The Right’s First Amendment
The Politics of Free Speech & the Return of Conservative Libertarianism
Wayne Batchis

BUY THIS BOOK


Introduction

The Right’s First Amendment

In 1990 National Review published a piece by Robert Bork critically reviewing the Supreme Court’s previous term. Bork’s essay could not have better captured the transitional conservative tenor of the times. He positioned himself not in a manner that was consistently for or against broad free-speech rights, but instead as one who was willing to come to very different conclusions depending upon the issue at stake. He admonished the Court for its decision in United States v. Eichman, which, consistent with Texas v. Johnson, struck down a federal law protecting the American flag. According to Bork, the Court’s majority failed to see that “no idea was being suppressed but merely a particularly offensive mode of expression.”1 Yet, at the same time that he brusquely dismissed the possibility that publicly desecrating a flag should constitute a protected form of expression, he rushed to condemn a Michigan campaign finance law that the Court upheld in Austin v. Michigan Chamber of Commerce, a law that to Bork “barred political speech, speech that is at the center of First Amendment protection.”2

On the question of flag burning, Bork was playing the part of the moralistic conservative; on the issue of corporate speech, he cast himself as a libertarian conservative. On one hand, Bork told us that it should be permissible to prevent a “mode of expression” to make a political statement if it is “particularly offensive.”3 On the other hand, Bork asserted that legally prohibiting corporations from exerting influence over political campaigns was “flatly inconsistent with the idea, central to the First Amendment, that the right to speak is especially important when ideas expressed are not shared, or are even hated, by the majority.”4 In the campaign finance context, Bork bemoaned the Austin Court’s holding “that government may act so that disfavored political views are disadvantaged in public debate,” yet, just one page prior, he admonished the Court for doing the precise opposite: striking down a law that penalized a particular method (burning an American flag) of expressing a certain disfavored political view. Yes, different facts garner different results. However, as we shall see, this split personality on display in the pages of National Review was more than just an example of a case-by-case fact-intensive analysis by a respected conservative jurist and constitutional scholar: It was emblematic of a much broader splintering among political conservatives on First Amendment matters.

This fracture would ultimately, and largely, heal—but the relationship between political conservatism and free-speech values would not look the same. Public polling on subversive advocacy confirms the shift in conservative sentiment. In the 1970s, only 51.8 percent of self-identified conservatives would have allowed a speech by a person who advocated doing away with elections and letting the military run the country.5 The number jumped to 70.3 percent in the years from 2010 to 2014.6 William F. Buckley and other moralistic conservatives of the Red Scare and Cold War era, deeply suspicious of free-speech proponents, would be replaced by a new generation of conservative libertarians who would harken back on First Amendment matters to a long-forgotten period of conservatism. In turn, moralistic conservatives would themselves come to appreciate the libertarian position on free expression, in many cases adopting it as their own. From the 1970s to 2010–2014, conservatives who would allow speech against churches and religion would jump from 62.6 to 77.2 percent.7

The Conservative and Liberal Justices: A Brief First Amendment Snapshot

Let’s return to the 1970s, a time in the not-so-distant past when Supreme Court decisions helped cement the perception that jurisprudential conservatives largely rejected a broad reading of the First Amendment. In 1971, ideological dichotomy in First Amendment thinking was attested to by Robert Bork in a controversial Indiana Law Journal article that would come back to haunt him as a failed nominee to the U.S. Supreme Court sixteen years later. In Miller v. California and Paris Adult Theatre v. Slaton—landmark companion obscenity cases argued just a year after Bork penned his article—the Court split right down the middle, with the ideological divide much in evidence.

Richard Nixon had been elected president just a few years before these cases were considered. His election occurred at what would prove to be the final days of the liberal Warren Court, and it was readily apparent that this new conservative president saw it as his mission to alter the ideological tenor of the Court. As Nixon insider John Dean observed, “More than any other president since Franklin D. Roosevelt, [Nixon] worked hard to mold the Court to his personal liking . . . making conservative appointments.”8 Perhaps unsurprisingly, four of the five justices who comprised the majority opinion upholding the obscenity exception to the First Amendment were recent Nixon appointees: Warren Burger, William Rehnquist, Lewis Powell, and Harry Blackman. Three of the four dissenters were vestigial stalwarts from the liberal Warren Court: William Douglas, Thurgood Marshall, and William Brennan.

