BOB GARFIELD:  This is On the Media. I’m Bob Garfield.

BROOKE GLADSTONE:  And I'm Brooke Gladstone.

[MUSIC UP & UNDER]

In an abnormal age, there are different rules, different kinds of decorum, different kinds of valor.

[CLIP]:

SEN. CHUCK GRASSLEY:  …on the nomination of Judge --

SEN. KAMALA HARRIS:  Mr. Chairman?

SEN. GRASSLEY:  -- Brett Kavanaugh --

SEN. HARRIS:  Mr. Chairman?

SEN. GRASSLEY:  -- to serve as associate justice of the Supreme Court of the United States.

[BOTH SPEAK/OVERLAP]

SEN. HARRIS:  Mr. Chairman, I'd like to be recognized for a question before we proceed. Mr. Chairman, I'd like to be recognized to ask a question before we proceed.

[END CLIP]

BROOKE GLADSTONE:  Decorum, behavior in keeping with good taste. Synonyms: Propriety, seemliness, decency. This week, the Democrats and the demonstrators at the hearings for Supreme Court Nominee Brett Kavanaugh were decried for their lack of decorum.

[FEMALE PROTESTORS YELLING/INDISTINCT]

But, as Dahlia Lithwick noted in Slate, the more furious the calls for decorum and rules and politeness, the more enraged the protesters in the room became.

[CLIP]:

SEN. JOHN CORNYN:  Senator, the White House has suggested that we handle this hearing like a court of law but I would suggest that if this were a court of law that virtually every side -- every member of the -- on the dias on that side would be held in contempt of court.

MAN:  Oh, come on.

SEN. CORNYN:  Because this whole process --

SEN. AMY KLOBUCHAR:  You have a nominee with excellent credentials with his family behind him. You have the camera there, you have the senators questioning. But this isn’t normal. It’s not normal because --

SEN. CORY BOOKER:  I knowingly violated the rules that were put forth, and I’m told that the Committee confidential rules have no incon, con -- consequences.

BROOKE GLADSTONE:  On Thursday, Senator Cory Booker announced that he was breaking a Senate rule by releasing one of the confidential documents pertaining to Kavanaugh's views on racial profiling, a move that could get him expelled from the Senate. Senator Mazie Hirono, Democrat from Hawaii, and Dick Durbin of Illinois followed suit.

SEN. MAZIE HIRONO:  I am releasing that document to the press and I would defy anyone reading this document to be able to conclude that this should be deemed confidential in any, in any way, shape or form.

SEN. DICK DURBIN:  I concur with what you are doing and let’s jump into this pit together. And I hope my other colleagues will join me.

BROOKE GLADSTONE:  Prompting this from Cory Booker.

SEN. BOOKER:  So this is about the closest I’ll probably ever have in my life to an “I am Spartacus” moment.

BROOKE GLADSTONE:  On Friday, it turned out that the document was not, in fact, confidential. Seems Booker didn't risk anything. Did he know? Senate Judiciary Committee Chairman Charles Grassley, earlier this week.

SEN. GRASSLEY:  Senator Booker, I think that -- but you spoke about my decency and my --

[FEMALE PROTESTOR SHOUTING]

-- and -- you spoke about my decency and integrity and I think you’re take -- you are taking advantage of my decency and integrity. So --

[PROTESTOR CONTINUES IN BACKGROUND][END CLIP]

BROOKE GLADSTONE:  When the Committee chairman wields the rules to make it virtually impossible for its Democratic members to apply due diligence to an urgent decision or even adjourn to prepare, which they actually had the votes for, who is decent? What’s integrity? When hiding documents or placidly lying under oath, as seen by half the Committee as unremarkable, decorum becomes, frankly, indecent. Anonymity, whether when painting oneself as an unsung hero in a Times op-ed or whispering misgivings to a reporter in a Capitol Hill cloakroom is unseemly, at the moment, virtue resides largely in risking something, a vote, a donor, a job for the principle of justice and, in the case of the Kavanaugh hearing, the future of justice too.  

