Supporters of Supreme Court nominee Robert Bork are making a concerted effort to portray him as an open-minded moderate. Toward that end, they make much of his views on the First Amendment. His work in this area, they say, shows that he is more sensitive to civil liberties and less ideologically rigid than his critics suggest. They acknowledge that he advanced an extremely narrow interpretation of the First Amendment in a 1971 article in the Indiana Law Journal but argue that his more recent pronouncements, seen against that background, testify to his capacity for intellectual growth. The press has, for the most part, accepted those claims uncritically. The Senate Judiciary Committee should not, for this portrait of Bork as a champion of First Amendment values has virtually no basis in fact. On examination it proves to be based on nothing more than a single concurring opinion and an ambiguous, self-serving reply to criticisms published in these pages.
In the October 1, 1983, issue of The Nation, I analyzed Bork’s 1971 article to show what his general approach to the Constitution would mean for one highly valued tradition. When the American Bar Association Journal ran an item about my article under the memorable title “Here Comes Attila the Hun of the Constitution,” Bork responded angrily. His reply, published in the A.B.A. Journal, was at once heated and carefully crafted. In tone it seemed to disavow the 1971 article, implying that I had been somehow unfair to take seriously what he had written thirteen years earlier; in fact it conceded very little. On June 16, 1984, in a second article in The Nation, I posed the questions that his reply had left unanswered. Bork did not respond directly. He did, however, address First Amendment themes in another forum.
While the Nation/A.B.A. Journal exchange was in progress, the United States Court of Appeals for the District of Columbia Circuit, on which Bork sits, heard arguments in Ollman v. Evans and Novak, a libel case. Some months later it ruled that the statements at issue were protected under the First Amendment. Bork took the occasion to file a concurring opinion, in which he expressed concern about the rising incidence of libel suits against the press. He wrote eloquently about the necessarily rough-and-tumble character of political discourse in a free society and offered some thoughts on how libel law might best be developed. The opinion is lucid and helpful. It is not, as some of his supporters would have us believe, the Magna Carta.
It would be ungenerous to dismiss the Ollman opinion as merely an attempt by Bork to counter the image of himself— broadcast to 340,000 lawyers by the official publication of the organized bar—as a menace to the free speech tradition. It would be equally inappropriate, however, to disregard the timing and surrounding circumstances of the opinion. For this is just one of many instances that have stirred suspicions as to whether Bork’s actions are dictated by principle or by strategic considerations arising from his campaign for a seat on the Supreme Court. As they review his career and writings, the senators who will vote on Bork’s nomination must take care not to misread opportunism as evidence of an open mind.
Nor should they be deluded into thinking the Ollman opinion a significant departure from Bork’s earlier philosophy. On the contrary, it is wholly consistent with the First Amendment theory he advanced in 1971. At the heart of that theory is the idea, associated with the landmark libel decision in New York Times v. Sullivan, that the central meaning of the First Amendment resides in the protection of the public debate essential to democracy. So far so good. But he proceeds from that premise to the harshly narrow conclusions that First Amendment protection should be limited to “political speech” and that there should be no constitutional impediment to the suppression of speech that “advocates forcible overthrow of the government or the violation of any law.”
Neither Bork’s A.B.A. Journal reply to my article nor his opinion in Ollman discloses to what extent and in what respects he continues to subscribe to that theory. The Senate Judiciary Committee should question him closely about this. There are several lines of inquiry:
§ In the A.B.A. Journal, Bork stated that he no longer takes the view that First Amendment protection is limited to political speech: “I have long since concluded that many other forms of discourse, such as moral and scientific debate, are central to democratic government and deserve protection.” The phrasing of this apparent recantation is unnerving. What about literature and art? Do they fall within those “other forms of discourse”? On what basis would he distinguish the nonpolitical speech he would protect from that which he would not?
§ Bork would deny constitutional protection to speech that advocates the violation of any law. Does that include advocacy of civil disobedience? Under his theory would it have been constitutional for Alabama to jail the Rev. Martin Luther King Jr. for giving a speech urging sit-ins at segregated facilities?
§ Bork’s A.B.A. Journal reply was silent on the issue posed by the advocacy of forcible overthrow of the government, although my article had sharply challenged his views on this question. The issue is central to political freedom. Such advocacy is typically part of a larger political critique. Hence to draw the boundaries of permissible advocacy is also to determine the limits of permissible criticism. Starting with the elaboration of the “clear and present danger” test by Justices Oliver Wendell Holmes and Louis Brandeis in the years following World War I, the Supreme Court has strived to fashion constitutional standards that allow for the fullest possible protection of political criticism while curbing advocacy as it approaches the threshold of criminal action. In 1971 Bork curtly dismissed that line of doctrinal development. Does he still regard the clear and present danger test as an unwarranted judicial invasion of the legislative domain? Does he still believe that the development of First Amendment doctrine should have stopped with Gitlow v. New York, a case decided in 1925 and long since repudiated, in which the Court held that legislatures should be free to suppress any advocacy of force or the violation of law, no matter how deeply embedded in political criticism, no matter how general and remote from action? (The senators might present Bork with the speech at issue in Gitlow—a pamphlet about which Justice Holmes, dissenting, tartly observed, “Whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration”—and ask him if he would allow it to be suppressed today.) Does he remain prepared to argue that the purpose he discerns in the First Amendment—protection of the political criticism essential to democracy——is best served when the task of determining the outer limits of acceptable criticism is left to the majority and to the government officials criticized?
Inquiry into Bork’s First Amendment views has significance beyond the obvious importance of the freedoms at stake. This is the ground his supporters have chosen in their efforts to soften his image. Once the mirage of Bork as an ardent guardian of the First Amendment is dispelled, the pattern underlying his position on various constitutional issues emerges with harsh clarity. It is a pattern of unrelenting hostility to the entire enterprise of judicial review for the purpose of protecting individual and minority rights. When Bork and his supporters use the words “judicial restraint” to describe this orientation, they defame an honorable tradition. To reject the Bork nomination is not to reject that tradition. It is to reject a radical program fundamentally at odds with the way most Americans, conservatives as well as liberals, think about law, justice and the Constitution.