Granted, the majority opinion in Miller by no means went as far in circumscribing First Amendment protection as Robert Bork proposed in his 1971 article. Unlike Bork’s view, which would have narrowly limited protected speech to overtly political expression, the majority in Miller v. California was clear that the First Amendment protected “serious literary, artistic” and “scientific expression.”9 Why the contrast between Bork’s position and the view of the conservative wing of the Court? Perhaps this was simply a difference in degree of conservatism rather than kind. The Court, as a consequence of the Nixon appointments, was clearly moving in a rightward direction. However, jurisprudential philosophy—like ideology—operates on a continuum rather than being strictly dichotomous. So, one way of understanding the Court’s obscenity decisions of the early 1970s is that the Court was emerging as conservative on certain First Amendment matters—yet it was still quite a bit less conservative than the philosophy articulated by Robert Bork.

However, this assessment may not tell the whole story. It is also important to note that Bork, in his capacity as an academic writing a scholarly article, had much greater latitude in outlining his ideal vision of legal doctrine. This is also true of a judge writing outside of the context of a formal case or controversy. Judges qua judges, at least in theory, are constrained by precedent. Thus, even a legal decision that lays out a new doctrinal test—as the Court did in Miller—will be informed by previous case law. By the time of Miller and Paris Adult Theatre, the Court’s “obscenity” jurisprudence, as a categorical exception to First Amendment protection, was considerably confused.10 These two companion cases offered a needed opportunity to clarify and perhaps even reformulate the Court’s preexisting doctrine on the subject.11 The Court had not directly addressed the contentious issue since 1957, when it determined that obscenity was “not within the protection intended for speech and press.”12 The doctrinal uncertainty after this point lay in finding an appropriate, workable, and consistent definition of obscenity. The Court’s task, operating under the limiting principle of stare decisis and the canon of judicial decision making that circumscribed its role to the constitutional issue at hand, was to determine the nature and breadth of the unprotected category of obscenity—not to enlarge the unprotected class of speech well beyond obscenity as Bork would presumably have preferred. Thus, it is hard to even say that the majority opinion necessarily reflects a less-conservative (and more speech-protective) ideological perspective than the one promoted by Robert Bork. It could simply illuminate the distinction between judges, acting as judges, and other political actors.

The dissenting Justice Douglas—who was at the time the most liberal member of the Court13—remained consistent by simply maintaining his original objection to the very idea that “obscenity is not expression protected by the First Amendment.”14 Dissenting Justices Brennan, Stewart, and Marshall took a different approach, rejecting the majority’s conclusions for more nuanced reasons. Brennan argued that the majority’s holding could not “bring stability to this area of law without jeopardizing fundamental First Amendment values.”15 He explained that since first declaring obscenity unprotected, the Court had been “manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech.”16 Thus, to Brennan, there was something inherently unworkable about allowing a constitutional right to turn upon a nebulous and seemingly subjective concept such as obscenity.

Brennan’s reversal from his prior position upholding the obscenity exception was guided by an acute sensitivity to free speech. To Brennan—who next to Douglas was the most liberal member of the Court that term17—the potential that obscenity restrictions might ultimately inhibit other speech was fatal. In contrast with Judge Bork, Brennan and his fellow dissenters presumed that literature—even the nonpolitical variety—must be protected by the First Amendment. These dissenters feared that the new doctrinal formulation, in part defining obscenity as material that lacks “serious literary value,” would invite censorship of sexually oriented but socially valuable literature simply because some do not believe is it “serious” enough.18 This is a concern that is consistent with the politically liberal ideal that elevates the freedom of, and tolerance for, unpopular or eccentric individuals and ideas over the value of promoting more limited moral conceptions of community.

Unlike the dissenters, the five most conservative justices19 felt comfortable excluding an entire category of expression—obscenity—from the ambit of the First Amendment. They relied upon philosophical concerns traditionally adopted by moralistic conservatism. The majority opinion in Paris Adult Theatre v. Slaton highlighted obscenity’s “corrupting”20 impact, stressed “the social interest in order and morality,”21 and twice cited the prominent neoconservative Irving Kristol to support its conclusions.22 They emphasized the centrality of local “tastes and attitudes” and tailored their doctrinal test to accommodate regional tradition over national “imposed uniformity.”23 Even in light of the literal command of the First Amendment, the traditionally conservative concerns of law and order and public morality were to override the claim that “individual ‘free will’ must govern.”24 They stressed that “a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex.”25