 [MUSIC UP & UNDER]

Geoffrey Stone is a professor at the University of Chicago Law School and one of the country’s foremost scholars on the First Amendment. He is the editor, with Lee Bollinger, of a forthcoming collection of essays called The Free Speech Century. We thought, given all the attacks on the press and on all sorts of speech, this is a prime time to take a deeper-than-usual dive into the First Amendment. Geoff, welcome back to On the Media.

GEOFFREY STONE:  Always a pleasure. I’m delighted to be here.

BROOKE GLADSTONE:  Because the First Amendment comes first in our Bill of Rights, we think of it as being part of our national identity and we assume that it always was. But, actually, the Founding Fathers didn't write much about it, right? There's not a lot of clarity about what it is.

GEOFFREY STONE:  No, I mean, basically saying that Congress shall make no law abridging the freedom of speech or of the press is pretty vague. The Framers had never lived in a world in which there was a legal guarantee of freedom of speech or press, so they didn't have a clear sense of what that actually meant, what the limitations were and what the reach of the provisions would actually be.

BROOKE GLADSTONE:  They were revolutionaries. They also put in the First Amendment the right to peaceably assemble and to petition the government for a redress of grievances --

GEOFFREY STONE:  Correct.

BROOKE GLADSTONE:  -- stuff that they would have wanted to do when they were subject to the Crown. And yet, it was, what, maybe a dozen years before you couldn't assemble and you couldn't petition the government [LAUGHS] for a redress of grievances, and then you couldn’t even make fun of the president.

GEOFFREY STONE:  Right. In 1798, Congress enacted the Sedition Act signed by John Adams and that legislation essentially made it a crime for any person to make any statement or publish any material that denigrated the president, the Congress or the government of the United States. And its purpose was pretty clear. It was designed to suppress the Republican Party, the Jeffersonians who were critics of the Adams administration.

And this was at a time in which there was some fear that the United States would wind up going to war with France but the legislation, the Sedition Act was used only against critics of the Adams administration and of John Adams, himself. People like Jefferson and Madison were harsh critics of it. The constitutionality of the legislation never got to the Supreme Court of the United States but the lower courts that reviewed it found that it was consistent with the First Amendment because their argument was that, well, yes, there’s a freedom of speech and freedom of the press but it doesn’t include the freedom to engage in seditious utterances that bring the government of United States or its officials into disrepute --

[BROOKE LAUGHS]

-- because in a self-governing society, there’s a need for the people to hold those individuals who are in charge with a degree of respect and to trust them and if somebody’s speech undermines that trust and respect, then that itself undermines democracy. And so, to preserve that we need to essentially silence critics of the government.

BROOKE GLADSTONE:  That’s about as circular as it gets.

GEOFFREY STONE:  Yes, it is. The Sedition Act was basically condemned in the court of history. It expired of its own force with the 1801 election when Jefferson defeated Adams, and the fines that people had to pay were repaid to them and people who were in jail were released. It gives us a sense of how much they didn't really have a clear sense of what that promise would actually mean.

BROOKE GLADSTONE:  So, from the very beginning, we have a government that is confused about how to apply [LAUGHS] the First Amendment. And you wrote that the Supreme Court gradually came to acknowledge three phenomena. One of them was the chilling effect.

GEOFFREY STONE:  So basically, when individuals speak, someone signs a petition or they march in a parade or they go in a public park and they give a talk, they know when they do these things that whether they do them or not individually is not likely to change the world. And, therefore, if they know there is a risk that they will go to jail because they do these things, then each individual says to herself, I don't know if it’s worth it, right? Is it really worth it for me to sign this petition if I could wind up going to jail for three years for doing it? And so, what the Court came to realize is that individuals are easily deterred from exercising their free speech rights but if everybody is deterred, then you wind up completely distorting public discourse.

