Distinguishing Magarian’s “Ought” from Ammori’s “Ought”

Cross posted from Marvin Ammori's post at Concurring Opinions.

Timothy Zick and Greg Magarian make some great points in their recent posts. For those unfamiliar with Zick or Magarian, they are two of the most important and insightful thinkers writing about the First Amendment today, evidenced even in these brief posts. I’m going to respond to Greg’s first.

Greg’s piece accuses me of being overly optimistic, and for misinterpreting First Amendment precedent and doing so for (misguided) strategic reasons. He assures us that First Amendment precedent is awful and getting worse. He says I should just admit as much, and that I should argue merely that the precedent “ought” to be better, not that it “is” any good at all. And his examples of the awfulness of doctrine include Citizens United (which I disagree with, but don’t dwell on as it is not so clearly “spatial,” the focus of the paper) and also points to the public forum cases.

We agree in part actually, but disagree in part. Here is where I disagree: I am more likely to celebrate what the doctrine is but not out of misguided strategy but because he thinks doctrine ought to be something different from what I think it ought to be.

A few years go, Greg and I had a discussion over dinner. At that dinner, he said that the courts should impose media access rules directly, based on the First Amendment alone, whether or not a law would create that access rule. I said that generally such access rules should be permissible, but not judicially required. My argument was based partly on institutional competence: judges are not really expert in media policy. Judges and clerks are not at the top of my list for people who should devise spectrum policy or draft the communications regulations. And I think the public should indeed be more involved in making such decisions of designing our speech systems–and other institutions are designed to be more responsive to the public. Greg thinks courts ought to impose access rules and other rules; I think, subject to some limits, courts ought to defer to a range of permissible decisions by legislatures and agencies about such rules. This is why Greg takes me to task for celebrating the shopping mall case: I am less troubled that the courts did not directly impose access for speech but merely permitted governments to enact laws requiring access.

This is why Greg says, “But when the Supreme Court faced the question whether the First Amendment required shopping centers to tolerate expressive activity, the Court said no. So yes, First Amendment law sometimes steps out of the way of voluntary government efforts to advance speech interests over other interests.” To me, that is important. Courts and lawyers often argue (or assume) that the First Amendment flat out forbids government from opening new spaces for speech–particularly digital spaces. That the First Amendment does not forbid such action says something about the First Amendment–just as it not requiring access to shopping malls says something about the Amendment. And, in my opinion (and in that of some others), this permissiveness contradicts the notion that government must not pursue substantive speech-based goals, such as opening speech spaces, when they interfere with the speech market. For Greg, such permissiveness “doesn’t contradict or even complicate the negative liberty paradigm,” but I see it differently.

Finally, we do agree on a few things. The doctrine as it is could be better. I don’t think it’s perfect and it is certainly not getting better, but there are important strains in the doctrine, particularly regarding government discretion to promote diversity of sources, universal access, national and local speech, and simply additional speech spaces. There are far too many cases in our First Amendment tradition that uphold censorship. Far too many cases enable government to silence speech based on content-neutral reasons (something Tim has argued forcefully in his work on public spaces). And I am almost ashamed to engage in any comparative institutional analysis–weighing whether the Supreme Court is a better decision-making institution than the Congress is like asking whether the institution that brought us Bush v. Gore, Citizens United, and Holder v. Humanitarian Project should be trusted more than the institution, Congress, with a 9% approval rating that brought us the debt ceiling fiasco, nonstop gridlock, that recently rushed to pass a censorial copyright bill before being derailed (and had passed immunity for warrantless wiretapping and provided the president with the power to hold US citizens indefinitely without a trial). Still, for reasons mentioned above, regarding the permissibility of opening speech spaces for speech, I am willing to be more optimistic than my friend Greg, though he does provide some excellent reasons for pessimism.

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