Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, July 8, 2011

Hadley Arkes Responds

Hadley Arkes has written the following response to my post from earlier this week:

I would like to thank Michael Moreland for his comment on my piece in the Public Discourse on the so-called “video games” case and the opinion written by Justice Scalia.  For over 20 years Justice Scalia has been the one on the Court who has come the closest to speaking for me on the legal issues of the day.  But this is one of those places where friends diverge.  And it becomes even more interesting because the difference is bound up with the differences we have in taking seriously a perspective on natural law, as a perspective that gives us a practical hold on the cases coming before us.  Mike’s comment brings us to that ground, and I would talk his commentary as an occasion to get clearer on that ground for our friends.     

Mike Moreland’s argument resembles one offered by another friend in the law schools, which runs in this way: It is not that we cannot make discriminations based on the content of speech;  it is rather that the First Amendment bars the government from making those kinds of distinctions.  And so, as Mike says,  even  though the government may proscribe certain categories of speech, “the government cannot make a content-based discriminations and carve out some forms of such speech for especially punitive treatment.” Mike goes on further to charge that I misread Scalia when I say that his opinion in the cross-burning case (R.A.V.  v. St Paul) was based on the “presumption that any attempt to judge the content of speech was on its face invalid.”   

In my judgment Mike has it wrong on both counts—both in the understanding of what the First Amendment forbids and in his reading of Scalia in regard to “relativism” and judging the content of speech.  If we look again at Scalia in the cross-burning case, I’m afraid that Mike simply hasn’t read Scalia literally enough.  Scalia says precisely in R.A.V. that “content-based regulations are presumptively invalid” (the position I was attributing to him in the passage Mike quotes above.) Scalia’s opinion is pervaded with the insistence on “content” as a critical ingredient that cannot rightly be judged. (The ordinance in St. Paul, he said, was “’overbroad’ in the sense of restricting more speech than the Constitution permits, even in its application to him, because it is content based.”  The City Council had sought to ban certain expression because of its “ideological content.” And making the same point in another way, the ordinance “prohibit[ed] otherwise permitted speech solely on the basis of the subjects the speech addresses.”)

As Mike Moreland notes,  Scalia has indeed held that certain classes of speech can indeed be proscribed—most notably “fighting words,” libel and obscenity.  But he has insisted that the law can make no discriminations based on the “viewpoints” contained in those classes of speech and expression.   The law may restrict libels, but not solely the libels directed at the government.  But what is concealed here is that Scalia has produced a critical narrowing of the kind of speech that ordinary people, as well as governments, had no trouble recognizing in the past as assaulting speech.  And as with ordinary assaults, those acts of speech could be judged wrong in themselves even if they produced no material hurt.   The burning of crosses stands here as a notable example.  The claim that the government is barred by the First Amendment from making these judgments on content is belied—must be belied—by the hard fact that it is impossible for ordinary people, or the government, to get by every day without making those kinds of discriminations based on the content of the speech.

The explanation unfolds here in two levels.   Scalia’s colleagues revealed the first part as they sought to dissent from his opinion in the cross-burning case.  They insisted that the law must be able to mark off classes of speech even apart from fighting words and obscenity:  The law may bar speech threatening a President, speech near a polling place on election day, and it may bar the advertising of cigarettes but not other products.   Justice White caught the deeper problem here in a striking way years earlier in Widmar v. Vincent (1982), a case involving Evangelicals on the campus of a State university.  White had been part of the majority in Cohen v. California in 1971 when Justice Harlan proclaimed the doctrine of relativism:  that “one man’s lyric is another’s vulgarity.”  But now White awoke from his slumber:  The Court had produced a considerable body of work in forming a jurisprudence on the Establishment of religion.   And yet that work depended on the assumption that the Court could distinguish “religious” speech and devotions from other kinds of speech-acts.  The epiphany then struck:  As White realized, “as a speech act, apart from its content, a prayer is indistinguishable from a biology lesson.”  And in the same way,  "’Sunday Mass’  … would be -- as a matter of constitutional principle -- indistinguishable from a class entitled ‘The History of the Catholic Church.’"

There is no way then to say that ordinary persons may be free to make discriminations based on the content of speech, while the government may not.  Scalia himself recognized that point and he had apt retorts to White and his dissenting colleagues:  The law may indeed bar campaigning near a polling place, but not for one party only.  It may bar threats to a President, but not presidents of one party only.   Scalia’s argument then was that the law can proscribe certain classes of speech, but within those classes it may make no discrimination on “viewpoint.”   But to filter out the viewpoints is to filter out the moral understandings or passions that move people to their acts.  And in backing away from judging those moral understandings, we back our way precisely into relativism.  A gentle and disguised relativism, but relativism nevertheless, relativism at the core. 