And the second insight that they came to was what I’ve called the pretext effect, that government will never say, we want to restrict speech because we don't like the ideas being put forth or because the speakers are criticizing us. Government officials know those are not acceptable justifications for restricting speech. So one of the things the Court figured out is that the justifications that the government offers are often dishonest and, therefore, the courts need to be skeptical about the arguments that the government puts forth as a reason for restricting speech.

BROOKE GLADSTONE:  And the pretext effect leads directly to the crisis effect, I think. You wrote, “In times of crisis, real or imagined, citizens and government officials tend to panic, to grow desperately intolerant, to rush headlong to suppress speech that they could demonize as dangerous, subversive, disloyal or unpatriotic.” And that brings us to Schenck v. US and the Espionage Act of 1917.

GEOFFREY STONE:  So Schenck was the first Supreme Court decision on the meaning of the First Amendment. Schenck was prosecuted under the Espionage Act of 1917, which was interpreted to make it criminal to essentially criticize the war or the draft because such speech might cause others to refuse induction into the military or to desert or to engage in espionage or sabotage and be turned against the war. Schenck was prosecuted for distributing leaflets that criticized the war and the draft. The case came to the Supreme Court of the United States and the Court, in an opinion by Justice Oliver Wendell Holmes, unanimously upheld the conviction and concludes that if speech has the tendency to cause others to engage in unlawful or undesirable conduct, then they can be punished for doing so.

BROOKE GLADSTONE:  Unlawful and undesirable.

GEOFFREY STONE:  Right, so it’s a very broad, open-ended notion. And Holmes, in his opinion, recognized that this was in time of war, that that was a relevant factor in deciding that the speech could be restricted. So the Court, in the Spring of 1919, unanimously upholds convictions of individuals who were prosecuted for violating the Espionage Act, cases basically like Schenck.

And then the following Fall the Supreme Court hears some additional cases and suddenly Holmes writes this brilliant dissenting opinion in the Abrams case and says that speech cannot be restricted, unless it creates a clear and present danger of serious harm, certainly not the case here with a bunch of what he calls puny anonymities --

[BROOKE LAUGHS]

-- throwing a bunch of leaflets, some in Yiddish, some in English, from a rooftop in the tenements on the Lower East Side of New York. That, he says, does not create a clear and present danger to the ability of the government to fight the war successfully. And Louis Brandeis joins Holmes in that opinion. And, at that point, the free speech tradition divides sharply. The majority of the Court continues to adhere to the Schenck approach, which basically says speech can be punished if it might have negative consequences. And Holmes and Brandeis continue to file a series of separate dissenting opinions in which they, in ever more powerful and articulate ways, explain why free speech is critical to a democracy, why it's important to the individual citizen and why it must be protected, unless it creates and is intended to create a clear and present danger of great harm. In 1969, the Warren Court decided the Brandenburg v. Ohio case, finally fully embracing the Holmes-Brandeis approach. Brandenburg involved a speech, ironically, by a member of the Ku Klux Klan --

BROOKE GLADSTONE:  Hm.

GEOFFREY STONE:  -- in which he called for violence directed against those who were attempting to desegregate. His conviction was affirmed by all the lower courts. And it gets to the Supreme Court and the Supreme Court unanimously says no, speech, even that expressly calls for unlawful conduct cannot be punished, unless it creates a clear and present danger of grave harm.

BROOKE GLADSTONE:  Mm-hmm.

GEOFFREY STONE:  Basically that's been the approach the Supreme Court has taken for the past 50 years.

BROOKE GLADSTONE:  Reading from the bench, Justice Elena Kagan said that the five conservative justices were, quote, “turning the First Amendment into a sword and using it against workaday economic and regulatory policy.” How do you explain the switch in the Court, of liberal and conservative justices seeming to trade places on the First Amendment?

GEOFFREY STONE:  I wouldn’t overstate that across the boards. The more conservative justices have tended to be more aggressive in their protection of free speech on certain issues, like campaign finance being the most dramatic of the issues but also in the Janus case where it's always been the case that public-sector unions were allowed to collect dues from individuals not members of the union because the unions were engaging in collective bargaining --

BROOKE GLADSTONE:  Mm-hmm.

