With COVID-related spending exacerbating state finances, we may be in for a major development of Eleventh Amendment doctrine.
Last days in the term for the Supreme Court have been days for releasing decisions on the most controversial cases, so watchers of the Court have become used to bracing themselves for some of the worst decisions that the justices can deliver up. Amid the wreckage produced in that culminating week last June, the Court managed to resume its role as the Chief Engine at work in the coarsening of the culture. One of the most notable first steps came years ago in gradually sweeping away the restraints on pornography, applied in a rough but overall useful and salutary way by the States and cities. And now, the Court took another critical step: It struck down the laws that have long worked to bar the use of obscenities in the titles of corporations. A seasoned lawyer in New York pointed out to me many years ago that, if those restraints were not in place, the telephone directories would be filled with names such as the Amherst F–ing Coffee Company.
The case was Iancu v. Brunetti. Erik Brunetti sought a trademark for a brand of streetwear he would call “FUCT”—Friends U Can’t Trust. Close enough to the F-word that the Federal Trademark and Patent Office refused to register the trademark. During the oral argument on the case, Chief Justice Roberts was willing to voice the concern that would spring up at once for ordinary folk: that these kinds of advertisements would be posted in malls where children could see them; but even apart from children, the case raised the question of whether the government should be “facilitating this kind of vulgarity.”
Roberts did not recede from his concerns here even as he concurred with the main opinion written by Justice Kagan, striking deeply at any laws that would impose moral restraints on the names of corporations. The remarkable thing was that Roberts’s concern for opening the floodgates on vulgarity was expressed in terms even more vibrant and fearful in the liberal wing of the Court by Justices Sotomayor and Breyer. In registering those deep qualms, these three judges were described only as “dissenting in part.” And there we find the true puzzle of this case: Virtually all of the justices writing separate opinions revealed their keen awareness of the further, corrosive damage in the culture that this decision was certain to license. Each one of them voiced the wish that Congress would replace the current law with a measure more narrowly focused to deal with vulgarity, obscenity, and lewdness. And yet, each one of them fell in line to strike down the law as it was, finding it too broadly phrased to cover things “immoral” and wrongful. So convinced they were that the law was too vague to be sustained that it somehow failed to count for them that the administrators applying the law applied it precisely as these justices would have wished.
This was an unforced error that the Court could so easily have averted. Virtually every judge wanted to avert this outcome, and they already were edging toward the formula that could have helped them. But they would have found themselves simply backing into old ground, rather like Chesterton’s explorers, out to discover a New Land, and ending up landing at Brighton.
What the justices failed to see was that there was in fact no practicable way for the law to be rewritten. It could not have been made more precise. And just why that was so was explained many years ago by the redoubtable Thomas Reid, the Scottish philosopher of the 18th century, who had been read closely and with deep respect by both John Adams and Thomas Jefferson. Passages from his works were threaded through James Wilson’s lectures on law, and Wilson invoked Reid in the first case to elicit a set of opinions by the first Supreme Court in 1793, Chisholm v. Virginia. It was the habit of luminaries in our Founding generation to be literate and current with the best things written in philosophy at the time. That kind of learning has disappeared now from the studies of most lawyers, even when they were undergraduates. But a minor dose of that philosophic reading could have delivered the justices, in Iancu, from the elementary mistake that distracted their judgments, with severe costs to the country.
Thomas Reid’s lesson came in the early pages of his classic book on The Active Powers of the Human Mind. His favored targets were the moral skeptics led by David Hume, and among the things that Hume professed not to know was the very meaning of such things as “active powers” possessed by human beings. But here, as in other cases, wrote Reid, “the philosophers have found great difficulties about a thing which, to the rest of mankind, seems perfectly clear.” The ordinary man understands, without the need for reflection, the “active power” he exerts to perform his own acts, from the prosaic to the grand, whether choosing to open a bottle or join the army. Reid was referring to things so elementary that the ordinary person grasped them as a matter of course, and virtually had to take them for granted. “It is well known,” he said, “that there are many things perfectly understood and of which we have clear and distinct conceptions, which cannot be logically defined.” As he continued:
No man ever attempted to define magnitude; yet there is no word whose meaning is more distinctly or more generally understood. We cannot give a logical definition of thought, of duration, of number or of motion…When men attempt to define such things, they give no light. They may give a synonymous word or phrase, but it will probably be a worse for a better.
Take, for example, that notion of “number.” A dictionary would tell us that, by “number” we mean “a member of the set of positive integers; one of a series of unique meaning in a fixed order which may be derived by counting.” Something “unique”? Meaning “one” of its kind? “A member”? That is, one? But one what? There is a “fixed order” or “series” derived by “counting,” but what is it that is “counted,” and what are the “units” that make up the series? As Reid suggested, every attempt to provide the definition will end up offering synonyms or saying the same thing in another way.
