Our Imperial First Amendment
34 U. Richmond L. Rev. 1167 (2000)
Introduction: The Premises of Democratic Government
I come to the First Amendment not as a member of the cognoscenti, but as an observer of the secondary effects on judicial institutions of some interpretations of the Amendment made over the last thirty-five years or so. I deplore those specific effects and I will be direct in saying so. But in considering them, I have been struck by the extent of the federal courts’ progress in subordinating to their own governance a wide range of other issues of great concern to citizens, all in the name of the First Amendment, a text intended to foster democratic institutions.
This usurpation has been achieved by extravagant interpretation of the Amendment to fashion a new and elastic principle of natural law. That principle has been stretched to fit a wide array of matters very distant from the aims of the First Amendment or of the Fourteenth (through which the First Amendment has been made applicable to state and local governments) as those aims have been generally understood by the citizens disfranchised by this overreaching by the federal judiciary.
The premises from which my sweeping criticism of current First Amendment law proceeds will be viewed by some readers as idiosyncratic. That would not have been so in former times for my premises were shared by persons dominating American politics for a century and a half. My premises were expressed in the second and third sentences of the Declaration of Independence. They animated the 18th century anti-federalists who regarded the Constitution of the United States as originally drafted by Madison and others as a grave threat to their democratic aspirations, and who demanded not only the First Amendment as a restraint on Congress but also, and even more urgently, the right to jury trial in civil cases as a means of limiting the role and power of judges with life tenure. My premises were shared as well by those Jeffersonians who cheered the French Revolution in its early years before the advent of the Jacobins and the erection of the guillotine. And by Jacksonians who mistrusted the plutocratic aims of the Bank of the United States, and who insisted on the right to hold judges exercising broad political powers accountable to the people at the ballot box. The same premises underlie the most memorable rhetoric of Abraham Lincoln and his counterpart in constitutional scholarship, Thomas Cooley. Those premises were shared as well by many Progressives, most emphatically by my heroes, Louis Brandeis and his counterpart in constitutional scholarship, Ernst Freund.
Those premises are, first, that the communitarian right of citizens to self-government is the primary value that ought dominate our politics and our law. The second, which follows from the first, is that the law belongs to everyman, not to a special class of aristocrats and intellectuals professing a morality they deem superior to that of the citizens whom they presume to govern. The third, which also follows from the first, is that the Constitution of the United States guarantees a republican, not an oligarchic, and certainly not a plutocratic, form of government. The Constitution was intended and ought be read to authorize the Court to brake majoritarian impulses when there is a basis for doing so in a legal text as understood by the citizens who are subject to it, but not as a commission to the federal judiciary broadly to displace the moral and political judgments of democratic electorates with its own preferences. Seemingly invisible to our courts is the distinction between doing a good deed and requiring others to do it.
While my acceptance of the need for a democratic political process is not now widely shared among the elite of the United States, I am not alone in observing that, beginning with the successful outcome of World War II, America has substantially forsaken moral-political-legal premises that dominated its politics for about a hundred and fifty years. Among others noticing this event are Michael Sandel, Robert Wiebe, Benjamin Barber, and the late Christopher Lasch, all of them eminent social scientists and wise observers.
There were always, it ought be acknowledged, Americans who rejected the Declaration of Independence as political humbug useful only as an “opiate of the people.” Alexander Hamilton was eminent among those revolutionaries who were feudal lords at heart. The slave owning class always dissented from the Declaration. So did the barons of industry and the social Darwinists of the late 19th century. The banners borne by such Americans are now borne by many of our contemporaries including numerous intellectual movements spanning the political spectrum.
What caused the demise of democratic values that Sandel, Wiebe, Barber, Lasch, and I observe? Surely the causes are largely external and not the result of rational planning or scheming. So perhaps the change was inevitable. In the 20th century, the chances of life and of geography called America to the role of empire. We are as a consequence, I fear, tracking the path marked by earlier republics such as Athens, Rome, and Venice and so elegantly depicted by Gibbon.
We are told that the first step on the path of those republics to decline and fall was military success bringing a false sense of invulnerability. The second was economic success bringing a deepening of class lines dividing those who prosper most from the imperial engagement from those who prosper least. The third was the attainment of moral arrogance among the former, centered in a community of leaders who assured one another that their collective wisdom and virtue was so vastly superior to that of the unwashed that imperial rule is justified.
When one looks for evidence of moral arrogance in a ruling class in America, the jurisprudence of the First Amendment presents itself as one striking exhibit. That text, intended to express a right central to democratic self-government has been transmogrified into the means by which life-tenured judges supported by an intellectual elite and the barons of the media suppress self-government, and force on fellow citizens the moral and political precepts of a ruling class, precepts that strongly favor powerful individuals (such as those who profit from the “infotainment” industry) and their profit-seeking corporations over citizens’ rights to make collective decisions about the communities in which they live and work. Those looking for a cause to enlist under a banner bearing the revered motto “Don’t Tread on Me” can find it in today’s First Amendment.
In 1925, Louis Brandeis joined in extending First Amendment restraints to state and local government by incorporating that provision into the Due Process Clause of the Fourteenth Amendment, despite the fact that the textual and historical basis for that extension was at best inconclusive. This was a rare departure for him from a stern self-discipline by which he aimed to keep the Supreme Court of the United States on the straight and narrow trail of deference to the role of those officers of government who represent the people and who are accountable to them. That deference (like the deference expressed in this article) was not rooted in a romanticized vision of the wisdom of the people, but in the belief that social peace and stability is best assured by the opportunity of citizens to participate in their own governance and by a disbelief in the superior wisdom (especially with respect to moral issues) of those who put themselves forward as a ruling class.
The compass of the First Amendment that Brandeis voted to extend into the Fourteenth was narrow. The idea was largely confined to a thought expressed by John Milton in 1644:
Give me the liberty to know, to utter, and to argue freely according to conscience above all liberties. . . . And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and falsehood grapple; who ever knew Truth put to the worse in a free and open encounter? Her confuting is the best and surest suppressing.
The Amendment’s protection thus articulated extended to speech related to religious observance and political expression motivated by conscience and a regard for truth, and even that protection was not expressed in absolute terms. It assumed that the marketplace of ideas would be a level space on which Truth might grapple with falsehood in “a free and open encounter.” Even Jefferson, while opposing “every form of tyranny over the mind of man” (as the entablature on his monument records) was willing to allow the citizens of a republic some room to distinguish for themselves what is tyranny over the mind of man from what is sound public policy.
No one in 1868 when the Fourteenth Amendment was ratified or in 1925 when it was deployed to make the First Amendment applicable to state and local governments, reckoned that the Constitution of the United States had anything to say about laws forbidding deeds said by the actors to have symbolic meaning, pornography, obscenity, commercial speech, campaign finance, or defamation. In recent decades, the Supreme Court has constitutionalized all of those subjects and thereby imposed its moral judgments and that of lower federal courts not only on the federal government, but also on state and local governments, effectively foreclosing further political debate on the wisdom of the principles it applied. A secondary effect of that unauthorized seizure of power is that our freedom of expression is no longer derived from the tolerance and civility of the communities in which we express ourselves and for which we share responsibility, but from what Brandeis would have denoted as “foreign aid” imposed by a distant and imperial oligarchy sitting on the Supreme Court.
To some extent, the enlargement of First Amendment protection was prompted by the narrowest and most legitimate of Fourteenth Amendment concerns for the right of African-American citizens to express their indignation at racial segregation. But the Court has gone far beyond considerations of the vibrant political process that was not long ago cited as the sovereign legitimation of the unwritten Constitution crafted by the Court in the two decades after Brown, and has seldom attempted to reconcile its reasons for doing so with the contrary politics expressed by the vote of the people. What we have witnessed is a bloodless victory for the individual rights celebrated by John Locke and chiefly enjoyed and exercised by members of a ruling class over the rights of community celebrated by Edmund Burke and shared by all. This has also been a stunning triumph for the journalism profession and the entertainment industry, and a bitter defeat for moralists, for the clergy, and those who believe, as I do, in representative government.
The Court’s first major anti-democratic excursion to proceed under the banner of both the First and Fourteenth Amendments was the invalidation of local pornography laws. In 1957, the Court affirmed a conviction under a federal statute forbidding the use of the mails to convey obscene material. Justice Brennan, writing for the Court, upheld the statute by interpreting it to be applicable only to matter altogether lacking redemptive social importance. In 1973, the Court modified the standard to apply to “works taken as a whole.” 
Insofar as those decisions affect only the federal government, I take no strong exception to them. The issue appears in a different light, however, when the standard is applied to prevent enforcement of laws enacted by representative state or local government. No doubt the application of a local standard by a jury or local censor evaluating artistic “works taken as a whole” can threaten the values articulated by Milton and embodied in the First Amendment. The arts, prized as instruments of social change, not infrequently offend and ought not in a free society be suppressed. There is also, however, a wide range of material offensive to the moralities prevailing in many communities for which the claim can be only colorably made that a work as a whole has some nominal intellectual content or literary value, but which falls far short of making a contribution to the enduring struggle between truth and falsehood. Moreover, the opportunities for enrichment from the making of “art” that most citizens regard as dangerous and malicious depravity have been greatly multiplied by the technological advances of recent years, a matter of apparent indifference to the Court.
Finding the distinction between art and smut elusive, the second Justice Harlan repeatedly advocated, without success, that some accommodation ought be made to allow for the discretion of state and local officials in drawing that line. As a consequence of the Court’s failure to observe his caution, the power of the state or local government to restrain the circulation of “adult” materials was closely confined. States and communities were substantially disempowered to regulate a wide range of commercially motivated activity exploiting diverse sexual or violent urges that do not comport with the hopes of many communities to channel sexuality into a framework of conventional family life or some postmodern alternative social structure, or of civil and humane relations with fellow citizens.
For example, a current, questionable application of the First Amendment is its use to bar site-blocking software deployed by local public libraries to prevent Internet access to child pornography or excessively graphic violence on their public access computers. If, as seems not unlikely, that decision is upheld, one result will be that fewer children will be seen in public libraries as parents strive to shield their children from exposure to such material. Even the most explicit child pornography or most brutal violence can be incorporated within some kind of drama that might be said to have a point and thus, taken as a whole, not pornographic or obscene in the eyes of a federal judge, and hence accessible in public libraries.