GEOFFREY STONE:  -- which benefited all of the employees. And suddenly, in a five-four decision last term the five more conservative justices hold that's unconstitutional. They claim to be either advocates of judicial restraint or advocates of something called “originalism.”

BROOKE GLADSTONE:  Mm-hmm.

GEOFFREY STONE:  But when they vote the way they do in cases like Citizens United, for example, those votes cannot possibly be squared with either anything related to judicial restraint or anything related to originalism. That’s judicial activism run amok.

BROOKE GLADSTONE:  If Brett Kavanaugh is confirmed, what does an entirely right-leaning Court mean for the First Amendment?

GEOFFREY STONE:  Well, nothing good but I think they've accomplished much of what they would want to accomplish already. I would hope they wouldn’t go so far as to start upholding laws that restricted liberal points of view. I don't think this five would do that. But basically they will continue to unleash campaign finance expenditures. I think in the realm of commercial advertising and commercial speech and corporate speech, they’ll continue to give that greater power. But I think they’ve actually been pretty expansive in their protection of the First Amendment, with a few exceptions. So I, I don't think that's gonna be the big problem.

Now, what they’ll do, if you find the Trump administration or others beginning to restrict free speech by liberals, I don't know what they’ll do. I have no idea what they’ll do. But I don’t trust them, frankly. And I think they’ve, they’ve earned the lack of trust, not just on campaign finance but on guns and on affirmative action and --

BROOKE GLADSTONE:  Right.

GEOFFREY STONE:  -- and a whole series of other issues where they’ve just allowed their political views to dominate their judicial philosophies.

BROOKE GLADSTONE:  Geoff, thank you very much.

GEOFFREY STONE:  Thanks for having me. It's always a pleasure.

[MUSIC UP & UNDER]

BROOKE GLADSTONE:  That was Geoffrey Stone, coeditor of the anthology called The Free Speech Century due out in November. Among its essays is “Rethinking the Myth of the First Amendment” by Chicago law professor Laura Weinrib. As we heard, in its first century and beyond, the Amendment was a weak and feckless thing. In fact, it didn’t even apply to the States until 1925. But, by the ‘20s, a new concept of the First Amendment was emerging, composed of two parts, first, that it embraced all kinds of expression, however controversial, and second, that the Court had the power to invalidate laws. Those, said Weinrib, were new ideas. Before World War I, it was pretty easy to suppress speech. And as for judicial review.

LAURA WEINRIB:  Prior to World War I, the courts were not in the business of invalidating legislation on First Amendment grounds.

BROOKE GLADSTONE:  How often had the Court done that before the ‘20s?

LAURA WEINRIB:  Essentially, never.

[BROOKE LAUGHING]

So the, the idea that a court would take a clear articulation of legislative policy and declare it to be in violation with the First Amendment of the United States at the federal level, that was unprecedented.

BROOKE GLADSTONE:  There’s another big myth, says Weinrib, the idea that our supercharged court-protected First Amendment was born out of reaction to the suppression of dissent during World War I, that it was crushed so egregiously that the custom of deferring to legislatures to police the boundaries of free speech needed to be reconsidered. But it wasn't solely antiwar dissent that birthed the modern First Amendment. In fact, it wasn't even mostly that. It was the labor movement, seeking free-speech rights of a particular kind.

LAURA WEINRIB:  The rights to picket, to boycott, to strike. And they believed that economic change was coming. They wanted to forestall violent revolution of the kind that had happened in Russia and they thought the way to achieve that was to protect the right of workers to engage in labor activity. So, for example, the, the famous Abrams case in which Justice Holmes issued his stirring dissent that gave birth to the idea of the marketplace of ideas, that case was actually about advocacy of a general strike, about disruption of production. But what I’m emphasizing is that that's only a small part of the story, that Holmes and Brandeis absolutely issued their stirring dissents in the cases, in the Abrams case and the cases that followed, but they weren't persuasive. We have this idea that Holmes and Brandeis, their views were so compelling, their theories so clearly correct that the bar, advocates and judges, including their fellow justices, came on board. And that's simply not the way the story played out.

