Weaponizing the First Amendment: An Equality Reading

*The insightful assistance of Lori Watson and Lisa Cardyn, of Max Waltman (especially in helping to wrestle the vast empirical materials on the harms of pornography below the line), and of Lori Interlicchio for her tremendous help with footnote form and accuracy, is gratefully acknowledged. The essential University of Michigan Law Library and the Cook Fund supported my work beyond measure, always being there. Deliveries of the core ideas at the First Amendment conference at Columbia University sponsored by Vince Blasi in November, 2019, and at The McCorkle Lecture at the University of Virginia, February 6, 2020, produced clarifying discussions. A preliminary sketch appears in The Free Speech Century 140 (Lee Bollinger & Geoffrey Stone eds., 2019). Lee and Geoff practice freedom of expression, contrasting with goose-steppers to First Amendment fundamentalism. Overcoming the best efforts of the latter, this Article is finally being published in full. The Virginia Law Review has my gratitude for courage, principle, and independent thinking, as well as for precision, persistence, and undaunted hard work at a time of challenge. This Article is dedicated to the memory of my teacher and dear friend, Thomas I. Emerson.Show More

This Article traces how and why the First Amendment has gone from a shield of the powerless to a sword of the powerful in the past hundred years. The central doctrinal role of “content neutrality” and “viewpoint neutrality” in this development is analyzed; the crucial tipping points of anti-Semitism, in Collin v. Smith, and pornography, in Hudnut v. American Booksellers, are identified. The potential for substantive equality to promote freedom of speech is glimpsed.

Once a defense of the powerless, the First Amendment¹ 1.U.S. Const. amend. I.Show More over the last hundred years has mainly become a weapon of the powerful. Starting toward the beginning of the twentieth century, a protection that was once persuasively conceived by dissenters as a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers, and corporations buying elections in the dark.² 2.All the examples in this sentence are discussed in this Article except the last, which is exemplified by Citizens United v. FEC, 558 U.S. 310 (2010), and preceding cases, discussion of which is beyond the scope of this Article.Show More In public discourse, with which these legal developments are tightly connected, freedom of speech has at the same time gone from a rallying cry for protesters against dominant power to a claimed immunity of those who hold dominant power. Thus weaponized,³ 3.Justice Elena Kagan spoke of “weaponizing” the First Amendment in a dissenting opinion contending that fees assessed by statute by public employee unions on all who benefitted from their collective bargaining should have been permitted rather than invalidated under the First Amendment: “There is no sugarcoating today’s opinion. The majority . . . prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting). Although the power alignments in her recognition parallel those argued here, I am not claiming that Justice Kagan agrees with the analysis in this Article.Show More the First Amendment has morphed from a vaunted entitlement of structurally unequal groups to have their say, to expose their inequality, and to seek equal rights, to a claim by dominant groups to impose and exploit their hegemony.

On the social level of the speech itself, dominant groups promoting ideologies of supremacy have solidified and enhanced their power through inaccurately but successfully positioning themselves as marginal powerless dissenters, or as debaters just expressing ideas. As much public speech has accordingly escalated in its abusiveness, markedly on social media, from racist dog whistles and worse through sexual objectification and worse, to some electoral and other political assaults and invitations to violence, a First Amendment appeal is often used to support dominant status and power, backing white supremacy and masculinist misogynistic attacks in particular. Voices challenging inequality on campuses and in media as well as on streets, in communities, in social media, and in courts are frequently effectively muted and exposed to further abuse and silenced through subordinating aggression, including verbal, physical, and legal threats, in the name of freedom of speech. And everyone wonders, how did we get here?

