Journal of Free Speech Law: "Free Speech and Incorporation: A Reassessment," by Ilan Wurman

From the "Gitlow v. New York at 100" symposium, held this year at the Arizona State University Sandra Day O'Connor College of Law; other papers from that symposium will be published shortly.

The article is here; the Introduction:

In a previous book, the author sought to establish that the likely original meaning of the Fourteenth Amendment's Privileges or Immunities Clause was that it guaranteed equality in fundamental rights under state law. The central provisions of the first section of the Amendment—due process of law, protection of the laws, and the privileges and immunities of citizenship—had long-established antebellum legal meanings. Due process of law primarily meant there had to be established law before one could be deprived of life, liberty, or property, and any violation of that established law had to be adjudicated according to known and established procedures. The protection of the laws was the other side of the coin: It was the legal protection the government had to extend against private invasions of private rights, principally judicial remedies and physical protection from violence. The protection of the laws was the heart of the social compact: Men exit the state of nature and give up some of their executive power and agree to obey the sovereign—they agree to give allegiance—in exchange for the sovereign's protection against private violence and private invasions of rights.

The antebellum legal background is crucially important for understanding the original meaning of the Amendment's privileges or immunities provision because it is that provision that therefore must accommodate the central goal of the Amendment's drafters of constitutionalizing the Civil Rights Act of 1866. That act guaranteed equality in civil rights under state law. Although many Republicans believed the act was justified under the Thirteenth Amendment's enforcement clause, many, including John Bingham, the principal author of the Fourteenth Amendment's first section, believed the Act to be unconstitutional. Moreover, it was necessary to enshrine the civil rights principle in the Constitution itself, lest the Democrats take over and repeal that legislation; Congress needed, in the words of Representative and future President James Garfield, "to lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution."

Yet, if the due process and protection of the laws clauses in the Amendment had their historical legal meanings, they would not accomplish that central objective. Due process does not guarantee equal rights, only that whatever rights one has will not be taken away without established law and known procedures. Nor does equal protection of the law guarantee equal rights, but rather guarantees only that whatever rights one possesses will be equally protected against, say, Ku Klux Klan violence. That leaves only the privileges or immunities provision, whose language does the necessary work. The Reconstruction generation understood that civil rights defined and regulated under state law, including contract and property rights, were fundamental rights that all free governments had to secure. They were, in other words, the "privileges and immunities of citizens of the United States," shared by all citizens, though states may have regulated the rights differently. A state would "abridge" those rights by giving a lesser set of rights to a disfavored class.

To be sure, the language can also support the conventional, incorporation reading of the clause. The "privileges" and "immunities" of "citizens of the United States" at a minimum include those rights so fundamental that they were constitutionally enumerated, which a state can "abridge" just as Congress can "abridg[e]" the freedom of speech or of the press. Although the book did not tackle the affirmative evidence for incorporation of the Bill of Rights against the states, two other works did so.

One paper, Reversing Incorporation, sought to demonstrate that the antislavery and Republican concern, both before and after the adoption of the Fourteenth Amendment, was equality in civil rights however defined and regulated under state law. Although fundamental rights were routinely mentioned, abolitionists and Republicans relied on state constitutions, on the rights that freedom would bring under state law, and on Congress's powers to insist on republican governments during readmission. There is very little evidence from the period that anyone understood the Fourteenth Amendment to guarantee a fundamental floor of rights.

A still more recent work, The Antislavery Reading of Article IV, addressed the claim that antislavery constitutionalists had an unorthodox reading of Article IV's Privileges and Immunities Clause,  by which that clause effectively nationalized the rights of citizens. The clause was conventionally understood to require a state to treat citizens of other states on equal terms with its own citizens. This prior work demonstrated that some antislavery theorists did hold unorthodox views of Article IV. The best understanding of the unorthodox view, however, was that it would have merely extended the antidiscrimination work of the clause to discrimination among a state's own citizens.

Representative Lawrence of Ohio made this equality reading of Article IV explicit in connection with the civil rights bill. Lawrence asked whether the nation was powerless to intervene when a state denies rights to "whole classes of native or naturalized citizens." He argued that Article IV, Section 2 authorized Congress to enforce "the equal civil rights which it recognizes or by implication affirms to exist among citizens of the same State."

The aim of this essay, prepared for the symposium marking the 100th anniversary of Gitlow v. New York, the case famously presuming the freedom of speech to be applicable to the states via the Fourteenth Amendment, is to demonstrate that many of the relevant historical debates involved the freedom of speech. Yet these debates do not suggest that the historical actors thought the First Amendment right was "incorporated" against the states. Quite the opposite. The actors presumed that the freedom of speech was a fundamental right guaranteed in many different ways—by state constitutions, by Article IV, by the Republican Guarantee Clause, and, yes, by the First Amendment at least with respect to the federal government.

After the adoption of the Fourteenth Amendment, that right was, also, guaranteed in some way by the new Privileges or Immunities Clause. The question is in what sense. One possibility, as the above suggests, is that the clause requires nondiscrimination among a state's own citizens with respect to that right. Consider how one treatise writer in 1871 explained that Article IV guaranteed the freedom of speech in a similar manner by prohibiting discrimination in the provision of this right against out-of-state citizens:

[The clause's] intention is to secure the like privileges and immunities to all those American citizens …. What like privileges and immunities? Those specified and enumerated in the federal constitution; the enjoyment of life, liberty, property, and the pursuit to happiness, no matter where located or domiciled…. The states without [this clause], by their local legislation, might, and perhaps would, impose different restrictions on the residents of each other in their necessary trade and intercourse, or upon American citizens migrating from one state to another, with the view of becoming residents, militating against those unalienable rights ….

It is possible, of course, that the author believed Article IV incorporated the Bill of Rights against the states, contrary to Barron v. Baltimore. Yet it seems evident enough that the author supposed those rights would be protected in the same way that ordinary rights to life, liberty, and property would be. He does not appear to have been suggesting that such rights were identically defined and secured in all the states. His reading appears to have been conventional: however the state defines and secures its citizens' fundamental rights—to contract, property, bear arms, freedom of speech, and so on—it must guarantee those same rights to out-of-state citizens.

Part II of this essay, relying on the prior work identified above, canvasses the relevant evidence relating to the freedom of speech. It demonstrates that the historical players generally assumed that the freedom of speech was protected in a variety of ways, but none compels the conclusion that any of them thought the freedom of speech as defined in the First Amendment was "incorporated" against the states. They suggest an equality reading: whatever speech regulations existed must extend equally to all citizens without arbitrary discrimination. At most, they suggest that the framers of the Fourteenth Amendment expected the Privileges or Immunities Clause to secure only those rights that all free governments had to. Whether, on either reading, a state would be prohibited from banning the sale of violent video games to minors, from regulating student speech, or from punishing flag burning, viewing of animal crush videos, protesting at a dead soldier's funeral, or stealing valor, may well be doubted.