BROOKE GLADSTONE:  The labor movement strategically lassoed the First Amendment and drove it into court, which was ironic because while the left was divided on many things, it was united on one thing, contempt bordering on hatred for the High Court. This was, after all, the so-called “Lochner era,” named for a landmark High Court decision in 1905 that ruled laws limiting work hours were unconstitutional. The Court, likewise, struck down minimum wage laws, child labor laws, Workmen's Compensation. Labor found no justice in court.
But enter a new group, the American Civil Liberties Union, child of the National Civil Liberties Bureau, defender of the rights of radicals during the war.

LAURA WEINRIB:  The ACLU framed itself as, frankly, a partisan of labor. They were deeply skeptical of the courts but they also understood that trials and judicial decisions were good for something, publicity. In courtroom testimony, defendants could talk about coercive employer practices. They could talk about violence against peaceful strikers. And they could get press coverage of those issues. But they could also do what they called show up the hypocrisy of the courts. Whereas the established bar often claimed that the courts upheld constitutional principles and constitutional rights, the ACLU wanted to show that that was a one-sided commitment, that really what the court was doing was upholding property rights at the expense of what labor advocates called personal rights, rights like freedom of speech.

BROOKE GLADSTONE:  Now, here’s my favorite part of Weinrib’s essay: “The ACLU’s explicit strategy was to promote propaganda by defeat in court,” in other words, by losing. But that approach didn't seem to be working and, surprise, surprise, defendants didn't like it. So the expanding cadre of lawyers in the ACLU decided to do less speechifying and more actual litigation. And a surprising thing happened.

LAURA WEINRIB:  They won.

[BROOKE LAUGHS]

They weren't expecting it. They had written off the courts as tools of capital. And yet, by using strategies that emphasized factual insufficiency or procedural irregularities, they found that the courts actually were receptive to incremental change or to decisions that would let particular defendants off the hook, even without changing doctrine.

At the same time, in order to recruit members and donors who were not radicals, they became involved in a number of causes that had nothing to do with labor. The most famous example is the so-called “Scopes monkey trial.”

BROOKE GLADSTONE:  Mm-hmm.

LAURA WEINRIB:  And the idea was by pursuing areas like academic freedom, also sex education, issues that were starting to drum up a fair amount of support by both progressives and conservatives, they could lead a cause against what they called “enforced conformity” that would spill over then into other areas of free speech.

BROOKE GLADSTONE:  It was such a fiendishly clever strategy that their longstanding foes in the business community, repped by the American Bar Association, jumped on the bandwagon. The ACLU defended radicals, which in every case their durable business foes opposed. Now suddenly, the ABA supported the free-speech rights of radicals, too? Why?

Because they were in the midst of the Great Depression and the New Deal. Pro-business policies were unpopular and the Court that had reliably rejected pro-labor laws was under serious pressure from the Roosevelt administration, which sought to pack it with additional New Deal-friendly justices. The business community feared that America could find itself, like Europe, awash in laws to redistribute wealth. The prime remedy was to preserve judicial review.

LAURA WEINRIB:  Frankly, that's what a lot of New Dealers thought too, and that’s why New Dealers, for the most part, supported President Roosevelt's court-packing plan, supported court-curbing legislation of the kind I suggested. They just didn't want judicial review to survive. And in order to defend judicial review, what the bar did is they launched a series of radio programs and other promotional materials claiming that the cases that they had opposed in earlier years as undermining public security were actually the core activity of the courts, that the courts were important precisely because they defended the rights of dissenters.

BROOKE GLADSTONE:  So the courts were right, said the American Bar Association, in opposing the American Bar Association’s former position with regard to dissenters.

LAURA WEINRIB:  That's right. They didn't concede that they had, in fact, been on the other side of these cases but they suggested that this was the core activity that courts should be engaging in.

Now, in 1937, the Supreme Court did something unexpected and there has been a huge debate in the historical literature on what truly motivated what's known as the “switch in time that saved nine.”