We might imagine what Congress could do if it were asked to make more precise a statute that depended on terms such as “up” and “down.” I would suggest that this was essentially the problem that the justices, in Iancu, were asking the Congress to solve in this case, to deliver them from their moral perplexity.
Thomas Reid became famous as an exponent of what he called “common sense,” and by that he meant those fundamental points of understanding that ordinary people were just compelled to take for granted as they got on with the business of “life as lived.” Before anyone would banter with David Hume about the meaning of “causation,” the ordinary man well understood his own active powers to cause his own acts to happen. We might ask then, what was the elementary thing involved in the Iancu case, the thing that the Congress could not define even more precisely if Congress sought to rise to the pleas of Justices Alito and Sotomayor?
All of the needful ingredients in identifying and restraining the speech that may be assaulting, denigrating, or obscene were contained in the classic case of Chaplinsky v. New Hampshire (1942). The key passage, cited so often from Justice Frank Murphy’s opinion, ran in this way:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Lawyers and judges tend to forget that there had been two critical strands here: words “which by their very utterance inflict injury” or “tend to incite an immediate breach of the peace.” The Court, in 1971, in Cohen v. California, effectively removed that first strand, as Mr. Justice Harlan reduced the meaning of all moral words to be merely subjective and emotive: “One man’s vulgarity,” he famously wrote, “is another’s lyric.” The Court then confined the test of “fighting words” to words spoken in a face to face setting, more likely to incite a violent reaction. But that bit of excising has been the source of considerable confusion—and harm—since then. For that first strand marked a venerable understanding, long appreciated in the law: that “assault” does not strictly require physical touching or the laying on of hands. An assault may be accomplished by holding an unloaded gun near someone’s head and pulling the trigger. It may be accomplished also by threatening phone calls in the middle of the night,which is why “verbal assaults” are every bit as much “assaults” as acts of physical striking. It may also be carried out by burning a cross outside the home of a black family that happens to be out of town: an act of assault without a “face to face encounter.”
But the deeper strength of the holding in Chaplinsky was that it relied on the common sense understandings that were accessible to ordinary people in their awareness of “ordinary language”—their awareness of how the words they heard and used were commonly understood. Human beings are by nature “moral agents” given to pronouncing judgments on matters of “right” and “wrong,” and so our common language will contain terms that carry the moral functions of praising and blaming, commending and condemning.
And within that field of moral terms, there are words and gestures with more of an edge, even more instantly recognized: they are the terms that insult, denigrate, and even incite people to violence. There is no mystery as to what those terms are, and we don’t need professors or judges to identify them for us. They are indeed as well known to construction workers as to lawyers. We can give people a list of words and ask if they can mark off the terms that are understood as terms of denigration or obscenity, as opposed to words that are innocent and inoffensive. And so we may give them: “Nigger, kike bastard, urologist, registrar, saint.” Ordinary people have no trouble telling the difference and picking out the words that would be understood instantly as terms of derision and insult. All of this works quite well with libertarian premises: “Do no convict, do not restrain speech in case of any doubts, with terms hovering at some borderline between insult and harmlessness. Restrain or bar words only when they are widely understood in ordinary usage as terms of insult or derision.”
Justice Murphy in the Chaplinsky case also pointed out that these words “are no essential part of any exposition of ideas.” And so Mr. Rosenfeld, raging at a school board in New Jersey, had one adjective: “motherf–g.” Rosenfeld could be asked to stop using that word and wrecking the climate of discussion, without interfering in the slightest way with his freedom to make the most searing, substantive argument about the school board. Justice Alito, in his concurring opinion in Iancu, picked up on that precise point, even as he was content to vote in this case to deny the authority to bar those kinds of words. As he put it, “Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas.” Chief Justice Roberts drew on that same point yet again when he remarked that “refusing registration to obscene, vulgar or profane marks does not offend the First Amendment.” Neither Justice bothered to remind people that he was simply leaning again on the standard that had been set down in the classic Chaplinsky case.
Justice Sotomayor was even more certain than the Chief Justice that the decision she was joining would “beget unfortunate results.” With this decision, she said, “the Government will have no statutory basis to refuse … registering marks containing the most vulgar, profane or obscene words and images imaginable.” Sotomayor thought that the majority had been too facile in collapsing the difference between “scandalous” and “immoral.” Justice Alito thought that both words were too imprecise, that they could “easily be exploited for illegitimate ends.” But Sotomayor thought that the “scandalous” could be more readily cabined to “the small group of lewd words or ‘swear’ words that cause a visceral reaction, that are not commonly used around children, and that are prohibited in comparable settings.” She concluded then that the situation could be saved if the Court simply adopted “a narrow construction for the word ‘scandalous’—interpreting it to regulate only obscenity, vulgarity and profanity.” And that move would “save [the policy of regulating trademarks] from unconstitutionality.”