It must be granted that a library making the wrong choice in using its site-blocking software might prevent adults from having free access to lurid but inspiring art. Yet, given the consequences, a reasonable local library might make the decision to resolve doubts by blocking material sufficiently lurid that reasonable parents might prefer to keep their children out of the library rather than provide them with access to the lurid material. That would leave those desiring access to lurid material to find it without the aid of the public library, a wound to individual freedom that communities might reasonably choose to impose as the lesser evil in the belief that there will be a net gain in community access to information if the “adult” material is excluded and children thus encouraged to use the library.
It seems to be widely accepted that no community library board (or any other government) can or should consider whether it ought refrain from supplying adults with material having redemptive artistic worth merely because its officers expect the “art” to increase the frequency with which adult library patrons express their sexual impulses in relationships with children or commit acts of violence on fellow citizens. In this respect, it appears to matter not at all that the governing board of a public library is accountable at least indirectly to the people it serves, for their views on such matters count for nothing. Nor does it matter whether a reasonable observer could perceive that the “art” could stand as well without as with the objectionable material. Nor does it appear to matter that the presentation of material in a public library is inescapably a suggestion by the institution (and thus the public) that the material has some possible merit making it worthy of the attention of library patrons.
Of course, wise citizens might share the view of many professional librarians that such moral judgments are not only beyond their competence, but unsuited as well to the judgment of a community, and therefore best left entirely to individual library patrons. Many public libraries would elect to provide their users with material that is sexually explicit, exploits children, or presents extreme graphic violence. The point I wish to make is not that adults should (or could) be barred from access to child pornography or extreme graphic violence, but that the decision to provide access in a public library is not rightly seen as one of constitutional stature to be made by life-tenured judges.
Also worth noting in this context are the remarkable claims to First Amendment protection made by some members of the entertainment industry. What is to be said of the constitutional right to broadcast such events as a wrestling match in which the winner is entitled to have sexual intercourse with the loser’s wife, or perhaps the loser’s child, or one in which the loser is required to kill and eat his own dog? Why stop with marrying a millionaire – would it not attract a bigger audience if the candidates performed sexual favors for the millionaire on camera, including perhaps a little sexual violence? One cannot be surprised that there is an audience for such events; we are all voyeurs. Indeed, if there were cameras in the death chamber, we can be sure that a sizeable audience would be attracted, just as Parisians would gather around the guillotine. Indeed, why do networks not have the right to broadcast such art and such newsworthy events? They would turn a nice profit. It may be that communities are even as a practical matter powerless to prevent such exploitative “art” and reportage, but it is galling to many to hear that those who broadcast such material are exercising a sacred right established in our revered Constitution.
The response of the industry to expressed concerns about the graphic portrayal of violence is reluctantly to suggest techniques for shielding children from their most brutalizing presentations, as by such futile means as rating films. They assume an absolute constitutional right to broadcast or exhibit anything that adults might pay to see. But even if such techniques for excluding young viewers were effective (and one must doubt that they could be), more is at stake than the protection of children from moral influences that their parents do not approve. A stable democratic society depends on a level of civility derived from a shared respect for the human condition and for the moral sensibilities of other citizens. Perhaps in some sense the wrestling show described above is art, but it is also an invitation to indulge brutal sentiments that a democracy might wisely suppress to the extent possible, in adults as well as in children.
Consider also the industry that manufactures computer games. There are now in all our communities numerous persons of diverse ages who spend many hours a day engaging in spectacularly brutal violence against other humans as portrayed in highly realistic electronic graphics. Perhaps those among us who are prone to rape, mayhem, torture, and murder can in this way gratify and expend their urges on a computer screen, but a community might not unreasonably reckon that such recreations will have the opposite effect.
Violent language is another offense that communities are disempowered to constrain. The Court has explained that the viewer of the words Fuck the Draft can simply avert their eyes and thus avoid any injury, and so his interest is trumped by the sacred right to use four-letter words.
Very little is really known about the social consequences of pornography, obscenity, or graphic violence. The abundant empirical data is gathered in circumstances so rife with causes and effects that conclusions must be tentative. Nevertheless, the data tend to confirm the widely shared intuition that extreme graphic violence is a contributing cause of real violence. Sexually explicit “art” may be, as many in the entertainment industry profess to believe, harmless or even benign, but the contrary position cannot be disproved. It is at least possible that much sexual material is, as some contend, degrading to the status of women as well as hostile to widely favored norms of sexual conduct or a provocation to violence, and therefore a provocation to antisocial conduct.
As Justice Harlan observed, the federal interest in constraining state and local officials and courts with respect to the management of public libraries or other forms of distribution of material containing child pornography or extreme graphic violence is at best attenuated. Those who vote for state and local officials are not demonstrably wrong to believe that artistic freedom ought be compromised to protect “family values” and encourage civil deportment. That sort of compromise is what state and local political institutions were designed to achieve. Perhaps that means that there will be marginally less artistic freedom available to citizens of a democracy than is available to artists who have the patronage of an absolute monarch. If a particular work of art is censored in a community, the primary forum in which to grieve should be a legislature, a city council, or a jury. The secondary forum should be a state supreme court enforcing the freedom of expression provisions of state constitutions; most such courts are in some way accountable to the people they represent. A judge holding tenure for life and invoking an unwritten and almost unamendable text ought to become involved only in matters of grave abuse of power by state government such as the systematic suppression of a specific idea or sentiment. Thus, if the city fathers of Atlanta are so unwise as to prevent the exhibition of so excellent a film as Carnal Knowledge, the most appropriate response is for the voters to “throw the rascals out,” or perhaps sue them in state court. That was the law until recent times.
The Court has virtually forbidden state or local government to encourage religious faith. Religious freedom has at times been displaced by freedom from religion.
Many of the Founders, Washington and Jefferson not least among them, shared a loose deism bordering on unbelief, but they perceived religion to be a necessary element in democratic life. In its decisions, the Court has gone far beyond the requirements of Jefferson’s great testament to religious freedom emblazoned on the wall in Old Richmond. Cooley and Brandeis, although not themselves committed to any religious faith, also shared the belief that the morality of citizenship was for many citizens dependent on faith and that the democratic state therefore had a self-interest in encouraging religious communities of belief. I am not so sure, but they may be right.
Francis Lieber explained this belief more fully. Anticipating a point frequently made today by multi-culturalists, he attributed the success of American democracy to the existence of numerous social organizations or networks establishing communities of interest in which self-governance was practiced in diverse forms. These institutions included fraternal orders such as the Rotary, Elk, and Lions, but also prominent among them were religious communities.
American democracy, including the republican idea of the First Amendment expressed by Milton, found many of its roots in Protestantism. One of the ways in which communities of faith share their beliefs and values is to express them in political discourse. In some sense, in this way membership in subordinate communities, including those of faith, give meaning to the exercise of the franchise. Moreover, while there have been epochs of severe religious intolerance, most religions teach in some form the idea of the brotherhood of man that is the essential truth on which democratic citizenship must rest. This is not to say that unbelievers cannot be good citizens of a republic, but their citizenship rests on a concern for and respect of their fellow citizens that is at least akin to core religious teaching. A society bereft of that idea of citizenship (as Rome, for example, was in its days of empire when citizenship became merely an emblem of membership in a ruling class) seems doomed to become the war of all against all in which democratic government is destined to be among the first casualties.
This belief in a linkage between religion and democracy was shared by thoughtful secular observers from Jefferson to Brandeis and there is no evidence to falsify it. It ought also be recognized that Justices and intellectuals who suppose that “the dissemination of science” is a “sufficient agent” of civic moral education to sustain a community capable of self-government comprise a “culture of disbelief” that competes with faith. If disbelief has become the dogma of the republic, those who nurture religious faith and whose conduct as citizens is in part informed by their faith are being made an embattled minority not far different from those minorities the Court presumes to protect by its habits of “strict scrutiny.”
There is no principle of natural law by which the line between church and state can be judged. Most controversial of the Court’s decisions in this area is that restricting prayer in schools, a stricture that has often been defied. There is no question in this author’s mind that a requirement that public school children participate in faith-specific religious services is an offense against the core values of the First Amendment. But the Fourteenth Amendment is not a commission to the Court to stamp out every religious impulse manifested by public institutions. Providing textbooks to students in parochial schools is probably bad policy, but the constitutional values at issue are at most minimal and, as the Court with manifest reluctance acknowledged, do not call for the application of the federal judiciary’s heavy hand. Likewise, the lighting of a Christmas tree on the courthouse lawn, alongside a creche and Chanukah menorah is in poor taste, but it hardly threatens the values of religious freedom and free public discourse. Those who are offended are not without recourse to local politics and state law, including state amendable constitutions, and they have the option of “averting their eyes.”
A current issue is whether it violates the First Amendment for a local school board to post the Ten Commandments. I was once an elected member of a school board and resisted the presentation of a prayer at the beginning of our public meetings. I would never have voted to post the Ten Commandments in a public school. However, the posting of such a message seems to me to be a far cry from conducting a sectarian prayer in the classroom, or even uttering a benediction at a school board meeting.
Among my pro bono ACLU clients years ago was an Ypsilanti, Michigan, schoolteacher who encouraged his students to use his classroom bulletin board for expressing their political ideas. Among the ideas they chose to express was that the local police were pigs. He was fired for refusing to remove that message from his bulletin board in support of his students’ right to express themselves. Suppose he allowed a student to post the Ten Commandments. Suppose he posted them himself. Could or should he be fired for doing so? Maybe he should be, or maybe he should not be subject to any constraint that is based on the content of his postings, but the question seems to be at least close enough that it ought be resolved (as it was in Ypsilanti) by vote of persons who are politically accountable, or possibly in state court pursuant to state law, and not by persons appointed in Washington who have tenure for life and no explicit commission to decide such matters.
To be sure, for the school board to post the Ten Commandments on a classroom bulletin board gives them a sort of official imprimatur that is not supplied when the person posting them is a teacher or a student. Still, it would seem that anyone offended by the posting could avert his or her eyes at least as easily as one could ignore the statement Fuck the Draft embroidered on a jacket. And they have recourse to the ballot box and the state courts. They, too, do not need the foreign aid of the federal judiciary to protect themselves from so inconsequential an affront.
