Civility in a Time of Deep-Seated Distrust

As this year comes to an end and as our country readies for a peaceful transition of power from a Democratic President to a Republican President, we would each do well to consider why we continue to try to live peaceably with one another.  Even under conditions of deep-seated (racial, ethnic, political, religious, gender) distrust among and between people, we continue to try to live peaceably and to cooperate with one another other.  Why?  If we cannot trust one another, why not simply disband?

Political philosophers have labored over this problem by asking why we should band together in the first place, even under conditions of distrust. One justification for the state and for law is that, without an enforcement mechanism, such as the State, people would not be secure in their person or possessions and could not trust others to work toward common goals or ventures. Civil society has long been considered people’s refuge from a solitary, poor, nasty, brutish and short life found in the state of nature. Thomas Hobbes held that the state of nature is an anarchic condition that breeds and encourages antipathy. Rights do not exist in this condition because everything is up for grabs—the greatest claim to things, including life, is determined by might, wit and cunning. Culture and industry are impossible.

Hobbes posited that individuals in this anarchic condition who wish to cooperate with others and coordinate conduct toward common ends could hardly trust others to perform absent some enforcement mechanism—without, that is, an authority, specifically an absolute monarch, with power to make nonperformance more costly than performance. With enforcement in place, cooperation and coordination become possible. Rationally self-interested persons would choose to take their chances in civil society, even under absolute (perhaps despotic) monarchy, over an unstable state of nature.

John Locke subsequently challenged two major premises in Hobbes’ philosophy: (1) the idea that there are no such things as rights in the state of nature, and (2) that an absolute monarchy is compatible with civil society. For Locke, each individual is unquestionably endowed with reason, will, and natural rights. Locke’s state of nature is not a war of all against all. Rather, it is a condition best described as a near-tolerable anarchy, where people are without a common superior. Reason and tolerance are the rule rather than exception. The individual has a right to defend her life and her possessions. Her possessions are merely extensions of her labor. Her labor is merely an extension of herself.

Like Hobbes, Locke considered government necessary, but not because it was the only way to ensure cooperation and coordination among persons. Because individuals are ruled by reason, people enjoy compossible rights (if B cannot sacrifice A as a means to B’s end, A cannot impose her end on B to achieve A’s end). Recognizing this, people are willing and eager to enter cooperative ventures. But something like Hobbes’ war of all against all arises because every person becomes judge in her own case, no one having greater rights than, or claim to authority over, any other person. Legal institutions become necessary to fairly adjudicate disputes concerning competing rights and define the contours of those rights as a means to foster stability and certainty in people’s interactions with one another.

At the heart of political society for Locke lies the social contract. “The only way anyone divests himself of his natural liberty and puts on the bonds of civil society is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst the other. . . .” All members seek to preserve their life and property by entering civil society. Absolute monarchy is antithetical to a free and equal society because an absolute monarch would be judge and enforcer in his or her own case, thus placing him or her in a state of nature with others.  

People enter a social contract by voluntarily consenting to enter civil society—by making a promise. Locke did not flesh out how one logically derives a moral obligation that motivates him or her to act on or keep a promise. Locke just considered it natural that one should keep her word. Immanuel Kant filled this gap.

Kant, like Hobbes, held that moral principles could derive from practical reason. Unlike Hobbes, however, Kant held that moral principles could derive from reason apart from self-interest. Morality is not result oriented for Kant. A moral act is one that is good in itself.

Practical reason generates reasons for action, which do not depend on what one desires or how one feels. For Kant, the categorical imperative generates inescapable moral duties, moral oughts, that people are compelled to act on. Duty is the necessity of an action from respect of law. “Respect of law” is not the source of one’s motive to act, but merely a consequence of the motive. When you see that you have a duty to keep your promise, for example, that rational recognition that you are subject to this requirement produces a feeling of respect for the law derived from reason.

There is a single categorical imperative: “act only in accordance with that maxim through which you can at the same time will that it become universal law.” If one posits the maxim, “I will break my promise because I feel like it,” he or she could hardly imagine a universally recognized rule that states “let everyone break his or her promise whenever he or she feels like it.” A promise has no meaning under such a maxim. Therefore, one has a duty not to act under the maxim.

