existence and knowledge) and epistemology (the study of truth), are the three critical philosophical elements that allow scientists to fully practice their crafts. Cognitivism A wide-sweeping ethical philosophical position. It supposes that some moral statements are capable of being objectively true because they describe actual features that exist outside the subjective mind of the speaker. Coherence Theory of Truth A truth theory holding that the truth or falsehood of a proposition depends not on whether it reflects an external reality, but whether it comports with related propositions. Command Theory A definition of law, popularized by positivist philosopher John Austin, comprised of three elements: (1) the will of a sovereign; (2) the expression of the sovereign’s will; and (3) punishment (or threat of punishment) for violating the sovereign’s will. Consequentialism The philosophical concept that a morally good act is one that produces a good outcome. It is often encapsulated in the phrase, “the end justifies the means.” Content Neutrality Doctrine A First Amendment canon, adopted by the U.S. Supreme Court in the 1970s, mandating that laws abridging expression based on specific topics must face strict judicial scrutiny. Conversely, laws that regulate expression regardless of topic and based on time, place or manner only face intermediate scrutiny. Correspondence Theory of Truth A truth theory holding that the veracity of a proposition depends on whether it corresponds to an actual, objective truth. Deflationary Theory of Truth A truth theory holding that the “truthfulness” of a proposition expresses nothing beyond the statement to which it is attributed. That is, the designation of truth to a statement is more or less a rhetorical device rather than an expression of attributed veracity. Empiricism An epistemological perspective that prizes knowledge derived from sensory experience and empirical observation. It often is conflated with rationalism, which relies less heavily on observation than reason and abstract logic. Epistemology The philosophical study of truth. Epistemology, along with ontology (the study of existence and knowledge) and axiology (the study of values and goods), comprise the three essential philosophical elements that allow scientists to comprehensively perform their jobs.

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Formalism A legal philosophy, especially popular in the late nineteenth century, holding that applied law is essentially a deductive science. It contrasts with realism, which holds that the law is more experiential than logical. Harm Principle The classical liberal concept, promoted by John Stuart Mill, that the governmental monopoly on violence and coercion should not be applied to limit the autonomy of an individual absent its necessity to stop a person or persons from harming others. Heckler’s Veto A concept popularized by Harry Kalven in the 1950s describing a scenario in which a person who disagrees with a speaker’s message uses violence or the threat of violence to encourage the government to silence the speaker. Intermediate Scrutiny The judicial standard of review that upholds content-neutral laws that are narrowly tailored to achieve an important government interest. In the expression realm, such laws must also leave ample room for alternative channels of communication. Within the First Amendment context, content-neutral time, place and manner regulations are adjudicated under strict scrutiny. Laws Dictates of reason, for the common good, made by them who have the care of the community, and promulgated. This is the definition of law offered by natural law proponent Thomas Aquinas. Marketplace of Ideas A justification for free expression first articulated by John Milton in the seventeenth century and then imported into constitutional jurisprudence by Justice Oliver Wendell Holmes, Jr. in the early twentieth century. It posits that truth optimally rises to the fore in an uninhibited, robust and wide-open forum for communication. Meiklejohnian Theory A free-speech justification popularized by educator/philosopher Alexander Meiklejohn. Also known as democratic self-governance theory, it is narrower than the marketplace of ideas theory and holds that expression serves the purpose of furthering democracy by enabling the voting of wise decisions. Natural Law The philosophy that certain truths (and therefore certain moralities) are universal. It further supposes that such truths are self-evident and need no further justification for their goodness because they provide the foundation upon which all other suppositions of value and truth are built. Ontology The philosophical study of existence and knowledge. Ontology, along with axiology (the study of value) and epistemology (the study of truth), encompass the three basic philosophical elements that give scientists the tools needed to perform their work. Positivism The legal philosophy that supposes laws are morally self-justifying. That is, laws need not be tethered to any external morality or concept of the good. Instead, laws are deemed valid if they comport with majoritarian consensus at any given time.

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Postmodernism A broad cultural movement, prominent in the West during the mid- to late-twentieth century, that rejected hitherto-accepted notions of objective truth and morality. Under this view, ontological, epistemological and axiological claims of transcendent truths are rejected in favor of the perspective that such claims are products of biological or social accident and are individually construed. Pragmatism A forward-looking philosophy that is less concerned with descriptions of thought or reality than with problem-solving and prediction. In the legal context, it connotes the anti-formalist concept that case law serves more as a prognosticator of future case outcomes than as a scientific formula for rigid adherence. Prior Restraint Government censorship of speech before it is scheduled to be published. It contrasts with subsequent punishment, which is post-publication governmental censorship. The Supreme Court has held that prior restraints are less constitutionally acceptable than subsequent punishments, but that the two are similar in their practical chilling effect on expression. Rationalism The epistemological perspective that hails reason as the primary source of knowledge and truth. It is often contrasted with empiricism, which prizes truth gleaned from sensory inputs. Realism An empirically driven, value-free legal philosophy popular during the era of Justice Oliver Wendell Holmes, Jr. Aligned neither with natural law nor positivism, it purports that the law should be less concerned with logical precision than with following the dictates of the latest social science data. Relativism The general position that denies the existence of objective truth and morality. It holds that every point of view is equally valid or truthful from the perspective of the one who holds it. Scientism A somewhat-pejorative term describing both attempts to shoehorn scientific concepts into non-scientific applications and the idea that science is universally competent within all spheres of inquiry. Stare Decisis Latin for “let it stand.” It connotes the idea that, within common law systems, courts should adhere to principles established by decisions in previous cases, and precedent should be followed. Strict Scrutiny The most stringent standard of judicial review. To pass muster under strict scrutiny, the law in question must be narrowly tailored to further a compelling government interest and be the least-restrictive means of achieving the interest. Subjectivism An objective-truth-denying philosophy holding that subjective feeling and individual mental activity define one’s existence. With historical roots in Descartes’ adage that he was because he thought, the doctrine suggests that perception is itself reality.

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Tautology A proposition that is true from every possible interpretation. Used in formal logic, such statements are often considered unhelpful or needless restatements or repetitions. Teleology A method of inquiry that seeks to explain things by way of theirs functions, ends, purposes, or goals. Popularized by Aristotle and Plato, a brief example can be illustrated in the human eye; its purpose is to see, so furthering the eye’s ability to see is teleologically proper. Textualism The canon of judicial interpretation, often associated with Justice Antonin Scalia, in which construction focuses on the plain meaning of the legal text rather than non-textual sources such as legislative intent. Time, Place, Manner (TPM) Governmental regulations of expression that focus not on any particular topic or subject matter. They instead proscribe speech based on—as the name implies—the time, place or manner in which it occurs. Such laws, when challenged, face intermediate scrutiny. Utilitarianism The philosophy, often associated with Jeremy Bentham and John Stuart Mill, that evaluates all actions and intentions based upon utility of outcomes. Comparable with consequentialism, it ultimately seeks to maximize pleasure and minimize pain.

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BIOGRAPHICAL SKETCH

Eugene (Minch) Minchin is a ninth-generation Floridian who received his undergraduate, master’s and juris doctorate degrees from the University of Florida. He currently resides with his wife, Suzanne, and daughter, Providence, in Gainesville, Florida.

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