 [BROOKE LAUGHS]

But the idea is that the court-packing plan lost its steam after the Court upheld first a minimum wage law and then the National Labor Relations Act.

BROOKE GLADSTONE:  Which said that organizing was a fundamental right.

LAURA WEINRIB:  That's right, and that's a right that the Supreme Court, itself, in a decision by Chief Justice Hughes, recognized as crucial.

BROOKE GLADSTONE:  So arguably, this strategy turned out to be a bad bargain for the American Bar Association but it turned out to be not such a great deal for labor, either. It seemed to be at first. In 1940, labor won big in Thornhill v. Alabama when the Court rules that picketing about work was protected speech.

LAURA WEINRIB:  In Thornhill, the Court said the right to engage in labor picketing is not only protected under the First Amendment, it's the core activity the First Amendment was meant to protect. What could be more fundamental than talking about the conditions of work? And the ACLU felt that its strategy was vindicated, its hardline version of free speech, which encompassed a lot of activity that looked more economic than expressive, things like picketing and striking would pay off. What happened was the Court realized very quickly that they had gone too far. Scholars began to argue that people should be able to have a say in regulating labor activity and the courts quickly rolled back their decisions defending labor activity on First Amendment grounds and within a decade and a half they had retreated fully from that position.

BROOKE GLADSTONE:  To be clear, free-speech rights continued to expand but labor was carved out of it. Even the ACLU saw its priorities shift, not that there weren't other issues just as worthy. In 1944, the ACLU stated that race relations occupied the first place in the struggle for civil liberties, followed closely by religious freedom and immigration and women's rights.

LAURA WEINRIB:  Labor essentially fell off. As ACLU cofounder Roger Baldwin put it, the ACLU had no “isms” to serve. It wasn't advocating labor rights. It wasn't advocating business rights. It was simply committed to the Bill of Rights.

BROOKE GLADSTONE:  Which is interesting because that started out as a strategy and later it became its animating principle.

LAURA WEINRIB:  I think it was deeply internalized.

BROOKE GLADSTONE:  In many ways, isn't labor back where it started? You talk about a development that scholars have poignantly dubbed the “Lochnerization of the First Amendment”?

LAURA WEINRIB:  I think we're back in a situation where the enforcement of First Amendment rights looks lopsided. The very First Amendment that labor advocates pushed for as a way to protect labor activity no longer protects that activity and, instead, it protects the right of nonmembers to decline to contribute to union dues.

By the same token, the First Amendment is being used in cases involving campaign finance and more recent cases challenging regulation of businesses on First Amendment ground. The Court is using constitutional rights in a way that's very similar to its indication of constitutional rights during the Lochner era. It’s simply that the doctrinal form of that analysis has shifted. So instead of property rights, the courts are preventing regulation of this activity on the basis of free speech.

BROOKE GLADSTONE:  So why did you decide to tell this story?

LAURA WEINRIB:  The terms of the debate have been framed in a way that anybody who questions where to draw the line or who the right institution is to draw the line, anybody who pushes on the boundary is cast as an opponent of the First Amendment.

BROOKE GLADSTONE:  Mm-hmm.

LAURA WEINRIB:  What I hope the history will do is demonstrate that there are lots of ways to do the First Amendment, that within our American constitutional tradition there have been lots of ways that have been tried, some of which have stuck around for longer than others. I think they've stuck around, in part, because they've served a broad constellation of

interest --

BROOKE GLADSTONE:  Mm-hmm.

LAURA WEINRIB:  -- for long periods of time but there's always been contestation.

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The question is what free speech should look like. Understanding the history can help us have a more nuanced debate about that, without it being for and against.

BROOKE GLADSTONE:  Chicago law professor Laura Weinrib is the author of the essay “Rethinking the Myth of the Modern First Amendment,” which appears in the anthology, The Free Speech Century, due out in November.

BOB GARFIELD:  Coming up, the biggest threat to speech may be too much speech.