THE text of the First Amendment is quite simple: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridg- ing the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of griev- ances.” These are not words that would lead the uninitiated to suspect that the law, both with re- gard to religion and with regard to speech, could be what the Supreme Court has made of it in the past few decades.
Where religion is concerned, for example, a state may lend parochial schoolchildren geo- graphy textbooks that contain maps of the Uni- ted States but may not lend them maps of the United States for use in geography class; a state may lend parochial schoolchildren textbooks on American colonial history but not a film about George Washington; a state may pay for diagnos- tic services conducted in a parochial school but therapeutic services must be provided in a differ- ent building.* At this moment, the most prominent issue in- volving the religion clauses of the First Amend- ment stems from the decision in Engel v. Vitale (1962), and subsequent cases, prohibiting prayer, Bible reading, or even a moment of silence in public schools. In addition to declaring that these are all violations of the First Amendment, the Court has held unconstitutional even school prac- tices that are neutral as among different religions on the ground that, under the First Amendment, religion may not be preferred to irreligion. Since the vast majority of Americans are believers, these holdings are fiercely resented by most of them as attempts to impose secularism on their children, and school prayer remains a simmering political issue.
The new Speaker of the House of Representa- tives, Newt Gingrich, has responded to these con- cerns by proposing to offer a constitutional amendment to permit the prayer the Court for- bids. The current draft of the amendment reads: Nothing in this Constitution shall be construed to prohibit individual or group prayer in pub- lic schools or other public institutions. No per- son shall be required by the United States or by any state to participate in prayer. Neither the United States nor any state shall compose the words of any prayer to be said in public schools.
Whatever one may think of the language here and of the idea of an amendment specifically di- rected to school prayer, left untouched are far more serious judicial deformations of the true constitutional relationship between government and religion. For the Supreme Court has been secularizing notjust the public schools but, so far as it is able, our entire culture. We have grown so accustomed to this trend that it may come as a shock to realize that it does not reflect the inten- tion underlying the religion clauses.
The First Amendment’s establishment clause- “Congress shall make no law respecting an estab- lishment of religion”-clearly precludes recogni- tion of an official church, and it can easily be read to prevent discriminatory aid to one or a few religions. But it hardly requires the conclusion that government may not assist religion in gen- eral or sponsor religious symbolism. An estab- lished religion is one which the state recognizes as the official religion and which it organizes by law. Typically, citizens are required to support the established church by taxation. The Congress that proposed and the states that ratified the First Amendment knew very well what an establish- ment of religion was, since six states had various forms of establishment at the time; ironically, one reason for the prohibition was to save these state establishments from federal interference.
The history of the formulation of the clause by Congresst demonstrates that it was not intended to ban government recognition of and assistance to religion; nor was it understood to require gov- ernment neutrality between religion and irre- * This list comes from then-Associate Justice Rehnquist’s dissent in Wallace v. Jaffree (1985). t See Walter Berns, The First Amendment and the Future of American Democracy; Robert Cord, Separation of Church and State; and C. Antieau, A. Downey, and E. Roberts, Free- dom from Federal Establishment.
23 ROBERT H. BORK, who served from 1982 to 1988 as a federal judge on the court of appeals for the D.C. circuit, isJohn M. Olin Scholar in Legal Studies at the American Enterprise In- stitute and the author of The Tempting of America: The Poli- tical Seduction of the Law and Antitrust Paradox: A Policy at War With Itself.24/COMMENTARY FEBRUARY 1995 ligion. And as we shall see, it most certainly was not intended to erase religious references and symbolism from the actions and statements of government officials.
HAD the establishment clause been read as its language and history show it should have been, the place of religion in American life would be very different from what it now is. But in modern times, the Supreme Court has developed a severe aversion to connec- tions between government and religion. Nowhere is that more evident than in the Court’s alter- ation of its fixed rules to allow such connections to be challenged far more easily than other claimed violations of the Constitution.
