Prof. Tushnet Lays Out Four Models of the First Amendment

BY DINA AWERBUCH

On October 29, Harvard Law faculty and students gathered in the Caspersen Room of Langdell Library to honor Professor Mark Tushnet on the occasion of his appointment as the William Nelson Cromwell Professor of Law. Following a brief introduction by Dean Kagan, Tushnet gave a talk entitled “Four Models of the First Amendment.”

Kagan began by welcoming Tushnet’s wife, daughters, and sisters, who were all in attendance. She then gave the attendees a short biography of William Nelson Cromwell. Today, Cromwell is known best as a founding partner of the prestigious international law firm Sullivan & Cromwell LLP. Born in 1854, Cromwell attended Columbia Law School while working. During his career he developed a technique for salvaging failing business enterprises which came to be known as the “Cromwell plan” and earned him a reputation as the “physician of Wall Street.”

A central figure in the building of the Panama Canal, Cromwell lobbied for the canal to be built in Panama rather than Nicaragua and went so far as to plant a story in the New York Sun suggesting that a dormant Nicaraguan volcano had erupted and was causing seismic shocks. Kagan remarked that a congressman at the time called Cromwell the most dangerous man since Aaron Burr.

Kagan then introduced Tushnet as one of the most widely recognized constitutional law scholars in the world. Tushnet was one of the founders of the Critical Legal Studies movement, was an early student of European law, and became a leading scholar in civil rights. Tushnet, a graduate of Harvard College and Yale Law School, clerked for Judge George Edwards on the 6th Circuit and Justice Thurgood Marshall of the Supreme Court. Prior to joining the Harvard Law faculty in 2005, Tushnet was a professor at Georgetown University Law Center and the University of Wisconsin. Kagan concluded her introduction on a more personal note, remarking that Tushnet is an avid reader and a famed mentor to young people, whose commitment to the good of the institutions and people with whom he works is legendary.

Tushnet introduced his talk as “the big article that I will never write.” Tushnet summarized four basic models of First Amendment analysis, and four strategies for applying these models to various forms of speech. He noted at the outset that his conceptualization of these models resulted from his thoughts on daughter Rebecca Tushnet’s article, “Copyright As A Model for Free Speech Law: What Copyright Has in Common with Anti-Pornography Laws, Campaign Finance Reform, and Telecommunications Regulation,” published in the Boston College Law Review in 2000. Tushnet wanted to look at First Amendment doctrine “backwards,” using newer developments such as copyright law and telecommunications regulation to inform our analysis of ‘classical’ First Amendment concerns, such as political speech.

Tushnet’s first model is the “Brandenburg-Lochner model.” This is the traditional model that views regulation of speech skeptically. Courts give legislatures little deference, applying a “strict scrutiny” test requiring narrow tailoring and a compelling government interest, or content neutrality. Second is the “New Deal model,” which gives the government great latitude to regulate speech, particularly for economic reasons.

Tushnet said that this model covers all speech that Professor Frederick Schauer describes as falling outside the traditional bounds of the First Amendment, such as false advertising. Tushnet emphasized the extent to which this model also affects the background rules of property and contract. The government can restructure property rights to favor certain speakers, and can curtail the property rights of First Amendment intermediaries, such as newspapers, to achieve the distribution and content of public expression that the government deems appropriate. Under the New Deal model, courts considering limits on speech must give great deference to the legislature. The third, “Madisonian model,” allows regulation of speech for the purpose of “increasing deliberative democracy,” and further implies that the government may alter property and contract rights to that end. Tushnet suggested campaign finance regulation as the classic example of this model’s application. Tushnet remarked that while upholding such regulation is inconsistent with Brandenburg, such content-neutral regulations are less controversial than many others.

Tushnet’s final model is the managerial, or “speech maximizing” model, which values maximizing the amount of speech without regard to its content. Subject matter examples here are copyright and telecommunications law. Tushnet commented that the Turner Broadcasting v. FCC analysis falls on the border between the Madisonian model and the managerial model. He noted that there are regulations aimed at promoting local programming, with Congress assuming that local programming would have a specific deliberative component. Under this model, regulations that restrict hate speech and pornography would reduce the net speech in society and therefore be undesirable.

Tushnet summarized this outline by noting that the models are essentially efforts to make sense of doctrinal areas of First Amendment analysis after the fact. He then explored how speech subjects may be classified under the models. The first possibility, according to Tushnet, is to allocate certain subjects to one model, and other subjects to other models. However, Tushnet noted that there are no norms governing such an allocation.

The second option is to try to fit all subjects into only one model. The Brandenburg-Lochner model is the top contender for this role, as the three other models, applied comprehensively, yield results inconsistent with common sense. However, Tushnet argued that full-scale application of the Brandenburg model would conflict with strong intuitions people have about the Madisonian and speech maximizing models, so the courts would not be willing to apply the Brandenburg model across the board. Tushnet also discussed a more refined version of this strategy, which would carve out for the three other models small subject areas that would constitute their “core.” By “tinkering around the edges” of these subjects, courts could preserve them while still generally applying the Brandenburg model. Tushnet argued that such a strategy is not feasible, and cited Rebecca Tushnet for the proposition that adjusting fair use to accommodate Brandenburg, for example, would change the field of copyright law dramatically.

Tushnet’s third strategy emerges from court decisions. Courts have often applied differing standards of review when using different models, e.g., applying strict scrutiny in Brandenburg-Lochner cases and rational basis review in New Deal cases. Thus, the third strategy would be to unify First Amendment analysis across topics by developing a uniform standard of review (which would look something like “intermediate review taken seriously”).

Tushnet commented that while he initially thought this would work reasonably well in some areas, his intuition now is that overall this model would fail. Tushnet again cited Rebecca Tushnet for a variant on this model, wherein when legislatures expressly advert to the Madisonian model, their decision would receive deferential review, but otherwise the Brandenburg-Lochner standard would kick in. Tushnet, however, expressed skepticism of the idealization of the legislative process.

The final possibility that Tushnet discussed was to develop a map of how subjects have been allocated to different models at different times, rather than seeking any normative solution. An obvious example, Tushnet said, is the contemporary shift in political speech doctrine, which is in the process of switching from the New Deal model to the much more speech-protective Brandenburg-Lochner model. Tushnet remarked that such a mapping project would take substantial work, and that this is why “[this talk] is part of the big article I’m never going to write.”After his talk, Tushnet briefly took questions from student and faculty attendees. Kagan then presented Tushnet with a personalized engraved
chair, and the attendees applauded as Tushnet sat in it for the first time. The event was followed by a reception.

David Lawson contributed to the reporting of this article.

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