The Fourteenth Amendment: First Amendment II?

The idea that only the Federal government is prohibited from regulating speech worries many people. After all, if Congress is prohibited from banning books, why shouldn't Texas be too? Many State governments today are far larger than our Federal government was in 1795, with (presumably) the same potential for tyranny.

Consequently, civil libertarians have had to look elsewhere in the Constitution for speech protection at the State level. The most obvious source for protection of these speech rights is the Fourteenth Amendment, which contains the following language:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . .

This Amendment has two clauses which people could cite when looking to extend speech protection to the States: the privileges or immunities clause, and the due process clause.

The privileges or immunities clause seems to be the best way to extend this protection, but there are two plausible readings of these terms regarding immunity which makes any automatic extension problematic:

1) A United States citizen is immune from Government regulation of speech (if we read the immunity as referring to only the subject-matter of the right in the First Amendment, not the body to which the subject-matter applies).

2) A United States citizen is immune only from Congressional regulation of speech (if we take the entire Amendment into account).

The terms "privilege" or "immunit[y]" may refer to the right in the abstract (covering all governments), or merely the right to be free from Federal regulation of that right. Now, while the privileges or immunities clause could plausibly be extended to those clauses of the Bill of Rights that, unlike the First Amendment, do not explicitly refer to Congress, it is impossible to see how a Floridian would be protected from Floridian speech regulation when protection from "State of Florida abridgment of speech and press" is most emphatically not a Constitutional "privilege" or "immunit[y]" of those "citizens of the United States" living in Florida; to the contrary, the First Amendment (in concert with the Tenth Amendment) flows power in this regard to Florida when it wishes to exercise it, given that the power was not removed from Florida's legislative power in Section X of Article I of the Constitution.

This is the nit-picking of which massive constitutional re-interpretation is made. However, while it might seem that the privileges or immunities clause would be the most logical clause to contain the text of a transferred First Amendment, the Supreme Court rejected this view in the 19th-century Slaughterhouse Cases. [1] And these cases have never been overruled. For many years thereafter, the Fourteenth Amendment was not seen by the Court as carrying the torch of First Amendment liberties to the State level. As late as 1922, the Court held that "neither the 14th Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about 'freedom of speech' . . .".[2]

But only three years later, however, the Court did an about-face, and began to institute the "trickle-down" theory of constitutional jurisprudence, better known as the incorporation doctrine. Under this view, the language of the First Amendment was to be "incorporated" - added into - the text of the Fourteenth Amendment, as if it were already present there. The Court decided not to use the privileges or immunities clause for this purpose (the more justifiable clause), but rather the more expansive due process clause (which extends protection not just to "citizens", but to "any person"), even though "due process" under the First and Tenth Amendments explicitly allowed for State regulation of speech! In Gitlow v. New York, the Court decided that

For present purposes we may and do assume that freedom of speech and of the press - which are protected by the 1st Amendment from abridgment by Congress - are among the fundamental personal rights and 'liberties' protected by the due process clause of the 14th Amendment from impairment by the states.[3]

Six years after Gitlow, the Court anchored this view, stating in Near v. Minnesota that "It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the 14th Amendment from invasion by state action."[4]

This, of course, was a dramatic change to the meaning of the Constitution. Prior to 1931, the absolutely written First Amendment was defensible from attack from those who would throw out legitimate hypothetical situations to defend their view that the Amendment should be disobeyed. Prior to 1931, defenders of the First Amendment could claim, accurately, that those hypothetical situations could be regulated at the State level, thus successfully meeting these objections.

After 1931, however, this defense of the First Amendment was no longer available. Under this new interpretation, no State or Federal government could regulate speech in any way, shape, or form. Legislative jurisdiction of regulation of speech would then have to be transferred to the City (municipal) level, and at that level, it would be "anything goes" (assuming that the Tenth Amendment flow-chart transferring power to "the people" [not "the cities"] in the absence of State action to be written out of the Constitution - and it would have to be, because if it weren't, no government entity could abridge speech or press in any way, shape or form, a potentially destabilizing state of affairs, as a survey of all the possible hypothetical circumstances would reveal).