Major philosophical shifts in the law can occur through what may seem to laymen mere tinker- ings with technical doctrine. Thus, the judiciary’s power to marginalize religion in public life was vastly increased through a change in the law of what lawyers call “standing.” Orthodox standing doctrine withholds the power to sue from per- sons alleging an interest in an issue only in their capacities as citizens or taxpayers. An individual- ized personal interest, some direct impact upon the plaintiff, such as the loss of money or liberty, is required. But in 1968, in Flast v. Cohen, the Supreme Court created the rule that taxpayers could sue under the establishment clause to en- join federal expenditures to aid religious schools.
Though the opinion offered a strained expla- nation that would fit some suits under other parts of the Constitution, the Court has managed to avoid allowing such suits with still more strained rationales. Every single provision of the Constitu- tion from Article I, Section 1 to the 37th Amend- ment is immune from taxpayer or citizen enforce- ment-except one. Only under the establishment clause is an ideological interest in expunging re- ligion sufficient to confer standing.
The unhistorical severity of establishment- clause law was codified in the Supreme Court’s opinion in Lemon v. Kurtzman (1971). To pass muster, the Court held, a law must satisfy three criteria: (1) the statute or practice must have a secular legislative purpose; (2) its principal or pri- mary effect must be one that neither advances nor inhibits religion; and (3) it must not foster an excessive government entanglement with religion.
So few statutes or governmental practices that brush anywhere near religion can pass all of those tests that, were they uniformly applied, they would erase all traces of religion in governmental affairs. But there are too many entrenched tradi- tions around for Lemon to be applied consistent- ly. While a case challenging the use of a paid chaplain in Nebraska’s legislature was pending in the Supreme Court, the appeals court on which I then sat gathered to hear a challenge by atheists to the practice of paying the chaplains who serve Congress. We and counsel stood while a court officer intoned, “God save the United States and this honorable court,” an inauspicious beginning for the plaintiffs since the ritual, followed in the Supreme Court as well, would appear to violate all three prongs of Lemon.
Our case was later rendered moot because the Supreme Court approved the Nebraska legis- lature’s chaplain in Marsh v. Chambers (1983).
Justice William Brennan, dissenting, argued that the state’s practice could not pass the Lemon test since it hardly had a secular purpose, and the process of choosing a “suitable” chaplain who would offer “suitable” prayers involved govern- mental supervision and hence “entanglement” with religion. The Court majority, however, re- lied on the fact that employing chaplains to open legislative sessions conformed to historic prece- dent: not only did the Continental Congress em- ploy a chaplain but so did both houses of the first Congress under the Constitution which also pro- posed the First Amendment. In fact, they also provided paid chaplains for the Army and Navy.
Presumably for that reason, Chief Justice Bur- ger, who had written Lemon, did not apply it in Marsh. And quite right he was. The Court often enough pays little attention to the historic mean- ing of the provisions of the Constitution, but it would be egregious to hold that those who sent the amendment to the states for ratification in- tended to prohibit what they had just done themselves.
But if the Lemon test should be ignored where there exists historical evidence of the validity of specific practices or laws that could not otherwise pass muster, then it is a fair conclusion that the test itself contradicts the original understanding of the establishment clause and is destroying laws and practices that were not meant to be invali- dated.
s MATTERS stand, Lemon makes it difficult for government to give even the most harmless or beneficial forms of assistance to religious institutions. New York City, for example, implemented a program, subsidized with federal funds, under which public-school teachers could volunteer to teach in private schools, including religious schools. The program offered instruction to educationally deprived chil- dren in remedial reading, mathematics, and En- glish as a second language. The teachers were accountable only to the public-school system, used teaching materials selected and screened for religious content by city employees, and taught in rooms free of religious symbols. The teachers were generally not members of the religious faith espoused by the schools to which they were as- signed. There was no evidence that any teacher complained of interference by private-school of- ficials or sought to teach or promote religion.
The court of appeals said this was “a program that apparently has done so much good and lit-WHAT TO DO ABOUT THE FIRST AMENDMENT/25 tie, if any, detectable harm.” Nevertheless, con- strained by Lemon, that same court held the program an impermissible entanglement because the city, in order to be certain that the teachers did not inculcate religion, had to engage in some form of continuing surveillance. The Supreme Court, in Aguilar v. Felton (1985), affirmed on the same ground. The educationally deprived children were then required to leave the school premises and receive remedial instruction in trailers.
To cite another example, the Satmar Hasidim, who observe a strict form of Orthodox Judaism, organized the village of Kiryas Joel in Orange County, New York, where only members of the sect lived. Children were educated in private reli- gious schools which did not offer any special ser- vices to the handicapped. The handicapped pu- pils were thus forced to attend public schools outside the village. But their parents soon with- drew them because of “the panic, fear, and trauma” the children suffered in leaving their own community and being with people whose ways were so different and who taunted them.
The New York State legislature then enacted a statute making Kiryas Joel a separate school dis- trict which ran only a secular special-education program for handicapped children; the other children of Kiryas Joel remained in the private religious schools. When the separate school dis- trict was, predictably, challenged, the trial court held that the statute violated all three criteria of Lemon. Dividing six to three, the Supreme Court affirmed in Board of Education of Kiryas Joel v.
Grumet (1994), though the various opinions ar- ticulated different rationales.
Those parts of Justice David Souter’s opinion in which a majority of the Court joined found an establishment-clause violation because the un- usual nature of the statute gave “reason for con- cern whether the benefit received by the Satmar community is one that the legislature will provide equally to other religious (and nonreligious) groups” and because the statute delegated politi- cal power to a religious group. Justice Stevens, joined by Justices Blackmun and Ginsburg, con- curred with the remarkable statement that in pro- tecting the handicapped students from “panic, fear, and trauma,” “the state provided official sup- port to cement the attachment of young adher- ents to a particular faith.”* HIS was only one of many decisions detecting the “establishment of reli- gion” in the most innocuous practices. A lower court held that it was unconstitutional for a high- school football team to pray before a game that nobody be injured. Another court held that a Bal- timore ordinance forbidding the sale of non- kosher foods as kosher amounted to the estab- lishment of religion. A federal court decided that a school principal was required by the establish- ment clause to prevent a teacher from reading the Bible silently for his own purposes during a silent reading period because students, who were not shown to know what the teacher was reading, might, if they found out, be influenced by his choice of reading material.
The list of such decisions is almost endless, and very few receive Supreme Court review, not that that would be likely to change things. After all, the Supreme Court itself decided in Stone v.
Graham (1980) that a public school could not display the Ten Commandments. (The school au- thorities were so intimidated by the current atmosphere that they attached a plaque stating that the display was intended to show our cul- tural heritage and not to make a religious state- ment; no matter, it had to come down. It also did not matter that the courtroom in which the case was heard was decorated with a painting of Moses and the Ten Commandments.) So, too, in Lee v. Weisman, decided in 1992, a five-Justice majority held that a short, bland, non- sectarian prayer at a public-school commence- ment amounted to an establishment of religion.
The majority saw government interference with religion in the fact that the school principal asked a rabbi to offer a nonsectarian prayer. Govern- ment coercion of Deborah Weisman was detected in the possibility that she might feel “peer pres- sure” to stand or to maintain respectful silence during the prayer. (She would, of course, have had no case had the speaker advocated Commu- nism or genocide.) Thus was ended a longstand- ing tradition of prayer at school-graduation cer- emonies.
The law became a parody of itself in Lynch v.
Donnelly, a 1984 decision concerning Pawtucket, Rhode Island’s inclusion of a creche in its an- nual Christmas display. The Court held that the display passed muster, but only because, along with the creche, it also included such secular features as a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cut-out figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, and a large banner that reads “SEASON’S GREETINGS.” The display of a menorah on a public building has been subjected to a similar analysis. In other words, the question to be litigated nowadays is whether there is a sufficient number of secular symbols surrounding a religious symbol to drain the latter of its meaning.
