About Our Guest
Frederick Schauer is David and Mary Harrison Distinguished Professor of Law at the University of Virginia. Previously he served for 18 years as Frank Stanton Professor of the First Amendment at the John F. Kennedy School of Government, Harvard University, where he has served as academic dean and acting dean, and before that was a professor of law at the University of Michigan. He is the author of The Law of Obscenity (BNA, 1976), Free Speech: A Philosophical Enquiry (Cambridge, 1982), Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Clarendon/Oxford, 1991), Profiles, Probabilities, and Stereotypes (Belknap/Harvard, 2003), and Thinking Like a Lawyer: A New Introduction to Legal Reasoning (Harvard, 2009). He is also co-editor of The Philosophy of Law: Classic and Contemporary Readings (1996) and The First Amendment: A Reader (1995), and author of numerous articles on constitutional law and theory, freedom of speech and press, legal reasoning and the philosophy of law.
Schauer is a fellow of the American Academy of Arts and Sciences, has held a Guggenheim Fellowship, has been vice-president of the American Society for Political and Legal Philosophy and chair of the Committee on Philosophy and Law of the American Philosophical Association, and was a founding co-editor of the journal Legal Theory. He has also been the Fischel-Neil Distinguished Visiting Professor of Law at the University of Chicago, Ewald Distinguished Visiting Professor of Law at the University of Virginia, Morton Distinguished Visiting Professor of the Humanities at Dartmouth College, Distinguished Visiting Professor of Law at the University of Toronto, and Distinguished Visitor at the New York University School of Law. His work on rules, legal reasoning, constitutional theory and freedom of speech has been the subject of a book Rules and Reasoning: Essays in Honour of Fred Schauer (Hart, 1999) and symposia in Politeia, the Harvard Journal of Law and Public Policy, and the Notre Dame, Connecticut, and Quinnipiac law reviews. In 2007-08 Schauer was the George Eastman Visiting Professor at Oxford University and a fellow of Balliol College. A graduate of Dartmouth College, the Amos Tuck School of Business Administration, and Harvard Law School, Schauer was the recipient of a university-wide Distinguished Teacher Award from Harvard University in 2004.
JAN PAYNTER: Hello, I am Jan Paytner and I would like to welcome you again to our program, Politics Matters. We began politics matters focusing on the idea that people are their principles and our politics should reflect the concept and yet as we all know, it frequently does not. Today we begin a special program on the amendments to the Constitution with the idea that it might prove useful at this moment in our history to consider why they were written and of course, what they are, how interpretations of individual amendments have evolved over time, and which ones are particularly relevant. Certain amendments, such as the First Amendment, guaranteeing free speech, freedom of press, religion, etc. and the 10th amendment examining states’ rights are frequently referred to in media without offering people any discussion as to the historical circumstances under which they came about and why they were adopted into law. Are there amendments to the Constitution which could be better understood and discussed in order for all of us to comprehend our laws, rights, and privileges more thoroughly?
Today, we have with us Professor Frederick Schauer, David and Mary Harrison distinguished professor of law at the University of Virginia, where he teaches courses in constitutional law, evidence and philosophy of law. Professor Schauer holds an AB, an MBA from Dartmouth College and a JD from Harvard Law school. He is also Frank Stanton Professor of the First Amendment, Emeritus at the J.F. K. Kennedy School of Government, served as academic dean and acting dean and also taught courses in evidence and the First Amendment at Harvard Law school. Welcome Professor Schauer.
FREDERICK SCHAUER: Thank you, delighted to be here.
JAN PAYNTER: Before we begin, tell us, if you would, what motivations or events brought you to the study of law, in essence, what law and politics mean to you.
FREDERICK SCHAUER: The first one is a little easier than the second, I think as with most people, I arrived at undergraduate education with only dimly formed idea of what I wanted to do with my life. Once I realized that my initial preference for medicine was not for me intellectually or in any other way, my interests in things verbal, my interests in the forms of argument and all of that led me to think about law. So it is something I have been focused on since I was about 20 years old, I guess.
JAN PAYNTER: To begin our discussion of the amendments to the Constitution, give us, if you would, some of the history behind their inception.