As this illustration suggests, forty years ago, both on and off the Court, the alignment between conservative political ideology and the First Amendment’s protection of free speech and expression was relatively clear. As a general matter, conservatives were much less speech protective. For conservatives, concern for tradition, family, and morality trumped individual expressive freedom. As we shall discuss, social scientists who have studied the relationship between ideology and judging have consistently relied upon this assumption, repeatedly associating support for increased regulation of expression with conservatism.26

However, much would change in the ensuing decades. We need only look to the Court’s most recent First Amendment decisions to get a taste of the striking transformation. In 2011, it was Justice Antonin Scalia, perhaps the most evocative political symbol of jurisprudential conservatism on today’s Supreme Court, who wrote the majority opinion striking down a morality-imbued California law on First Amendment grounds.27 The law prohibiting the sale or rental of violent video games was designed as an “aid to parental authority.”28 With little equivocation, Scalia explained that “[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar devices . . . and [t]hat suffices to confer First Amendment protection.”29 Scalia made a brief and loose concession to the view famously articulated by Robert Bork, admitting that “[t]he Free Speech Clause exists principally to protect discourse on public matters.”30 However, he just as quickly dispelled the notion that the Court was in a position to parse political speech from nonpolitical speech and protect only the former. He cautioned, “we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. . . . What is one man’s amusement, teaches another’s doctrine.”31 Scalia was effectively summoning the spirit of liberal icon Oliver Wendell Holmes, Jr. A half century ago, such a starkly relativistic admission would have been assumed without hesitation to be the product of a politically liberal mind, yet such sentiments—at least when discussing freedom of speech—are increasingly uttered by conservative jurists and commentators.

Scalia’s majority opinion might have come as a surprise to those familiar with his jurisprudence. Scalia consistently ranks as among the most conservative justices on the high court and has become well known for rhetorically powerful opinions with a signature emphasis on tradition and morality. Here, California ostensibly sought to reinforce parental control over the moral development of children in the state, certainly a value with a longstanding historical pedigree. In Brown, however, Scalia defined tradition narrowly—not in the broader sense of parental control over children but in terms of the very specific restriction here sought. Scalia pulled “tradition” from his jurisprudential arsenal—not as a way of defending the conservative notion that parents should have the broadest possible leeway in shaping the moral development of their children, but as a way of rejecting this legislatively devised tool. It is difficult to quarrel with the illustrative examples of violent children’s literature Scalia provided, including particularly disturbing and vivid images drawn from Grimm’s fairy tales.32 Scalia opined that “California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none.”33 It is striking that Scalia drew upon the interpretive tool of “tradition,” frequently utilized to arrive at more conservative judicial outcomes, to disserve a quintessentially conservative political goal, combating moral degradation in society by enhancing authority of parents over their children.

Defending this moralistic position proved to be a lonely task. Only one of the five conservative justices dissented. Justice Thomas stood firm, but alone, for the proposition that speech directed at children is an unprotected category of First Amendment expression. He explained:

the founding generation believed parents had absolute authority over their minor children and expected parents to use authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors . . . without going through the minors’ parents.34

While two other conservatives on the Court refused to sign onto the majority opinion penned by Scalia and joined by Justice Kennedy, it is notable that these two justices, Alito and Roberts, concurred. Both were unwilling to join the path forged by Thomas. Instead, the two justices appointed by President George W. Bush struck a middle ground, agreeing that the California law was unconstitutional, but only because of the inadequate specificity of the law’s terminology.35 The concurrence implied that much material that might fall within California’s definition of a “violent video game” is still protected by the First Amendment and that the statute might have passed constitutional muster “if it targeted a narrower class of graphic depictions.”36 Thus, they left open the possibility that, to minors, certain objectionable violent material might be unprotected.

Nevertheless, the litany of “vagueness” problems associated with the statute identified by the concurrence does not leave one feeling optimistic about the possibility of a satisfactorily drawn law. While Alito and Roberts were more cautious than Scalia, and thus unwilling to foreclose the possibility of a constitutional law limiting access to violent video games by minors, their view was in many respects reminiscent of Justice Brennan’s dissent in Miller, acknowledging the practical difficulties of moral line-drawing when it comes to the First Amendment. They noted, for example, that “the prevalence of violent depictions in children’s literature and entertainment creates numerous opportunities for reasonable people to disagree about which depictions may excite ‘deviant’ or ‘morbid’ impulses.”37 Although such an observation may be eminently reasonable, this is again a concession to relativism that might strike many as the very opposite of conservatism. In short, where there is a conflict between conservative principles on the First Amendment, the conservatives on the Court do not appear to be unified as to which model of conservatism should inform their jurisprudence—moralistic conservatism or libertarian conservatism—but increasingly they seem to have moved toward the latter. As we shall see throughout this study, other examples of this phenomenon abound.