Which is to say: Back to Chaplinsky! Back to the common sense ground that may never be in place. But how does that differ from the standards of judgment that the Trademark Office had actually applied in this case? The statute governing the Patent and Trademark Office authorized the withholding of trademarks that consist of “immoral or scandalous matter.” Justice Kagan was good enough to recall that, as the Office sought to apply that statute, it asked whether the public would view a trademark as “shocking to the sense of truth, decency, or propriety”; “calling out for condemnation [which is to say,”wrongful”]; “offensive”; or “disreputable.” Which is to say, the Office sought to explain in different ways how ordinary people would understand what it means to say that something was “immoral”: (wrongful) or “scandalous.” And it offered precisely the same translation that Justice Sotomayor offered for “scandalous.” As Thomas Reid would have explained, people were simply offering different words for the same thing as they sought to explain what they could mean by “insulting,” “derogatory,” “obscene,” “offensive,” and “stirring anger and conflict.”
In his own, rambling way, Justice Breyer thought these were “attention-grabbing words” that risked the making of public spaces “repellant, perhaps on occasion creating the risk of verbal altercations or even physical confrontations.” In his usual manner, affecting to offer an insight rare and novel, Justice Breyer rediscovered the meaning of “fighting words” 77 years after Justice Murphy set it down in the Chaplinsky case. But the fact that everyone writing was saying the same thing seemed only to confirm to Justice Kagan (as Thomas Reid had warned) that no one could exactly define something rather basic, which everyone essentially grasped. She did not see how the meaning of “immoral” and “scandalous” could be narrowed, as the Government rightly argued, to marks that were “lewd, sexually explicit, or profane.” She and her clerks consulted a dictionary and found that “immoral” might mean “inconsistent with rectitude, purity or good morals”; “wicked,” or “vicious.” And “scandalous” would typically mean “giv[es] offense to the conscience or moral feelings”; “excite[s] reprobation” or “call[s] out condemnation.” Exactly, as Reid foretold to us: everyone seeking out different ways to explain the same rudimentary thing.
We might as well ask the Congress to give us that more precise definition of “up” and “down”–perhaps “higher” and “lower”? “Elevated” and “sunken”? But for Kagan the problem ran even deeper, for if we take her seriously she must be one of the rare bipeds in the land who does not grasp at once Aquinas’s first rule of practical reasoning: that we commend and applaud what is rightful and good, while we condemn, discourage, and even punish the things we regard as wrongful and evil. And so Kagan found something arbitrary in the fact that the Trademark Office “allows registration of marks when their messages accord with, but not when their messages defy, society ‘s sense of decency or propriety.” The statute, she observed with a laser-like clarity, would favor phrases such “Love rules” rather than “Always be Cruel.” And one must wonder: Justice Kagan had a chamber filled with clerks drawn from the best universities and law schools in the country. Was there really no one among them who had taken even an introductory course in moral philosophy; no one who could have told her that she was falling into a mistake that should embarrass a sophomore?
And yet even in the face of writing as incontinent as this, Justice Alito sought to assure his friends following the work of the Court that “our decision is not based on moral relativism.” In any reckoning, Justice Alito would stand among the wisest, and most savvy, of our jurists. But I’m afraid that his assurance here was instantly undercut by this jarring passage in Justice Kagan’s opinion for the Court: She noted that the Trademark Office had “rejected marks reflecting support for al-Qaeda (BABY AL QAEDA and AL-QAEDA on t-shirts) ‘because the bombing of civilians and other terrorist acts are shocking to the sense of decency and call out for condemnation.’ …. Yet it approved registration of a mark with the words WAR ON TERROR MEMORIAL.”
For Justice Kagan, “viewpoint neutrality” evidently means that we must be willing to treat, on the same moral plane, or the same plane of legitimacy, the killing of the innocent in terrorism and the opposition to the killing of the innocent. But nothing calling itself a “moral perspective” can treat the killing of the innocent as standing on the same plane as the defense of innocent life. If that is not “moral relativism,” words have lost their meaning.
Justice Alito touched the concern that a law too broad, with limits ill-defined, “can easily be exploited for illegitimate ends.” For conservatives the specter has been that of the “speech codes” and the outright repressing of conservative speakers and professors on the campuses. Nothing accounts more for the willingness of the conservatives to swing over to the side of a sweeping relativism on the matter of speech. By drawing a clear, unequivocal line, they have hoped to shore up the protections for speech on the campuses and in the public arena. That concern seemed obviously at work when Justice Scalia took the dramatic step to strike down laws barring the burning of crosses in 1992. But as anyone can see, none of that has worked. If anything, the climate of intolerance and repression on the campuses has become ever more assertive, without a trace of apology. And yet why should the conservatives affect to be surprised?
Once we sign on to the premises of moral relativism, we can no longer explain or defend the rightness or goodness of that regime of freedom we are seeking to preserve. We cut the moral ground out from under our defense of freedom in speech, or anything else. With the best intentions, and the most liberal temper, the conservatives have joined the Left on the Court in creating a spiral of relativism that promises to bore down ever further. That is not a path that conservative jurists should have helped blaze for us, and they should not be riding this spiral all the way down.