The Central Organizing Principles of Free Speech Jurisprudence

Keith Werhan. Freedom of Speech: A Reference Guide to the United States Constitution. Praeger, 2004.

The modern history of the guarantee of freedom of speech and press mainly has been one of a search for the outer limits of that right.

~ Justice John Marshall Harlan (Curtis Publishing Co. v. Butts and Associated Press v. Walker, 1967, plurality opinion)

Nearly every human action that the law affects, and virtually all governmental activity, involves speech. For First Amendment purposes this Court has distinguished among contexts in which speech activity might arise, applying special speech-protective rules and presumptions in some of those areas, but not in others.

~Justice Stephen G. Breyer (United States v. United Foods, Inc., 2001, dissenting opinion)

“Congress shall make no law … abridging the freedom of speech.” So reads the speech clause of the First Amendment. Justice Hugo L. Black, for one, read that text literally, insisting that its “unequivocal demand” prevented any and all efforts by the government to restrict the right of free speech in favor of competing societal interests (Konigsberg v. State Bar of California, 1961, dissenting opinion). For Justice Black, the purpose of the First Amendment, and indeed, of the Bill of Rights in general, was “to put the freedoms protected there completely out of the area of any congressional control.” His emphasis on the First Amendment’s clear negation of congressional power (“no law”), however, ignored the studied ambiguity of the language “abridging” and “freedom of speech.” Do all laws that restrict individual expression thereby “abridg[e] the freedom of speech”? Does “freedom of speech” empower Americans to say whatever they please whenever, wherever, and however they wish?

Justice Black’s absolutism has never prevailed on the Court. Constitutional law wisely avoids absolutes—whether of government power or of individual right—and the freedom of speech has been no exception. Holmes and Brandeis, in their eloquent opinions early in the Twentieth Century that laid the foundation for fortifying the First Amendment, readily conceded that freedom of speech was not an absolute right. Indeed, the entire history of the Court’s struggle to reach a stable settlement of the subversive advocacy problem might be understood as an ongoing effort by the justices to find the appropriate balance between the societal imperatives of securing freedom of speech and of safeguarding the public from real harm.

The insurmountable barrier to absolute protection of speech is what one constitutional legal scholar has described as the inevitability of “irresistible counterexamples.” For example, laws against bribery, perjury, and price fixing all criminalize expression, but the First Amendment cannot sensibly be interpreted to provide constitutional immunity for such speech acts. To take a different kind of example, a regulation that controls sound levels near a hospital restricts expressive as well as non-expressive activity that is excessively loud. But courts likely would uphold such a regulation against a First Amendment challenge, so long as the sound threshold set by the regulation was reasonable (see Ward v. Rock Against Racism, 1989; Grayned v. City of Rockford, 1972). In other words, although perjury laws and sound-control regulations restrict speech, they do not “abridg[e] the freedom of speech” within the meaning of the First Amendment.

Just why this is so is the subject of this chapter. The two examples of permissible speech restrictions that I have described illustrate the two central organizing principles of contemporary free speech jurisprudence. The “categorization principle” denies First Amendment protection to certain categories of speech (such as bribery and perjury) by defining them out of the “freedom of speech.” The “content distinction principle” allows the government greater leeway when enacting laws, such as a sound-control regulation, that restrict expressive activity without regard to the content of the expression. The remaining chapters of this book demonstrate how the categorization and content distinction principles shape the discussion of contemporary free speech doctrine. This chapter introduces these principles.

The Categorization Principle

The categorization principle distinguishes between the ordinary meaning of “speech” and the constitutional meaning of “freedom of speech,” thereby allowing the government to prohibit certain categories of speech without violating the First Amendment. Although all speech presumptively is within the “freedom of speech” protected by the First Amendment, there are, in the Supreme Court’s language, “certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem” (Chaplinsky v. New Hampshire, 1942). In Chaplinsky, the Court adopted a cost-benefit, balancing test to determine whether any particular category of speech should be outside First Amendment protection. The Chaplinsky test denies constitutional protection to any category of speech that constitutes “no essential part of any exposition of ideas and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality.” Thus, perjury is categorized out of the First Amendment because lying under oath, as a category of speech, causes considerable social harm without producing any offsetting communicative value.