In two additional recent First Amendment cases, it was Justice Alito who stood alone as the sole dissenter against a unified Court willing to reject laws that impinge on free expression. Strikingly, other than his single dissenting voice, the conservatives and liberals on the Court appeared to act in harmony. This relative tranquility existed in factual settings rife with heated issues of morality politics that might have in the past resulted in a distinct ideological divide. In United States v. Stevens, the Court struck down on overbreadth grounds a federal law criminalizing “the commercial creation, sale, or possession of certain depictions of animal cruelty.”38 In Snyder v. Phelps, the Court concluded that the First Amendment barred recovery in tort for intentional infliction of emotional distress imposed upon relatives attending a funeral for a veteran killed in the line of duty.39 Picketers from the Westboro Baptist Church, who stood outside of the funeral grounds, held an array of incendiary signs suggesting that dead U.S. soldiers had been punished by God for America’s tolerance of sinful behavior.40

At first glance the Stevens holding might appear utterly predictable from a purely political perspective. The Court majority expressed concern that the law intended to target the market for cruel, fetishistic “crush videos” (depicting the torture and death of innocent animals) would in fact reach much further, having the unintended consequence of potentially criminalizing popular “hunting television programs, videos, and Web sites.”41 The powerful politically conservative National Rifle Association filed an amicus curiae brief articulating this concern.42 Seen as a contest between hunting enthusiasts and animal rights activists, it might be unsurprising that four of the five conservatives on the Court aligned themselves with the former. However, here the conservatives acted in lockstep with the liberals on the Court, who might be expected to have greater sympathies for the animal rights movement. On the surface it would appear to be Justice Alito in dissent, who ironically struck the most ideologically “liberal” chord on the Court. He made a plea for compassion—what moral foundations theory would identify as the “care” foundation—and sounded the alarm of cold commerce. He vehemently objected that the majority struck “down in its entirety a valuable statute . . . that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty—in particular, the creation and commercial exploitation of ‘crush videos,’ a form of depraved entertainment that has no social value.”43

Viewed in another way, however, Justice Alito’s position is very much in line with traditional moralistic conservatism on the Court. As I shall argue later, this form of moralistic conservatism—a view that frequently ran unapologetically counter to free-market conservatism—was prevalent in the past, as exemplified by Justice Rehnquist’s position in numerous commercial speech cases discussed in Chapters 5 and 6. What is striking is that today Justice Alito finds himself in a distinct minority among his conservative brethren. Just a few decades earlier his brand of moralistic and commonsense conservatism on the First Amendment was the norm. Under this view, when the Court is in the position of balancing law enforcement and individual rights, the benefit of the doubt should be given to those responsible for maintaining law and order. This is true even where, and perhaps especially where, the “individual” rights at stake are the rights of actors seeking commercial gain. Justice Alito was persuaded by Congress’ argument that, in this instance, effective law enforcement against criminal acts of animal cruelty could not occur without targeting commercial trade in the videos depicting the illegal acts.44 In Alito’s dissent, we see clearly how moralistic conservatism may be at odds with libertarian and free-market conservatism. Alito understands this statute to be a law enforcement tool. If there has been one theme that consistently divides political liberals and political conservatives in America, it is the extent to which individual liberties may be sacrificed in order to achieve more effective criminal prosecution.

In Snyder, Alito is once again the outlier. Again, Alito stands up for principles that are traditionally “conservative” yet remarkably distinct from today’s conservative norms of First Amendment interpretation. Contrary to the view of the unified majority, Alito would allow for recovery in tort for the “severe and lasting emotional injury” that resulted from the Westboro picketers.45 On its face, this emphasis would appear to draw upon the moral foundation of “care.” But Alito’s concern reached deeply into values of “loyalty,” “authority,” and “sanctity”—foundations deeply associated with political conservatism in America.46 Throughout his dissent, Alito emphasized the nature of the interests at stake: respect for family, country, ceremony, and military heroism. He emphasized the sacred nature of funerals, thus entitling them to a special level of protection.47 To Alito, the case involved one of the most traditionally rooted of moral entitlements: “the right of any parent who experiences such an incalculable loss: to bury his son in peace.”48

