Judge Joan Larsen’s Record Offers Few Clues about Her Views on Free Speech

Joan L. Larsen is a Justice on the Michigan Supreme Court. She was appointed by Governor Rick Snyder in September 2015 before being elected to the same seat in 2016. We were unable to find any First Amendment cases of relevance that Justice Larsen has ruled on during her year and a half of service on the Court.

Larsen earned her undergraduate degree at the University of Northern Iowa and her J.D. at Northwestern University Pritzker School of Law. She clerked for the Hon. David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit and for Justice Antonin Scalia of the U.S. Supreme Court. During the George W. Bush administration, she served as Deputy Assistant Attorney General in the Justice Department’s Office of Legal Counsel. Prior to joining the Michigan Supreme Court, Justice Larsen was a law professor at the University of Michigan.

Since there were no cases to review, we searched law review articles with both “Joan L. Larsen” and “First Amendment.” The search turned up only one paper containing more than a passing reference to the First Amendment. The article[1], from 2004, contrasts the Supreme Court’s legitimate uses of comparative and international law with what Larsen terms a “moral fact-finding” approach employed by the Rehnquist Court in Lawrence v. Texas.

That ruling, she says, “suggest[s] a standard governing the incorporation of international moral facts into the domestic Constitution: if many other nations of the world have recognized a right, and there is no showing of a domestic need to restrict the right that is greater than the need of foreign governments to restrict the right, the right recognized by the foreign community is, at least potentially, a part of domestic constitutional law.”

Justice Larsen writes that this principle, if applied broadly, would “fundamentally alter the constitutional path we have forged for ourselves in the United States.” One example she explores is freedom of speech:

Or consider the First Amendment. Deference to the world community here would probably result in abridgment of currently recognized constitutional rights to freedom of speech. Many nations restrict speech far more than is constitutionally permissible in the United States. For example, in the United States, hate speech generally is constitutionally protected unless it amounts to an “incitement of violence.” By contrast, many nations, including those that typically recognize some measure of protection for the freedom of expression, substantially restrict hate speech. Indeed, most Western democracies prohibit such speech and subject it to criminal sanction. In addition, both the International Covenant on Civil and Political Rights (“ICCPR”) and the Convention on the Elimination of All Forms of Racial Discrimination (“Race Convention”) contain restrictions on hate speech that are widely thought to be inconsistent with current interpretations of the First Amendment. Although the United States has ratified these treaties, it has attached reservations to them indicating that the United States does not agree to the restrictions on hate speech to the extent that they are inconsistent with First Amendment protections. If, however, the hate speech provisions of the ICCPR or the Race Convention were deemed to represent the consensus of the world community, as indeed they might, given the number of signatories to these conventions who have not reserved against the hate speech provisions, and the prevalence of hate speech restrictions in the laws of other nations, the moral fact-finding approach to constitutional interpretation might suggest (or require) the Court to re-examine current First Amendment doctrine.

Justice Larsen rejects the justifications offered for this “moral fact-finding” use of comparative and international law norms, and concludes “[N]either the Court nor the academy has offered a justification [for moral fact-finding] that satisfies. Until they do, it seems we are better off to abandon this particular use of foreign and international law.”

[1] Joan L. Larsen, “Importing Constitutional Norms from a ‘Wider Civilization’: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation,” 65 Ohio St. L.J. 1283, 1320-21

The Center for Competitive Politics is now the Institute for Free Speech.