Case Western Reserve Law Review Volume 38 Issue 4 Article 15 1988 Notes for a Theory of Constrained Balancing in First Amendment Cases: An Essay in Honor of Tom Emerson Burt Neuborne Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Burt Neuborne, Notes for a Theory of Constrained Balancing in First Amendment Cases: An Essay in Honor of Tom Emerson, 38 Case W. Rsrv. L. Rev. 576 (1988) Available at: https://scholarlycommons.law.case.edu/caselrev/vol38/iss4/15 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. NOTES FOR A THEORY OF CONSTRAINED BALANCING IN FIRST AMENDMENT CASES: AN ESSAY IN HONOR OF TOM EMERSON* Burt Neuborne** FIRST AMENDMENT THEORY is torn between an under- standable desire to minimize the capacity for subjective decision- making inherent in unconstrained judicial balancing and a nagging suspicion that subjectivism cannot be exorcised from the judicial process in first amendment cases, no matter how elegant the sub- stantive theory.' I have spent much of my career as a lawyer asking judges to intervene on the side of first amendment values in contexts including street demonstrations,2 coerced political contributions,3 speech in the classroom,4 flag desecration,5 censorship of foreign * Copyright 1988 by Burt Neuborne. ** Professor of Law, New York University School of Law; B.A., Cornell University (1961); J.D., Harvard Law School (1964). Professor Neuborne served as Legal Director of the American Civil Liberties Union from 1982-1986. 1. For a highly idiosyncratic sampling of helpful theoretical writing in the first amend- ment area, see L. BOLLINGER, THE TOLERANT SOCIETY (1986); F. SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY (1982); Blasi, The Checking Value in FirstAmendment Theory, 1977 AM. B. FOUND. RES. J. 521; Blasi, The Pathological Perspective and the First Amend- ment, 85 COLUM. L. REV. 449 (1985); Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in FirSt Amendment Analysis, 88 HARV. L. REV. 1482 (1975); Karst, Equality as a CentralPrinciple in the First Amendment, 43 U. CHI. L. REV. 20 (1975); Monaghan, FirstAmendment "Due Process," 83 HARV. L. REV. 518 (1970); Scanlon, A The- ory of Freedom of Expression, 1 PHIL. & PUB. AFF. 204 (1972); Shiffrin, The First Amend- ment and Economic Regulation: Away From a General Theory of the First Amendment, 78 Nw. U.L. REV. 1212 (1983); Stone, Content Regulation and the FirstAmendment, 25 WM. & MARY L. REV. 189 (1983). 2. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), rev'g, 703 F.2d 586 (1983). 3. Cullen v. Margiotta, 811 F.2d 698 (2d Cir.), cert. denied, 107 S. Ct. 3266 (1987). 4. James v. Board of Education, 461 F.2d 566 (2d Cir.), cert. denied, 409 U.S. 1042 (1972). 5. Cahn v. Long Island Vietnam Moratorium Committee, 437 F.2d 344 (2d Cir. 1970), aff'd, 418 U.S. 906 (1974). 1988] A THEORY OF CONSTRAINED BALANCING speakers,6 pornography,7 offensive speech,8 and advertising. 9 I have experimented with first amendment theories stressing interpreta- tion, categorization, process, psychology, political theory and epis- temology in search of a vocabulary that would promise significant protection for free speech values, while limiting the degree of choice open to judges. Two theories, Tom Emerson's seminal perception that free speech, as an aspect of human dignity, is a function of institutional interplay, t0 and Alexander Meiklejohn's success in linking free speech with democracy,'1 are two theories that have provided law- yers and judges in first amendment cases with an indispensable in- tellectual matrix within which to consider whether a given communication is insulated from government suppression by the cryptic language of the first amendment. At their strongest, though, both the Emerson and Meiklejohn theories provide lawyers and judges seeking guidance with an elegant compass, not a detailed road map, and certainly not a street address. While both theories have been enormously valuable in identifying and deciding the "easy" cases and in setting general directions for "hard" ones, I do not believe that either theory has eliminated the reality of significant judicial choice in the decision of difficult first amendment cases. Judges and lawyers invoke Meildejohn and Emerson to help define categories or as a guide to interpretive analysis. In the end, how- ever, the elements of choice play a role in the definitional, cat- egorizational, or interpretive process in hard cases. While the reality of judicial choice is often submerged in the rhetoric of logic, definition, categorization, interpretive analysis, or ipse dixit, it is, in my experience, never far below the surface in any difficult first amendment case. A generation of first amendment scholars, inspired to no small degree by Tom Emerson's example, are now seeking to stand on Tom's shoulders in an effort to see farther into the realm of self- 6. Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986), aff'd by an equally divided Court, 108 S. Ct. 252 (1987). 7. Hudnut v. American Booksellers Ass'n, Inc., 771 F.2d 323 (7th Cir. 1985), aff'd, 475 U.S. 1001 (1986). 8. Cohen v. California, 403 U.S. 15 (1971). 9. Long Island Lighting Co. v. Public Serv. Comm'n, 633 F.2d 205 (2d Cir. 1980) (decision without published opinion). 10. See generally T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION (1970); T. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT (1966). 11. See generally A. MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOv- ERNMENT (1948); A. MEIKLEJOHN, POLITICAL FREEDOM (1960); Meiklejohn, The First Amendment is an Absolute, 1961 Sup. Cr. REV. 245. CASE WESTERN RESERVE LAW REVIEW [Vol. 38:576 applying first amendment theory. Until they succeed though, law- yers are condemned to confront judicial choice as an inevitable as- pect of the process of applying necessarily abstract theory to maddeningly diverse fact. For me, the lesson of Tom Emerson's mastery of structural and systemic interplay is not to leave that in- evitable judicial choice wholly to chance. If judicial choice has not yet been, and perhaps never can be, eliminated from first amend- ment jurisprudence, I believe that its exercise can be channelled in ways that provide enhanced institutional protection for first amend- ment values. Since I believe that, under the current state of knowl- edge, a degree of often unarticulated, even unconscious, balancing takes place in difficult cases, I prefer to flush the balancing into the open. I seek to constrain its exercise, rather than to rely on substan- tive doctrines that purport to supplant balancing, but that merely drive it underground. My response, therefore, is to attempt to forge a theory of constrained balancing in first amendment cases. Unconstrained judicial balancing has been subjected to deserved academic criticism,12 especially in first amendment cases, 13 because it licenses a judge to engage in overtly subjective decision-making that replicates, and occasionally displaces, identical thought- processes already carried out by a politically responsible official. When a judge's proclivities are favorable to first amendment values, unconstrained balancing provides a formula for effective, if transi- tory, protection of free speech.14 When, however, a judge's values are less first amendment-sensitive (or when a judge believes herself institutionally incapable of second-guessing the factual or legal ba- ses for the political branch's decision to censor), the net result of unconstrained balancing is the collapse of effective judicial protec- tion of free speech. 5 Unconstrained balancing is, as Tom Emerson 12. Recent criticism of unconstrained balancing includes: Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943 (1987); Kahn, The Court, the Community and the JudicialBalance: The Jurisprudenceof Justice Powell, 97 YALE L.J. I (1987). See also C. DUCAT, MODES OF CONSTITUTIONAL INTERPRETATION, 116-92 (1978); Henkin, Infallibility Under Law: ConstitutionalBalancing, 78 COLUM. L. REV. 1022 (1978). For a spirited de- fense of balancing, see Judge Frank M. Coffin, James Madison Lecture at New York Univer- sity School of Law, Judicial Balancing: The Protean Scales of Justice (scheduled for publication this year in N.Y.U. L. REV.). 13. Criticism of balancing in first amendment cases is summarized in Aleinikoff, supra note 12, at 972-95. 14. Justice Harlan's opinion in Cohen v. California, 403 U.S. 15 (1971) is a classic exam- ple of expansive protection of speech through sympathetic balancing. 15. See, e.g., Scales v. United States, 367 U.S. 203 (1961); Communist Party v. Subver- sive Activities Control Board, 367 U.S. 1 (1961); Konigsberg v. State Bar, 366 U.S. 36 (1961); Barenblatt v. United States, 360 U.S. 109 (1959). 1988] A THEORY OF CONSTRAINED BALANCING has shown, a feast or famine gamble, with the judicial outcome as dependent on who the judge is as on what the law requires. It is possible, though, to think about balancing as a more princi- pled judicial technique, subject to genuine constraints designed to protect significant values like free speech. For example, when a jury engages in the open-ended process of "balancing" conflicting evi- dence in order to find adjudicative fact, we seek to constrain the process in certain settings involving values of constitutional signifi- cance by instructing the fact-finder about the level of certainty that must exist before the balance can tip toward a particular finding.16 Moreover, we expect a trial judge, in deciding whether to allow a case to go to a jury or whether to allow a given verdict to stand, to determine whether a reasonable jury could have attained the re- quired level of certainty in order to assure that a pre-determined degree of error is deflected in favor of significant values.