In the debate over interpreting the Constitution, the First Amendment free-speech guarantee poses a problem for those who ordinarily take the side of "strict construction" and "judicial restraint." The problem is that these two rallying cries conflict.
The language says: "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." Unlike other majestic constitutional phrases, such as "equal protection of the laws," the First Amendment seems to invite a fairly active judicial role in preventing government limitations on free speech. This puts would-be judicial restrainers in an unaccustomed role. They have to come up with elaborate theories to explain why the words actually mean something different from what they apparently say.
Judge Robert Bork is up to the task. Bork's views on free speech are, in my opinion, his most disturbing. In his now famous 1971 law review article, he argued that the Framers "seem to have had no coherent theory of free speech" and judges therefore "are forced to construct our own theory."
Bork's theory is that the purpose of protecting free speech is to facilitate "governmental processes" -- meaning the workings of democracy. Therefore, only "political" speech is entitled to protection. Speech unrelated to issues of democratic governance can be censored or punished at the will of the majority. Speech advocating violation of the law deserves no protection, Bork argued, since such speech is intended to undermine those very governmental processes.
In recent years, Bork has taken special aim at forms of speech, such as pornography, that undermine the community's moral values. "The consequences of such 'private' indulgence," he said in 1978, "may have public consequences far more unpleasant than industrial pollution." He criticized "the shopworn slogan that the individual should be free to do as he sees fit so long as he does no harm to others" because advocates of this formula recognize only "physical or material injury" and not moral harm to the community. In 1984, Bork argued that the "community is entitled to suppress . . . moral harms" in general. He condemned the "privatization of morality which requires the law of the community to practice moral relativism."
Thus Bork defends his narrow reading of the First Amendment's freedom of speech on two contradictory grounds: (1) the purpose of free speech is to facilitate the political debate, and (2) society has the right to protect its own moral values. Moral values are a central political question. But Bork apparently believes that current moral values are beyond permissible challenge.
Remember, we are not talking about public displays of pornography here. The "moral harm" society is entitled to "suppress" -- a harm Bork analogizes to pollution -- derives entirely from the effect on individuals of their own voluntary private decisions about what to read, see and hear. The same logic could apply just as easily to other things individuals choose to do in private. This may not be "a principle of unsurpassed ugliness," as Bork once described the imposition of majority values on minorities, but it is rather unattractive.
Bork believes that judges should not use the Constitution as an excuse to impose their own policy preferences. That is his complaint against the great landmarks of postwar constitutional law. But his narrow interpretation of the First Amendment would give judges far more leeway to enforce their own values on an unwilling citizenry than the simple, broad right of free speech we enjoy today. Is this play politically relevant? Will that book undermine the reader's moral values? Has this speaker crossed the line between acceptably challenging the law and unacceptably advocating its violation?
As with so much else, Bork's First Amendment views have rather ostentatiously mellowed in the past few years. In his 1984 concurring opinion in the Evans and Novak case, he went out of his way to propose an expansion of First Amendment protection against libel suits, even though the Framers of the First Amendment were aware of libel suits and there's no evidence they intended to see such suits restricted.
Now Bork says he would define "political speech" to include a broad "spectrum" of moral, scientific and literary expression. Now he says his exclusion of speech advocating illegality would not apply to advocacy of civil disobedience. "There's a large difference between advocating that things be burned down or blown up and urging sit-in demonstrations," he told U.S. News & World Report. (What about advocating levitation of the Pentagon? What about urging people to read a book Justice Bork would allow to be suppressed?)
Is this recent evidence of Bork's "open-mindedness" reassuring? Or is it all a bit too facile coming from someone hungry for a lifetime appointment that would put his views beyond the need for further calibration?