Positivism, Liberty, Democracy, and Freedom of Speech,” by Robert Post

The article is here; here’s the Introduction:

The centennial of Gitlow v. New York is upon us. Gitlow is typically praised as an essential step in the development of modern First Amendment doctrine, so that it is said that “[f]ew individual stars shine as brightly in the constellation of American civil liberties cases.” Yet, closely examined, Gitlow seems a puzzling choice for constitutional canonization.

Decided at a time when there were virtually no First Amendment protections for speech, Gitlow held that government could punish mere abstract advocacy of violent revolution. Over the dissenting votes of Oliver Wendell Holmes, Jr. and Louis Brandeis, Gitlow stood for the proposition that “a State in the exercise of its police power may punish those who abuse” freedom of speech “by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means.” It would not be too much of an exaggeration to characterize Gitlow as “the clearest expression of the Supreme Court’s acceptance of seditious libel.”

Modern First Amendment doctrine, by contrast, is founded on the fundamental axiom that the state may not punish seditious libel. If we now celebrate Gitlow, therefore, it is certainly not for its articulation of the substance of First Amendment protections. It must rather be because Gitlow construed the liberty interests protected by the Due Process Clause of the Fourteenth Amendment, which apply as against the States, to include free speech protections analogous to those protected by the First Amendment, which apply as against the federal government. “The precise question presented, and the only question which we can consider under this writ of error,” Gitlow states, is “whether the statute, as construed and applied in this case, by the State courts, deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment.”

We are now apt to interpret this language through the lens of incorporation doctrine, which conceives the Due Process Clause of the Fourteenth Amendment as transparently reproducing the exact doctrines of the First Amendment “jot-for-jot and case-for-case.” But any such conception of incorporation developed well after Gitlow, which understood itself instead to be explicating the specific nature of the liberty protected by the Fourteenth Amendment. The question in Gitlow was not what the First Amendment required; it was instead what was required by the liberty interests safeguarded by the Due Process Clause.

We should be clear that these same liberty interests also underlay Lochner v. New York. These same liberty interests fueled the Court’s use of the Due Process Clause to strangle social and economic legislation. In the decade before Gitlow, for example, the Court had invoked these same liberty interests to strike down state efforts to protect union members and to regulate the fees of employment agencies. Determined to resurrect and expand the reach of Lochner, the Taft Court during the 1920s was vilified as “the zenith of reaction.” Enlarging Fourteenth Amendment liberty to include freedom of speech threatened to enlarge the scope of judicial control over all state regulation.

Seen from this perspective, Gitlow can suddenly come to seem deeply enigmatic. We might ask why the Court bothered to extend free speech protections to states when its understanding of the substance of these protections was so stunted and feeble. What was actually at stake for the Court majority when it decided to interpret the liberty interests protected by the Due Process Clause of the Fourteenth Amendment to include freedom of speech?

Conversely, why did Holmes and Brandeis, who were strongly opposed to the Court’s resurgent Lochnerism, nevertheless join the Court in holding that the “general principle of free speech … must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used.” How were Holmes and Brandeis able to interpret the word “liberty” in the Due Process Clause so that it might entail strict and independent judicial review of state censorship of speech, but nevertheless require deference to ordinary state social and economic regulations?

To unravel these questions, we must make a strenuous effort of historical imagination. We must put Gitlow back into the context of its time. The effort will prove rewarding. We shall learn, for example, that no Justice in the 1920s interpreted the word “liberty” in the Due Process Clause in anything like the manner of the contemporary Court in a case like Dobbs v. Jackson Women’s Health Organization. So far from viewing the scope of constitutionally protected liberty as a “fact” determined by the historical data of history and tradition, all Justices in the 1920s understood liberty interests to be defined by values they perceived as immanent in the Constitution.

For the majority of the Court, these values centered around protecting the constitutional “right of the citizen to be free in the enjoyment of all his faculties,” a libertarian constitutional vision first articulated at the start of the Lochner era in Allgeyer v. Louisiana. Both Holmes and Brandeis strongly objected to this constitutional vision, which they condemned as inconsistent with the proper role of Article III courts. In Gitlow, Holmes and Brandeis instead interpreted Fourteenth Amendment liberty in light of their commitment to the specific constitutional value of freedom of speech.

Because they so often joined each other’s opinions on this subject, we often imagine that Holmes and Brandeis supported freedom of speech for the same reasons. But the history of Gitlow illustrates that this was not the case. Whereas Holmes believed that freedom of speech was necessary to sustain the authority of positive law, Brandeis believed that freedom of speech was the lifeblood of a democracy whose purpose was to empower citizens to develop their own autonomous faculties. Freedom of speech was for Holmes a jurisprudential necessity, whereas for Brandeis it was “both … an end and … a means.” In contrast to Holmes, Brandeis was prepared to read democratically required liberties other than freedom of speech into the Due Process Clause.

Modern First Amendment doctrine has descended from Brandeis, not from Holmes. But Holmes’s brief dissent in Gitlow nevertheless contains an important lesson for contemporary constitutional theorists. Holmes was the founder and most analytically powerful practitioner of positivism in the history of American jurisprudence. Holmesian positivism has recently been revived by originalists and by those committed to interpreting the Constitution in light of a factually based account of history and tradition. Yet Holmes’s short opinion in Gitlow illustrates that even rigorous positivists cannot ultimately interpret the Due Process Clause solely in terms of facts, whether the facts of original public meaning or of history and tradition. An internally consistent positivism must instead find its ultimate ground in fundamental constitutional values.