ODERN establishment-clause juris- prudence is often justified by ref- erence to the views of Jefferson and Madison, but * For a more detailed account, see “The Curious Case of Kiryas Joel,” by Jeremy Rabkin, COMMENTARY November 1994.-ED.26/COMMENTARY FEBRUARY 1995 the truth is that their opinions on this subject were idiosyncratic among the Founders. Jeffer- son’s often-quoted phrase about the “wall of sepa- ration” between church and state appears in a letter he wrote to the Danbury Baptist Associa- tion, and most historians agree that he was not expressing the views of those who enacted the Bill of Rights. As for Madison, the constitutional scholar Walter Berns points out: It is sufficient to recall that as President he vetoed a bill to grant a charter of incorpora- tion to the Episcopal Church in Washington, D.C. [a routine practice at the time], and op- posed the appointment of chaplains in the Army and Navy and the granting of tax exemp- tions to “Houses of Worship”; he even objected to presidential proclamations of days of thanks- giving…. The extent to which others did not share all his views is reflected in the fact that he found it necessary to yield to the pressure and issue such a proclamation.
In short, Jefferson and Madison held radical and unrepresentative positions on what consti- tuted the establishment of religion. By following their opinions, the Supreme Court has mutilated the establishment clause as it was understood by those who made it law.
Indeed, no rigid separation of religion and government such as Lemon prescribes is even conceivable. For governments regularly and in- evitably take actions that do not have a secular purpose, whose principal effect is to advance re- ligion, and which entangle them with religion.
Aside from the examples already given, there are property-tax exemptions for places of wor- ship, which do not have a secular purpose and do advance religion. Government, in the form of boards, courts, and legislatures, determines what qualifies as religion in order to award draft ex- emptions for conscientious objectors, aid to schools, and the like. In order to see that educa- tion is properly conducted, states must inspect and demand certain levels of performance in re- ligious schools. Federal employees receive paid time off for Christmas, and the National Gallery preserves and displays religious paintings.
In short, our actual practices cannot be made consistent with the complete separation of reli- gion and government.
There may be some who are dubious about the claim that the judiciary’s rulings are hostile or damaging to the place of religion in society. To them, I recommend Justice Potter Stewart’s dis- sent in Abington School District v. Schempp, a 1963 decision in which the majority struck down rules that required Bible reading without discus- sion at the beginning of each school day. Said Stewart: [A] compulsory state educational system so structures a child’s life that if religious exer- cises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of the religion of secularism, or at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private.
Similar conclusions could be drawn concern- ing the effects of decisions erasing religious speech and symbolism from our public life and denying nondiscriminatory aid to religious insti- tutions. Nathan Lewin, who argued the case for the village of Kiryas Joel, wrote, justly I think: The Kiryas Joel decision proved once more that a majority of the Justices of the Supreme Court-like most judges of lower courts in the United States-are either hostile to religion or do not understand what religious observance is all about.
HE case is very different with the speech and press clauses of the First Amendment.* Since this part of the amendment has less legislative history than the religion clauses, its plausible meaning must be deduced from other materials. But we can dispose at once of the notion that because the First Amendment states that “Congress shall make no law . . .
abridging the freedom of speech,” it imposes an absolute bar to any regulation of speech. Nobody supposes that, not even judges who announce “absolute” positions. There are well-recognized exceptions of time, place, and manner: Congress, for example, can have a person prosecuted for haranguing its members from the visitors’ gal- lery, and it has been held constitutional, under a congressionally-enacted code of military conduct, to imprison an officer for inciting troops to dis- obedience.
Still, the existence of the amendment implies that there is something special about speech, something that sets it apart from other human activities that are not accorded constitutional pro- tection. Justice Brandeis tried to specify what that something was in his impassioned concurrence in Whitney v. California (1927). He wrote, though more colorfully, that the benefits of speech are: (1) the development of the faculties of the indi- vidual; (2) the happiness to be derived from engaging in the activity; (3) the provision of a safety valve for society; and (4) the discovery and spread of political truth.
The list is not entirely satisfactory. The first two benefits do not distinguish speech from a myriad of other unprotected activities that de- * The law of the press clause is quite similar to that of the speech clause, so in the interest of brevity I will deal only with the speech clause here.WHAT TO DO ABOUT THE FIRST AMENDMENT/27 velop human faculties or contribute to happiness.
