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The Conservative-Libertarian Turn in First Amendment Jurisprudence

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The Conservative-Libertarian Turn in First Amendment Jurisprudence Chicago-Kent College of Law Scholarly Commons @ IIT Chicago-Kent College of Law All Faculty Scholarship Faculty Scholarship December 2014 The Conservative-Libertarian Turn in First Amendment Jurisprudence Steven J. Heyman IIT Chicago-Kent College of Law, [email protected] Follow this and additional works at: https://scholarship.kentlaw.iit.edu/fac_schol Part of the Constitutional Law Commons, and the Jurisprudence Commons Recommended Citation Steven J. Heyman, The Conservative-Libertarian Turn in First Amendment Jurisprudence, 117 W. Va. L. Rev. 231 (2014). Available at: https://scholarship.kentlaw.iit.edu/fac_schol/825 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. THE THIRD ANNUAL C. EDWIN BAKER LECTURE FOR LIBERTY, EQUALITY, AND DEMOCRACY: THE CONSERVATIVE- LIBERTARIAN TURN IN FIRST AMENDMENT JURISPRUDENCE Steven J. Heyman* ABSTRACT ............................................................................................. 233 I. INTRODUCTION ...................................................................................... 234 II.CONSERVATIVE LIBERTARIANISM AND THE CONSTITUTION: AN OVERVIEW ............................................................................................. 239 A. Basic Theory .................................................................................. 239 1. Self and Society ....................................................................... 240 2. The Nature of Liberty and the State ......................................... 242 3. Law, the Constitution, and the Courts ...................................... 243 B. Constitutional Doctrine ................................................................. 245 1. Self-Defense and the Second Amendment Right to Bear Arms ......................................................................................... 245 2. Economic Liberty and Property ............................................... 246 3. Federal Power .......................................................................... 249 4. Rejection of Affirmative Rights ............................................... 251 5. Equal Protection and Racial Equality ...................................... 252 6. States’ Rights ........................................................................... 254 7. Libertarianism and Social Conservatism: Religious Liberty, Abortion, and Sexual Orientation ............................................ 256 III.THE CONSERVATIVE-LIBERTARIAN APPROACH TO THE FIRST AMENDMENT ......................................................................................... 260 A. Defending a Libertarian Conception of Freedom ......................... 261 1. Money and Politics: Citizens United v. FEC and McCutcheon v. FEC ................................................................. 261 * Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology. A.B. 1979, J.D. 1984, Harvard. This is an expanded version of the third annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy, which I presented at the West Virginia University College of Law on April 4, 2014. I am grateful to Dean (now Provost) Joyce McConnell and Associate Dean Anne Marie Lofaso for inviting me to give this Lecture, and to Kate Baldwin, Harry Clor, Mark Rosen, and Christopher Schmidt for helping me think through this challenging subject. I also received thoughtful comments from Bernadette Atuahene, Kimberly Bailey, Katharine Baker, Erwin Chemerinsky, Mary Jean Dolan, David Rudstein, and participants in the Chicago-Kent Legal Theory Workshop. Finally, I wish to express my appreciation to Peter Cassata, Katlyn DeBoer, and Gabriella Sneeringer for their superb research assistance. 231 232 WEST VIRGINIA LAW REVIEW [Vol. 117 2. Pornography: American Booksellers Ass’n v. Hudnut ............. 267 3. Hate Speech: R.A.V. v. City of St. Paul .................................... 273 4. Freedom of Association: Boy Scouts of America v. Dale ........ 275 B. Libertarianism and Social Conservatism....................................... 278 1. United States v. Stevens and Conservative-Libertarian Methodology ............................................................................ 278 2. The Continuing Tension Between the Libertarian and Social-Conservative Strands .................................................... 281 i. Violent Entertainment ........................................................ 282 ii. Nonobscene Sexual Material ............................................. 283 iii. Dignitary Interests ............................................................. 285 iv. Anti-Abortion Speech ......................................................... 286 v. Flag-Burning ..................................................................... 287 C. Areas of Broader Governmental Authority .................................... 288 1. Speech on Public Property ....................................................... 288 2. Speech Within Governmental Institutions ............................... 290 i. Prisoners ........................................................................... 290 ii. Members of the Military .................................................... 291 iii. Public Employees .............................................................. 291 iv. Public Schools ................................................................... 292 3. National Security and Foreign Affairs ..................................... 294 4. Government Speech and Support for Speech ........................... 295 D. Religious Speech ............................................................................ 296 E. Conclusion: The Conservative-Libertarian Approach to Free Speech, Past and Present ............................................................... 297 IV.A CRITIQUE OF THE CONSERVATIVE-LIBERTARIAN APPROACH TO THE FIRST AMENDMENT ........................................................................ 302 A. Free Speech and Property Rights .................................................. 302 B. Speech that Injures, Abuses, or Degrades Others ......................... 311 C. The Conflict Between Libertarianism and Social Conservatism ... 312 D. Ideological Neutrality .................................................................... 318 E. Speech Within Governmental Institutions ...................................... 318 F. Conclusion ..................................................................................... 319 V. A LIBERAL-HUMANIST APPROACH TO THE FIRST AMENDMENT .......... 320 A. Basic Theory .................................................................................. 320 1. Self and Society ....................................................................... 320 2. The State .................................................................................. 321 3. The Nature of Liberty .............................................................. 322 4. Law, the Constitution, and the Courts ...................................... 323 5. A Broader View of the Original Understanding ...................... 326 B. A Liberal-Humanist Theory of Free Speech .................................. 328 C. An Illustration: Funeral Picketing and the First Amendment ....... 330 2014] CONSERVATIVE-LIBERTARIAN TURN 233 D. Contrasting the Liberal-Humanist and Conservative- Libertarian Views .......................................................................... 333 1. R.A.V. and Hate Speech ........................................................... 334 2. Paris, Miller, Hudnut and Sexually Explicit Material ............. 335 3. Dale and Freedom of Association ............................................ 337 4. Rosenberger and Religious Speech .......................................... 340 VI.CONCLUSION ......................................................................................... 342 ABSTRACT Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have used the First Amendment in a libertarian manner to invalidate regulations that reflected liberal or progressive values. For example, these judges have rejected efforts to limit the role of money in election campaigns, struck down restrictions on hate speech and pornography, expanded protection for religious speech within public schools and universities, and held that the right to free association takes precedence over state civil rights laws that bar discrimination based on sexual orientation. This Article, which was presented as the third annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, explores this
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