The Federalist Approach to the First Amendment
McGinnis, John O., Harvard Journal of Law & Public Policy
In this Essay, I propose that the First Amendment should be applied much more stringently against the federal government than it is against the States. Under this view, the federal government should be subject to severe restrictions under the First Amendment. For instance, it should be prevented from regulating speech on moral grounds. By contrast, states should have substantially more room for regulation to prevent what they regard as moral harms. They should be required to respect only the core of the First Amendment that protects political speech.
One could make legal arguments for this position by attacking the incorporation doctrine, (1) or, if one is taken with the current fad of referring to foreign law, (2) by expanding what European Union law calls the "margin of appreciation." (3) Proponents of the latter concept suggest that subsidiary governments should enjoy greater autonomy in making regulatory decisions. (4)
Instead, however, I want to offer an analysis less focused on text or precedent and more focused on the issue of law and morality. I begin with two simple premises: one about morality's content and another about its epistemology. First, good societies are concerned with protecting both liberty and conditions for human flourishing. (5) In a just society, people should have freedom to act, but legal norms should also help sustain the conditions for the flourishing of family life, friendship, and other social goods. In short, we would like to prevent freedom from turning into what older political philosophers called "license," with the potential to damage other social goods. (6)
The second, epistemological premise is that the line between liberty and license is very hard to draw. (7) The reason for this is that the consequences of freedoms and restrictions in the social realm are difficult to assess. For instance, what are the effects of pornography? Does it encourage violence against women, or, more subtly but as importantly, does it lead to a coarsening of sensibilities that erodes family life, as Phyllis Schlafly has suggested? (8) Or, to the contrary, does it serve as a substitute for violence and perhaps an outlet for satisfying fantasies the pursuit of which in other ways would tend to dissolve families? (9) Or, as Professor Koppelman has asked, can a government police pornography without counterproductively sweeping in material that may help preserve families? (10)
In the case of pornography, I am intuitively skeptical of regulation for reasons not unlike Professor Koppelman's. (11) Even a law professor, however, must admit to himself occasionally that he is fallible in his social and moral intuitions. (12) Because of such all-too-human fallibility, a very desirable feature of constitutional design is a structure that helps us calculate the consequences of our social policies by providing us with more evidence than just our intuitions.
The need for such a mechanism of moral and social discovery seems to be the decisive argument for a federalist approach to the First Amendment. If states have the responsibility for setting social policy, representative legislatures can make hard decisions about the proper line to draw between liberty and license. Moreover, these legislatures, unlike federal judges, are subject to accountability through regular elections. So long as constitutional law protects free movement and the free flow of core political speech among the States, individuals are free to exit if the balance between liberty and license becomes radically off kilter. (13)
Most importantly for the topic of law and morality, federalism creates feedback on a range of possible balances as states experiment with different social policies. Thus, unlike a system in which the Supreme Court enforces some national rule of its own devise, we would be able to make comparisons and learn about consequences by reviewing the actions of many relatively similar jurisdictions. …