In addition to being a Judge on the Michigan Court of Appeals (and now running for Michigan Supreme Court), I am an adjunct law professor at Michigan State University College of Law. In preparing for the first day of this semester’s Government Relations course, I was reminded of a question that we repeatedly come back to throughout the semester—to what extent, if at all, should the 1st Amendment be regulated or restricted?
Many people don’t think about it in this way, but the 1st Amendment is at the core of government relations, properly understood. Given my earlier defense of dictionaries (see that essay here), I don’t want to be accused of failing to define my terms, so “government relations” broadly means “how people and organizations exercise their 1st Amendment rights with respect to federal, state, and local governments.” The course that I teach covers 3 out of the 5 clauses of the 1st Amendment: the Free Speech/Free Press Clause, the Peaceful-Assembly Clause, and the Petition Clause. (The course does not cover the Establishment or Free Exercise Clause, as those typically have an entire course of their own.)
Throughout the semester, we consider contrasting arguments on whether there should be restrictions placed on these 3 provisions of the 1st Amendment. We start with James Madison’s Federalist No. 10 (written before the 1st Amendment was even adopted), and move to more modern theories and models, including those of the legal realists and public-choice economists. We then consider how various legislative attempts to restrict 1st Amendment rights have been upheld or struck down by the courts, and we have guest speakers talk about real-world applications and implications of these restrictions and court decisions.
As I explain to students, in my opinion, the theme of the entire course can be boiled down to 3 sentences that my old boss and mentor, U.S. Court of Appeals Judge David W. McKeague, wrote in Citizens for Tax Reform v Deters, 518 F3d 375 (CA 6, 2008):
As with the law in general, the First Amendment is a jealous mistress. It enables the people to exchange ideas (popular and unpopular alike), to assemble with the hope of changing minds, and to alter or preserve how we govern ourselves. But in return, it demands that sometimes seemingly reasonable measures enacted by our governments give way.
Under this view, the 1st Amendment is not a “reasonable compromise” among competing policy objectives. It is, rather, the closest thing we have in civil law to what Immanuel Kant would call a “categorical imperative.” It puts free speech, peaceful assembly, and petition of grievances at the very zenith of our country’s first principles. While, as Justice Jackson famously said, our U.S. Constitution is not a suicide pact and there are limits even to the 1st Amendment, these limits are properly found at the margins.
If you believe, as I do, that the 1st Amendment is a bedrock of our constitutional form of government and deserves the upmost respect and protection, then be sure to keep this in mind when you fill out your ballot for Supreme Court Justice this November!