The Constitutional Tension Method

[Volokh, Eugene]

	The argument that there are interests of constitutional
magnitude militating in favor of speech restriction as well as of speech
protection is not new.  Some World War I-era cases argued that free
speech had to yield to the constitutionally secured war power.  Gitlow
v. New York argued that free speech had to yield to the interest in
democratic self-government.  

	Frankfurter in Bridges v. California dissented from the Court's
holding that courts generally may not hold speakers in contempt for
commenting on pending litigation, reasoning that "Freedom of expression
can hardly carry implications that nullify the [Constitutional]
guarantees of impartial trials." Jackson's dissent, endorsed by
Frankfurter, in Terminiello v. City of Chicago reasoned that "In the
long run, maintenance of free speech will be more endangered if the
population can have no protection from the abuses which lead to violence
. . . .  We must not forget that it is the free democratic communities
that ask us to trust them to maintain peace with liberty and that the
factions engaged in this battle [Fascists and Communists] are not
interested permanently in either."  Jackson's dissent in Kunz v. New
York (and earlier in some Jehovah's Witnesses door-to-door proselytizing
cases) suggested that constitutional religious freedom concerns --
including the desire not to hear harsh criticism of one's religion --
should be weighed against the free speech interest.

	Frankfurter and Jackson's famous Dennis concurrences likewise
stressed that free speech had to be weighed against other interests,
including the clearly constitutionally secured interest in democracy
(Frankfurter) and free speech itself (Jackson).  I develop this in more
detail in my Freedom of Speech and the Constitutional Tension Method, 3
University of Chicago Roundtable 223 (1996),
http://www.law.ucla.edu/volokh/tension.htm.

	In my view, the alleged tension between the First Amendment and
the war power, the various democracy-protecting provisions (including
the First Amendment), the Equal Protection Clause, the Free Exercise
Clause, and the like can be easily resolved:  Those provisions empower
the federal government (e.g., the war power, or section 5 of the
Fourteenth Amendment) or secure private rights against the government;
but they do not restrict private speech, or secure rights against
private speech.  The First Amendment thus protects the speech; the other
provisions do not constrain such speech; protecting the speech is thus
consistent with all the provisions, and in fact mandated by the First
Amendment.

	Eugene



Bobby Lipkin writes:



           The question of the constitutionality of hate speech
legislation relies, of course, on the First Amendment? To counter the
force of the First Amendment with policy considerations--however
fundamental--is a losing argument generally.  By contrast, if some other
fundamental provision of the Constitution entails (implies, suggests?)
the legitimacy--and barring state action problems--of such legislation,
then there might exist constitutional, not merely policy, arguments on
both sides of the question. I seem to remember some critical race
theorists--specifically Richard Delgado--championing the Fourteenth
Amendment's Equal Protection as a counterweight to the First Amendment
regarding hate speech legislation.  Is this right? If so, whatever
happened to this attempt to find a constitutional basis for hate speech
legislation?  Thanks.