It is astonishing to think that such an incredible change to the meaning of our Constitution could come in the space of just nine short years. And the implications of this incorporation strategy from a Constitutional checks and balances/separation of powers viewpoint are monumental. What an extraordinary change in public policy would result from this 1931 re-interpretation! The vast multiplicity of differing municipal laws that would be constitutional in a Tenth-Amendmentless world would mean that publishers and broadcasters would be subject to a vast number of differing laws: while Los Angeles would permit the use of the "seven dirty words" on the front of magazines, San Antonio would not. And Peoria and Madison would have their own views. A different edition of each magazine and book would have to be prepared for each municipality, a cost that simply could not be met, unless speech were "watered-down" to the level of the strictest of the regulations extant.

Perhaps to meet this policy objection, some judges of the Supreme Court held therefore that the incorporation of the First Amendment was not total; rather, in the process of incorporation into the Fourteenth Amendment, the language of the First Amendment itself was to be "watered-down". In Beuharnais v. Illinois, Judge Jackson denied that

[T]he 'liberty' which the Due Process Clause of the Fourteenth Amendment protects against denial by the States is the liberal and identical 'freedom of speech or of the press' which the First Amendment forbids only Congress to abridge . . . the powers of Congress and of the States over this subject are not of the same dimensions, and that because Congress probably could not enact this law it does not follow that the States may not.[5]

Unfortunately, as wise as this view may have been from a policy standpoint, it could not be justified from a Constitutional perspective. After all, the First Amendment is not "watered-down". If the First Amendment was to be incorporated, then the phrase "no law" would have to be incorporated along with it. Otherwise, the Court would have to play the role of a surrogate Constitutional Convention, and decide the scope and manner of the "watering-down" to take place. Given that the Court was not given any such power by the Constitution (and given that this power was already expressly allocated to other bodies), the Court could only do such a thing unconstitutionally. Perhaps for this reason, this view of a "watered-down" Fourteenth Amendment has never (in theory) been accepted by the Court. As Judge Black expressed the supposedly reigning view, "the Fourteenth Amendment applies the First, with all the force it brings to bear against the Federal Government, against the States."[6] As Judge Douglas put it,

There has been debate over the meaning of the First Amendment as applied to the States by reason of the Fourteenth. Some have thought that at the state level the First Amendment was somewhat 'watered down' and did not have the full vigor which it had as applied to the Federal Government. See Roth v. United States, 354 U.S. 476, 502-503 . . . So far, that has been the minority view. See Malloy v. Hogan, 378 U.S. 1, 10 . . .[7]

"So far, [this] has been the minority view". No one can tell what the future holds, of course, and so the meaning of the Fourteenth Amendment, therefore, rests on a foundation of jello. Perhaps this is to be expected, given the ambiguity of the terms ("privileges", "immunities", "due process") in the Fourteenth Amendment, which seem to invite what some refer to as "judicial activism". The First Amendment, not substantively saddled with abstractions of this nature, doesn't labor under this handicap of wishi-washiness.

Alas, there is yet another problem with law. Law is a subset of language, and language must be interpreted and given meaning by everyday people (not just government officials). There are facts on the page, and then there are the interpretations - opinions - people have about the facts. When these opinions can be shown to fail to correspond with the facts, we must call them by another term: mythology.

When mythology is crowned as King, the text abdicates the throne.


Mythology: The Filters Through Which We View the First Amendment

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1 16 Wall. 36 (1873).
2 Prudential Insurance Co. v. Cheek, 259 U.S. 530, 543 (1922).
3 Gitlow v. New York, 268 U.S. 652, 666 (1925). They didn't follow through with this view, though.
4 Near v. Minnesota, 283 U.S. 697, 707 (1931).
5 343 U.S. 250, 288 (1952) (dissent)
6 Smith v. People, 361 U.S 147, 157 (1959).
7 CBS, p. 156.