First Amendment Problems

As you may know the first amendment to the US Constitution covers free speech. There is an article in my alumni magazine which addresses the ‘First Amendment Problem’. You will know that freedom of speech is, to me as an author, a key issue. The article says that hate speech isn’t the issue; politics isn’t the issue; the problem, says the dean of Yale Law School, is that nobody knows how to think about free speech.

The article says,” Take Sorrell v. IMS Health. In 2007, Vermont passed a law restricting the sale of doctors’ prescriptions to drug companies, which were using the records in their marketing. The drug companies, along with data mining companies sued, saying that the law violated their First Amendment rights. Vermont argued that the law regulated commerce, not speech. The case reached the US Supreme Court, where Justice Anthony Kennedy delivered the majority opinion in 2011. Marketing, he reasoned, consists of speech. Therefore, singling out marketers amounts to government censorship.

“Sorrell wasn’t treated like a blockbuster in the press, but it caused a sensation in the legal world. It’s hard to argue with Kennedy’s declaration that ‘the state cannot engage in content based discrimination to advance its own side of the debate’. But if that’s true for pharmaceutical marketers, what else does it apply to? All kinds of commercial and professional regulations restrict speech based on its content. Under Sorrell, can states still require psychologists to be licensed, considering that therapy is speech? Can a public school teacher be fired for telling students that the earth is flat?”

Robert Post

Robert Post, the dean of Yale Law School and an expert on the First Amendment, has been following Supreme Court rulings on freedom of speech for about 30 years. He has been trying to deduce the criteria that the court uses in making its decisions. For example, the Supreme Court recently ruled that a newspaper couldn’t publish confidential information it had obtained through the discovery process in a civil lawsuit. At first, Post disagreed, but he came to the conclusion that the court had made the right decision. “The legal system, Post realised, isn’t an open forum for public debate; it’s a government institution designed for a specific purpose. For the courts to function, judges have to have the power to regulate speech in a trial setting’”

Post’s insight is that “the amendment applies differently is different contexts or ‘constitutional domains’. The most important domain is what he calls ‘public discourse’, because the goal of free speech is self-government. Only speech relevant to that goal should get the highest level of protection. Because public opinion shapes laws in a democracy, people need a chance to affect it: otherwise they won’t experience self-government.”

An interesting example is that some dentists believe that the mercury contained in some dental fillings can leach into the body, but they are punished by their professional regulators for malpractice if they advise their patients to remove the fillings. The same dentists can, without censure, write op-ed pieces setting out their views. This latter case is ‘public discourse’ and has First Amendment protection, while advice to a patient is not ‘public discourse’.

The question for an author, whose work is clearly ‘public discourse’, is: how far can you go? If I were to write a piece belittling or making fun of the Prophet Muhammad (which I have no reason to consider), that would probably be OK, based on the Charlie Hebdo cartoons and The Satanic Verses. But if I were to write a treatise recommending that the readers go and join ISIL, I might well end up in jail (like Anjem Choudary, the UK hate preacher). What’s the difference, legally? Professor Post doesn’t say, but I guess the legal differences arise from two subjective factors: