Legal superstar Eugene Volokh on the Bill of Rights in 2010
Few scholars have led a life as varied as Eugene Volokh’s. Born in the Soviet Union in 1968, Volokh immigrated with his family to the United States at age 7. A prodigy, he entered the University of California at Los Angeles at 12 and graduated at 15 with a degree in math and computer science. At the same time he contributed to the family software business, which became very successful thanks in large part to Eugene’s programming skills.
In his 20s, interested in new challenges, Volokh went to law school, starting on a path that would eventually lead to clerkships with U.S. Supreme Court Justice Sandra Day O’Connor and the libertarian-leaning 9th Circuit Judge Alex Kozinski. Since 1994 he has taught law at UCLA. As a professor he has achieved not just a strong reputation among his peers, thanks to his scholarship on subjects ranging from cyberspace law to the Second Amendment, but a considerable following outside the legal profession as well, thanks to The Volokh Conspiracy, a consistently interesting website he launched in 2002.
(It was originally called The Volokh Brothers, adopting its present name after the roster of bloggers extended beyond Eugene and his sibling Sasha.) On their blog, Volokh and his collaborators, most of whom share his generally libertarian orientation, cover a wide range of legal and political issues, from the Supreme Court to the Middle East.
reason.tv producer Ted Balaker sat down with Volokh in December for a wide-ranging discussion about the state of civil liberties in the United States today. For a video version of the interview, go to reason.tv/video/show/eugene-volokh.
reason: Do threats to free speech these days come mostly from the left or from the right?
Eugene Volokh: There are some of each kind. There are also quite a few that come from no side at all. They come from government officials who are busy pursuing whatever goals they might have and just pay no attention to free speech. Even on issues where you’d think there might be mostly left-wing attempts to restrict speech, such as speech that’s allegedly racist or allegedly biased against particular religions, if you look at the polls, it turns out that liberals and conservatives, Democrats and Republicans, have pretty much the same percentages supporting speech and supporting restrictions.
Likewise, if you look at judges, especially Supreme Court justices, the ones who take a pretty broad view of free speech come from both the left and the right. The recently retired Justice Souter on the moderate left, and Justice Kennedy and Justice Thomas on the center-right and the right, all take a very broad view of free speech. On the other hand, justices who have a narrower view of free speech have also come from the left and the right. Chief Justice Rehnquist and Justice O’Connor took a relatively narrow view, still fairly broad but relatively narrow compared to the other justices. But so does Justice Breyer, who was a Clinton appointee and a moderate liberal.
It does turn out, though, that if you look not at the voters or the justices but at the backers—the intellectual, academic, and institutional backers of some restrictions—there is something of a liberal-conservative divide. For example, campus speech codes seem to be backed by a combination of mostly liberal university administrators and professors, based partly on a nonpolitical desire to suppress stuff that causes a mess and causes a fuss. This isn’t to say that most liberals support campus speech codes, but most supporters of campus speech codes are liberals.
There are also attempts to restrict speech from the right, including speech with sexual themes. Generally speaking, it’s more conservatives than liberals who favor giving government the broad right to fire government employees for their speech, including whistleblowing speech. So it depends on the particular controversy.
Let me give an example of something that people haven’t much noticed. In child custody cases, when courts decide which parent gets custody, the standard is the best interests of the child. And there are quite a few cases in which the judge says, more or less, “This parent is more religious than the other parent, and it’s in the best interests of the child to be raised in a more religious environment. Therefore we’re going to give custody to the more religious parent.” Or sometimes, “We’re going to bar this parent from saying something that we think is against the child’s best interest”—bar a parent from saying racist things, or bar a parent from saying pro–gay rights things, or bar a parent from saying anti-gay things, especially when the other parent turns out to be a lesbian.
You might say, “Well, it’s conservatives who are trying to suppress atheist speech, and it’s liberals who are trying to suppress, say, anti-gay speech.” But what really seems to be going on is that judges say: “All we care about is this legal standard, best interests of the child. Free speech, religious freedom, separation of church and state—we’re not going to pay any attention to any of that. We’re just fixated on our daily job, which is to apply this standard.” And I think that’s true with regard to a lot of speech restrictions. It’s often government officials, whether judges or prosecutors or administrative officials, who just don’t pay any attention to free speech. It’s not about politics to them. It’s about getting the things they want done notwithstanding any constitutional constraints.
reason: As Americans, we fancy ourselves defenders of free speech, regardless of whether we personally find it offensive. It sounds like we’re not quite living up to that standard. How well are we doing?
Volokh: I think most Americans support free speech. They just have different visions of what speech should be free. I think even libertarians recognize certain kinds of speech ought to be restrictable—death threats, for example. And one can support free speech but take a narrower view or a broader view. If you look at the views of American citizens to the extent that they’re polled on these subjects, it turns out that there’s pretty broad support for protecting even speech that is seen as extremist, racist, or harshly anti-religious. There’s broad support for protecting it. There’s also broad support for restricting it.
reason: Would you say the First Amendment enjoys more popular support and more real-world protection than other amendments in the Bill of Rights?
Volokh: It’s very hard to compare the relative force of various constitutional amendments, in part because they’re written in different ways. Many people say, “The Fourth Amendment is not being enforced enough.” But the Fourth Amendment does not prohibit searches and seizures; it prohibits unreasonable searches and seizures. Built into the Fourth Amendment is the notion that some searches and seizures are permissible, and lines need to be drawn between what’s reasonable and what’s unreasonable. Many judges take a view that a wide range of searches and seizures are reasonable. So is the Fourth Amendment being enforced less strictly than the First Amendment? It’s hard to say. It may just be that it’s written less strictly, so it ends up authorizing a lot of government action.
The right to a jury trial is very strongly enforced. If you’re being prosecuted for a criminal offense, and the maximum sentence for that offense is more than six months, you are entitled to a trial by jury. There’s no balancing test; the government can’t say, “We’ve got a compelling interest in not giving you a trial by jury.” At the same time, the right has some built-in limitations. For petty offenses, you don’t get a right to a trial by jury. That’s not in the text of the Constitution, but it’s been understood as a historical exception.
Likewise, if you’re being detained as an enemy combatant, there has been debate about what kind of rights you have, but you clearly don’t have a constitutional right to a standard, civilian criminal jury trial, and you never have. With a lot of these rights, there is a core that is very well protected, but the core might be relatively small; there may be a lot of things that look on their face like they’d be covered by the text but aren’t. It’s very hard to do comparisons between rights that are very different, have very different histories, have very different texts, and have different social functions.
reason: If you had to choose one or two of the biggest threats to free speech these days, what would they be?
Volokh: One is the notion of hostile environment harassment: that people expressing their views, people making jokes, sometimes people posting sexually themed material, sometimes people making political statements or religious proselytizing, can become legally punishable discrimination simply because it is—and I’m quoting here the very vague language of the law—“severe or pervasive enough to create a hostile, abusive, or offensive environment” based on race, religion, sex, sexual orientation, and the like. This could be in employment, in education, in public accommodations. There is the limitation that it can support a lawsuit only if it creates a hostile environment for a reasonable person, but it’s obviously a very vague and very broad standard.
This rule has become essentially a nationwide speech code for America’s workplaces. The code is not just imposed by the private property owners who run the workplaces, who of course are entitled to restrict speech on their property and by their employees. Rather, it is imposed by the government; employers are being coerced into suppressing certain kinds of speech by fear of massive liability. And once that theory is recognized in the workplace, it becomes applicable in other places as well. The latest generation of campus speech codes is based on the theory that if students or professors say things that in the aggregate are offensive enough to people based on certain attributes that speech stops being constitutionally protected speech and magically becomes the conduct of discrimination, which is legally punishable.
You also see cases where the same logic is applied to public accommodations. So there was a case several years ago in Boston, where a bar was found liable for having an allegedly racist display as part of its decor and allowing allegedly racist political statements by the bartender. I think that’s a very dangerous thing, partly because it applies to a wide range of speech, including clearly political speech, speech that obviously should be constitutionally protected. The standards are so vague and potentially so broad that it can very easily lead to back-door suppression of speech that we’d always assumed was constitutionally protected.
There was a lawsuit—which fortunately was rejected, but it took a trip to the California Supreme Court to do it—against Warner Brothers for allowing sexually themed speech in the writers’ office for the television show Friends. A writer’s assistant found this created a sexually hostile environment for her because there were all these sexually themed and occasionally misogynistic comments being made. And one might say, well, of course it’s constitutionally protected, but it’s still a workplace. We say it’s constitutionally protected even though it’s in the workplace because speech should be protected from government suppression everywhere.
reason: That standard would shut down most Hollywood scriptwriting meetings.
Volokh: That’s right. But even if you get out of this zone of what some might call communicative workplaces —workplaces that are all about the creation of speech —still for most people, whether they work at a factory, at a coffee shop, or wherever else, that’s where they spend a third of their hours. That’s where they have conversations with their coworkers. For many people that’s the most they have by way of conversation outside of their family. And here the government is coming in and—indirectly but quite clearly, through the coercive force of the threat of massive liability—suppressing speech because it conveys allegedly offensive viewpoints.
reason: Before fingerprinting, cops took mug shots as a way of identifying us, and until recently they were pretty reluctant to release mug shots unless there was a Freedom of Information Act request. These days, cops are not only giving them out; they’re placing mug shots on their own websites as a way of shaming johns, prostitutes, shoplifters, and so on. There’s also this cottage industry that’s emerging of local tabloid newspapers that point out who the wrongdoers are in the local community. What do you make of this? Is there tension between free speech on the one hand and protection of due process on the other?
Volokh: The government has no legal obligation to release mug shots. If the government were to say, “We’re not going to release any more mug shots, except in unusual circumstances—say, when there’s a manhunt going on and we want people to help identify somebody,” that wouldn’t violate anyone’s free speech rights. The government can just say, “Hey, we took the photos, they’re our property, and we’re not going to hand them out to you.” At the same time, while people may have a privacy right to be free from unreasonable searches and seizures, they have no constitutional privacy right in their pictures. The government generally can put out pictures of people. So it’s hard to figure out from first principles what the right answer is in this kind of situation.
The government has legitimate reasons for releasing photographs. Often it does help people figure out, for example, if somebody was arrested for some robbery and maybe it was somebody who robbed them before. Sometimes if it’s announced that John Smith is arrested for such and such, seeing this picture may help you realize it’s not the John Smith you work with but a completely different John Smith.
At the same time, releasing the mug shot might inflict a kind of punishment before conviction. It might ruin people’s reputations and cause them undue embarrassment even before there’s any trial. Perhaps they’re vindicated at trial, but all that people remember is their mug shot on the evening news. That’s a danger that we have had with our open criminal justice system even before photographs, simply because names were always released. But it’s a danger that’s exacerbated now.
reason: A Chicago artist was protesting a local ordinance that banned selling art on the street. He knew he was going to be arrested for selling his art, so he recorded what happened. He was charged with felony eavesdropping. Under what circumstances can you record someone in a public space?
Volokh: This is what I call the dark side of privacy laws. Everyone likes the idea of privacy, and eavesdropping sounds bad. But legislatures often target it without sufficient attention to free speech rights. In some states, the law essentially bars anybody from recording conversations without the permission of all the parties.
Those laws apply even when the conversations are in a public place, even when they’re on a nonconfidential matter, even when one of the people in the conversation is doing the recording, and even when the conversation is with government officials, including police officers. The Massachusetts Supreme Judicial Court rejected a First Amendment challenge to a criminal prosecution in such a case several years ago. I think that’s very bad. I think it’s very important that we be able to gather information this way, especially concerning interactions with police officers but also in other situations, such as when we’re being blackmailed or something along those lines, where the recording could be our only way of clearing ourselves.
The law varies a lot from jurisdiction to jurisdiction. In many states, it’s OK to record a conversation so long as one party agrees. So if you’re talking to someone and you want it recorded, you can record it without getting the other person’s permission. In some states, you need the permission of all the parties when the conversation is confidential communication or private communication, and often the law is not clear about what that means. In a few states, you need the permission of all the parties without any such qualifier.
In those states, if you are recording a conversation with a police officer who is trying to arrest you because you want to prove that it’s a bad arrest, that itself is a crime. I think that’s going way too far. If you’re going to have laws that restrict recording even when one party agrees, and I’m not sure we should have such laws, you need to have some pretty clear exceptions for recording things in which nobody has any legitimate privacy interest. Police officers have no legitimate privacy interests in their conversations with citizens, and in those cases there is a very important interest in gathering information.
reason: We have a series at reason.tv called Nanny of the Month. One month we picked the Alabama Supreme Court for upholding a state ban on selling sex toys. You said we shouldn’t have done that. Why?
Volokh: As I understand it, when you say “nanny,” you mean somebody who is restricting people’s liberty, supposedly for their own good, but without any attention to what they themselves want. I think that it’s right to take to task government officials who act as nannies in this way. It’s the job of legislators to impose only those legal rules that are genuinely necessary to protect individual liberty or some very important social interest.
But that’s not the job of judges. The job of judges is to follow the law and to enforce the law. It’s far from clear to me that the Alabama Constitution and the U.S. Constitution protect the right to have sex toys. One could argue that they should, but it’s perfectly reasonable for a court to say: “Look, there’s nothing in our Constitution that interferes with legislative judgment here. This could be a silly law, it could be an illiberal law, it could be a nanny law, but it’s not our job to act as protectors against the nannies. The protectors against the nannies should be other legislators and the voters. If you don’t like the nannies in the legislature, vote them out. Our job is to strike down only those laws that violate the Constitution, not the laws that we simply think are unreasonable or excessive or too nannyish.”
reason: So by definition, judges can’t be nannies?
Volokh: Judges can be nannies when it comes to creating legal rules. Historically in the Anglo-American legal system, many basic legal rules of contract, of property law, of tort law, even of criminal law, have been created by judges. The earliest restrictions on private sexual contact were actually judge-made rules. Likewise, a lot of tort law rules are judge-made rules. So judges could be nannies if they set up tort law rules that are unduly paternalistic—for example, that protect people so much from ordinary hazards that they drive useful products off the market or interfere with private actions in an excessive way.
