In the aftermath of Snyder v. Phelps, the recent First Amendment decision that protects the right of a fringe church to express its hateful message at a funeral, most commentators agree that the Court got it just right. This is speech, hateful as it may be, and it is protected by the First Amendment. According to Nadine Strossen, for example, "[t]he First Amendment appropriately protects expression that both expresses and provokes strong emotion. Even when expression stirs emotions that are overwhelmingly negative, as in the Snyder case, that cannot justify suppressing it." To Patricia Williams, similarly, "the essence of the First Amendment is not about individual hurt feelings: it is about ensuring public debate." This is in fact an easy case.
And it may be so. But something about the case still gnaws at me. Consider first the text of the Amendment, the one that stands at the heart of the case.
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.
The First Amendment clearly stipulates that the government "shall make no law . . . abridging the freedom of speech." The language seems unequivocal enough, and yet we know that the amendment leaves room for the government to regulate speech. Few people take an absolutist position on the First Amendment. This is a question of degree. Enter the Supreme Court and its justices.
The First Amendment is nothing more than an expression of our deeply held commitment to the value of speech. Like any other text that the Supreme Court is asked to interpret, however, the Amendment does not come with ready-made answers for any and all questions that arise in the real world. The Amendment is only what we make of it. It is easy to forget this and to get sanctimonious and even holy about the Amendment and our Constitution in general. In today's "Room for Debate," for example, all of the debates write very abstractly about the Constituion and its limits, as if this is a pre-ordained exercise and the justices are merely reminding us of commitments we made long ago. But this is not so easy, nor is the Amendment -- or any other part of the Constitution -- so straight-forward.
What better example of the limits and complexities of the Amendment than the passage of the Alien and Sedition Act, signed into law by President John Adams in 1798? Surely, an Act that criminalizes the publication of "false, scandalous, and malicious writing" against the government or its officials must run afoul of the Amendment. The better question is, how could the founding generation possibly enact such a law? Or how to explain the Smith Act and the trials of Trotskyists, alleged fascists and members of the Communist party in the United States?
The point is not that the Court got it right in Snyder, or in Dennis, or any other case. Rather, the point is that the Constitution is nothing more than a collection of words, bundled together by our shared commitment to living under its rule. We obey the Constitution because it speaks to us, because we choose to abide by the authority that we have granted it, by the commitments we have made. More crucially, these are commitments that we have assigned to our justices to uncover and then safeguard. And it is this last move that strikes me as odd.
This is why the commentary on Snyder has a funny edge to it. Commentator after commentator writes as if the First Amendment requires one thing or another. But clearly the First Amendment does not require anything. It is the justices who require anything of us. And as Noah Feldman reminded us a few weeks back, we should not forget that these are not monks in a monastery, "innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience." These are, instead, human beings with political connections and deeply held views. We should never lose sight of that fact. For in the end, it is a Constitution they are expounding.