Similarly, it seems to me that anyone offended by the words “With God All Things Are Possible” on a granite plaza next to a state capitol can be asked to avert his or her eyes. A panel of the United States Court of Appeals has recently held that such an entablature of the state motto of Ohio violates the First Amendment. In order to take offense, one would have to know the Bible well enough to know that Christ is said to have uttered those words. But not well enough to recognize that the words are taken out of context by Ohio to communicate a non-sectarian optimism identical to that expressed in the more familiar expression, “In God We Trust” appearing on our dollar bills. Had the state of Ohio been so gosh as to engrave “Jesus Saves” on a wall, the court might indeed reasonably conclude that Ohio had “stepped over the line.” But it is simply perverse to derive a sectarian message from those six words standing alone as a motto, and life-tenured judges are not warranted in imposing their perverse interpretation on them. Were I a legislator voting on a state motto, I would vote against that one, not because it mentions God or is known to the devout student of the New Testament as a quotation of Christ, but because it strikes me as somewhat sappy. But then what is a state motto supposed to be? I am gratified that the case is being reheard by the Court of Appeals en banc.
What I have said bears also on the more difficult issue involving prayers at high school graduations or football games. The Santa Fe, Texas High School (note the name of the community: Spanish for holy faith!) was forbidden to allow its students to elect by secret ballot classmates to present an invocation at its football games. A person of faith attending such events might regard specific utterances (we do not know what the students might have said had they been allowed to speak because the Court imposed a prior restraint!) as sacrilegious; those who objected to them on that ground might possibly have a point worthy of scrutiny under the First Amendment. However, the school board’s proposed practice might also be a lesson in democracy. Those who take offense have the privilege of silently or boisterously sneering at the invocation. They can vote for different speakers or for a different school board. In doing so, they would be striving to create a community that celebrates the values expressed in the First Amendment. Or they could sue in state court. Instead, they sought and received the “foreign aid” of distant Justices who, as the dissenters observed, “bristle with hostility to all things religious in public life.”
When a state seriously tries to establish a state religion, of the sort Connecticut impose on its citizens until 1817, it will be time for the Supreme Court to occupy itself with the relationship of state and local government with religion. Requiring sectarian prayer seems close enough to such an event to warrant the Court’s attention. But it trivializes that important restraint for the federal judiciary to involve itself in micromanagement of that relationship.
The Court has also used the First Amendment to control actions of state and local governments deterring deeds denoted by the actors as symbolic speech. Much conduct signals thoughts or feelings and can therefore be identified as symbolizing speech; indeed, having abandoned the distinction between words and deeds, the Court has cloaked a wide range of wordless conduct with a claim to First Amendment protection from the efforts of state or local government to discourage deeds that many citizens regard as harmful. Responsibility for drawing the line between deeds having symbolic importance that a democratic society ought tolerate from those that do not has been relocated from democratic government to the federal judiciary.
The obscurity of the issue is illustrated by the limited right to dance nude. The Court has allowed the states to require barroom dancers to wear G-strings and pasties. It is a reasonable inference from these opinions that absolutely buck-naked dancing in a barroom is not a constitutionally protected right, although numerous Justices have thought that it is. It is also a reasonable inference from these decisions that the Court would not allow a state to require G-strings and pasties if the dancers were engaged in what the Court deemed to be serious art such as that performed by the New York City Ballet. Finally, it also appears that public nudity for some non-artistic purpose, whether to show off the superiority of one’s “private parts” or to exhibit one’s contempt for their viewers may be punished under state laws prohibiting public nudity. These distinctions are not coherent. Their administration requires determinations of fact regarding the purpose of the nudity and the setting in which it occurs, so that one can be said to have a right to practice as much nudity as the federal judiciary approves in a given case. One may perhaps wonder what the Court will decide when it is confronted with The Naked Truth, a program featuring announcers who strip while reading the evening news on network television.
The right to be nude is not, all things considered, a very important individual right. A community might suspect that the nudity even of classical ballet dancers is less a means of expression than a means of attracting an audience of paying voyeurs whose human frailties are being exploited for lucre. A wise community would nevertheless tolerate most presentations of nudity whether or not the actions were intended to communicate an idea or a feeling, as long as the nudity did not occasion serious offense to others or otherwise cause public disorder. At the same time, a wise community might conclude, along with virtually every other human culture ever sustained on the planet, that maintaining a measure of privacy for one’s genital tends to promote desirable civil decorum and should therefore be encouraged by the law.
Many years ago, I represented eighteen actors who appeared on a public stage nude. I can say from personal knowledge that my clients stripped because, and only because, they had been unable to draw a sufficient audience when they performed clothed. Maybe their nudity enhanced their artistic expression, but I doubt it. I won all eighteen cases, making me one of the most successful nudity lawyers of all time. My argument, never answered by the prosecutor, was that the Michigan law did not apply to nude dancing in a theatre. I believe that the same result would and should accrue in most states.
However, I share the view expressed in Justice Scalia’s concurrence that laws generally constraining public nudity are not properly subject to any form of scrutiny under the First Amendment. If the city fathers of Erie perceive pasties to be needful for the moral health of their city, it is no business of life-tenured federal judges to tell them that they are mistaken in that assessment. And if the City of New York were so foolish as to prosecute a ballet company for performing in the buff, it would be sufficient to resolve the issue by democratic means or by the intervention of state courts. That last example is, of course, a merely imaginary horrible. We don’t need the federal judiciary to protect us from such impossibilities.
Constitutional protection for the burning of crosses is another example of First Amendment hypertrophy. A state or city could reasonably perceive that such a gesture is an intimidation and a provocation to violence, with no visible redeeming value. If there are people who want to burn crosses, they can vote to throw out the rascals who would punish them for doing so.
And then there is flag burning. Not only are citizens entitled to withhold their respect for national symbols, but the Court has proclaimed the individual’s right to destroy our national icons. Many believe that ceremonial honor to the symbols of the Republic is an important means of reinforcing civic virtue. That belief, like the belief that religion is good for a democratic polity, cannot be falsified. It is often intensely felt by those who have risked their lives or lost loved ones to protect the Republic symbolized by the flag. The act of burning a symbol so cherished by persons expected to view the act is an unmistakably hostile act having tangible and potentially harmful consequences even if it also serves to express hostile sentiments. The competing interest of the flag burner is insubstantial. There are an almost infinite number of other methods of expressing his hostility to the commonwealth.
What is one person’s benign symbolic expression is another’s hostile deed. Is a community constitutionally forbidden to discourage the wearing of the Confederate flag as an intentional affront to African American citizens, or of Swastikas worn to encourage anti-Semitism? Or might it be constitutionally entitled to forbid the display of the Stars and Stripes as a local protest against national policy? Wisdom decrees tolerance in all such matters, but it is the tolerance of the community that matters and little of that is gained by federal decrees.
The flag-burning decision has evoked a vigorous effort to amend the Constitution having some chance of success. What a trivial amendment! But it would be a measured response to an intervention by the Court to forbid a trivial trespass on the individual’s right to engage in symbolic anti-symbolism.
In the same vein, there is unseemliness in the Court’s fashioning a constitutional right of the Boy Scouts to exclude homosexual scoutmasters.  No doubt this is an important issue for those committed to the scouting movement, an institution devoted to the moral development of youth. The Scouts may be right to suppose that many parents would withdraw their children from the movement if it appeared to shelter leaders proselytizing for homosexual life styles. Wise law might well leave those leading the scouting movement free to make the appropriate accommodations according to their own lights.
But is such wisdom constitutionally required? Might a state or community reasonably follow the course of protecting gay and lesbian citizens from discrimination by institutions such as the Scouts? Particularly at a time when sexual mores are changing, there is much to be said for allowing states to experiment with diverse policies in the manner long advocated by Justice Brandeis, especially when an experiment has no significant extraterritorial effects. There is a genuine collision of moral values and one might therefore think its resolution an appropriate matter for democratic self-government.
However, the Court boldly disempowered the state of New Jersey from pursuing a policy of anti-discrimination on the ground that it offends the Scouts’ right of association embedded in the First Amendment. To find this restraint in the text of the First Amendment is more than a stretch; the right of association is itself a strained inference from the text, but there has never before been a right to associate for the purpose of achieving discrimination against embattled groups. The New Jersey law that the Court invalidated can hardly be viewed as an expression of majoritarian tyranny indifferent to the interest and welfare of a beleaguered minority represented by the Scouts. The Scouts have full recourse to the political process to correct the problem if indeed the people of New Jersey perceive that there is one. The Supreme Court of New Jersey concluded that there was none.
Another and even more misguided excursion is the Court’s extension of the First Amendment to commercial advertising. Until the advent of the Burger Court, it was assumed that commercial advertising was unprotected by constitutional entitlements. Advertising, to resort to Milton, has nothing to do with conscience and very little to do with truth. Nevertheless, the Court’s present doctrine is that advertising that is not demonstrably false or deceptive and does not concern unlawful activities may be restricted only in the service of a substantial public interest. This standard appears to disempower states and communities from dealing with a considerable range of highly debatable conduct by which some individuals seek to profit from the inattentiveness or lack of sophistication of consumers of goods and services.
A useful illustration of the difficulties with the Court’s standard is the problem of lawyer advertising. Even simple price advertising by lawyers often threatens to mislead because of the absence of any means to provide information about the relative quality or utility of the service that a lawyer seeks to sell. There is also a public interest of ancient dignity expressed in laws against champerty and barratry that accords with widely shared moral judgment in forestalling activities seeking to cause or perpetuate civil disputes. While it is fairly contended that much litigation is in the public interest and ought to be promoted, there are many claims that potential plaintiffs are ill-advised to assert, not only because they lack merit, but also because the transaction cost, in heartache as well as treasure, makes their assertion improvident even if successful. Any experienced lawyer is acquainted with instances in which considerable public and private expense was incurred in litigation, foreseeably to the benefit of no person except the lawyers; indeed, an Italian proverb has it that a lawsuit is a fruit tree growing in the yard of a lawyer. Moreover, the public has a special claim to regulate lawyers to prevent the degradation of the profession by excessive commercialism. This is so because trust in lawyers is a public resource affecting the trust in other institutions of the Republic. In addition, lawyer advertising appears to have strengthened a tendency for remunerative law practice, like other commercial enterprises, to be concentrated in fewer hands so that considerations of economic policy are also entailed.