FREDERICK SCHAUER: The first 10 amendments, the ones that we called the Bill of Rights, were part of a, in a way, compromise enacted or adopted or agreed upon at the time of the original ratification of the Constitution in 1787. Some people wanted rights to be included in the Constitution, some did not want them to be included in the Constitution, but the Bill of Rights, 1791, four years after the original Constitution, was part of this compromise; some people agreed to go along on the assumption that shortly thereafter there would be a Bill of Rights. The important thing to remember about the Bill of Rights is that it was originally intended solely as a restriction on the federal government and not as a restriction on the states. Freedom of speech, the rights of criminal defendants, freedom of religion, and all of this were originally thought of solely in terms of federal power; the states can do what they wanted. The states could establish religions, restrict speech, or do anything else, that do not change until the 14th amendment in 1868 and subsequent judicial interpretations which made clear later that the Bill of Rights by use of the 14th amendment also protected rights against state encroachment. But originally it was just a limitation on federal power, it is only largely in the 20th century and now there after that they have been understood as restrictions on the states as well.
JAN PAYNTER: That is what was going to be my next question, how has that evolved and changed, how do we think of them now?
FREDERICK SCHAUER: Now we think of it as restrictions both on the states and on the federal governments. As I said, this is largely a function of judicial interpretations of the 14th amendment which protects life, liberty, or property without due process of law. The courts have said that the protection– virtually all of the protections of the Bill of Rights are incorporated, the technical term, incorporated in the due process clause of the 14th amendment. So since, more or less, the 1920s or 30s, we have understood and the courts have understood that pretty much the same protections apply against the states as to apply against the federal government.
JAN PAYNTER: Okay, in looking at the freedom of press issue, we are all very alive right now to an issue which has been much in The Progress, Albemarle High School had a young woman who wrote an editorial in which she suggested that perhaps student athletes didn’t need to take PE. The principal of the high school had some objections to it, as everyone knows, sited some typos, some various other reasons, not entirely disclosed, the paper ran minus the article and the young woman was alleging that her right of free speech and freedom of the press was violated. There had been back and forth editorials to The Progress again, one gentleman wrote in and said “well, actually the school functions like an employer and therefore there is absolutely no reason, since they have dress codes and other rules, we can’t restrict—they cannot restrict the student’s speech.” John Whitehead recently had a piece in which he talked about dangerous increasing sense of authoritarian which is creeping into our schools and that that is a micro cause of what is going on in the country.
So, having said all of that, what do you think, pro and con, about this issue. Does the principal in the school have a point? Does the editorial writer have a point?
FREDERICK SCHAUER: There are four—the First Amendment itself, with most of the amendments on most subjects, doesn’t answer the question. It might be useful to point out that the United States has roughly the shortest constitution in the world. And by virtue of being short, its vague, its open-ended, it doesn’t answer a lot of questions. The U.S. Constitution is about 12 pages long, the Constitution of South Africa about 110, Brazil about 240, so we have a constitution with very little detail and it is up to the courts to fill in the blanks. On the question of freedom of press things are no different; the blanks have been filled in in terms of student speech and student press only four times. The Supreme Court has decided only four cases dealing with student freedom speech rights, one was a case named Tinker vs. The Desmoines School District in 1968, protecting the rights of students to wear protest arm bands in class. There have been three cases since then and only three since then, one upholding a school’s right to discipline students who used off-colored language in political—in campus-school political campaigns. One very recently upholding the right of the school to discipline students who engaged in, again, drug related protests, bong hits for Jesus was the actual sign that the students displayed, and in between those there was a case dealing with student newspapers and dealing with the student press in which the Supreme Court said on the facts of that case that the student press or student newspapers, in that case, were largely part of the curriculum and the ability of school administrators to restrict the content of student newspapers was not dramatically different from the ability of school administrators to give students good grades or bad grades, depending on how they performed in written exercises.
JAN PAYNTER: I was just thinking, is this an issue, do you feel, that is going to continue to come up because it would seem that way.
FREDERICK SCHAUER: It comes up a lot in the lower courts and the Supreme Court is very reluctant to decide cases dealing with it. It is one of the most commonly litigated issues in lower courts that is student speech, student dress, off-color t-shirts, Nazi T-shirts, Klan t-shirts, sexually suggestive apparels, student protests and so on. The Supreme Court, as I said, decides roughly one case every ten years, so it remains somewhat of a grey area. The lower courts are all over the map. If it were at the university level, it is clear that the student press would be treated as “the press,” even in a state university. There are also Supreme Court cases saying that the university based student press has most, if not all, of the protections of the independent and private press.