In law, the doctrinal pivot of this twisted development turns on a vicious irony. The very First Amendment doctrine that has supported intensifying hierarchies of power in its results is founded in a purported equality principle. Starting in the 1970s, the First Amendment began to build a doctrine of content neutrality, extended (where applicable) to viewpoint neutrality, said to be predicated on equality.⁴ 4.As traced in detail below, this trajectory went from Schacht v. United States, 398 U.S. 58 (1970), to Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), to Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20 (1975), as recounted in Geoffrey R. Stone, Kenneth Karst’sEquality as a Central Principle in the First Amendment, 75 U. Chi. L. Rev. 37 (2008). None identifies the “equality” being applied as formal equality, which it is.Show More Neutrality has become its principal tool, overwhelming even its few substantive recognitions. Content neutrality, like gender neutrality or racial neutrality (often termed colorblindness) under the Equal Protection Clause,⁵ 5.U.S. Const.amend. XIV, § 1. For discussion, see Catharine A. MacKinnon, Feminism Unmodified 33–37, 55, 71–74, 164–67, 275 n.6 (1987), and Catharine A. MacKinnon, Sex Equality (3d ed. 2016).Show More is rooted in the abstract Aristotelian notion of formal equality, which can distinguish sameness from difference within a prescribed range, but lacks substantive comprehension or direction. Absent the injection of substance—considered non-neutral, hence non-principled and prohibited by this doctrine—this doctrine has proven to be an instrument of reproduction of the status quo, incapable of reliably distinguishing social dominance from subordination, thus maintaining that dominance. That is, it is incapable of seeing hierarchy, markedly the rank ordering of white over not white, of male and masculine over female and feminine, that (among many other inequalities) defines inequality in reality.⁶ 6.See, e.g., Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1, 27 (2011); Catharine A. MacKinnon, Substantive Equality Past and Future: The Canadian Charter Experience, in Canada in the World: Comparative Perspectives on the Canadian Constitution 227, 227–44 (Richard Albert & David R. Cameron eds., 2018) [hereinafter MacKinnon, Substantive Equality Past and Future]; Catharine A. MacKinnon, Substantive Equality Revisited: A Reply to Sandra Fredman, 14 Int’l J. Const. L. 739 (2016); Catharine A. MacKinnon, Substantive Equality Revisited: A Rejoinder to Sandra Fredman, 15 Int’l J. Const. L. 1174 (2017).Show More So this law has proven unable to support opposition to the way things are, or to counter and change it.

An inadequate approach to power, resulting in an incapacity to identify substantive inequality when it animates First Amendment cases—including a failure to identify inequality in these cases at all—is a major part of the underlying story of the First Amendment’s transformation. Being unable to tell the difference between power and powerlessness relatively speaking—for instance, being unable to identify the deployment of racial and/or gender-based terrorism through historically unambiguous means, that is, a determined blindness to social reality—has become firmly entrenched in the First Amendment, and the social discourse invoking it, as the virtue termed “neutrality.” Inevitably, existing unequal social arrangements, namely structures and practices of inequality, sometimes in aggressive forms, are thereby protected.

The First Amendment, firmly ensconced within the liberal tradition, tends reflexively to see power as residing in the state, which it sees as power’s fountainhead.⁷ 7.This ground zero assumption is so fundamental it is virtually impossible to find articulated explicitly because it operates as unconscious ideology. It is most visible in the choice, when discussing power, only to argue for the legitimacy of state power, that is, the principal power seen to exist, as well as in the relative absence of analysis, for example, of male power (Locke analyzes it in the family only to justify it) or white privilege. See, e.g., John Rawls, Political Liberalism 136 (1996) (“[P]olitical power is always coercive power backed by the government’s use of sanctions, for government alone has the authority to use force in upholding its laws.”); Robert Nozick, Anarchy, State, and Utopia 23 (1974) (“A state claims a monopoly on deciding who may use force when; it says that only it may decide who may use force and under what conditions; it reserves to itself the sole right to pass on the legitimacy and permissibility of any use of force within its boundaries[.]”); Ronald Dworkin, Law’s Empire 188, 190–92 (1986). Given how much violence against women occurs that is no less effectively coercive for being extra-legal, this is all mythic.Show More In liberalism, power, rendered “coercive power,” is seen as emanating nearly exclusively from government; society, absent intrusion by the state, is deemed free. Freedom—here, freedom of speech—thus becomes about protecting existing social arrangements, which includes inequalities of power in society, from the state. This includes protecting inequality when the state supports intervention to address that inequality by means of, for example, civil laws against discrimination that include an expressive element.⁸ 8.This is not always the case. For examples of a lesser but nonetheless existing line of authority, see Part II’s discussion of Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973), and Roberts v. United States Jaycees, 468 U.S. 609 (1984).Show More As a result, statutes that aim (for example) to protect socially disempowered and discriminated-against social groups from inequality imposed through speech or expressive conduct, violent or otherwise, because they are statutes, are seen to turn those harmed by such conduct into actors with power, as if they are the state. The statutes are legally mispositioned this way instead of recognizing them as attempted legal interventions on behalf of subordinated social groups, passed in an attempt to shift or mitigate their relative powerlessness, or to shield them from its violent excesses. Social relations are overwhelmingly not grasped as a locus or source or wellspring of power, hence of its inequality. The blinkering or overtly prohibiting of any explicit statutory recognition of grounds of substantive equality such as race or sex—First Amendment rulings considering their realities instead to be “discussions of” those “topics” or “ideas about” those realities⁹ 9.See infra text accompanying notes 91–104 (focusing on R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)); infra text accompanying notes 158–62 (focusing on Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem.,475 U.S. 1001 (1986)).Show More—implements this assumption.¹⁰ 10.Infra Part II discusses this, focusing on R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).Show More