The safety-valve function suggests that prudence requires letting people blow off steam so they do not engage in actions that threaten stable govern- ment, yet prudence to preserve stable govern- ment is necessary in many ways, none of them important enough to be mentioned in the Con- stitution.
The “discovery and spread of political truth,” however, does set speech apart from other hu- man activities. Only speech can deal explicitly, specifically, and directly with politics and govern- ment. In a previous writing, I too casually ac- cepted Brandeis’s qualification of the truth to be discovered and spread as “political,” and I there- fore mistakenly arrived at the proposition that only explicitly political speech should be pro- tected by the speech clause.
Of course, political speech does have a special claim to protection: a representative democracy would be nonsense without it. But there is both a practical and a theoretical objection to limiting protection to explicitly political speech. The prac- tical objection is that other forms of speech could find protection if the speaker added the admoni- tion that we pass a law on the subject, whatever it was. The theoretical objection is that speech is both valuable and unique, whatever kind of truth it seeks to discover and spread. There is thus rea- son to conclude that the protection of the speech clause extends to many other types of speech that express ideas.
On the other hand, the modern Court has gone wrong, in my estimation, by accepting as a major part of the speech clause’s rationale the desire of the individual to find happiness through self-expression. This is, as noted, inconsistent with the fact that many other forms of happiness-seek- ing are not protected. The idea that speech is the preferred form of happiness-seeking is merely an intellectual-class bias. There is no ground in con- stitutional law or philosophy for supposing that the fulfillment obtained through, say, dealing in financial markets is inferior to the fulfillment sought in writing a novel.
Acting on the basis of the self-expression ratio- nale, the Court decided that a young man could not be punished for wearing into a courthouse a jacket with words on the back urging, with a four- letter verb, that an implausible sexual act be per- formed on the selective-service system. “One man’s vulgarity,” the Court opined, “is another’s lyric.” The same rationale also led directly to the Court’s decision in Texas v. Johnson (1989) that the clause protects not merely what it addresses, “speech,” but actions that express moods and at- titudes, such as burning the American flag. The burner could have expressed his hatred for Amer- ica in as many and as eloquent words as he could muster and have been protected by the true core of the speech clause. But his lawyer said that burning the flag was important because its offen- siveness drew attention in ways that mere words would not. We must await the Court’s reaction when somebody, on the same theory, decides to protest the laws relating to sex by engaging in indecent exposure.
More recently, the Court wrestled with the question of whether Indiana’s general ban on public nudity could be applied to naked dancing in the Kitty Kat Lounge. The answer, in Barnes v.
Glen Theatre, Inc. (1991), was that it could, but the astonishing fact was that eight Justices thought a First Amendment question was pre- sented because nude dancing “expresses” eroti- cism and sexuality. The ninth, Justice Scalia, thought the First Amendment was not implicated, but only because the statute was of general appli- cation and not aimed at dancing in the alto- gether.
In general, pornography and obscenity can hardly be thought to lie at the center of the First Amendment, but efforts by communities to limit their spread have been frustrated repeatedly by appeal to the speech clause.
To be sure, in 1973, by a vote of five to four in Miller v. California, the Court seemed to allow some minimal control of pornography. It stipu- lated that three things had to be determined be- fore pornography could be banned or its purvey- ors punished: (a) whether the “average person, applying con- temporary community standards” would find that the work, taken as a whole, appeals to the prurient interest . . ., (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the ap- plicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Yet when Cincinnati prosecuted a museum for displaying Robert Mapplethorpe’s photographs of one naked man urinating in the mouth of an- other and of himself naked with the butt of a bullwhip in his rectum, expert witnesses pro- claimed that the pictures had serious artistic merit, and the jury acquitted. It is hard to imag- ine that the Supreme Court would have found fault with this verdict. In any event, Miller has done little to help communities that have been searching for some way to control the torrent of pornography that earlier decisions loosed upon them.
