Understanding the First Amendment

It is a rare privilege to be read and engaged by such thoughtful and insightful commentators as the Washington Law Review has assembled. It is exhilarating to participate in a conversation of this range and intensity. I am very grateful to the Washington Law Review, Ronald K.L. Collins and David Skover, and the University of Washington School of Law, for making this symposium possible. As I read the contributions to this symposium, I am put in mind of Oliver Wendell Holmes' famous injunction that "[w]e must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true."1 Although lawyers love words and language, "the real justification of a rule of law," Holmes argued, "is that it helps to bring about a social end which we desire."2 Holmes' advice was to pay close attention to whether our legal words in fact function to serve our social ends. Nowhere is the disjunction between words and ends more apparent than in First Amendment jurisprudence. We suffer from First Amendment hypertrophy. Doctrine proliferates endlessly and meaninglessly. Around every corner is yet another confusing First Amendment "test." We barely ever stop to ask what social ends are actually served by this barrage of inconsistent and abstract doctrine. We rarely take time to "translate our [First Amendment] words into the facts for which they stand." The illuminating contribution of Bruce E.H. Johnson and Sarah K. Duran3 seems fortunately almost immune from this affliction. Strategic Lawsuits Against Public Participation (SLAPPs) are theoretically interesting precisely because they illustrate the disjunction between legal words and social ends. Plaintiffs bring SLAPP suits to enforce rights created by substantive legal doctrine. Substantive legal doctrine, especially when subject to constitutional standards that determine whether particular speech acts should receive First Amendment immunity, ought accurately to reflect our values. At first blush, therefore, SLAPP suits ought not to be problematic; defendants should prevail whenever constitutional standards provide that their speech deserves constitutional protection. This way of thinking, however, does not pay sufficient attention to how legal standards actually function. It fails to appreciate the transaction costs associated with litigation enforcing substantive doctrine. Defending even an unmeritorious suit can be costly and timeconsuming, and this expense will likely discourage otherwise protected participation in public discussion. The anti-SLAPP statutes Johnson and Duran discuss are designed to address and nullify such transaction costs. They not only shift attorneys' fees, but they also create pathways for the "prompt and inexpensive" resolution of SLAPP suits.4 Johnson and Duran invite us to theorize the actual behavioral effects of enforcing substantive First Amendment standards; they direct our attention to the reality that underlies doctrine. The idea that substantive First Amendment rules should take account of the transaction costs of litigating First Amendment rights is a deep insight. It ultimately derives from the legal realism inspired by Holmes. Johnson and Duran are concerned with how the costs of enforcing First Amendment doctrine affect actual participation in public discourse. The first decision of the U.S. Supreme Court systematically to reason in this way was New York Times Co. v. Sullivan,5 which fashioned the "actual malice" rule precisely to nullify the transaction costs of libel litigation.6 It designed the actual malice rule to anticipate and nullify the "chilling effect" of ordinary and otherwise constitutionally defensible substantive rules of defamation liability. The anti-SLAPP statutes so helpfully analyzed by Johnson and Duran are legislative interventions created to accomplish precisely the same result.7 Anti-SLAPP statutes anticipate and nullify the chilling effects produced by First Amendment litigation. …