Even were one convinced that he could universalize the maxim, he would find a contradiction in his will. Kant’s contradiction-in-the-will test requires one to hypothetically—not actually, so as to avoid tying one’s motive to a result—ask whether he could will a world in which people are permitted to break a promise for any reason. No person could rationally will such a world, because he could not rely on any person’s word and no one could rely on his. One has a duty, again, not to act under the maxim.

When a person subjects her maxims to the categorical imperative, she gives law to herself insofar as she checks her actions against a self-imposed normative posture that itself considers the impact of her action, hypothetically, on others. The most salient aspect of Kant’s philosophy lies in its consequence as a matter of practical reason: that rational nature exists as an end in itself. And, therefore, human beings as rational agents ought to be treated as ends in themselves and never as a means.

Lockean political philosophers, Robert Nozick particularly, employ Kant’s moral philosophy to account for Locke’s gap between promise and obligation. The idea of self-ownership treats each individual as an end who rightfully determines the course of conduct most conducive to her own life and well-being. As a corollary, it follows that no person can be used as a means to another’s end, otherwise rights between individuals would be incompossible. Promises are to be kept under this logic because to renege would be to use the promise to achieve the promisor’s ends without the reciprocation envisioned in a contract toward common ends.

Hobbes and Locke share the view that persons can be placed in a state of nature situation in civil society. When, for example, the enforcement branch of government places the citizen’s life in danger, the instinct to preserve one’s life (on Hobbes’ account) or the natural right to preserve one’s life (on Locke’s account) kicks in.

What about when virtue amongst the citizenry is lost? When citizens do not trust one another? When citizens employ law as a tool to disadvantage other citizens? When citizens use law enforcement as a means to their own ends, ends that do not have the public good in mind, but personal gain? For Hobbes, rational self-interest may counsel one to treat others as in a state of nature. For Locke, and considering Kant’s categorical imperative, a promise has been broken, the social contract, that is, has been impugned.

If we cannot count on a minimum amount of civic virtue among the citizenry, how can we trust one another? If we cannot trust one another, what reason has anyone to yield to or respect laws enacted by others, especially laws enacted by an opposing party in the majority? If we cannot trust law enforcement officials to exercise restraint and respect toward people generally, what reason has anyone to yield to or respect law enforcement officials, who are also citizens? If law enforcement officials cannot trust that citizens will generally cooperate and abide official rules or orders, what reason has any law enforcement official to show respect for citizens generally? or to exercise restraint when enforcing the law?  Are we together in civil society or at its precipice, overlooking and stepping closer to a state of nature?

Well, we do not kill each other in droves. Apparently, we want to trust each other.  The whole of human history is an account of ceaseless attempts to live sociably with one another. Now is the time to create an open dialogue on every and any issue—whether race, gender, sexuality, or anything else—in which every person participates.   

Disagreements will arise; disagreement is inevitable.  But disagreement, alone, is not a reason to distrust others or to cut-off further discussion.  A selective ‘taken-for-granted’ or ‘taken-as-given’ ripens into incivility. But civility is exactly what is needed to resolve our disagreements. Civility is possible only when persons within a circumscribed polity are willing to take each other’s concerns, beliefs, and ideas seriously, which requires an effort to understand those concerns, beliefs, and ideas on their own terms and not only for the sake of dismissing or refuting them, and never for the sake of demeaning them.

Let us enter 2017 with optimism, a willingness to cooperate with one another, and to disagree in good faith when necessary, and a commitment to reduce our deficit of trust.

USING TEXAS’ ANTI-SLAPP STATUTE TO COMBAT SSAPP (STRATEGIC SANCTIONS AGAINST PUBLIC PARTICIPATION)

            Texas, like many other states, enacted legislation to curb meritless lawsuits whose purpose lies solely in chilling a person’s right to free speech and/or to petition his or her government. Under Texas’ Anti-SLAPP (Strategic Litigation Against Public Participation) law, a party may file a motion to dismiss a legal action which is “based on, relates to, or is in response to [his or her] exercise of the right of free speech, right to petition, or right of association.” Tex. Civ. Prac. & Rem. Code § 27.003(a).  The statute is designed to protect every person’s right to exercise his or her First Amendment communicative rights and does so by nipping SLAPP suits in the bud (at earliest stage of litigation) and by awarding to the party whose speech rights have been burdened by meritless litigation court costs, attorney fees, and other expenses incurred in defense of the meritless suit.  See Tex. Civ. Prac. & Rem. Code §§ 27.002, 27.009.