JAN PAYNTER: That is interesting that younger people are actually penalized.
FREDERICK SCHAUER: I would—penalized is not a word that I would use in this context. There is a distinction in terms of all dimensions of academic freedom between the primary and secondary school on the one hand and colleges and universities on the other. There are things that I am constitutionally protected in saying in class as a professional at a state university then I would not be protected if I said them in class at the primary and secondary level. This distinction between primary and secondary and university applies to teacher speech, student speech on the basis of the existing doctrine of student newspapers, exactly how this newspaper would be treated, I am not sure. In the Supreme Court’s one school newspaper case was somewhat case specific, so we cannot tell. But there is a difference between universities on the one hand than junior high schools, high schools, and elementary schools on the other.
JAN PAYNTER: That is really fascinating, I am afraid personally that I would come out on the side of the kids on this because I think they are our future leaders and citizens. But also in the news recently, something in the USA Today about a young man, 13-year old 7th grader, who wore rosary beads outside his shirt in honor of a deceased family member. It was interpreted potentially as a gang symbol by the school. His mother alleged that his free speech and free expression rights were violated. What do you think about that?
FREDERICK SCHAUER: Again, the cases on student apparel, some of them dealing with gang apparel, some Nazi apparel, some sex related apparel, some Klan related apparel, there has never been a Supreme Court case on the issue other than the protest arm band of 1968. The lower court cases go both ways depending on particular facts but more often than not, the ability of school administrators to restrict is upheld at the primary and secondary level even though not at the university level. Obviously when it is rosary beads there are different issues of religion and freedom of religion that might come in but just the ability of schools to restrict student apparel that students claim to be expressive is a very frequently contested issue, if it is outside of the school there is no question whatsoever that students and teenagers, like everyone else, can wear whatever they want. Once they are inside the school, the authority of the school administrators wins more often than not.
JAN PAYNTER: Another interesting case that has been in the news lately, issues of protection—allowing people to investigate terroristic activities, there was a humanitarian group, that I am sure you read about, who wanted to explore and give some advice to a group as to peaceful means of resolving disputes because they were dealing with terrorist, the ruling came down on the side that they were actually kind of aiding and abetting. What do you feel about that?
FREDERICK SCHAUER: I think, again, the Supreme Court case on this is very recent, highly controversial; I think it is important to understand broadly speaking, two-sides of the issue. One, it is in the United States, even if not in virtually every other country in the world, legal to advocate illegal action, it is okay to advocate illegal action, it is okay to advocate overthrow of the government, it is okay to advocate terrorism, the U.S. is stronger by far than any other country in the world on the protection of people who would advocate, even advocate violent overthrow of the government subject to the exception of, if you are standing in front of an angry mob and say, go get them right now; that can be restricted but short of that advocacy of violence, advocacy of illegal action, advocacy of murder, advocacy of overthrow of the government, all of that is protected.
On the other side of that, outside of broadly speaking, the public political arena, there is a whole realm of speech that relates to criminal conspiracy, speech that relates to aiding and abetting a crime that does not come anywhere near the first amendment. If I work for a bank and I say to you, maybe this is a dated example, I don’t think banks have safes any more, but if I work for a bank and I say to you, “you might be interested in knowing that this is the combination to the bank safe and these are the hours that guards are off-duty.” If you rob the bank, I can be prosecuted as an accomplice or aiding and abettor or a co-conspirator and my free speech objection is not going to get me anywhere. So when we are outside of the public-political arena, person-to-person speech that is part of a criminal conspiracy or part of a criminal act has virtually nothing to do with the first amendment. Indeed, the conspirators of the first World Trade Center bombing, going back what 15 years ago maybe even more, some of the people prosecuted for conspiracy for the first World Trade Center bombing was basically prosecuting for organizing the conspiracy nobody even took seriously a First Amendment objection even know what the conspirators had done was encourage certain violent acts but they encouraged it in private settings, they provided assistance in private settings.
All of that is to say that on the issue that the Supreme Court just decided, on the one side we have the very strong tradition of protecting advocacy of virtually everything, no matter how violent, no matter how encouraging of terrorism or illegal action it maybe. And on the other side, we have an equally long tradition that not every use of words comes close to the First Amendment and a whole range of non-public criminal conspiratorial activities have never been thought to raise First Amendment questions at all.