Chaplinsky‘s qualification that the harm produced by an unprotected category of speech must “clearly” outweigh any benefit is an important limitation on categorization. Only a category of speech that, like perjury, provides little or no expressive value in communicating information or ideas is vulnerable to constitutional exclusion because of the social costs it imposes. For example, expressive activities such as mass demonstrations enjoy full First Amendment protection because their associated social costs in disruption of the public order, which at times are considerable, cannot be said clearly to outweigh their communicative value, which also is considerable. The First Amendment default position—that all speech is within the “freedom of speech”—is overcome only by an overwhelming disparity between the social risk and reward of the speech category in question. In close cases, courts err on the side of constitutional protection rather than of constitutional exclusion.

Although the categorization principle works well when explaining why some types of speech that obviously should not be protected by the Constitution are outside the First Amendment, this doctrine has never set well with many constitutional scholars. The Orwellian nature of a constitutional principle that regards some speech as “nonspeech” is, and should be, disturbing. The awkwardness of that semantic position is compounded by the First Amendment role reversal required by categorization: citizens usually are trusted to assess the value of speech for themselves, without screening by legislators or judges. In addition, some scholars are uncomfortable with the categorical nature of the doctrine, preferring that courts determine the First Amendment protection of speakers based on the factual context of individual cases, rather than on an abstract cost-benefit analysis of a category of speech per se.

Notwithstanding these criticisms, at least some version of the categorization principle has been central to free speech jurisprudence since the Chaplinsky decision in 1942. That year is significant, moreover, for surely it is no coincidence that the justices formalized the idea of categorization at the same time they began to invigorate First Amendment protection by adopting the Holmes/Brandeis version of the clear and present danger test for a variety of free speech problems. Faithfully applied, that test is strong medicine. The categorization principle provided a safety valve that enabled the justices to make a threshold determination whether such a strong First Amendment prescription was justified.

The categorization principle can be defended as a means of pruning First Amendment protection by excluding those types of speech that seem far removed from the values served by freedom of speech. This normative narrowing of free speech protection makes strategic sense because it husbands the credibility and strength of the courts for those occasions on which they are most needed, such as the periodic episodes of social stress illustrated by the two Red Scares of the past century. Embracing all literal speech within “freedom of speech” inevitably would force courts to dilute First Amendment protection in order to accommodate government restrictions of speech that carries low value and high costs. As a leading academic supporter of categorization has put it, “We must either water down the test for protection,… or conclude that certain categories of speech are to be tested under drastically different standards of protection.”

Even though categorization is defensible in principle, in practice drawing the line between protected and unprotected categories of speech at times, has proven to be extraordinarily difficult. In Chaplinsky, for example, the justices described the categories of unprotected speech they had in mind as “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.” This was not a random sampling; these speech acts all had been prohibited at common law. A few weeks later, the Court added commercial advertising to the list (Valentine v. Christensen, 1942). As the following chapter will demonstrate, the Court’s easy assumption that these categories of speech lacked any credible claim to First Amendment protection later encountered stiff resistance. Indeed, of the charter members of the Chaplinsky list, only fighting words and obscenity remain unprotected today. The ferment over the legitimacy of excluding particular categories of speech from First Amendment protection has ensured that the categorization principle itself has remained a continuing source of controversy. But as we shall see, notwithstanding the controversy and several post-Chaplinsky adjustments, the categorization principle continues to shape contemporary free speech jurisprudence.

The Content Distinction Principle

Although the doctrinal roots of the content distinction principle extend to Supreme Court decisions of the 1930s and 1940s, it did not emerge as a central organizing principle of free speech jurisprudence until several years after Brandenburg (Police Department v. Mosley, 1972). Since Mosley, the content distinction principle has come to dominate First Amendment doctrine. The content distinction principle complements the categorization principle. Just as the categorization principle posits that some types of speech are more valuable or harmful than are others, and thus more or less worthy of First Amendment protection, the content distinction principle is driven by a similar normative judgment that some types of speech restrictions are more threatening to First Amendment values than are others. The content distinction principle registers the Court’s judgment that “government censorship” is the central evil against which the First Amendment is directed and that the “essence” of censorship is “content control” of speech (Mosley). Because laws that make distinctions based on the content of speech suggest a strong likelihood of censorship, they “presumptively violate the First Amendment” (City of Renton v. Playtime Theatres, Inc., 1986). The danger of censorship is reduced considerably when the government regulates expressive activity without regard to speech content. Thus, “content-neutral” restrictions, while still a subject of First Amendment concern, are far more freely allowed.