Whether, despite all these concerns, lawyer advertising is on balance useful, and whether or to what extent its regulation is warranted, are questions eminently suited to resolution by officers entrusted to decide them by the people through conventional democratic institutions. There is no reason to suppose that national uniformity is useful. Life-tenure judges, however educated and experienced, have no special qualifications to appraise the issues.
Yet, the Supreme Court has steadily enlarged the constitutional inhibition to extend to direct, personal, uninvited solicitation of business by certified public accountants and, presumably, by lawyers as well. These holdings have made it very difficult if not impossible for the state to protect citizens from invasive selling of expensive professional services that the consumer may not need. The Court’s earlier concern that a hard-selling professional person might overbear a less sophisticated and vulnerable potential client seems to have vanished.
This disregard for the public interest in protecting citizens from misleading salesmanship is even more evident when the advertising in question is employed by those who seek to profit from the gullibility of consumers of diverse health remedies, a large group of citizens that may be especially in need of protection from the mendacity of many vendors. Consistently with utterances of the Supreme Court, lower federal courts have held that vendors of health foods and dietetic supplements have a constitutional right to present their wares as healthful as long as their labels disclose in the fine print that there is no scientific evidence to support their claims. It has also been held that manufacturers of prescription drugs have a constitutional right to advise doctors of uses of their drugs that have not been evaluated by the Food and Drug Administration. Indeed, as Margaret Gilhooley has observed, Food and Drug Law is increasingly a subdivision of First Amendment law. The effect is to turn the clock back a century to provide substantial freedom to the purveyors of useless and potentially harmful snake oil that progressive consumer protection law sought long ago to drive out of the market place.
The problem with respect to lawyer, accountant, and health foods advertising is that all are instruments for exploitation of citizens who do not have means or occasion for evaluating the information they are being supplied by vendors. Consumer protection law in virtually all its forms rests on an intuitively-based assumption that many vendors of goods and services will stay up nights thinking of ways to catch consumers in unguarded moments when they can be separated from their money by suggestions that they might gain happiness by unlikely means remunerative to the vendors. Overt and demonstrable fraud is only the most blatant form of exploitation. All of us at times, and some of us all of the time, are vulnerable to subtle and optimistic suggestion that a manufactured substance (or a service) might improve our health, wealth, appearance, or disposition.
Consumer protection law cannot protect us from calculated exploitation of that common human weakness without imposing restraints on what vendors can say. As Kathleen Sullivan has observed, the Court has made all consumer protection law “much harder to defend.” Of course, there are some utterances by vendors that have genuine value to consumers. But there is no reason to believe that federal judges are better able than legislators or administrators to distinguish good commercial advertising from bad. Nor is there is reason to suppose that the value of the information we receive from good advertising outweighs the harm caused by advertising that “pushes the envelope” of truth to gain profit. For example, the harms caused by medical advertising include misplaced reliance on a useless remedy, failure to secure real help that might be available, and occasional unanticipated toxic effects of the snake oil bought and consumed.
Unlike other matters discussed here, this extension of the First Amendment to food and drug law is not an intrusion on state or local law. With respect to the advertising of health foods and medicines, primary reliance of consumers for protection has rested on the federal government because of the inability of state and local governments to regulate the distribution of goods moving in interstate and international commerce and because of the high cost of scientific investigation of claims made for products. For similar reasons, many foreign governments and even the World Health Organization also rely on the United States Food and Drug Administration. It is not merely American citizens who are exposed to exploitation when the United States Food and Drug Administration is restrained, but people in all corners of the world.
If lawyers and vendors of ineffective and possibly harmful remedies have a constitutionally protected right to advertise, a compelling argument can be made for a constitutionally protected right to beg. Recognition of such a right would entail a Court-crafted law of vagrancy equally suitable for application to every community, neighborhood, and street in the United States. Humane consideration of the needs and interests of the most impoverished citizens is as important as any of the values enshrined in the Constitution, at least equal to those noted in the preceding pages, but it would be improvident of the Court to take upon itself the responsibility for controlling the means by which those needs and interests ought be considered and recognized. However, if professional ethics law and food and drug law are branches of First Amendment law, why not vagrancy law? At least the federal courts enforcing such constitutional law would be protecting the powerless rather than those having abundant resources to protect themselves in democratic political struggles.
The most grave example (in this author’s mind) of the Court’s hubris in extending the First Amendment to matters that are not its business is the Court-created right to spend money to influence and sometimes to control the result of ostensibly democratic elections. It is this that has led me to this reconsideration of the Court’s other dogmatic extensions of the First Amendment. Indeed, a cynic could see in the Court’s decisions on campaign finance a malicious purpose to so degrade democracy that the people have no choice but to rely on the Court to govern us as a tenured College of Cardinals.
While many of us are willing to supply small sums of money to support a political cause, the common understanding is that large political contributions are generally made in expectation of a quid pro quo from the recipient. There have been occasions when wealthy persons acting in what they perceived to be a public spirit have financed an expensive campaign because they believed in a cause or in the moral worth of an individual candidate. But many campaign contributions, we cannot know how many, are repaid out of public stock in the form of special consideration in lawmaking or enforcement.
For example, it is the frequent practice of many firms and persons of means to contribute substantial sums to rival candidates so that whichever candidate wins, the donor wins. On the face of it, such contributors are expressing no idea and favoring no policy other than preferential treatment for particular interests they favor. Perhaps the clearest example of the evil is the federal subsidy to sugar growers, which serves no imaginable public purpose, but lines the pockets of a few families who subsidize the political campaigns of many, many legislators on both sides of any aisle. Other generous patrons of rival political campaigns include gambling casinos, tobacco companies, highway contractors, and real estate developers, none of whom can be suspected of spending to promote any policy other than their own financial self-interest.
A state or community is legitimately concerned with the availability of its political process for the open encounter of ideas praised by Milton. A process in which one side of a debate is given much the largest share of exposure to the public is not a fair contest on a level playing field. It is at best a Lincoln-Douglas debate with little or no Lincoln. Manifestly, fairness in this context is not easily defined or achieved, but that is a reason to allow constraints the people of a state or community might choose to impose on persons who seek to use money to dominate public discourse with glitzy, glib, misleading sound bites crafted by professional deceivers.
The Court in its treatment of the issues in its widely disparaged opinion in Buckley v. Valeo acknowledged the risk of bribery as a justification for the regulation of campaign funding. What the Court and advocates such as the Wall Street Journal editorialists have not acknowledged is the marginally more subtle form of corruption achieved by monied interests who buy not the officer but the office, assuring themselves that it will be occupied by a person reliably friendly to their interests. While vast expenditures of interest group money are not an absolute assurance of success, there are few elective offices in the United States government that a citizen might hope to occupy who does not have access to very large sums. That is also true of most state offices. This is a profoundly disaffecting reality.
The problem of campaign finance was a problem in earlier times, but it did not become acute until the advent of television. The electronic media are capable of providing a blitzkrieg of political advertising, but only for a high price paid not only to the media but to consultants who are expert in the relevant arts of misguidance. Political advertising on commercial television is much more effective, and much more pernicious, than any other form of campaigning because the disinformation supplied through sonorous and artistic spot advertisements broadcast between innings or between soap opera conversations “melts down” in the minds of viewers, even sophisticated viewers, who are prone to forget its unreliable source and attribute it to a reliable one.
The result of such an insidious electronic blitzkrieg, or even the possible threat of a blitzkrieg, because of its effectiveness, is to impose a similar cost on rival candidates. Indeed, candidates face a prisoner’s dilemma compelling them to resort to high-tech, high-cost, negative campaigning. To compete for many public offices, the serious office seeker is therefore compelled to do whatever is necessary to secure a large campaign fund. Not just money, but big money, has truly become the mother’s milk of politics.
Justice Stevens has recently expressed the correct premise of First Amendment doctrine applicable to campaign finance. “Money,” he said, “is property. It is not speech.”
Speech has the power to inspire volunteers to perform a multitude of tasks on a campaign trail, on a battleground, or on a football field. Money, meanwhile, has the power to pay hired laborers to perform the same tasks. It does not follow, however, that the First Amendment provides the same measure of protection to the use of money to accomplish such goals as it provides to the use of ideas to achieve the same results.
Justice Byron White expressed a similar thought in his dissent in Buckley. Alas, that his brethren did not heed his words; one may hope they may in time heed those of Justice Stevens.
They have been encouraged to do so by Burt Neuborne, who advocates a “democracy-centered” reading of the First Amendment. Indeed, the problem of campaign finance lies at the center of the First Amendment’s historic preoccupation with the protection of political utterances. As Milton understood, a republic requires debate for its very life. When incorporated into the Fourteenth Amendment, the First Amendment can be rightly viewed as having a direct connection to the constitutional guarantee of a republican form of government. It is then also linked to the Equal Protection Clause and the rightly celebrated doctrine of “one man, one vote.”
Thus seen, the right to express oneself by hiring others to speak must yield to the imperative need to level the playing field so that citizens of modest means can participate in self-government on reasonably equal terms with individuals or groups of abundant means. When large sums of money are used to hire others to express, publish, or broadcast in insidious form ideas that they may or may not share to audiences who do not choose to receive them, much more than debate is involved. The guarantee of a republican form of government is out the window, and in its place is a First Amendment guarantee of a plutocratic form of government subservient to the interests of wealth, which is the form of government now prevailing in America.
The problem of campaign finance is most acute with respect to the judicial elections that are my special concern. In such elections, voter interest is generally low, political content is limited, and the appearance, if not the risk, of quasi-bribery to secure preferred treatment is especially great. Nevertheless, since the 1980s, multi-million dollar campaign funds are required to secure election to some states’ highest courts. Citizens are not wrong to doubt the independence of the judiciary in such circumstances. The practice is a fulfillment of the cynical view expressed in public choice theory that elected judges are virtually indistinguishable from legislators in their vote-maximizing behavior.