W ITH regard to speech advocating VV violence and the violation of law, the Court has been no more helpful. This failure largely reflects the great influence of the famous dissents of Justices Holmes and Brandeis. The crux of their position was that such advocacy could not be punished unless there were shown a clear and present danger of success or imminent, serious harm. There is some doubt even about28 /COMMENTARY FEBRUARY 1995 the provisos, for Holmes could bring himself to write, in Gitlow v. New York (1925), and Brandeis joined him, that, If in the long run the beliefs expressed in pro- letarian dictatorship are destined to be ac- cepted by the dominant forces of the commu- nity, the only meaning of free speech is that they should be given their chance and have their way.
This, in a case where the defendant proposed violent action by a minority in order to impose a dictatorship. But why were the “dominant forces of the community” who wrote the law imprison- ing Gitlow not permitted to have their way? How could Justices who six years earlier in Abrams v.
United States voted to protect speech because thought should be tested in the “competition of the market” vote now to protect speech calling for violence to abolish the market? Berns sums up the matter neatly: “The only meaning of free speech turns out to mean that it is worse to sup- press the advocacy of Stalinism or Hitlerism than to be ruled by Stalin or Hitler. The reasons for this are not, one might say, readily apparent.” The Holmes-Brandeis mood (it was hardly more than that) culminated in 1969 in Branden- burg v. Ohio, where the Court announced that the constitutional guarantees of free speech and press do not permit a state to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is di- rected to inciting or producing imminent law- less action and is likely to incite or produce such action.
If we take seriously Brandeis’s observation that speech assists the discovery and spread of politi- cal truth, however, it should be obvious that advo- cacy of force or the violation of law has no value.
Such speech does not aim to convince a majority of a truth. Rather, it advocates violence or lawless- ness to overturn the republican form of govern- ment which the Constitution embodies and guar- antees to the states or to cancel the laws which legislative majorities have enacted.
The late constitutional scholar, Alexander M.
Bickel, a staunch friend of the First Amendment, questioned the worth of the Holmes-Brandeis market metaphor: If in the long run the belief, let us say, in geno- cide is destined to be accepted by the domi- nant forces of the community, the only mean- ing of free speech is that it should be given its chance and have its way. Do we believe that? Do we accept it? Bickel went on to ask whether the best test of the idea of proletarian dictatorship, or segregation, or genocide is really the marketplace, whether our experi- ence has not taught us that even such ideas can get themselves accepted there.
The Brandeisian response would be that the cure for evil speech is good speech; yet to engage in debate about such ideas is to legitimate them, to say that they have their place in public discourse.
As Bickel wrote, “Where nothing is unspeakable, nothing is undoable.” Bickel implicitly raised a difficult question.
The advocacy of genocide, to use his example, would fall within the category of political speech, the core of the speech clause. It is preposterous, nevertheless, to suppose that those who wrote and ratified the First Amendment wanted every conceivable idea, no matter how vicious, to be proposed for a vote. The problem for judges is to draw a line between the ideas Bickel mentions and silly regulations, such as campus speech codes, that try to outlaw offensiveness. The courts have carved out exceptions to the protection even of political speech. Developments in an increas- ingly fragmented and angry society may force judges to rethink the legacy of Holmes and Brandeis.
Those who take the position that speech advo- cating violence, law violation, and forcible over- throw should be constitutionally protected often attribute their views to the Founders. But the fact is that the Founders held no such position.Jeffer- son and his followers took literally the amend- ment’s statement that Congress should make no law, but they did so not on civil-libertarian grounds but out of a devotion to the sovereignty of the states. Even in the fierce debates that swirled around the Alien and Sedition Acts, the Jeffersonians’ opposition to federal power was accompanied by the assertion that the states al- ready had such laws. The Founders were clear that government had the right to punish sedi- tious speech; they disagreed only about which government had the power to do it.
HE tendencies of the Supreme Court’s unhistorical applications of the First Amendment are fairly clear. The late social critic Christopher Lasch asked what accounted for our “wholesale defection from standards of personal conduct-civility, industry, self-restraint-that were once considered indispensable to democ- racy.” He concluded that though there were a great number of influences, “the gradual decay of religion would stand somewhere near the head of the list.” Despite widespread religious belief, Public life is thoroughly secularized. The sepa- ration of church and state, nowadays inter- preted as prohibiting any public recognition of religion at all, is more deeply entrenched in America than anywhere else. Religion has been relegated to the sidelines of public debate.