JAN PAYNTER: From a legal point of view does one of the reasons, what you just said, obtain because if you are incite someone, it presumes an action. Is there some connection there legally?
FREDERICK SCHAUER: Technically incitement does not require an action, it presumes that you want an action to occur but if I stand—take a local example, suppose that at ten minutes until five this past Thursday, I am standing in front of a government office, in front of a very angry mob and I say to these people, “we have had enough of government, let’s go break into the building and burn all of the records right now. Let’s go.” And at the moment that I say, “let’s go”, the 10-minute thunderstorm that wiped out all of these trees happens so there is no actual act. I can still be prosecuted for that act of inciting even though there was no subsequent act. So, under current law, incitement to illegal action or incitement to violence can be prosecuted if, and only if, there are explicit words of incitement, only if the incitement is to an act that is to occur immediately—imminently is the term of art, and only if it is likely to happen. That is a very stringent standard which is why almost no body these days is prosecuted for this but the act does not have to actually occur.
JAN PAYNTER: Does the Constitution specifically mention the right to privacy or is it implied in the Bill of Rights by the 3rd, 4th, or 5th Amendment?
FREDERICK SCHAUER: It does not specifically mention it at all, whether there is one has been controversial and if there is one, where it comes from has been controversial. When the Supreme Court in 1965 first said that there was a right to privacy in the context of a right to purchase contraceptives, Justice Douglas found it in some amorphous combination of the 1st, 3rd, 4th, 5th, and 9th Amendments. When in 1973 the Supreme Court decided Roe versus Wade, it found in the due process clause, it is not explicitly there.
JAN PAYNTER: I want to come back to this, we have to take a break, we are talking with Professor Schauer, and we will be back to you. This is Politics Matters, we will be back to you in a moment.
JAN PAYNTER: Welcome back to Politics Matters, I am Jan Paynter, we are talking today with Professor Frederick Schauer about Amendment Issues and before the break we were discussing the issue of right to privacy. Professor, what is the current state of legal debate in this age of email, internet chat rooms, Facebook, and twitter concerning the right of people to be secure in their persons, houses, papers, and effects against unreasonable search and seizure, as cited in the 4th Amendment?
FREDERICK SCHAUER: Okay, I think there are—there are two very different issues here. A lot of times when people worry about privacy, they worry about it in the context of knowledge of or publication of information about them by broadly speaking non-governmental entities, whether it be credit bureaus or banks or newspapers or whatever. The privacy that is now understood as being a part of the Constitution is a protection against the government and only against the government. Protection of my privacy against a bank, against any other private institution is a matter of statute, it may be a matter of common law, it is not a matter of Constitutional Law, it does not mean that it is not important, it doesn’t mean that there are not important debates and there are very extensive statues already, state and federal protections of privacy. But the Constitution only protects us against government and not against non-governmental entities. In terms of privacy, most of the Supreme Court decisions about privacy had dealt with abortion, contraception, and the like on the one hand or the protection of criminal defendants through the 4th Amendment that you quoted against unreasonable searches and seizures and the like. Most of the forms of privacy that people worry about do not involve either of those and whether the Constitution protects against, for example, government databases, is something the Supreme Court has never touched; it hinted that there might be some protection, the hint was 20 years ago but direct Supreme Court decisions about government databases and all of this, lots of people are worried about, again is pretty much a blank slate.
JAN PAYNTER: This is speculation, I realize for you, I wanted to probe a little bit more, why do you think the Supreme Court is so reluctant to weigh-in?
FREDERICK SCHAUER: That is a big question but one—let me make you a bigger question even bigger. It is a mistake to think that the Supreme Court deals with the most important issues of our times. Most of what the Supreme Court does important; most of what is important is not done by the Supreme Court. If we look over the issues that are most important, let’s say over the past 2 or 3 years, it seems to me that the four most obvious are the wars in Iraq and Afghanistan, healthcare reform, financial reform to include bank bailouts and maybe even maybe automobile company bailouts, and most recently the massive oil spill in the gulf. The Supreme Court has had virtually nothing to say about any of those and will not.
JAN PAYNTER: Thank you again, Professor Schauer, for being with us today. Thank you for listening to our conversation, we would like to hear from you with all questions and concerns. You can email us at email@example.com. Thank you again, I am Jan Paynter and this is Politics Matters.