            A growing tactic by defendants, which includes counter-defendants and cross-defendants, is to include in an answer to a lawsuit, counterclaim, or cross-claim, a counter-claim against the plaintiff, counter-plaintiff, or cross-plaintiff for attorney fees and other damages pursuant to Texas Civil Practice & Remedies Code § 10 and Texas Rule of Civil Procedure 13.   Chapter 10 authorize a court to sanction a party for filing a pleading or motion for an improper purpose or for filing a pleading or motion which lacks factual or legal support. See Tex. Civ. Prac. & Rem. Code § 10.  Rule 13 also authorizes sanctions against a party who, in bad faith or for the purpose of harassment, files any groundless document with the court. See Tex. R. Civ. P. 13.

 

            Notably, a defendant’s Answer is likely not the proper place to request sanctions against another party; this is especially true with respect to Rule 13 sanctions, which must be requested by motion. See Tex. R. Civ. P. 13.  But, often the defendant does not immediately notice a hearing on the requested sanctions.  Rather, the defendant simply sits on the request for sanctions, most likely as “leverage” toward some early resolution (settlement or dismissal), or in hopes that discovery will yield some evidence of bad faith or groundlessness to later support sanctions. 

            This strategic use of sanctions threatens to chill a person’s right to petition his or her government, and it certainly serves as an imposition to that same right. So, the question arises, can the Anti-SLAPP statute be used as an Anti-SSAPP (Strategic Sanction Against Public Participation) measure? The answer may be yes.

            Whenever the Chapter 10 or Rule 13 sanction is predicated on a petition or other pleading which requests legal or equitable relief, the right of the petitioner to petition his or her government is implicated. The Act defines “exercise of the right to petition” as “a communication in or pertaining to . . . a judicial proceeding.”  Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(i). Since both Chapter 10 and Rule 13 arise in the context of filings in a judicial proceeding, their use clearly falls within the Act’s definition of the exercise of the right to petition. 

            The Act defines “legal action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief.” Tex. Civ. Prac. & Rem. Code § 27.001(6).  Insofar as Chapter 10 or Rule 13 sanctions are asserted via a pleading or motion, they would qualify under the first part of this definition. But the requested sanctions under Chapter 10 or Rule 13 must also constitute a form of legal or equitable relief in order to fall under Chapter 27. When the defendant requests attorney fees, court costs and related expenses as the appropriate sanction, that is when the defendant requests money from the petitioner to the defendant, this sounds in legal relief. 

            Obviously, Chapter 10 and Rule 13 would not qualify as quintessential money damages, which fall under legal relief.  These sanctions are imposed because of the abuse of the procedural rules or injury to legal processes.  Chapter 10 and Rule 13 allow the court to sanction a party for abusing his or her right to petition, for using his or her government as a means to harm or harass a fellow citizen. These sanctions are not imposed primarily to rectify a wrong done to any other party. 

            However, Chapter 27 is not limited to “quintessential damages” or “quintessential claims.”  Chapter 27 has a broad purpose which would reach SSAPP practices: “to encourage and safeguard the constitutional rights of persons to petition . . . and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002.  

            Of course, one may always, as a form of relief, move for Chapter 10 or Rule 13 sanctions in response to another’s request for Chapter 10 or Rule 13 sanctions. Unlike Chapter 10 and Rule 13, though, it is mandatory for the court to award court costs, attorney fees, and other expenses to a successful movant under Chapter 27, and the court may order sanctions against the party employing SSAPP to deter similar future conduct. See Tex. Civ. Prac. & Rem. Code § 27.009(a)(1)-(2).  In this manner, Chapter 27 provides a greater remedy than Chapter 10 or Rule 13 to a party exercising her right to petition her government, when she is faced with a challenge to that right via legal procedural rules.