So what does all of this suggest? Do First Amendment cases from the very recent past imply that tying free speech principles to ideology is an anachronistic and futile enterprise—that there is simply no longer a relationship between conservatism and freedom of expression? Have political liberals and political conservatives both on and off the Court, with some exceptions, simply coalesced on this issue? While Brown, Stevens, and Snyder might lead one to the conclusion that conservative justices have moved away from the conservatism of Robert Bork—and perhaps joined hand-in-hand with the left on First Amendment issues—other very recent decisions reveal that the divide remains as distinct and volatile as ever. As we shall see in Chapter 7, at times this divide takes a very different form. The 2010 decision in Citizens United is one example of an ideological 5–4 formation where it was the liberal justices who uniformly supported speech regulation and the conservative majority who stood firmly opposed. The case has been described by one of the foremost constitutional scholars as the very first Supreme Court case in which an ostensible victory for First Amendment rights was decided in such a manner.49 Not only was the traditional ideological alignment precisely reversed, but external political criticism of the supposedly pro–free-speech opinion came almost exclusively from the political left.50

Nevertheless, some legal scholars arguably saw this coming—and some saw movement with regard to First Amendment issues on both the right and the left. Almost fifteen years before Citizens United was decided, David M. Rabban detailed an emerging shift among legal intellectuals on the left away from the traditionally coveted liberal ideal of a broadly construed freedom of speech.51 Rabban described this change of heart among liberals—a shift we explore in Chapter 3—as “the most striking development in First Amendment analysis in the generation since Brandenburg.”52 During the liberal heyday of First Amendment lionization, the intended beneficiary of pro–First Amendment activism was the disempowered individual—a fact that made such cases more sympathetic to liberalism, even if their message of dissent was otherwise not favorable to the left.53 Today, however, a number of liberal scholars feel that the First Amendment is being utilized as the Due Process Clause of the Fourteenth Amendment was (ab)used a century ago—as constitutional support for inequality.54 In order to combat this Lochnerization of the First Amendment, one prominent liberal scholar, Cass Sunstein, has proposed what he calls “a New Deal for speech,” which would mirror the constitutional repudiation of laissez-faire economics that began in the late 1930s.55

There is, of course, a straightforward, cynical explanation for the decision in Citizens United—both the alignment on the Court and the political critique. By promoting the interests of the wealthy—that is, the ability of large corporations to influence elections—Citizens United served instrumental goals. By striking down campaign finance regulations that limited corporate expenditures on supposed campaign “speech,” the practical interests of the Republican Party were being served. Indeed, a recent study does reveal some correlation between conservative justices’ willingness to uphold free-speech rights and the ideological conservatism of the speakers at issue.56 As Frederick Schauer concluded in 1993—looking at previous campaign finance decisions and the manner in which “the First Amendment banner”57 was held high by those with great wealth—“the affinity between economic libertarians, most of whom vote Republican, and the principle of free speech may be less startling than it has recently seemed.”58

However, the instrumentalist explanation, one that cynically views the Court as political—not merely in the sense that it adopts ideologically aligned decisions but in that its decisions reflect the desire for raw political advantage for the home team—is not the only way to understand Citizens United as political. On principled grounds, the decision is consistent with free-market and libertarian conservatism. Kathleen Sullivan attempts to explain the puzzling “flip-flop” of liberalism and conservatism in Citizens United as reflective of two differing visions of free speech: “free-speech-as-equality” on the left and “free-speech-as-liberty” on the right.59 In Sullivan’s view, cases where liberals and conservatives have been united on First Amendment issues, resulting in the series of unexpectedly harmonious holdings discussed above, are circumstances where these two visions of the First Amendment overlap.60

Notes

1. Robert H. Bork, An End to Political Judging?, NATIONAL REVIEW, December 31, 1990, at 30.

2. Id.

3. Id.

4. Id.

5. The full question reads: “Consider a person who advocates doing away with elections and letting the military run the country. a. If such a person wanted to make a speech in your community, should he be allowed to speak, or not?” National Data Program for the Social Sciences, http://sda.berkeley.edu/quicktables/quickoptions.do.

6. National Data Program for the Social Sciences, http://sda.berkeley.edu/quicktables/quickoptions.do.

7. The full question reads: “There are always some people whose ideas are considered bad or dangerous by other people. For instance, somebody who is against churches and religion. . . . a. If such a person wanted to make a speech in your (city/town/community) against churches and religion, should he be allowed to speak, or not?” National Data Program for the Social Sciences, http://sda.berkeley.edu/quicktables/quickoptions.do.