The absence of an operative substantive theory of social equality is thus—in the guise of equality, no less—embedded in the First Amendment’s content neutrality. Few if any of its outcomes are neutral as to content, however, and its doctrine of viewpoint neutrality misses the many times dominant viewpoints are obscured while being protected. The upshot is that this doctrine, systematically implemented, protects “speech” that promotes substantive social inequality as it currently exists.¹¹ 11.See infra Part II.Show More Claiming freedom of speech, practices of inequality are converted into expressions of ideas about inequality, transforming actionable discrimination into protectable “speech.”

Opposition to discriminatory practices becomes censorship of thoughts or ideas on one side of a discussion. In this light, because discrimination, including through expressive acts of the powerful and advantaged, silences the speech of disadvantaged and subordinated groups as well as promotes their disadvantage and actualizes their subordination, neutrality as a doctrinal approach supports the status quo distribution of social power under the First Amendment just as effectively as it largely does under the Equal Protection Clause, where neutrality became the mainstream doctrine during roughly the same time period.¹² 12.As discussed in infra Part III, watershed public debates and judicial decisions in this respect revolved around two Seventh Circuit cases on which certiorari was denied concerning, substantively, anti-Semitism and commercialized misogyny: a permitting restriction applied to Nazis marching in Skokie, Illinois, see Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978), and a civil statute recognizing harms of pornography as sex discrimination,see Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem.,475 U.S. 1001 (1986).Show More

If substantive inequality is all but invisible in the text of First Amendment doctrine and commentary, it is vividly visible in the facts of many, even most, First Amendment cases, if read through a substantive inequality lens. In early First Amendment cases, asymmetrical harms of what amounts to inequalities, if not so called, were clearly recognized. Passing without notice or comment, over time the underlying alignments of power, seen in substantive terms, have been reversed. Originally, the statutes suppressing speech sided with state power; those they silenced were its critics. Increasingly, the statutes subjected to First Amendment attack have sided with the powerless and have been attacked by those with power, claiming to be powerless dissenters. Power’s victims were those the statutes aimed to protect or those whose victimization the statutes aimed to remedy. But the statutes have been legally invalidated as First Amendment violations either as applied or on their face by representatives of social dominance, claiming the mantle of the powerless and dispossessed.