FLAG BURNING AND CAMPAIGN CONTRIBUTIONS—THE SPEECH ACT CONTROVERSY

Now is as good time as any to discuss our willingness to protect speech acts, Donald Trump’s recent “stance” on flag burning notwithstanding. Speech acts are protected under the First Amendment to the United States Constitution as applied to the federal government, and under the Fourteenth Amendment to the United States Constitution as applied to the States.

A.  What is a Speech Act?

A speech act is identified by the context and circumstances under which the act takes place and the motivation, or apparent motivation, of the actor. See Spence v. Washington, 418 U.S.405 1974) (“An intent to convey a particularized message was present, and in the circumstances the likelihood was great that the message would be understood by those who viewed it.”). The seminal case on the regulation of speech acts is United States v. O’Brien, 391 U.S. 367 (1968)— give it a read sometime.

Before O’Brien, the United States Supreme Court afforded protection of communicative acts— for example, in Stromberg v. California, 283 U.S. 359 (1931) the Court held unconstitutional a state prohibition on displaying a “red flag,” and in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the Court held unconstitutional a state law that requires students to salute the flag. The Court, in fact, made clear before O’Brien that there is “some kernel of expression in almost every activity a person undertakes,” but the ultimate task of ascertaining when those “kernels” should be afforded full First Amendment protection, such that the Court could legitimately invalidate a Federal or State law, fell to the Court in O’Brien.

In O’Brien, the Supreme Court answered the question whether criminal prosecution of a person for burning a draft card violated his right to free speech under the First Amendment. The Court created a test, which basically states that government can regulate speech acts if the regulation promotes an important government interest that is unrelated to the suppression of free expression and the restrictions do not burden speech more than is necessary to further the governmental interest.

In the end, the Court in O’Brien upheld the prohibition against burning draft cards. The government purportedly had an important interest in preserving draft cards to facilitate military mobilization, and to preserve a document which reminds the recipient to update changes in address or changes related to draft status, among other interest. These interest were unrelated to the suppression of speech.

B.  Flag Burning is a Protected Speech Act

The O’Brien test gave us the holding in Texas v. Johnson, 491 U.S. 397 (1989), aka, the “flag burning case.” The state law at issue in Johnson made it a crime to intentionally or knowingly “deface, damage or otherwise physically mistreat [a state or national flag] in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.” The Court held this law unconstitutional because the state had not asserted a government interest promoted by the law that was unrelated to the suppression of free speech. And, in fact, the law applied only when another person was “offended” by another person desecrating a flag:

The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our

precedents do not countenance such a presumption. On the contrary, they recognize that a principal “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” . . . It would be odd indeed to conclude both that “if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection,” and that the government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.

Following Texas v. Johnson, a public outcry ensued, with calls for a Constitutional Amendment to prohibit flag desecration. In response, Congress, with signature of the President, enacted the Flag Protection Act of 1989. Only one year later, the Act was before the United States Supreme Court in United States v. Eichman, 496 U.S. 310 (1990) (not that Eichman!).

In Eichman, the Court held unconstitutional the Flag Protection Act of 1989. The Court was split, with Justices Scalia, Kennedy, Brennan, Marshall, and Blackmun in the majority, and Justices Rehnquist, White, Stevens, and O’Connor dissenting. The majority reasoned:

[T]he precise language of the Act's prohibitions confirms Congress’ interest in the communicative impact of flag destruction. The Act criminalizes the conduct of anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag.” Each of the specified terms – with the possible exception of “burns” – unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag's symbolic value. And the explicit exemption in § 700(a)(2) for disposal of “worn or soiled” flags protects certain acts traditionally associated with patriotic respect for the flag.

. . .

“‘National unity as an end which officials may foster by persuasion and example is not in question.’” Government may create national symbols, promote them, and encourage their respectful treatment. But the Flag Protection Act goes well beyond this by criminally proscribing expressive conduct because of its likely communicative impact.

For some people, the Court’s conclusions in Johnson and Eichman are obvious, given the importance of free speech to such public and private goods as Democracy, innovation, personal development and expression, art, and the search for meaning generally. But for others, there are competing public and private goods which deserve equal respect and concern, among those goods are national unity, social stability, security, and respect for the sacrifice of persons in service to the United States, to its citizens, all of which are embodied in the flag as a symbol. Yet, these competing goods, alone, do not demonstrate why others should accept them and question the scope of speech act protection.

