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.