Any effort to regulate campaign finance must also confront another questionable application of the First Amendment: the Court’s holdings that there is in at least some circumstances a constitutional right to engage in politics anonymously. Often suggested by those who oppose more effective regulation of campaign finance is public disclosure of sources. There are numerous practical problems with this approach that seem likely to make it ineffective in any event, but even that is subject to objection cloaked in the rhetoric of the First Amendment. Supreme Court cases affirming the right to anonymity are distinguishable on their facts, but given the manifest predisposition of the Court to favor the rights of wealthy citizens or groups to dominate political discourse with their money, it might perhaps be expected to hold that a billionaire citizen or group is constitutionally entitled anonymously to saturate our airwaves with costly and misleading political advertising as one appears to have done in a recent presidential primary.
A reasonable citizen might well wonder: if people have the right to use money anonymously to buy influence with a legislature, why should they not be equally entitled to buy influence with a court, or even the Supreme Court that claims the power to move the issue of campaign finance beyond the reach of democratic political discourse? Frederick Grimke noted long ago that all the arguments for life tenure for judges are nearly equally applicable to legislators and executives. One response to the concerns I express would be to amend Article III to require the Justices to stand for re-election every six years or so in a free-for-all campaign requiring those wishing to remain on the bench to raise millions of dollars a year from interest groups, litigants, and lawyers appearing before the Court to enable themselves to calumniate their political adversaries. At least one could then be assured that those making decisions about the constitutionality of campaign finance laws really understood what was at stake.
Defamation and the Fairness Doctrine in Broadcast Regulation
The problem of campaign finance is further compounded by what the Court has done with the law of defamation. The not-so-hypothetical anonymous billionaire may perhaps safely saturate our airwaves with material that stops just short of blatant defamation of a disfavored candidate.
The holding in New York Times v. Sullivan that a public official must prove malice by clear and convincing evidence to recover for alleged defamation uttered in public debate took no account of our vast postmodern abilities to publish derogatory material requiring a victimized candidate (if he or she is to survive the assault) promptly to refute it and to have on hand the large sums required for effective refutation when an election is imminent. Nor does it take account of the cumulative impact of decades of intensely negative campaigning on the feelings of citizens toward the governments for which they share nominal responsibility or on the willingness of able citizens to stand for election.
There now seem to be those spending vast sums not to persuade voters to support the candidate of the big spenders but to so despoil the process that many voters will stay home on election day, a choice that a growing number of citizens have been making. Civility in democratic politics is at best rare but it is a priceless asset worth seeking. To many and perhaps most American voters, it is made to appear that most electoral choices are choices among scoundrels.
If civility in elections is not a constitutionally legitimate objective of legislation, then it would seem that civility in judicial proceedings is equally unsuited to legislative concern. If one can freely accuse a candidate for judicial office of moral transgressions, why may not a lawyer or litigant repeat those accusations in open court in the course of a jury trial? Does a lawyer not have a First Amendment right to speak her mind and heart when she is making a closing argument to the jury? Can she not say that the legal instructions they are about to hear will be given by a judge whose campaign funds were provided by tobacco companies and other hateful enterprises? Can she not use the same strong language on her adversary that is used on network television? Or perhaps drape the bench or adversary counsel’s table with a Confederate flag or a Swastika?
Justice Byron White joined in Justice Brennan’s sweeping opinion in New York Times v. Sullivan, but later concluded that it was his worst vote in thirty years on the Court. For many years, he sought opportunities to restore (without punitive damages) the law of defamation in its application to political discourse. He sensed, as many did not, that it was a mistake to strip our political discourse of effective restraint on false or misleading information about candidates for public office. He repeatedly affirmed a public need for a forum in which candidates victimized by political disinformation could call their unjust assailants to account. He did succeed in leading the Court to a holding that, notwithstanding Sullivan, a knowingly false attribution of a quotation is actionable defamation.
There is no doubt that Sullivan is now deeply entrenched in our legal and political culture. Indeed, at least two American courts have refused to enforce English judgments imposing liability on foreign publishers who in foreign lands defamed officers of foreign governments. These decisions were radical departures from the recognition customarily given to English judgments in American courts. It is not generally a reason to deny recognition of a foreign judgment (perhaps least of all that of an English court) that the law expressed in the judgment is different from American law, as the English law is on the Sullivan issue. It was, however, held that judgments imposing liability on journalists for defaming public figures so shock the American judicial conscience that it would be contrary to national policy to enforce them. This acute sensitivity to the presumed virtues of the Sullivan rule is especially remarkable given that no other democracy in the world denies its politicians whatever protection from defamation is afforded other citizens. By the standards of other civilized societies, the two judgments were correct on the merits even if their merits cannot be recognized in the United States.
So far have the federal courts come with this extraordinary doctrine that it is no longer possible to regard the law of defamation as a serious inhibition on the utterance of misleading or seriously overstated allegations not only against government officers, but against a host of other “public figures.” It is even plausible that corporate executives are unprotected against false utterances about them that are intended to mislead the stock market.
A regulation of the media intended to inhibit uncivil politics was the fairness doctrine imposed on television broadcasters by the Federal Communications Commission. That doctrine was upheld by the Court over thirty years ago, to the great distress of the media. It has since been substantially neglected, and the Court’s holding seems likely to be narrowly confined. But a ray or two of hope has been opened by the opinions of the Justices in the cases involving the must-carry provisions of the Cable Act of 1992. Those opinions have been analyzed with admirable care by Owen Fiss who finds in them some evidence that the Court may be turning away from extreme libertarianism and might tolerate well-crafted regulation of the practices of television and cable operators to assure equalizing access for political expression that is presently being drowned out by the paid utterances of well-funded candidates and interest groups. Perhaps such regulation might include some form of a right to reply to at least some forms of defamatory or seriously misleading political advertising such as most of those provided in sound bites inserted into commercial television.
On the other hand, the political prospects for such reforms seem dim. As Cass Sunstein has observed, the National Association of Broadcasters uses the First Amendment in the way that the National Rifle Association uses the Second Amendment “as an all-purpose shield against any action adverse to their interests.” Politicians (or Justices) daring to impose any form of accountability on the media must expect to be pilloried for doing so.
The nexus between campaign finance and the absence of the restraining influence of defamation law has in very recent years become an especially acute problem in the conduct of judicial elections. How indeed can one spend millions of dollars on a judicial campaign other than by false and misleading advertising? The most common ploy, almost always available for use against a sitting judge, is to accuse an adversary of being soft on crime. Since 1996, six states have created institutions to monitor judicial elections, but it is not clear that they will be allowed to take action against judicial candidates who debase their offices and their professions by uttering calumnies against one another. Thus, a United States District Court has enjoined a proceeding of the Alabama Judicial Inquiry Commission against Justice Harold See, who spent millions in a campaign for the Republican nomination for the Chief Justiceship of his court to buy expensively crafted television advertising depicting his adversary as a judge who was soft on drug dealers. See, who had himself been falsely vilified in a previous campaign, listed among his adversary’s drug dealer cases many in which the adversary had not participated, as See appeared to know. See also surely knew that his adversary could not explain his current rulings on sentencing without violating a standard rule of judicial ethics, so that he was essentially defenseless against the charge. The District Court held that the Alabama rule prohibiting a judge from publishing such false information in a judicial campaign is, on its face, a violation of the First Amendment and enjoined the disciplinary action taken by the Alabama Judicial Inquiry Commission.
The case of Justice See is, alas, one of many. In 1998, a Georgia panel monitoring judicial elections published its finding that a spot advertisement broadcast by a candidate was highly misleading and unethical. The candidate lost, perhaps as a result of this corrective intervention, and has now brought an action against the commission charging it with a violation of his First Amendment rights. And there are other pending disputes of a like kind, arising in Michigan, Nevada, and Florida.
One must at least give Justice See credit for appearing on screen and calumniating his adversary in the first person. Perhaps he could have avoided trouble by arranging to have the same advertising done at the expense and direction of an anonymous supporter, allowing the calumnies to be uttered by an actor bearing a suitable resemblance to Walter Cronkite. If one is to believe all one reads in the Supreme Court reports, there is nothing that a state can do to prevent an anonymous source of wealth (say an organization calling itself War on Drugs) from calumniating judicial candidates. Such an anonymous source was single-handedly responsible for the defeat in 1996 of a member of the Supreme Court of Tennessee. The identities and true motives of her assailants may never be revealed, and it may be that the state is constitutionally disabled from investigating and publicizing them.
I have observed a tendency in some life-tenured judges and persons holding academic tenure to dismiss concern for any problems with judicial elections, many of them reckoning that there is an easy answer to the problem: just appoint state court judges, like federal judges, for life. This is not the place to debate the merits of judicial elections, but the point needs to be made that judicial elections are here to stay in most states. There are legitimate if not universally convincing arguments for holding such elections. It is therefore a matter of paramount importance to the law that those elections being held be free of fraud and other electoral abuses, including factual distortions to make a rival candidate appear to be a scoundrel. While the difference between judicial elections and other kinds is perhaps a matter only of degree, there is a distinction to be made with respect to the relative importance of civility and personal integrity of those elected to judicial office and, indeed, of the appearance of integrity needed to sustain public confidence in law.
The Media and The Right to A Fair Trial
The hyperinflation of the First Amendment that is ravaging our politics and our judicial institutions reflects the excessive power over American politics and law exercised by the barons of the media. The barons long ago outgrew any resemblance to the homely village newspaper celebrated in the utterances of early champions of the right to freedom of expression. They are an industry and like other industries are engaged in competitive exploitation of consumers and workers for the purpose of rewarding shareholders and justifying mind-boggling compensation for themselves. In many fields, as economists are prone to urge, such competition may in the end benefit those whom the competitors seek to exploit. But there is scant evidence that the quality of our public institutions is well-served by the electronic media who profit from political spot advertising and serve their viewers with political news comprised of sound bites. The chronic failure of the market to serve the public interest in maintaining effective public institutions is dramatically exhibited in claims made by the media to the right to conduct their business without regard for the justice or injustice of the outcomes of judicial proceedings.
John Henry Wigmore stated a principle no less applicable to the media than to other citizens. The duty to assist a court by supplying it with evidence relevant to a matter it must decide is, he said,
a duty not to be grudged or evaded. Whoever is impelled to evade or to resent it should retire from the society of organized and civilized communities and become a hermit. He is not a desirable member of society. He who lives by society must let society live by him, when it requires to.
