The Conservative-Libertarian Turn in First Amendment Jurisprudence

Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak also can be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have used the First Amendment in a libertarian manner to invalidate regulations that reflected liberal or progressive values. For example, these judges have rejected efforts to limit the role of money in election campaigns, struck down restrictions on hate speech and pornography, expanded protection for religious speech within public schools and universities, and held that the right to free association takes precedence over state civil rights laws that bar discrimination based on sexual orientation. This Article, which was presented as the third annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, explores this trend in First Amendment jurisprudence. After providing an overview of the conservative-libertarian approach to the Constitution, the Article describes how this approach has been applied in cases on free speech and association. The Article then criticizes this First Amendment approach on several grounds. First, this approach draws too close a connection between free speech and property rights. In this way, it represents a partial revival of Lochner-era jurisprudence—a development that Baker strongly criticized throughout his career. Second, the conservative-libertarian view affords too much protection to speech that injures, abuses, or degrades other people. Third, the judges who hold this view tend to be social conservatives as well as libertarians, and deep problems arise in situations where these two aspects of conservative thought conflict with one another. Fourth, the conservative-libertarian approach fails to satisfy its own demand for ideological neutrality. Finally, by granting the government broad authority to restrict speech within public institutions, that approach tends to deny protection to those individuals who are most vulnerable to state control, including prisoners, public employees, and those who serve in the military. The root problem is that the conservative-libertarian approach is based on an excessively narrow and one-sided conception of the self—a view that stresses the ways in which we are separate and independent individuals but that fails to fully recognize that we are also social beings who find an important part of our identity and value in social relationships and participation in community. We need to develop an approach to the First Amendment that is based on a broader and richer conception of the self, the society, and the nature of constitutional liberty. The Article concludes by outlining such an approach, which it calls a liberal humanist theory of the First Amendment. On this view, the law should be allowed to impose reasonable restrictions on hate speech and pornography, as well as on the ability of wealthy individuals and corporations to influence elections. Freedom of association should not necessarily permit groups to exclude individuals on invidious grounds such as sexual orientation. The Justices have been right, however, to hold that public educational institutions generally must accord equal treatment to religious speakers