Free Speech: Six Questions With Eugene Volokh

This is the first in a series of interviews I’m conducting with lawyers and scholars around the country who’ve made a mark on the First Amendment. The others will be published monthly.

Eugene Volokh is the Gary T. Schwartz Professor of Law at the UCLA School of Law, where he teaches a variety of courses, including one on free speech. He is the author of two casebooks, one book on writing, more than 60 law review articles and more than 80 op-eds. In addition, he is the founder of “The Volokh Conspiracy,” a law-oriented blog that gets 25,000 unique visitors per day. Before joining the academe, Volokh clerked for Justice Sandra Day O’Connor at the U.S. Supreme Court and for Judge Alex Kozinski at the U.S. Court of Appeals for the Ninth Circuit. 

What’s the most serious threat today to the First Amendment?

Free speech is in very good shape. But the most serious threat is the concept of hostile-environment harassment law. Certain types of speech can lead to liability for employers, for universities, for restaurants and for other places of public accommodation. The speech usually relates to race, religion or sex, and it’s often referred to as ‘severe’ or ‘pervasive.’ If it’s severe or pervasive enough, then it can create a hostile environment. That means if an employer allows its employees – perhaps engaging in a conversation that’s offensive to some people – the employer could be held liable for it, even if the conversation doesn’t single out a particular employee. So restaurant or bar operators can be held liable for racist comments in their establishments. Potentially that’s true even if the comment is made by a patron and overheard by a different patron. This is the premise underlying many campus speech codes, which say that offensive speech can lead to student discipline. This is a serious problem because it leads to government-backed censorship of a wide range of speech. People could still engage in offensive speech on the Internet, in their living rooms or on the streets, but many people spend a third of their waking hours at work. To say that in those places they can’t express offensive viewpoints, it’s a pretty serious speech restriction. And to the extent the courts accept those restrictions, they undermine a number of principles. For example, it damages the principle that vague speech restrictions will be struck down, because so many of these laws use language like ‘severe’ or ‘pervasive’ and ‘hostile’ or ‘abusive.’ Moreover, the principle that we don’t tolerate viewpoint-based restrictions is damaged, because these laws target racist, sexist and religiously bigoted speech.

Let’s circle back to the school context, in general. Last month, the Knight Foundation released a national survey about free expression at high schools. One of the findings: Only 36 percent of teachers said students should be able to express themselves on Facebook “without worrying about being punished at school.” What do you make of that? 

The survey question sounds like one that involved too much generality. In some ways, students should not feel free to express themselves on Facebook. If a student says, “I’m going to kill you” or “I’m going to blow up the school,” then those are threats that are criminally punishable and could lead to school discipline. That’s legally uncontroversial. Likewise, if a student is spreading false rumors about another student or teacher, then those rumors could lead to civil liability for libel. And that could lead to a criminal libel prosecution in the few states where that offense is recognized. On those grounds the school should be able to impose discipline. The more controversial questions arise in two areas. The first is speech that doesn’t fit within a First Amendment exception but is likely to cause a material disruption at school. The second is speech that doesn’t fit an exception and simply is offensive. The latter is protected constitutionally by the Tinker case. To the extent that teachers are unaware of that reality, they should be educated about it. For speech that is likely to cause a material disruption, the answer is less clear. We don’t know if Tinker applies to speech that takes place outside the school, off campus. So let’s say a student is posting insulting things online about a classmate, and it seems likely that it will start a fight or cause a disruption when the students are at school. Can that be restricted, on the theory that the restriction is necessary to maintain order in the school? Or is that constitutionally protected because schools cannot restrict off-campus speech even if the speech might disrupt school activities? That’s an unsettled question in the courts. We just don’t know.

I’m going to take you back to 2002, when you wrote in the Wall Street Journal that the use of cameras by the police to videotape public areas could reduce the risk of government abuse. You said, “The camera that might videotape a mugging can also videotape police stops of citizens, providing evidence of possible misconduct.” Today the police are arresting citizens for using smartphones in public areas to video the police. What gives?

I think it’s bad but in different ways, depending on the circumstances. In some states, there’s no law against this sort of thing—there’s no legal authorization for it. It’s not even that you have a law that’s unconstitutional. It’s just not illegal. Some police officers might not care whether it’s illegal, and others might not know. In a few states, though, it is illegal to record anyone, police officer or not, in a clandestine way without the consent of the people being recorded—even if the recording takes place in public, where there’s no reasonable expectation of privacy. There are only a few states where that sort of activity is illegal. I think those laws are unconstitutional. They restrict, without any real justification, the ability of people to gather information. It’s one thing for laws to ban the surreptitious recording of confidential communications. It’s quite another thing for laws to ban the surreptitious recording of words said by public employees in public areas, where nothing about the context suggests that the communication is confidential. Those laws are unjustified and unconstitutional, and they’re now being challenged. I hope they’re struck down.

Shifting gears a little, the New York Times reported in June 2010 that President Obama already had outdone every previous president in pursuing leak prosecutions. Should he be proud of that? 

There’s a reason we have laws that ban leaks of government information. Sometimes it’s because the information is of a confidential nature, like laws banning the release of private tax-return information. But even setting aside those laws, in government if you want to give and get good advice, the interactions must be confidential. If people in government know that anything they say will wind up on the front page, they’ll be more likely to worry about how their advice will look in the press and less likely to be completely candid. In national security contexts, government officials need to be able to trust their colleagues. They need to know that the people working with them, who’ve undertaken a solemn obligation to earn their security clearances, will be discreet. When someone leaks with impunity, it undermines that trust. Of course, there’s also value in leaks that enlighten the public and generate debate. This is a difficult question—it’s not all benefits on one side or all costs on the other. On balance, though, there are benefits to secrecy, especially in the national security context, and one way of ensuring that secrecy is to pursue the leakers.

You wrote in 2005 for the Wall Street Journal that Samuel Alito, then a Court of Appeals judge, had a relatively expansive view of the free-speech clause. Did the Phelps case, five years later, change your mind about him? 

It’s true that Justice Alito has written speech-restrictive opinions in recent years. The ones that come to mind are Phelps and Stevens, and he took a moderately restrictive view in the violent videogames case. At the same time, he’s taken a broad view of political speech in campaigns and in Wisconsin Right to Life. He also has taken a broad view in the commercial context regarding advertising. And in the context of student speech, in Frederick v. Morse, he was with the majority that took a narrow view of student rights, but he wrote a concurrence enabling him to take an intermediate position. I don’t think he’s as speech-restrictive as, say, Justice Kennedy or Justice Thomas, so in many respects I think he has a complicated perspective on free speech, as many justices do.

What about the Roberts Court as a whole? Some say it’s a friend of the First Amendment, others say it’s a foe, and many say it’s somewhere between those extremes.

In general, the Roberts Court, much like the Rehnquist Court and the Burger Court, has taken a broad view of speech protections. Not in all respects, though. When the government is acting not as a sovereign, threatening people with jail time, but as a proprietor, owning property or running schools, then the government’s power to restrict speech is broad. And probably the conservatives on the Court would want to push that power even further, to give the government even broader power to restrict speech. On the other hand, when the government is acting as a sovereign, the Court’s protection of free speech is as strong as it’s ever been. Really, it’s just where the government is acting as proprietor that the Roberts Court takes a considerably narrower view of free speech.