John Marshall famously said that anyone who publishes a libel in this country could be sued or indicted--subject to criminal prosecution or a civil suit for damages.  It used to be understood that speech could be a vehicle of inflicting harms, along with every other act we could perform.  When it does, the law would have to judge whether the harm was inflicted with or without justification, as in any other case.  It would be moved then to judge whether the speaker was animated by a wrongful or innocent end.   One could shock a person by calling late at night with news of a death in the family, and one could shock by making obscene calls.  The law has not been witless in the capacity to judge between the two.   We can also tell the difference between the group that offends people by parading through the streets with flags of the Knights of Columbus and the group that marches through Skokie, Illinois with swastikas on their arms and Nazi banners.   In either case people may be upset.  But there is no way for the law to avoid the judgment on whether people are upset rightly or wrongly, whether they are justified or unjustified in the outrage they are registering. We can cast that judgment precisely because we can recognize, as deeply unjustified, the ends of genocide that animate the Nazis.

The telling mark for Scalia in the cross-burning case came with passages of this kind:  that the City Council was punishing one class of speech because it conveyed a “disfavored message.”  Or: “Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics.”   [Italics added.]  It has been one of the telling marks of positivism, and the rejection of moral truths, to insist that moral terms are merely emotive, with no cognitive content.   In that perspective,  to say that something is “right” or “wrong” is to say merely that we “like” it or “dislike” it.   These were the signature lines of Justice Black inveighing against natural law:   His colleagues might have assembled reasons to explain why they found fault with a law, but for Black it simply meant that they didn’t “like” the law.  They were merely acting on their prejudices.  I fear that our friend Justice Scalia has made the same translation, perhaps borne from the same aversion to anything claiming “moral judgment,” so redolent of the natural law, ever suspect, ever to be avoided.   What is skipped over decisively in this view is that the burning of crosses may be “disfavored” precisely because it wrong and unjustified. 

And yet, some of my friends affect not to see the moral relativism as work in this receding from casting judgments on burning crosses and assaulting speech.   But there is a trick of the eye here:   They do not see the relativism that is expressed so tellingly in the passages I quoted, and perhaps they don’t see it precisely because it has been absorbed now by our most appealing conservative judges. And as we come to absorb their teaching, we absorb also their stylish relativism as our own.

Hadley Arkes



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I know that Prof. Arkes is dealing with doctrine and principle, not practical effects. But I fear the practical effects of his approach, given the changes underway in America. Prof. Arkes says that the law can distinguish between marching Nazis and marching Knights of Columbus, even if people are "upset" at both, because it's reasonable to be upset at Nazis but not at the K of C.

I would rather tolerate the Nazi marches, and have a Scalia regime of not judging content, considering the alternative. If we re-open the door to judgment based on content, I am not so confident that our political and legal system would favor the K of C. Given the attacks on the Church as bigoted and patriarchal, especially from legal elites, I can easily see a future where the K of C would be censored along with the Nazis, while the more acceptable gay pride parades march on.

We do not have the same shared premises as generations ago; opposing premises are ascendant. Thus, we are better off supporting a regime that tolerates "non-mainstream" speech, even that called "evil speech," because that system offers the best hope for us as we become that barely-tolerated minority. Even that won't be enough, as others will adjust that doctrine as needed to attack the Church. But it offers more of a fighting chance.

Posted by: worried Catholic | Jul 8, 2011 4:18:07 PM

Hadley persists in asserting that Justice Scalia, et al., "affect not to see" moral relativism in their position -- which could be mistaken, of course, as a matter of constitutional law -- that governments in the United States are disabled, by the First Amendment, from making "content-based" and "viewpoint-based" distinctions (outside a few historically rooted "unprotected" categories) when regulating speech. But, Justice Scalia's position is not that we cannot or should not distinguish between, say, violent movies and publishing political opinions; it is that -- for better or worse -- *our* positive law disables *governments* from doing so. Again, it could be, again, (as Steve Shiffrin contends) that this position is unsound as a matter of constitutional law. It could be that our positive law would be much improved if it were re-made to better align with what (Hadley and I would agree is the) moral reality. But, although Hadley clearly thinks otherwise, it is not the case that Scalia's position involves "the rejection of moral truths" or presumes that "moral terms are merely emotive, with no cognitive content." It is merely a claim (yet again, one that might be incorrect) about the judicially enforceable content of a particular provision of positive law.


Posted by: Rick Garnett | Jul 14, 2011 8:18:20 AM