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18 First Amend. L. Rev. 65 (2019-2020)
Morality and the First Amendment

handle is hein.journals/falr18 and id is 482 raw text is: MORALITY AND THE FIRST AMENDMENT Steven H. Shiffrin' Moral judgments can and should play an important role in the interpretation of the First Amendment, and the First Amendment should be interpreted to facilitate the leading of moral lives by its people, including its corporate and public officials. These claims are controversial because most scholars would deny that it is appropriate for courts to take into account the moral value of speech in interpreting the First Amendment,1 or to take into account the impact of its rulings on the moral lives of its people or its impact on the morality of the culture. Moreover, the relationship of the religion clauses to the moral lives of its citizens and the morality of the culture are deeply contested in the scholarly literature and in the public life of American politics. These issues are important now and they have been for many years. I will argue not only that First Amendment doctrine is distorted by its failure to take into account the moral lives of its people, whether in or out of corporate or public office, but also that the public morality encouraged by the interpretations of freedom of speech and religion is defective.2 * Charles Frank Reavis, Sr., Professor of Law Emeritus, Cornell University Law School. Many thanks to Michael Dorf, Seana Shiffrin, and Nelson Tebbe for exceedingly helpful comments. They each agree with some of the paper and disagree with other parts, sometimes strongly so. I am also grateful for comments I received at a Cornell Law faculty workshop in Ithaca and from participants in the Law and Religion conference in Philadelphia especially Perry Dane, Richard Garnett, and Paul Horwitz. 1 That said, in the absence of harm or probable harm, the state should not outlaw speech it regards as immoral. See also Ronald C. Den Otter, The Place ofMoral Judgement in Constitutional Interpretation, 37 IND. L. REv. 375 (2004). 2 An emphasis on moral lives is broader than an emphasis on virtue or civic virtue. The cultivation of virtue should lead to moral lives, but virtues are not a life. Nonetheless, scholarship about civic virtue and the First Amendment obviously overlaps with this essay. With the important exceptions of work by Lee Bollinger and Vincent Blasi (discussed infra), the main First Amendment work in that vein has proceeded from a Burkean conservative perspective as opposed to the progressive perspective I take here. Walter Berns, Freedom, Virtue, and the First Amendment, 18 LA. ST. L. REv. (1957). Marc 0. DeGirolami, Virtue, Freedom and the First Amendment, 91 NOTRE DAME L. RiEv. 1465 (2016) draws from the approach of Berns with sophistication in his discussions of both speech and religion clauses. He and I share a view in the tradition of Isaiah Berlin that is suspicious of grand theories. We agree on the outcomes in many free speech cases. But he embraces conventions and traditions in ways that I do not which leads me to endorse the protection of dissenters more than he does. He places more emphasis on indecency and is more hostile to the expansion of sexual freedoms than I am. I expect that he would support free exercise somewhat more strongly than I would. Finally, I would support a more stringent view of the Establishment Clause than he would. I realize that my sketch of these

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