Home > Action, Discourse, Legal, Listening, Music > Thinking Positively About Negative Implications

Thinking Positively About Negative Implications

The Constitution’s Commerce Clause, Article I, § 8, has been in the news this week, but it’s the Clause’s negative implication– known as the Dormant Commerce Clause– that provides the conceptual starting point for this post and its ultimate conclusion about the full meaning of First Amendment speech rights. If the Commerce Clause is an express grant of authority to Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” the Dormant Commerce Clause is an implied restriction on state authority over a regulatory area– interstate commerce– that belongs to Congress. State regulation that affects interstate commerce must bear a rational relationship to a legitimate state concern and the benefit the regulation affords to the state’s interest must outweigh the burden on interstate commerce. This (implied) proscription applies even in the absence of affirmative federal regulation of the precise subject matter the state sought to regulate. It is enough that Congress could regulate the aspect of interstate commerce; it need not actually have done so.

A related concept is that of implied preemption. In general, implied preemption is a decision to resolve conflicts between federal and state law by choosing the federal law in most every instance. One application of implied preemption comes where Congress so occupies a regulatory field– immigration might be an example, Arizona and Alabama notwithstanding– that any state regulation in that area is preempted, even if Congress hasn’t passed a statute addressing the particular issue.

There is a concept at work both with the Dormant Commerce Clause and implied field preemption that has to do with the virtue and authority of silence. Both doctrines place silence on authoritative par with sound, inaction equal to action. They recognize and protect the full scope of the grant of authority, even if the authorized body never exercises the authority to the fullest extent.

Calvin College is one of the nation’s leading Christian Reformed colleges, and while it has a reputation for social conservatism, it also has a reputation for hosting progressive, secular music concerts. About a year and a half ago, these two interests clashed, however, when the school cancelled a scheduled performance by indie act The New Pornographers on the sole basis of the band’s name, and even in full recognition of the fact that the band does not “endorse[] pornography.” There’s no legal question that the private college may host or not host whatever entertainment it chooses, but the story still took on a community discussion that proceeded along free expression lines.

We usually talk about First Amendment speech in terms of things actually said, and the legal and political questions usually have to do with whether the First Amendment protects words actually spoken or actions actually taken. But maybe the First Amendment is about more than fostering a broad cacophony of speaking and a mess of expressive acting. Maybe there’s a negative implication of the First Amendment and its protected rights, a Dormant First Amendment.

The Dormant First Amendment might recognize that, just as someone has a right to say something, he also has a right (or at least a strong interest) in not hearing something. For example, we might see Calvin College not as restricting someone else’s speech in cancelling the concert but as preserving its own interest in not hearing something it found distasteful. The former formulation carries a negative connotation, but the latter should carry a positive one. Rather than the First Amendment (conceptually, not mechanically– although I do appreciate that that statement may impair the impending metaphor) being a one-way ratchet that directs only more and more speech-volume, why not a multifaceted approach that values discernment, distillation, refinement, taste?

It may be true that the First Amendment was meant to create a marketplace of ideas, as courts have said. Marketplaces are loud, noisy places, and the merchant who hawks her wares the loudest may be more likely to survive there, but not everyone survives in a market because customers don’t do everything sellers’ advertisements tell them to do. Perhaps people would make better decisions if they patiently heard every pitch from every market participant, but at the very least, the First Amendment is about a right to speak, not a right to be heard. Moreover, if the First Amendment is about everybody being able to say whatever they want, is it really so offensive to that principle to say that people ought to be able to use their discretion to decide when to step to the side of the spray of the verbal fire hose?

As for how the idea of the Dormant First Amendment would work practically I’m far from sure, and if there are any readers who aren’t practically dormant at this point, comments, as always, are welcome below. The real thrust of this post is to suggest the possibility that, like the Dormant Commerce Clause and implied preemption doctrines place Congress’ inaction on authoritative par with its action, the First Amendment might also have a negative implication that places an individual’s desire to avoid speech on protective par with his or her desire to engage in speech.

  1. Stan Overby
    March 31, 2012 at 2:46 pm

    First foray outside of sports blogging, but I thought this post was really interesting. A couple of thoughts:

    1) I think the purposes behind the Dormant Commerce Clause and Implied Preemption doctrines are a little different from First Amendment jurisprudence. The basic premise of the former, or at least as I have always understood it, is that Congress has a substantial interest in certain specific areas such that states should not be able to frustrate their legislative goals or impede their power. Interstate commerce gets this layer of “protection” from state laws impeding it because we don’t want to chill interstate competition amongst businesses and because the Federal government has a substantial interest in maintaining consistency in legislation that crosses state lines. Your example of immigration has a similar explanation: the Federal government has a strong interest in maintaining consistency of how it’s immigration policy is executed. I won’t delve into the Arizona laws since I admittedly know very little about them, but I think that’s a fair statement of why immigration has been an area where implied preemption exists.

    By contrast, the First Amendment has generally been interpreted to prevent states (and the Federal government, for that matter), from chilling the voices of the individual (or groups of individuals with a similar message). In a way, this takes away power from the Federal and State governments and places it in the citizenry. So while one concept retains power for the government, the other gives it to the people. This of course has limitations, particularly when dealing with the citizenry choosing to establish in its municipal government a message that pushes up against the Establishment Clause (see McCreary County, KY v. ACLU of Kentucky, 545 U.S. 844). But as long as the message is “private”, it’s pretty much fair game.

    2) Once you get past the general basis of the two, I think it’s absolutely fair to say that, amongst individuals or “private citizens”, there is a “dormant first amendment” doctrine. As you said, the First Amendment simply doesn’t apply to restrictions by private individuals on speech. Calvin College and its peers have a particular message that it instills in its student body and its community. By refusing to allow a band with a name that they don’t like to play at an event they sponsor in a private arena, they are essentially saying they don’t approve of that message, or that the message isn’t congruent with their own. I don’t think anyone could (reasonably) question that they have a right to do that, just like I have an individual right to not listen to a viewpoint that I disagree with.

    The way you describe the “marketplace of ideas” hits the nail on the head. We can go to a market and hear the loud banter, and a vendor may offer me the same product incessantly and with force, but that doesn’t mean I have to listen to him/her. I can choose to accept his sales pitch, or I can reject it, or I can leverage it with another message to get a better deal elsewhere. The point is that our ability to participate in or reject speech is the very definition of freedom, because it is the daily exercise of autonomous choice.

    In the end, I think this is more of a philosophical question, as I can’t see based on a First Amendment analysis how a Dormant First Amendment doctrine would ever be presented to SCOTUS, much less recognized, but it’s an important philosophical question that Americans take for granted. What is America’s concept of freedom? That probably doesn’t have one simple answer, but the ability to exercise choice in our understanding and application of speech is a major part of it.

    • AD
      April 23, 2012 at 11:05 am


      Thank you for dropping by. I agree with your first point, of course– these things are coming at each other from different angles– but I think there’s a potential and theoretical overlap to be explored, and you stated it much more concisely in your second point.

      Your closing question certainly is one of the biggest out there, but I do think it’s appropriate to say that even if one favors a very open and unrestricted society, one also ought to be able to choose, as an individual matter, to set forth some limits and exclude things.

      Thanks for reading.

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