As religious speech is circumscribed in the name of the First Amendment, however, the Court-in the name of that same amendment- strikes down laws by which communities attempt to require some civility, some restraint, some de-WHAT TO DO ABOUT THE FIRST AMENDMENT/29 cency in public expression. The Ten Command- ments are banned from the schoolroom, but por- nographic videos are permitted. Or, as someone has quipped about the notorious sculpture by Andres Serrano, a crucifix may not be exhib- ited-unless it is dipped in urine, in which case it will be awarded a grant by the National Endow- ment for the Arts.
The result of all this is an increasingly vulgar and offensive moral and aesthetic environment, and, surely, since what is sayable is doable, an increasingly less moral, less happy, and more dan- gerous society.
The Supreme Court should therefore revisit and revise its First Amendment jurisprudence to conform to the original understanding of those who framed and enacted it. Religious speech and symbolism should be permissible on public prop- erty. Nondiscriminatory assistance to religious institutions should not be questioned. Communi- ties, if they so desire, should be permitted to pre- fer religion to irreligion. There is no justification whatever for placing handicaps on religion that the establishment clause does not authorize.
S FOR the speech clause, it should be read to apply to speech, not to non- verbal expression, and it should protect the dis- semination of ideas, not the individual’s desire for self-gratification. Would this allow for greater regulation of obscenity and pornography? Prob- ably, though there will always be a professor around, and a judge or jury to believe him, that the purest pornography has redeeming artistic merit (just as, it must be admitted, there is always the chance that genuinely meritorious works will be banned). Perhaps, too, the flood of pornogra- phy has already changed community standards and habituated us to an environment that would once have seemed unacceptable. Perhaps it is too late, perhaps there is no way back. But the Court ought not to prevent communities from trying to find one.
Finally, the wholesale protection of the ad- vocacy of violence and law violation-a judicial construct not grounded in history-should be re- scinded. The effects of incitements to violence will often be unknowable; nor need they be im- minent to be dangerous. If, for example, speak- ers incite racial hatred and advocate violence against another race, as happens all too often nowadays, those utterances may well lead to ac- tual violence, but it will be impossible to prove a direct connection to the speeches.
The rule of Brandenburg also contemplates judging the effect of each particular speech. Yet even though no individual speech may have the effect of producing violence, cumulatively such speeches may have enormous influence. Whether or not it is prudent to ban all such advocacy is a different question, one that should be addressed by legislatures and prosecutors rather than courts. There is no good reason to put advocacy of violence and law violation in the marketplace of ideas.
How much chance is there that the Court will undertake such sweeping reforms? Not, it would seem, a great deal. The Court, particularly when it deals with the Constitution, and more particu- larly when it deals with the First Amendment, is as much a cultural and political institution as it is a legal one. It has always responded to dominant class values, and in our day that means the cul- tural elite: academics, clergy, entertainers, jour- nalists, foundation staffs, bureaucrats, and the like. These folk tend to be hostile or indifferent toward religion and to sanctify the autonomous individual as against the community-precisely the attitudes underlying contemporary First Amendment jurisprudence.
That having been said, it must also be recog- nized that there have been strong dissents to the modern decisions, particularly to the decisions deforming the religion clauses. It is entirely pos- sible, therefore, that we may at least expect piece- meal improvements, especially given the more conservative climate that was reflected in the 1994 elections.
1 This list comes from then-Associate Justice Rehnquist’s dissent in Wallace v. Jaffree (1985).
2 See Walter Berns, The First Amendment and the Future of American Democracy; Robert Cord, Separation of Church and State; and C. Antieau, A. Downey, and E. Roberts, Freedom from Federal Establishment.
3 For a more detailed account, see “The Curious Case of Kiryas Joel,” by Jeremy Rabkin, COMMENTARY November 1994.—Ed.
4 The law of the press clause is quite similar to that of the speech clause, so in the interest of brevity I will deal only with the speech clause here.