National Review's Andrew McCarthy wrote a column yesterday about the WikiLeaks' brouhaha where he deployed the unfortunate sentence "the First Amendment has never been understood to mean what it says," thus opening himself up to the dread charge of endorsing a "living Constitution." Blogging today at NR's The Corner, McCarthy hastens to add that he only meant that the language of the First Amendment is "more sweeping than the freedom it was understood to convey." As evidence, he cites conservative legal hero Robert Bork's famously cramped reading of the First Amendment, including this passage from Bork's bestselling 1997 book Slouching Towards Gomorrah:
[t]here 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.
It's nice to learn that McCarthy thinks the First Amendment means some of what it says, though his deference to Robert Bork raises a few additional concerns. Bork is no individualist and he is certainly no civil libertarian. His legal philosophy centers on letting the majority have its way. As Bork wrote in his 1990 book The Tempting of America, the "first principle" of the American system is majority rule, not individual rights. "In wide areas of life," he wrote, "majorities are entitled to rule, if they wish, simply because they are majorities." So Bork believes that speech with "slight social value" doesn't really deserve to be free. But who gets to measure that value? Bork would basically allow legislative majorities free rein to ban suspect speech in the name of "order and morality" and then angrily denounce any court that struck down the ban. The First Amendment deserves more respect than that.