. . . [The] inconvenience which he may suffer, in consequence of his testimony, by way of enmity or disgrace or ridicule or other disfavoring action of fellow-members of his community, is also a contribution which he makes in payment of his dues to society in its function of executing justice. If he cannot always obtain adequate solace from this reflection, he may at least recognize that it defines an unmistakable axiom. When the course of justice requires the investigation of truth, no man has any knowledge that is rightly private.
The Supreme Court has often affirmed the wisdom of the principle stated by Wigmore and applied it to the media, denying contrary First Amendment claims. In Branzburg v. Hayes, it denied the right of journalists to refuse to identify their sources when needed to pursue an investigation of facts by a Kentucky grand jury. In Zurcher v. Stanford Daily, it held that newsrooms are not sheltered from reasonable searches for evidence conducted pursuant to warrants. And in Herbert v. Lando, it upheld the right of civil litigants to compel the disclosure of unpublished material in the possession of journalists. These decisions evoked a strong hostile reaction from the media, whose members claimed immunity from the obligations of ordinary citizens to cooperate with courts seeking to do justice.
The media succeeded in elevating their self-interest over the rights of litigants in Nebraska Press Assn. v. Stuart. The Court there upheld the right of the press to publish in advance of trial evidence of an accused person’s guilt. It was assumed that there are other available means to protect the accused’s right from the inflammatory effects of premature publicity of select pieces of incriminating evidence. Whether the assumption is always valid is doubtful. It is in any case ironic that the constitutional right to due process of law expressed in the Fourteenth Amendment favors the media over the rights of litigants.
Furthermore, notwithstanding the holding in Branzburg v. Hayes, the media have sometimes continued to insist on their right to refuse to disclose information in its possession to those responsible for law enforcement. They have succeeded in lobbying through many state legislatures so-called “shield laws” conferring an evidentiary privilege on journalists faintly resembling that enjoyed by lawyers with respect to communications received in private from a client seeking legal advice. Such legislation exempts the media, in limited circumstances, from the duty of citizens to give evidence.
The media contend that a healthy democracy requires investigative journalism, which in turn requires confidentiality for secret informers. Of course, there is something to be said for the media contention if the shield is narrowly limited to informers engaged in whistle blowing that bears on public matters or who otherwise supply information that would have important practical value to readers or viewers. Maybe the identity of the legendary “Deep Throat” should be protected even at the cost of rendering a false judgment depriving a litigant of his or her rights. But in many of their potential applications, such shields of secrecy intersect and conflict with other values of at least equal constitutional import, not least of which is the right to a fair trial guaranteed by the Fifth and Fourteenth Amendments. Nationwide, about half the subpoenas served on the media are complied with; about 30% of the challenges to their subpoenas based on the shield laws are denied.
Illustrating media indifference to the social and political obligation identified by Wigmore was the recent event involving the three young men convicted in Jasper, Texas of brutally torturing and murdering an African-American man, apparently in a fit of racial hatred. For CBS, Dan Rather interviewed one of the accused men in prison and broadcast selected parts of the interview. When the prosecutor sought access to the takeouts, CBS invoked the First Amendment, there being no shield law in Texas.
I have been unable to imagine what the accused murderer sitting in his jail cell could have said to Dan Rather that has even the slightest resemblance to the utterances of Deep Throat with respect to any need for confidentiality. Whether he is guilty or innocent or something in between, the matter is in the public domain and the media have no legitimate interest that differs from that of the state of Texas, i.e., to see that all relevant evidence is presented to the trier of fact. I am also unable to conceive a reason rooted in any public interest why accused murderers should be given the privilege of previewing their possible testimony with the media.
I am, however, able to imagine that other persons accused of the same crime might desperately seek access to the same takeouts as possible evidence of their innocence. The reader will easily imagine civil lawsuits in which access to the takeouts might be highly pertinent. Individual litigants are entitled to access to relevant proof, especially if they are accused of crime, and most especially in a capital case; it would seem to be a forthright denial of due process to prevent a co-defendant from having access to takeouts in the possession of a television network. Presumably, CBS would generously concede this point in some cases, but it appears to claim constitutional protection for its discretion in such matters. While the constitutional protection of the Due Process Clause does not extend to the state of Texas, the state’s interest in securing fair trials is surely superior to the frail interest of the media in treating the takeouts as professional secrets that they are free to sell or not as they see fit.
Despite the manifest vanity of the CBS position in resisting the request of the prosecutor, it was voiced with utmost pretense of virtue by Rather and by lawyers of favorable repute. Skeptics are invited to review the transcript of the discussion on the PBS News Hour. What they will find is evidence of Sunstein’s observation that the First Amendment is deployed by the media as a bar to any public action however needful that in any way discommodes or burdens themselves. I doubt whether any other legal system on the planet would for a moment suffer the conduct of CBS. As Wigmore would have it, CBS should become a hermit.
In these matters, the federal judiciary has of course followed the leadership of the Supreme Court. Nevertheless, some of the most objectionable applications of the First Amendment may be the work of district and circuit judges, some of whom may not have fully appreciated the cautions sometimes found in the Court’s utterances, or who at times have yielded to the impulse of vanity to create some new constitutional law.
Many of the federal courts’ First Amendment decisions reviewed here had substantive outcomes that I approve. I do not believe that pornography or obscenity is much of a threat to important social values. I am mildly offended by those who choose to burn a flag, but I would not consider punishing them. I am more offended by burning crosses or the display of the Confederate flag, but I would not punish those deeds, either. I can avert my eyes if I am offended by the words Fuck the Draft on a garment, or many other hateful utterances. As a parent and grandparent, I would prefer that my descendants’ scoutmaster not be one making an issue of his or her homosexuality. I have resisted public prayer, and I would vote against posting the Ten Commandments. I don’t have a problem with nude dancing, even in a barroom, with or without pasties, and I have observed nude ballet dancers without feeling any urge to summon the police.
My problem with the federal judiciary on these issues rests on the recognition that none of my own opinions (anymore than those of judges and Justices) has special value making them more worthy of legal status than those of any randomly selected citizen. Those whose views are different from mine are entitled to vote on those issues. If some of us are deeply offended by the enforcement of local laws forbidding pornography, nudity, obscenity, flag burning, commencement prayers, or preventing discrimination against homosexuals, we can sue in state courts (whose judges have some democratic accountability for what they do), invoking state constitutional provisions that can be amended if the judges’ decision is an offense against the moral judgments of the electorate.
About other outcomes discussed here I am more doubtful of my own preferences. Somehow or other, I would eradicate extreme graphic violence if empowered to do so, without regard to any claims to artistic freedom. I do not know what the law should be with respect to lawyer advertising, but I might restrain some of its more aggressive forms. I am inclined to think that the Food and Drug Administration should protect consumers of products promoted as means to health and beauty without much regard for any right of vendors to puff their wares. I do not know what the law of political defamation ought to be, but I am not in doubt that the law we have as a result of New York Times v. Sullivan is a major source of incivility in our politics. Perhaps our democratic politics could be partly redeemed by some legislated utilization of the fairness doctrine applied to spot advertising on commercial television.
The observations of First Amendment law recited here raise the question whether there is reason to confer on any corporation organized for profit a constitutional right to freedom of expression. Any resemblance of vast media empires such as Time-Warner, Disney, or General Electric or such drug manufacturers as Merck or Pfizer to the courageous, outspoken journalists of Thomas Jefferson’s day is absent. Such institutions are created to pursue gain and are structurally incompetent to profess religious faith, act on conscience, or experience the sentiments of civic virtue or dissent. They are, in short, completely outside the range of impulses and activities that the First Amendment aims to protect. There are, of course, reasons of sound policy for conferring some such rights on such institutions, but those reasons should be addressed to legislatures that are accountable to the people and not to the federal judiciary.
In every respect mentioned here, the First Amendment has become an instrument of class warfare by which a self-anointed elite imposes its will on the unwashed electorate whose disregarded and disdained moral opinions are in a republic entitled to equal respect. America pompously promotes democracy as the solvent of all the world’s political problems, but in regard to a wide range of matters is itself indifferent to the moral judgment of its own people expressed by their elected representatives. The people have very little say on the matters about which many care the most.
This moral imperialism is not merely bad politics; it is bad law. People cannot be expected to obey law that has lost its underpinnings in popular morality. People obey law not merely because they fear legal consequences, but because they fear the odium imposed on offenders by citizens regarding the law as their own. A legal system lacking moral footings lacks that force and must rely on the brutality of its sanctions to secure compliance, if indeed compliance can be achieved.
Especially has the Court lost its way with respect to campaign finance. On this, too, I am not in doubt. It is urgent that the Court reverse or substantially qualify Buckley. It is intolerable that the First Amendment, long treasured as an essential feature of self-government, has been made by the Court into an instrument for the subordination of the democratic process to government controlled by the highest bidders. The combination of the rights said to derive from the First Amendment anonymously to spend vast sums to flood the media with sound bites defiling those seeking to perform public service is dangerous to the health of the law and of the republic, if indeed they are not a deadly potion.
It is my clear impression that we now have the most degraded political system of any reasonably stable democracy. Of course I am not familiar with all of them. But I am assured that candidates for high office in Australia, Britain, Canada, France, Germany, Israel, Italy, Japan and Sweden do not spend vast sums on expensively crafted television advertising to disparage the moral character of their adversaries. Those countries, too, face difficulties in preventing their most powerful citizens and organizations from overrunning and corrupting the democratic process, but none of them have so totally forsaken the effort to do so.
Hendrik Hertzburg was precise in decrying our current presidential campaign for
the baneful influence of money, which corrupts our most sacred institutions; the notion that it is somehow acceptable to force people to make serious choices on the basis of distorted information gleaned from concocted television spectacles; the promises made to be broken; and, finally, the dark revelations about personal behavior and financial chicanery that sooner or later emerge, giving rise to recriminations and bringing the entire enterprise into disrepute.
Doubtless the Supreme Court of the United States is not alone responsible for this misfortune, but it is the direct product of the Court’s indifference to democratic traditions and institutions and lack of regard for the common sense and moral judgment of fellow citizens.