1. * The insightful assistance of Lori Watson and Lisa Cardyn, of Max Waltman (especially in helping to wrestle the vast empirical materials on the harms of pornography below the line), and of Lori Interlicchio for her tremendous help with footnote form and accuracy, is gratefully acknowledged. The essential University of Michigan Law Library and the Cook Fund supported my work beyond measure, always being there. Deliveries of the core ideas at the First Amendment conference at Columbia University sponsored by Vince Blasi in November, 2019, and at The McCorkle Lecture at the University of Virginia, February 6, 2020, produced clarifying discussions. A preliminary sketch appears in The Free Speech Century 140 (Lee Bollinger & Geoffrey Stone eds., 2019). Lee and Geoff practice freedom of expression, contrasting with goose-steppers to First Amendment fundamentalism. Overcoming the best efforts of the latter, this Article is finally being published in full. The Virginia Law Review has my gratitude for courage, principle, and independent thinking, as well as for precision, persistence, and undaunted hard work at a time of challenge. This Article is dedicated to the memory of my teacher and dear friend, Thomas I. Emerson. ↑
2. U.S. Const. amend. I. ↑
3. All the examples in this sentence are discussed in this Article except the last, which is exemplified by Citizens United v. FEC, 558 U.S. 310 (2010), and preceding cases, discussion of which is beyond the scope of this Article. ↑
4. Justice Elena Kagan spoke of “weaponizing” the First Amendment in a dissenting opinion contending that fees assessed by statute by public employee unions on all who benefitted from their collective bargaining should have been permitted rather than invalidated under the First Amendment: “There is no sugarcoating today’s opinion. The majority . . . prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2501 (2018) (Kagan, J., dissenting). Although the power alignments in her recognition parallel those argued here, I am not claiming that Justice Kagan agrees with the analysis in this Article. ↑
5. As traced in detail below, this trajectory went from Schacht v. United States, 398 U.S. 58 (1970), to Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), to Kenneth L. Karst, Equality as a Central Principle in the First Amendment, 43 U. Chi. L. Rev. 20 (1975), as recounted in Geoffrey R. Stone, Kenneth Karst’s Equality as a Central Principle in the First Amendment, 75 U. Chi. L. Rev. 37 (2008). None identifies the “equality” being applied as formal equality, which it is. ↑
6.  U.S. Const.
   

    

   amend. XIV, § 1. For discussion, see Catharine A. MacKinnon, Feminism Unmodified 33–37, 55, 71–74, 164–67, 275 n.6 (1987), and Catharine A. MacKinnon, Sex Equality (3d ed. 2016). ↑

7. See, e.g., Catharine A. MacKinnon, Substantive Equality: A Perspective, 96 Minn. L. Rev. 1, 27 (2011); Catharine A. MacKinnon, Substantive Equality Past and Future: The Canadian Charter Experience, in Canada in the World: Comparative Perspectives on the Canadian Constitution 227, 227–44 (Richard Albert & David R. Cameron eds., 2018) [hereinafter MacKinnon, Substantive Equality Past and Future]; Catharine A. MacKinnon, Substantive Equality Revisited: A Reply to Sandra Fredman, 14 Int’l J. Const. L. 739 (2016); Catharine A. MacKinnon, Substantive Equality Revisited: A Rejoinder to Sandra Fredman, 15 Int’l J. Const. L.
   

   1174 (2017)

   . ↑

8. This ground zero assumption is so fundamental it is virtually impossible to find articulated explicitly because it operates as unconscious ideology. It is most visible in the choice, when discussing power, only to argue for the legitimacy of state power, that is, the principal power seen to exist, as well as in the relative absence of analysis, for example, of male power (Locke analyzes it in the family only to justify it) or white privilege. See, e.g., John Rawls, Political Liberalism 136 (1996) (“[P]olitical power is always coercive power backed by the government’s use of sanctions, for government alone has the authority to use force in upholding its laws.”); Robert Nozick, Anarchy, State, and Utopia 23 (1974) (“A state claims a monopoly on deciding who may use force when; it says that only it may decide who may use force and under what conditions; it reserves to itself the sole right to pass on the legitimacy and permissibility of any use of force within its boundaries[.]”); Ronald Dworkin, Law’s Empire 188, 190–92 (1986). Given how much violence against women occurs that is no less effectively coercive for being extra-legal, this is all mythic. ↑
9. This is not always the case. For examples of a lesser but nonetheless existing line of authority, see Part II’s discussion of Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973), and Roberts v. United States Jaycees, 468 U.S. 609 (1984). ↑
10. See infra text accompanying notes 91–104 (focusing on R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)); infra text accompanying notes 158–62 (focusing on Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986)). ↑
11. Infra Part II discusses this, focusing on R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). ↑
12. See infra Part II. ↑
13. As discussed in infra Part III, watershed public debates and judicial decisions in this respect revolved around two Seventh Circuit cases on which certiorari was denied concerning, substantively, anti-Semitism and commercialized misogyny: a permitting restriction applied to Nazis marching in Skokie, Illinois, see Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1978), and a civil statute recognizing harms of pornography as sex discrimination, see Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986). ↑