CONSTITUTIONAL ROUNDTABLE
presents
Steven J. Heyman
Chicago-Kent College of Law
The Dark Side of the Force: The Legacy of Justice Holmes for
First Amendment Jurisprudence
Friday, January 27, 2012
12:30 – 2:00
Solarium (room FA2) – Falconer Hall
84 Queen’s Park
Free speech jurisprudence in the United States is deeply paradoxical. On one hand, the First Amendment is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine those values by attacking the dignity and personality of others or their status as full and equal members of the community. In this way, American law contrasts with the law of Canada and many other liberal democratic nations, which afford greater protection against speech that assaults human dignity and equality.
In this Article, I explore where the paradoxical, Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes the positive values promoted by free speech, and a darker vision that is rooted in the jurisprudence of Justice Oliver Wendell Holmes. Holmes understands free speech as part of a struggle for power between different social groups -- a struggle that ultimately can be resolved only by force. After sketching the liberal humanist view, I trace the development of Holmes’s position, which is grounded in his Darwinian understanding of human life and in his deeper view that all phenomena in the universe are governed by force. Next, I evaluate the Holmesian approach and discuss its implications for a wide range of contemporary issues, from hate speech and pornography to the Citizens United decision on electoral advertising by corporations. I conclude that Holmes’s view does not provide an adequate rationale for free speech, and that it undermines the liberal humanist principles that should be regarded as central to the First Amendment.
Steven J. Heyman attended Harvard College and Harvard Law School, where he was a Supreme Court editor of the Harvard Law Review. After graduating in 1984, he served as a law clerk to Judge Harry T. Edwards of the United States Court of Appeals for the District of Columbia Circuit and then as an associate at the Washington, D.C., law firm of Shea & Gardner. In 1989, he joined the faculty of Chicago-Kent College of Law, where he teaches criminal law, torts, legislation, constitutional law, and freedom of expression and religion. He has been a visiting professor at the University of Colorado, Vanderbilt, and Indiana University–Bloomington law schools. Professor Heyman is a leading First Amendment scholar who has written extensively about freedom of speech and other aspects of constitutional law and legal philosophy, including the political and legal thought of Aristotle, Locke, and Hegel. In addition to many law review articles, he is the author of Free Speech and Human Dignity (Yale University Press 2008) and the editor of Hate Speech and the Constitution (Garland/Rutledge 1996). Professor Heyman was elected to the American Law Institute in 1998 and is an active member of the American Constitution Society. In Snyder v. Phelps (2011), the United States Supreme Court ruled that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. Professor Heyman was an advisor to the plaintiff’s legal team in the Supreme Court proceedings, and he is currently at work on an article about the case.
A light lunch will be served.
For more workshop information, please contact Professor Lorraine Weinrib at l.weinrib@utoronto.ca or Nadia Gulezko at n.gulezko@utoronto.ca.