No doubt any legislated solution to the perplexing problems of campaign finance and civility in elections will attract criticism and some of it will have merit. Any solution that could be passed by a constitutionally unfettered legislature might be more objectionable than the system we have. However, it would have the virtues of being an election law enacted by persons accountable to the people and changeable by the simple and popular remedy of throwing the rascals out.
Effective correction of the hypertrophy of the First Amendment seems remote.  Meanwhile, the Court should require itself to re-read the Declaration of Independence and the Gettysburg Address. Or perhaps the crucial words of those scriptures should be read aloud in Court at each of its sittings in lieu of the constitutionally doubtful utterance, “God save this honorable Court.” Somehow, the Court must regain a sense of its appropriately quite limited role in protecting us from ourselves, for it has done incalculable damage to our democratic institutions and has made a transparent fraud of our evangelical rhetoric about the virtues of democracy in other lands.
 Gordon S. Wood, The Radicalism of the American Revolution (1991); Morton White, The Philosophy of the American Revolution (1978); Carl Becker, The Declaration of Independence: A Study in the History of Political Ideas (1922).
 See Cecilia M. Kenyon, The Antifederalists (2d ed 1985); Edith Guild Henderson, The Background of the Seventh Amendment, 80 Harv. L. Rev. 289 (1966); Charles Wolfram, The Constitutional History of the Seventh Amendment, 57 Minn. L. Rev. 639 (1973).
 See Patrice Higonnet, Sister Republics: The Origins of French and American Republicanism (1988).
 See Harry L. Watson, Liberty and Power: The Politics of Jacksonian America (1990); Marvin Meyers, The Jacksonian Persuasion (1957).
 See Garry Wills, Lincoln at Gettysburg: The Words that Remade America (1992).
 Paul D. Carrington, Stewards of Democracy: Law as a Public Profession 55-81 (1999).
 For brief accounts of their careers and thought, see id. 121-136.
 Democracy’s Discontent: American in Search of a Public Philosophy (1996).
 Self-Rule: A Cultural History of American Democracy (1995).
 The Conquest of Politics: Liberal Philosophy in Democratic Times (1988).
 The Revolt of the Elites and the Betrayal of Democracy (1995).
 See Stanley Elkins & Erick McKittrick, The Age of Federalism: The Early American Republic, 1788-1800 at 103 (1993); Clinton Rossiter, Alexander Hamilton and the Constitution (1964).
 Another contributing cause may have been the movement of the Supreme Court into its highly pretentious quarters. Louis Brandeis refused to occupy chambers in that building and foretold that it would foster an atmosphere conducive to judicial arrogance. Alpheus T. Mason, Brandeis: A Free Man’s Life 628-29 (1946). A possible response to the problem depicted here would be to return the Court to the facilities in the basement of the Capitol that it occupied until 1932.
 History of The Decline and Fall of the Roman Empire (J.B. Bury ed., 3 vols. 1946). The work was first published in London in 8 volumes in 1776-1788.
 For a comprehensive presentation of the case law, see William W. Van Alstyne, The First Amendment: Cases and Materials (2d ed., 1995). The institutional arrogance of the Court is not limited to this subject. For another, see Paul D. Carrington & Paul Haagen, Contract and Jurisdiction, 1996 Supreme Court Review 331 (1997).
 This was the motto on the flag of the first American naval vessels to engage in the Revolutionary War. I am told that it is reappearing on banners of “militia” units in some parts of the United States. I have seen one such flag in Kansas.
 Gitlow v. New York, 268 U. S. 625 (1925); see Daniel A. Farber & Suzanna Sherry, A History of the American Constitution 366-67 (1994).
 Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5 (1949).
 David M. Rabban, Can Academic Freedom Survive Postmodernism?, 86 Cal. L. Rev. 1377 (1998).
 John Milton, Aeropagitica: A Speech for Liberty of Unlicensed Printing (1644) republished in 32 Great Books of the Western World 406 (1952).
 **A contemporaneous account of the modest aims of the Fourteenth Amendment is set forth in Joseph Story, Commentary on the Constitution of the United States ---- (4th ed., Thomas M. Cooley ed., 1872). A recent revisionist analysis is Akhil Amar -----------
 See generally Harry Kalven, The Negro and the First Amendment (1965); cf. New York Times v. Sullivan, 376 U. S. 254 (1964); NAACP v. Button, 371 U. S. 415 (1963).
 **See John Hart Ely, Democracy and Distrust
 Lee C. Bollinger, Elitism, The Masses, and the Idea of Self-Government: Ambivalence about the Central Meaning of the First Amendment in Constitutional Government in America at 99 (Ronald K. L. Collins ed., 1980).
 Celebrated in Of Civil Government published in London in 1690; republished in one volume in New York in 1948.
 See Edmund Burke on Government, Politics and Society (B. W. Hill ed., 1976).
 There is deep irony in the Court’s recent willingness, indeed seeming eagerness, to invalidate acts of Congress that trench on the sovereignty of state government while the Court has imposed no analogous restraint on itself. For a brief account of the Court’s newly revived federalism, and its irony, see Earl M. Maltz, Justice Kennedy’s Vision of Federalism, 31 Rutgers L. J. 761 (2000).
 Roth v. United States, 353 U. S. 476.
 Miller v. California, 413 U. S. 15.
 Compare Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997) (involving a federal law seeking to regulate electronic transmissions).
 Alberts v. California, 353 U. S. 476, 503 (1957); Smith v. California, 361 U. S. 147, 169 (1959); A Book Named John Cleland’s Memoirs of a Woman of Pleasure v. Attorney General of Mass., 383 U. S. 413, 455 (1966).
 E.g., Mainstream Loudoun v. Board of Trustees of Loudoun County Library, E. D. Va., http/lw/bna.com’#1208 (November 23, 1998).
 Cf. Reno v. American Civil Liberties Union, 117 S. Ct. 2329 (1997).
 Such events are said to have been featured on WWF’s Smackdown, a program appearing on UPN, a cable network. I have not witnessed them. If they have not yet occurred on network television, just wait.
 Cohen v. California, 403 U. S. 15 (1971).
 A very brief review is Kerby Anderson’s Commentary, Television Violence, April 14, 2000, www.probe.org/docs/c-tvviol.html. A full review is Wendy L. Josephson, Television Violence: A Review of the Effects on Children of Different Ages (Ottawa 1995). The latter work is also available on the internet.
 Catherine MacKinnon, Feminism Unmodified: A Discourse on Life and Law 163 (1987).
 Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation and Hustler Magazine v. Falwell, 103 Harv. L. Rev. 601 (1990).
 Jenkins v. Georgia, 418 U. S. 153 (1974).
 E.g., Farewell Address of 1796 (republished in 1998).
 The Virginia Guarantee of Religious Liberty drafted by Jefferson as Governor and later enacted by the legislature in 1781 provided:
That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his opinion or belief; that all men shall be free to profess, and by argument to maintain, their opinions and that the law shall in nowise diminish, enlarge, or affect their civil capacities.
 Alan R. Jones, The Constitutional Conservatism of Thomas McIntyre Cooley: A Study in the History of Ideas 262-63 (1987).
 Philippa Strum, Louis D. Brandeis: Justice for the People 9 (1994).
 Civil Liberty and Self-Government (Philadelphia 1853). Lieber coined the phrase “hamarchy” to describe this form of self-government, which he considered to be far more stable on account of its internal structures, for much the same reasons that federalism has stabilizing effects.
 My colleague, Martin Golding, has explained this relationship for orthodox Jews. Tikkun Olam: Social Responsibility in Jewish Thought and Law 201 (D. Schatz et al, eds. 1997).
 Thomas K. Lindsay, Defending Liberalism, Book Review of Stephen Holmes: Passions and Constraints: On the Theory of Liberal Democracy, 82 Iowa L. Rev. 943 (1997).
 Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivializes Religious Devotion (1993).
 Stanley Hauerwas & William Willimon, Resident Aliens: Life in the Christian Colony (1989).
 Stanley Fish, Mission Impossible: Settling the Just Bounds Between Church and State, 97 Colum. L. Rev. 2255 (1997).
 Engel v. Vitale, 405 U. S. 421 (1962). See United States Department of Justice Memorandum to United States Department of Education re School Prayer (1995).
 Lemon v. Kurtzman, 403 U. S. 602 (1971).
 County of Allegheny v. American Civil Liberties Union, 492 U. S. 573 (1989).
 American Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Board, 210 F. 3d. 703 (6th cir. 2000).
 2000 App. LEXIS 16276.
 Santa Fe Independent School District v. Doe, 120 S. Ct. 2266 (2000).
 Id. 2283. (Rehnquist, C. J., dissenting).
 See Richard J. Purcell, Connecticut in Transition, 1775-1818 (Middletown 1963).
 Barnes v. Glen Theatre, Inc. 501 U. S. 560 (1991); City of Erie v. Pap’s A. M., 120 Sup. Ct. 1382 (2000).
 Accord, Stevens, J., dissenting, id. 120 S.Ct. 1406, 1406.
 This happens on Channel M1 in Moscow. Michael Wines, So the News is Ho-Hum. The Show’s Spectacular, New York Times, October 5, 2000 at A4.
 Id. 1398, 1400-1402.
 E.g., R. A. V. v. City of St. Paul, 505 U. S. 377 (1992).
 See Kenneth D. Ward, Free Speech and the Development of Liberal Virtues: An Examination of the Controversies Involving Flag-Burning and Hate Speech, 52 U. Miami L. Rev. 733 (1998).
 Texas v. Johnson, 464 U. S. 397 (1989).
 Richard D. Parker, Statement re Flag Burning, Hearings on Constitutional Amendment, 105th Congress (1998).
 Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000).
 New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932).
 E.g., Roberts v. United States Jaycees, 468 U. S. 609 (1984).
 Virginia State Board of Pharmacy v. Virginia Citizens Community Council, 425 U. S. 748 (1976).
 Valentine v. Christensen, 316 U. S. 52 (1941).
 Central Hudson Gas & Elec. Corp. v. Public Service Comm’ n of N. Y., 447 U. S. 597 (1980).
 Bates v. State Bar of Ariz., 433 U. S. 350 (1977); In re R. M. J., 455 U. S. 191 (1982).