C.  Is a Campaign Contribution Protected Speech?

This brings us to campaign contributions. Is a campaign contribution a speech act? This question is usually posed as: “Is money speech?” But this is a misleading question because it leaves out

the context in which the money is exchanged. Obviously, when you hand someone money in exchange for something, there is a “kernel” of expression. If it is the grocer, the “kernel” may just be an understanding on your part or an intent to convey to the cashier that it is the correct tender amount. So, during campaign season, when you give your money to a candidate you support, is there a “kernel” of expression? Of course! Handing money to your candidate of choice is a sign of support, “I support you.” It also may show that you wish for the candidate to act as a proxy for your voice during the election.

The United States Supreme Court has wrestled with campaign contributions and free speech for a long time. The Court has long recognized that “the First Amendment has its ‘fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 223 (1989), Stated another way: “There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign.” McCutcheon v. FEC, 134 S. Ct. 1434, 1440-41(2014).

But even this right to freely engage in political speech has been set against and limited by other public good considerations. Following the Watergate investigation, and a string of other public abuses of office, calls for Government reform were met with the Federal Election Campaign Act of 1971. In an effort to “limit the actuality and appearance of corruption resulting from large individual financial contributions,” the Act was amended in 1974 to add limitations to campaign contributions and expenditures. Individuals or groups could contribute no more than $1000 on a Federal Candidate for office, political committees could contribute no more than $5000, and each contributor could not contribute more than $25,000 to a campaign in any given year. The law also limited expenditures by candidates from their personal funds to $50,000 for presidential or vice-presidential candidates, $35,000 for candidates for the Senate, and $25,000 for House of Representatives candidates. A constitutional challenge subsequently followed.

In Buckley v. Valeo, 424 US. 1 (1976), the Court held that the Act would be viewed with strict scrutiny, as one designed to suppress speech because it operates “in an area of the most fundamental First Amendment activities.” The Court refused to apply the O’Brien test:

Even if the categorization of the expenditure of money as conduct were accepted, the limitations challenged here would not meet the O’Brien test because the governmental interests advanced in support of the Act involve “suppressing communication.” The interests served by the Act include restricting the voices of people and interest groups who have money to spend and reducing the overall scope of federal election campaigns. Although the Act does not focus on the ideas expressed by persons or groups subjected to its regulations, it is aimed in part at equalizing the relative ability of all voters to affect electoral outcomes by placing a ceiling on expenditures for political expression by citizens and groups. Unlike O'Brien, where the Selective Service System’s administrative interest in the preservation of draft cards was wholly unrelated to their use as a means of communication, it is beyond dispute that the interest in regulating the alleged “conduct” of giving or spending money “arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful.”

The Court found that the governmental interest in preventing political corruption or the appearance of it was a compelling interest. To the extent the law was tailored to curb quid pro quo corruption, it was upheld. So, the Court distinguished between the contribution restrictions and the expenditure restrictions. The contribution restrictions were upheld, because, as the Court reasoned, these restrictions involved little direct restraint on a person or group’s political communication. He, she, or it may not be able to spend unlimited money, but can always discuss the candidates and issues with others. And, large contributions lie at the heart of actual and potential quid pro quo.

But the Court held unconstitutional the limitations placed on expenditures. The Court reasoned that such restrictions directly limited the quantity and nature of speech and personal expenditures do not present the risk, at least not clearly, of quid pro quo. The government argued that it could regulate expenditures so as to “equalize the relative ability of all citizens to affect the outcome of elections.” The Court rejected this argument:

[T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed “to secure ‘the widest possible dissemination of information from diverse and antagonistic sources,’” and “‘to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”

So the Court split the baby, so to speak. The government could regulate campaign contributions in order to curb quid pro quo corruption, but would need to find a compelling government interest unrelated to regulating speech in order to limit campaign expenditures. The  Court rejected the concern of equality of political influence, which to this day remains a public good sought by pro-campaign reform folks.

