Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The Psychoanalyst Wilfred Bion reportedly said that the Analyst should approach every session without desire and without memory. What he meant by this aphorism was that we should always allow the patient to determine the direction, contents, and connections in the session. This was meant as a warning to be careful not to impose our own agenda on our patient's therapy. Of course, this approach is also recognized as an impossible ideal. We all have our own conscious and unconscious desires, yet by attempting, as much as possible, to minimize our wishes for the patient, we have the best chance of helping him achieve his desired goals of self knowledge and an improved life. This requires that the Analyst constantly be assessing what he is contributing to the treatment as well as what the patient is bringing to the sessions.
I thought of Bion's old adage while listening to Chris Wallace interview Supreme Court Justice Stephen Breyer on Fox News Sunday. Justice Breyer is quite certainly a very smart man. He also quite clearly has only the best intentions. Yet the combination of good intentions and high intelligence creates a particular danger of which he seems strikingly unaware. The interview started with a bit of discussion of Breyer's book "Active Liberty", the point of which Breyer explained as follows:
BREYER: I think the best description in one sentence of that title, "Active Liberty," is that the point of the book is we don't need activist judges; we do need activist citizens. And it's about not how judges should be activists. To the contrary, it's about how every citizen should participate in government.
Chris Wallace attempts to point out some of the risks in Breyer's approach and it is worth quoting at length form the transcript:
WALLACE: But let's talk about that. Because in your book, you say that judges have various tools when they decide a case. And more important even than the language of the law, you say, are the purpose of the provision and the consequences of deciding it one way or another.
I want to put up a quote from your book and take a look at it, if you will. Here it is: "Since law is connected to life, judges, in applying a text in light of its purpose, should look to consequences including contemporary conditions, social, industrial and political, of the community to be affected."
Justice Breyer, when a judge takes it upon himself to interpret what purpose the founders, the framers meant when they put something in the Constitution, doesn't that allow them, a judge, to do almost anything?
BREYER: No, I think it's the contrary.
You see, it takes place in a context. I think whether you are a judge on my court or whether you are a judge on a court of appeals or any court, and lawyers too — and if you're interested in law yourself, you'll be in the same situation — you have a text that isn't clear.
If the text is clear, you follow the text. If the text isn't clear, you have to work out what it means. And that requires context.
The freedom of speech. Do you know what it means? Basically. But you don't know its entire content, and it doesn't tell you itself. Those words, "the freedom of speech," "Congress shall pass no law abridging the freedom of speech." Neither they, the founders, nor those words tell you how to apply it to the Internet.
So what can you use in a tough case to figure out how the First Amendment applies to cable television and requirements that cable carry over-the-air stations? How do you do it?
WALLACE: Well, let me give you another example, a very specific example. You voted in 2003 to uphold the McCain-Feingold campaign finance reform law.
Now, you acknowledge that by setting spending limits on advertising that you were, as you put it, interfering with free speech. But you said that there is a higher purpose here.
Higher than the First Amendment?
BREYER: That isn't quite what I said. I think what I said was, when you get a case like that, you start to look to slogans to decide the case. It won't work.
The First Amendment itself, "the freedom of speech," doesn't tell you the answer. Nor does a slogan.
If you want to use the slogan, "Money is at stake, not speech," that seems to work. That means they can regulate anything. But if you think about it for two minutes, you realize that money is very important to speech, because no one can run for office and have his message heard without money. So the First Amendment is involved.
Then if you think the opposite, "Well, wait a minute, these campaign finance limits, what they're doing is they are telling the person who wants to give $20 million that he can't finance all the speech he wants. Doesn't that violate the First Amendment?" I'd say that's a slogan. Why? Because think about that First Amendment. It was done, enacted, passed, to help our country of now 300 million citizens run fair and free elections.
The very point of speech in an election is to get a message across. And that may mean, in part, that you don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money. [Emphasis mine-SW]
If you accept that at all, you've suddenly bought in to the proposition that there are First Amendment interests on both sides of this equation.
And once you're there, you see this problem is complicated. And once you see it is complicated, you begin to factor in to what extent do we defer to Congress. And the answer is going to be quite a lot but not completely.
You see what I've done? I've showed you how to go back to that quote.
Apparently, it takes an extremely intelligent man to be able to penetrate the mystery of the First Amendment. Apparently, those of us naive enough to believe that the First Amendment means what it says, "Congress shall make no law ... abridging the freedom of speech", fail to realize that the object of our laws and our constitution is to ensure certain, "fair", outcomes. I always thought the purpose of our Constitution was to set up the rules by which our system of government was to operate. Sometimes those rules would result in outcomes that would be considered unfair to various people and constituencies, but the rules did a better job than any other system of government before or since in securing our rights and producing a society that worked well, considering it depended on fallible men and women to execute the rules. Justice Breyer suggests that if some of us have garnered certain advantages, greater wealth or celebrity for instance, and therefore have an advantage in getting our views across to our fellow Americans, this is a priori unfair to those without such advantages.
A year ago, I wrote Part III of Intellectualization, Free Speech, & Unintended Consequences. I was particularly concerned with the ability of smart people to convince themselves that their behavior was for the greater good at the very same time they were placing our freedoms at risk. In terms of the Supreme Court, I suggested we would be safest to have Justices who stayed closer to the text because the opportunity for mischief once they began to stray from the text, increased exponentially. Further, it is always far too easy for even the brightest of people to fool themselves about their own intentions:
In our secular world, we have had the tremendous advantage of some rather brilliant men who put to paper, over 200 years ago, a set of principles which have served to protect the kinds of personal freedoms that have never been seen before for so many for so long. If we replace our reliance on the words they left us and instead rely on what we want the words to mean, we are endangering our freedoms, almost always with the best of intentions. When Justice Kennedy writes that his recent decision on executing minors (a decision I agree with, by the way) is in part based on the opinions of the international (ie EU) elite, I see us moving into dangerous territory. We need Supreme Court Justices who are humble men, who do not see things in the words that are not there. If our freedoms depend on the opinions of nine fallible individuals, I would prefer to rely on individuals who recognize how little we really know, even about ourselves, and how little we really can know. We should be extraordinarily careful of altering something which has worked well, if not perfectly, for over 200 years. The Constitution is difficult to amend for a reason and the unintended consequences of creative interpretation of the Constitution are quite frightening.
With all the hysteria about our civil liberties falling into danger because of the Bush administration, the single greatest danger to our civil liberties in the last 6 years has been the McCain-Feingold Campaign finance reform. It not only hasn't worked but it has allowed several Supreme Court Justices to rationalize curtailing some peoples' free speech simply because they think it is unfair for them to have "too much money." Once the line has been crossed which allows freedom of speech to be limited for some in the name of fairness, the rationalizers will always be able to find ways to undermine speech they find objectionable as unfair. The fact that Justice Breyer fails to recognize that McCain-Feingold has not worked as intended (does he know about the 527's?) but has also opened the door to terrible dangers is quite disturbing.