 But see Geoffrey C. Hazard, Russell G. Pearce, and Jeffrey W. Stempel, Why Lawyers Should Be Allowed to Advertise: A Market Analysis of Legal Services, 58 N. Y. U. L. Rev. 1084 (1984) and Federal Trade Commission Report on Lawyer Advertising (1984).
 Carl M. Selinger, The Public’s Interest in Preserving the Dignity and Unity of the Legal Profession, 32 Wake Forest L. Rev. 861 (1997).
 Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 (1985); Shapiro v. Kentucky Bar Assn., 486 U. S. 466 (1988); Peel v. Attorney Registration and Disciplinary Comm’n of Ill., 496 U. S. 91 (1990).
 Edenfield v. Fane, 507 U. S. 761 (1993).
 E.g, Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978).
 Cf., 41 Liquormart, Inc. v. Rhode Island, 517 U. S. 484 (1996), holding that the state cannot prohibit liquor advertising. Of course, the state can eliminate all private sales of liquor, but cannot allow private sales without advertising. This result can seem sensible only to one who has become lost in the wilderness of First Amendment doctrine.
 Pearson v. Shalala, 164 F. 3d 650 (D.C. cir. 1999). For background on this problem, see United States House of Representatives Committee on Government Operations, FDA’s Continuing Failure to Prevent Deceptive Health Claims for Food (1996).
 Washington Legal Foundation v. Friedman, 13 F. Supp. 2d. 51 (D. D. C. 1999), appeal dismissed and order vacated, Washington Legal Foundation v. Henney, 202 F. 3d 331 (D. C. Cir. 2000).
 See Margaret Gilhooley, Constitutionalizing Food and Drug Law, 74 Tul. L. Rev. 815 (2000).
 Cheap Spirits, Cigarettes and Free Speech: The Implications of 44 Liquormart, 1996 Sup. Ct. Rev. 123, 155. See also Martin H. Redish, Tobacco Advertising and the First Amendment, 81 Iowa L. Rev. 589 (1996).
 See generally Food and Drug Law (Richard M. Cooper ed., 1991).
 See generally Jared Siddiqi, World Health and World Politics: The World Health Organization and the UN System (1995).
 Helen Hershkoff & Adam S. Cohen, Begging to Differ: The First Amendment and the Right to Beg, 104 Harv. L. Rev. 891 (1990).
 See generally Elizabeth Drew, The Corruption of American Politics: What Went Wrong and Why (2000).
 Richard Harper & John Aldrich, The Political Economy of Sugar Legislation, 70 Public Choice 299 (1991).
 421 U. S. 1 (1976).
 E.g., Loose Enterprise? Wall St. J., July 27, 2000 at A22.
 The process is analyzed by Kathleen Hall Jamieson, Dirty Politics, 43-63 (1992). See also Joseph A. Cappella & Kathleen Hall Jamieson, Spiral of Cynicism: The Press and the Public Good (1997).
 Charles Lewis, The Buying of the Congress: How Special Interests Have Stolen Your Right to Life, Liberty and the Pursuit of Happiness (1998); Lars Erik Nelson, Democracy for Sale, New York Review of Books, December 3, 1998, at 1.
 Nixon v. Shrink Missouri Government PAC, 120 S. Ct. 897. 910 (2000).
 424 U. S. 1, 411.
 Soft Landings, If Buckley Fell: A First Amendment Blueprint for Regulating Money in Politics 169 (E. Joshua Rosenkrantz ed. 1999).
 See, e.g., Glenn C. Noe, Alabama Judicial Election Reform: A Skunk in Tort Hell, 28 Cumb. L. Rev. 215 (1998); Kurt M. Brauer, The Role of Campaign Fundraising in Michigan’s Supreme Court Elections: Should We Throw the Baby Out with the Bathwater?, 44 Wayne L. Rev. 367 (1998); Nathan S. Heffernan, Judicial Responsibility, Judicial Independence and the Election of Judges, 80 Marq. L. Rev. 1031 (1997); Paul D. Carrington, Big Money in Texas Judicial Elections: The Sickness and Its Remedies, 52 SMU L. Rev. 263 (2000).
 Richard L. Hazen, “High Court Wrongly Elected”: A Public Choice Model of Judging and Its Implications for the Voting Rights Act, 75 N. C. L. Rev. 1305, 1313 (1997).
 Considerations Upon the Nature and Tendency of Free Institutions 444 (2d ed. Cincinnati 1856, reprinted Cambridge 1968).
 See generally Rodney A. Smolla, Suing the Press (1986).
 376 U. S. 274 (1964); Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (1991).
 Cf. In re Green, 2000 Colo Lexis 1034 (Sept. 11, 2000)/
 Dennis J. Hutchinson, The Man Who Was Whizzer White: A Portrait of Justice Byron R. White 352, 421 (1998).
 Masson v. New Yorker Magazine, 501 U. S. 546 (1991).
 See generally Lucas A. Powe, Jr., The Fourth Estate and the Constitution (Berkeley 1991); Donald M. Gillmor, Power, Publicity, and the Abuse of Libel Laws (1992).
 Telnikoff v. Matusevich, 347 Md. 561; 702 A. 2d 230 (1997); Bachchan v. India Abroad Pubs., Inc., 585 N.Y. Supp. 2d 661 (N.Y. Sup. Ct. 1992).
 See, e.g. Uniform Foreign Money Judgments Recognition Act, 13 U. L. A. 149 (1962); Restatement (Third) of Foreign Relations Law of the United States §483.
 Frederick Schauer & Richard H. Pildes, Electoral Exceptionalism in If Buckley Fell, note 91, at 103, 119. A proposal for a statutory modification of the Sullivan rule is set forth in Paul D. Carrington, Judicial Independence and Democratic Accountability in Highest State Courts, 61-3 L. & Contemp. Prob. 79, 124 (1998).
 For a thoughtful analysis of this use of the internet, see Lyrissa Barnett Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace, 49 Duke L. J. 855 (2000).
 Red Lion Broadcasting v. FCC, 395 U. S. 367 (1966).
 The last vestige of the doctrine was suspended by the Commission on October 4, 2000. Stephen Labaton, In Test, F.C.C. Lifts Requirement on Broadcasting Political Replies, New York Times, October 5, 2000 at A1.
 1992 Cable Act, Pub. L. 102-385, 106 Stat 1460 (1992).
 The Censorship of Television, 93 Nw. U. L. Rev. 1215, 1238 (1999).
 Television and the Public Interest, 88 Cal. L. Rev. 499, at 499n (2000).
 New York Times, August 23, 2000 at p. l, col. 2.
 For an account, see Glenn C. Noe, Alabama Judicial Election Reform: A Skunk in Tort Hell, 28 Cumb. L. Rev. 215 (1998). For Justice See’s comments on the law governing judicial elections, see Harold See, Comment: Judicial Selection and Decisional Independence, 61 L. & Contemp. Prob. 141 (1998).
 The Code of Alabama constrains public comment by judges on pending matters. Alabama Canons of Judicial Ethics, Canon 3A(6), as amended July 28, 1999.
 Butler v. Alabama Judicial Inquiry Commission, --- F. Supp. 2d --- (M.D. Ala., August 3, 2000) (opinion on file with the author). An appeal is now pending.
 New York Times, August 23, 2000 at p. l, col. 2.
 The breadth of concern over the effect of the inflated First Amendment on the integrity of judicial elections was revealed by the call of an emergency meeting of fifteen Chief Justices to discuss the issue and possible remedies. William Glaberson, State Chief Justices Plan to Meet on Judicial Candidates’ Abuses, New York Times, September 8, 2000 at A1.
 Cf. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995). That case involved an unsigned flyer circulated by the author at a public meeting; it could be readily distinguished from any case involving electronic advertising.
 An account of the 1996 Tennessee election is provided by Stephen B. Bright, Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and Remove Judges from Office for Unpopular Decisions?, 72 N. Y. U. L. Rev. 308, 310 (1997); and see Kirk Loggins & Duren Cheek, Activists Target Tennessee Judge, Nashville Tennesseean, July 9, 1998 at A1.
 For an attack on the institution, see Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law 62 U. Chi. L. Rev. 689 (1995). Professor Croley suggests that the election of judges is a violation of the Fourteenth Amendment; such a holding could be regarded as the ultimate arrogation by the Court.
 The history of the institution is recounted in Paul D. Carrington, Judicial Independence and Democratic Accountability in Highest State Courts, 61-3 Law & Contemp. Prob. 79, 87-107 (1998).
 For a lively account of the contemporary role of the media in our public life, see David L. Paletz, The Media in American Politics: Contents and Consequences (1999).
 Treatise on The System of Evidence in Trials at Common Law §2190 (1905).
 408 U. S. 665 (1972).
 436 U. S. 547 (1978).
 441 U. S. 153 (1979).
 427 U. S. 539 (1976).
 In 1998, Florida became the thirtieth state to enact a statute limiting the power of its courts to subpoena the information of professional journalists. The Reporters Committee for Freedom of the Press, Agents of Discovery, www/cfp.org/agents/shield laws.
 The data were gathered by the Reporters Committee for Freedom of the Press. William Glaberson, Press, New York Times, March 27, 1995, C6.
 Transcript, Killing Time, Sixty Minutes, September 28, 1999 2-2 CBS News (Burrell Information Services, Livingston NJ 1999).
 NY Times, November 6, 1999 at B6.
 It follows from this premise that reasonable constraints on lawyer use and misuse of the media are warranted when necessary to protect the accused and the public interest in a fair trial, such as the “gag order” enforced in the recent case of John Gotti by Judge I. Leo Glasser. For an account, see Laura R. Handman & Adam Liptak, Media Coverage of Trials of the Century, 26 Litigation 35, 40-41 (1999).
 Online News Hour: Free Press v. Fair Trial – November 12, 1999.
 For a comparative discussion, see Michael Chesterman, OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by Jury is Dealt With in Australia and America, 45 A. J. Comp. L. 109 (1997).
 **The Talk of the Town, New Yorker, March 6, 2000 at 29.
 I have elsewhere proposed a limited structural remedy to the problem addressed here. Paul D. Carrington, Restoring Vitality to State and Local Politics: Correcting the Excessive Independence of the Supreme Court, 50 Ala. L. Rev. 397 (1999).