The reasoning behind the Court’s decision did not rest well with many legal practitioners and scholars. Justice Thomas captured the spirit of dissent from Buckley best in his dissent in Nixon v. Shrink Mo. Gov’t Pac, 120 S. Ct. 897, 917-921 (2000).

For nearly half a century, this Court has extended First Amendment protection to a multitude of forms of “speech,” such as making false defamatory statements, filing lawsuits, dancing nude, exhibiting drive-in movies with nudity, burning flags, and wearing military uniforms. Not surprisingly, the Courts of Appeals have followed our lead and concluded that the First Amendment protects, for example, begging, shouting obscenities, erecting tables on a sidewalk, and refusing to wear a necktie. In light of the many cases of this sort, today’s decision is a most curious anomaly. Whatever the proper status of such activities under the First Amendment, I am confident that they are less integral to the functioning of our Republic than campaign contributions. Yet the majority today, rather than going out of its way to protect political speech, goes out of its way to avoid protecting it. As I explain below, contributions to political campaigns generate essential political speech. And contribution caps, which place a direct and substantial limit on core speech, should be met with the utmost skepticism and should receive the strictest scrutiny.

. . .

Buckley completely failed in its attempt to provide a basis for permitting government to second-guess the individual choices of citizens partaking in quintessentially democratic activities. “The First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it.”

Eventually, the Court would strike down a provision in the Bipartisan Campaign Reform Act (BCRA) of 2002, which prohibited corporations and unions from using general treasury funds to make independent expenditures for speech that qualifies as an “electioneering communication or which advocates the election or defeat of a candidate. See Citizens United v. FEC, 558 U.S. 310 (2010). In 1978, the Court had held that “the First Amendment protects the right of corporations to petition legislative and administrative bodies,” and that First Amendment protections do not diminish simply because of the source of speech. See First Nat'l Bank v. Bellotti, 435 U.S. 765 (1978). So, with Buckley’s expenditure holding, it seemed the holding in Citizens United was inevitable, given BCRA’s expenditure restriction.

Following Citizens United, the Court chipped away at Buckley’s willingness to limit campaign contributions in the face of a generic interest—I say generic because often no clear evidence of corruption had been provided to support the need to limit contributions—in preventing political corruption or its appearance. In McCutcheon v. FEC, 134 S. Ct. 1434 (2014), the Court held unconstitutional BCRA’s aggregate limits on individual contributions to candidates or committees, since, the Court reasoned, these aggregate limits do little to address quid pro quo corruption, “while seriously restricting participation in the democratic process.” The Court affirmed BCRA’s base limits, which limit the amount a donor may contribute to a particular political committee or candidate.

So, a person may, without government restriction, spend as much money on elections in any given year, but can only spend a set amount on any one candidate or committee per year. This doesn’t have to make sense to you. It’s just the state of the law. One thing seems to be clear, though, from Supreme Court precedent, campaign contributions certainly qualify as speech and comfortably qualify as speech acts.

D.  What scope of protection should the First Amendment Provide for Speech Acts?

The discussion so far raises an important question: When analyzing the scope of First Amendment protection, is the focus on one or another conception of some “public good” or on the individual’s right and ability to freely engage in speech? If public goods really matter, then everyone should take seriously the concerns that both sides raise when it comes to flag burning and campaign contributions. But this is exactly the area (conceptions of the good, right, or just) where most disagreement lies, and where it is most difficult to garner traction in working toward some sustainable resolution.

This is a difficult question, one that was partly answered in McCutcheon, though, again, not to everyone’s satisfaction. Disagreement notwithstanding, the Court in McCutcheon made it clear that the proper focus in a First Amendment analysis “is on an individual’s right to engage in political speech, not a collective perception of the public good. The whole point of the First Amendment is to protect individual speech that the majority might prefer to restrict, or that legislators or judges might not view as useful to the democratic process.”

At the end of the day, if we collectively wish to pursue or promote any public good over other individual rights, Article V of the United States Constitution provides the procedure by which to

make it happen. But recognize that this is not a permanent solution, and if the losing side strongly values its conception of some counter-public good, it may very well garner equal support in time to make its conception the norm and the law. Maybe that is why it is best to leave government out of selecting appropriate speech and speech acts.