8. JOHN W. DEAN, THE REHNQUIST CHOICE: THE UNTOLD STORY OF THE NIXON APPOINTMENT THAT REDEFINED THE SUPREME COURT 1 (2001).

9. Miller v. California, 413 U.S. 15, 23 (1973).

10. GEOFFREY R. STONE, LOUIS M. SEIDMAN, CASS SUNSTEIN, PAMELA S. KARLAN, & MARK V. TUSHNET, CONSTITUTIONAL LAW 1181 (6th ed. 2009).

11. Id.

12. Roth v. U.S., 354 U.S. 476 (1957).

13. LEE EPSTEIN, JEFFREY A. SEGAL, HAROLD J. SPAETH, & THOMAS G. WALKER, THE SUPREME COURT COMPENDIUM 553 (5th ed. 2012).

14. Roth v. U.S., 354 U.S. 476 (1957).

15. Paris Adult Theatre v. Slaton, 413 U.S. 49, 73 (1973).

16. Id. at 84.

17. LEE EPSTEIN, JEFFREY A. SEGAL, HAROLD J. SPAETH, & THOMAS G. WALKER, THE SUPREME COURT COMPENDIUM 553 (5th ed. 2012).

18. Paris Adult Theatre v. Slaton, 413 U.S. 49, 97 (1973).

19. These included, in order of conservatism according to the justices’ Martin-Quinn scores that term: Rehnquist, Burger, Blackmun, Powell, and White. LEE EPSTEIN, JEFFREY A. SEGAL, HAROLD J. SPAETH, & THOMAS G. WALKER, THE SUPREME COURT COMPENDIUM 553 (5th ed. 2012).

20. Paris Adult Theatre v. Slaton, 413 U.S. 49, 63 (1973).

21. Id. at 61.

22. Id. at 64, 69.

23. Miller v. California, 413 U.S. 15, 33 (1973).

24. Paris Adult Theatre v. Slaton, 413 U.S. 49, 63 (1973).

25. Id.

26. Lee Epstein & Jeffrey A. Segal, The Rehnquist Court and the First Amendment: Trumping the First Amendment?, 21 WASH. U. J.L. & POL’Y 81, 87–88 (2006).

27. Brown v. Entertainment Merchants Association, 2011 U.S. LEXIS 4802 (2011).

28. Id. at 31.

29. Id. at 5–6.

30. Id. at 5.

31. Id.

32. Id. at 16.

33. Id.

34. Id. at 82–83.

35. Id. at 57.

36. Id. at 62.

37. Id. at 65.

38. United States v. Stevens, 130 S. Ct. 1577, 1582 (2010).

39. Snyder v. Phelps, 131 S. Ct. 1207, 1219 (2011).

40. Id. at 1213.

41. United States v. Stevens, 130 S. Ct. 1577, 1589 (2010).

42. Id.

43. Id. at 1592.

44. Id. at 1601.

45. Snyder v. Phelps, 131 S. Ct. 1207, 1222 (2011).

46. Jonathan Haidt & Selin Kesebir, Morality, in HANDBOOK OF SOCIAL PSYCHOLOGY 822 (S. Fiske, D. Gilbert, & G. Lindzey eds., 5th ed. 2010).

47. Snyder v. Phelps, 131 S. Ct. 1207, 1227 (2011).

48. Id. at 1222.

49. Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124 HARV. L. REV. 143, 144 (2010).

50. Id.

51. David M. Rabban, Free Speech in Progressive Social Thought, 74 TEX. L. REV. 951, 952–953 (1996).

52. Id.

53. Id. at 1030.

54. Id. at 1031.

55. CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 17–51 (1995).

56. Lee Epstein, Christopher M. Parker, & Jeffrey A. Segal, Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment, Revised version of a paper presented at the 2013 Annual Meeting of the American Political Science Association, Chicago, IL, http://epstein.wustl.edu/research/InGroupBias.pdf.

57. Frederick Schauer, The Political Incidence of the Free Speech Principle, U. COLO. L. REV. 935, 938 (1993).

58. Id.

59. Kathleen M. Sullivan, Two Concepts of Freedom of Speech, 124 HARV. L. REV. 143, 146 (2010).

60. Id. at 144.