But there the judges are themselves making the rules. When somebody is making the rules, you can ask if they’re being a nanny or not. When somebody’s deciding whether somebody else is authorized to make the rules, the question is different. It becomes what the proper role is for the judiciary, as opposed to the legislature, in making these rules.
reason: What are the implications of the 2008 Supreme Court case District of Columbia v. Heller for gun control?
Volokh: The Supreme Court held in D.C. v. Heller that the Second Amendment secures, among other things, an individual right to keep and bear arms, including handguns, in self-defense. But 44 state constitutions have a specifically guaranteed right to keep and bear arms, and at least 40 of them have been interpreted as securing an individual right to keep and bear arms in self-defense. The state courts in those states have applied those provisions, so we have a pretty good idea of what happens in court when there’s no dispute about whether there’s an individual right to keep and bear arms in self-defense.
The courts in those states strike down the most aggressive and restrictive gun control laws and uphold a great many other laws that are seen as mere regulations rather than prohibitions on keeping and bearing arms. That’s been true for almost 200 years, ever since state supreme courts in the early 1800s started upholding bans on concealed carry of guns. Those were the first in a major wave of gun control laws in America.
So what I think will happen, even if the Supreme Court holds in the coming Chicago case that the right to keep and bear arms applies to state and local governments, is that if there’s a total gun ban or total handgun ban, that will be struck down. Possibly some other laws will be overturned as well: maybe total bans on carrying guns, maybe bans on possessing guns in public housing complexes.
But bans on so-called assault weapons, various waiting period laws, licensing and registration laws—I think courts are going to say those are permissible regulations rather than total prohibitions. I think a lot of these laws are pretty foolish. The bans on so-called assault weapons are a classic example—even some of the pro–gun control forces have acknowledged that such laws have virtually no effect on crime because they ban guns based on aesthetic features rather than any practical difference between the banned guns and allowed guns. But generally speaking courts will leave legislatures with a great deal of discretion in enacting those laws so long as they don’t substantially burden the ability to own some useful guns for self-defense purposes.
reason: Does media coverage have a big impact on how people view guns?
Volokh: Media coverage of guns is skewed in various ways. At many media outlets, the people who write about the subject are somewhat anti-gun, and as a result the coverage ends up being anti-gun. Sometimes they are just ignorant of basic distinctions. You occasionally hear talk about assault weapons that implies they are fully automatic weapons, which they are not. So there are institutional biases. There is also a news bias: It’s not news if a gun is used the way most guns are used, which is somebody breaks into somebody else’s home, the homeowner takes out a shotgun and pumps it, and the burglar hears that familiar sound and runs away. That’s a very common and beneficial use of a gun, but it’s not going to make the news.
At the same time, entertainment is biased, whether intentionally or not, in favor of guns. Guns are glamorous things in television programs and in movies. My sense is also that people who use guns in movies use them much more successfully than guns are actually used in real life. The fact is that, especially under combat conditions, it is very hard to hit somebody the first time around. Even trained police officers, when they actually get into a shootout (which for most police officers is a very rare thing), end up missing most of the time. I don’t think that television and movies accurately capture that fact. As a result, they make guns seem more effective than they actually are. So it could be that these biases counteract each other to some extent.
Whether or not they do, it is quite clear that despite all the hopes of the gun control movement that coverage of mass shooting incidents would lead to a groundswell of support for gun control, it hasn’t happened. Despite these high-profile incidents, support for gun control has declined rather than increased.
reason: Do you agree with the “more guns, less crime” thesis?
Volokh: It’s very hard to tell what the precise effects are of allowing more law-abiding citizens to get concealed carry licenses. It is pretty clear that the overwhelming majority of people who get concealed carry licenses use their guns responsibly. It is quite clear that we have not seen any massive increase in crime, even though we have shifted from a situation where about 10 states allowed nearly every law-abiding adult to get a concealed carry license to a situation where 40 states do. So the fears of gun control proponents certainly have not materialized.
On the other hand, it’s very hard to tell whether nondiscretionary license policies lead to a small but measurable increase in crime, a small but measurable decrease in crime, or neither. There are competing arguments, competing data sets, competing models. I think that’s something there needs to be more research on. But it is pretty clear that the increase in legal concealed carry has not had massive effects one way or the other.
In that kind of situation, we should err on the side of liberty: People should be free to have the weapons that are necessary to effectively defend themselves.
Bonus Reason.tv Video: Watch Eugene Volokh discuss free speech and guns with Reason.tv's Ted Balaker.