Content-based Restrictions

A “content-based” restriction is a law that the government “enacted for the purpose of restricting speech on the basis of content.” (City of Renton v. Playtime Theatres, Inc., 1986). These restrictions are further divided into two subcategories: A content-based restriction turns either on the subject matter of the speech or on the viewpoint of the speaker. For example, a law that prohibited speech on the topic of terrorism (but allowed speech on other topics) would be a “subject-matter restriction,” whereas a law that prohibited speech critical of the government’s efforts to combat terrorism (but allowed speech that favored the government’s efforts) would be a “viewpoint restriction.” Although both types of content-based restrictions are constitutionally suspect and often are invalidated, they are not equally disfavored in First Amendment jurisprudence.

Many First Amendment scholars consider viewpoint discrimination to be the paradigmatic First Amendment violation, and contemporary free speech jurisprudence makes it virtually impossible to justify any restriction that is based on government disapproval of the viewpoint of the speaker. This is because viewpoint restrictions, by definition, constitute government censorship. By contrast, there are times when subject-matter restrictions appear innocent of any censorial motive, and thus are permissible. For example, the First Amendment would not prohibit a school board at its meetings from limiting public discussion to the subjects included on the agenda for the meeting. Such a subject-matter restriction would organize rather than stifle debate. A school board, however, could not take the further step of limiting public comments to those supportive of school-board policies. The latter rule would constitute a viewpoint restriction that could be explained only by an official desire to silence opposition to school board policies.

When reviewing content-based restrictions of speech, whether based on subject matter or viewpoint, judges typically apply the familiar form of “strict scrutiny” that the modern Supreme Court has devised for the protection of fundamental constitutional rights. Strict scrutiny obligates the government to justify a restriction by satisfying a court that it is “necessary” to serve a “compelling governmental interest” (Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 1991). “Necessary” is a term of art with specific doctrinal content. In order for a law to be necessary, there must be no alternative means available to the government for achieving the statutory goals in a manner less restrictive of free speech. The doctrinal meaning of a “compelling” interest is less clear. The Supreme Court has never provided, in its First Amendment decisions or elsewhere, a listing of the regulatory interests that qualify as compelling. Nor have the justices prescribed the criteria for judging whether any particular interest is compelling. The best that might be said is that a compelling interest is one that is sufficiently important to trump the fundamental right of free speech. The strict scrutiny test might therefore be expressed as requiring the government to prove that its speech restriction is the only way it can serve a public interest of overriding importance.

A content-based restriction thus is usually available to the government only as a last resort. The burden of justification is squarely on the government, and the Court has intentionally set the bar of strict scrutiny at a height that can be cleared only on rare occasions. The only exception to this strict prohibition of content-based restrictions of protected speech is for those subject-matter restrictions, such as the school-board agenda, that are benign in the First Amendment sense because they do not raise the specter of official censorship.

Content-neutral Restrictions

Contemporary free speech jurisprudence concentrates the heavy artillery of strict scrutiny on content-based restrictions, but eases up on content-neutral restrictions, that is, regulations of expressive activity that the government justifies without reference to the content of the restricted speech (City of Renton v. Playtime Theatres, 1988). Not only are content-neutral restrictions unlikely to reflect censorial purpose; they often encroach less on free speech rights than do content-based restrictions. Because content-based restrictions target particular types of speech content as harmful, they often prohibit entire categories of speech. Content-neutral restrictions never do so because they do not target any specific speech content as harmful per se. For example, while a content-based restriction might prohibit all speech opposing American involvement in the Vietnam War, a content-neutral restriction could hardly do so and remain content neutral. A content-neutral regulation might restrict antiwar speech, for example, by generally limiting the times or locations of public rallies or demonstrations, but such restrictions would fall far short of eliminating antiwar advocacy entirely from public discourse. Content-neutral restrictions thus do not prohibit speech. They regulate the time, place, or manner appropriate for speech. For this reason, courts and commentators often use the terms “time, place, and manner regulations” and “content-neutral restrictions” interchangeably.

Like content-based restrictions, content-neutral laws are subdivided into two groups: They can be either “direct” or “incidental” restrictions of speech. A restriction is “direct” if it targets an expressive activity, such as leafleting, picketing, and the like. If a regulation targets an activity that usually is not expressive in nature, any restriction on speech by that regulation on speech is considered “incidental.” For example, a law that prohibits the delivery of all speeches in a public park is a speech restriction that is content-neutral (because it applies to speeches on all subjects) and direct (because it targets an expressive activity). A law that closes a public park during certain hours is not aimed directly at regulating speech, but it has the “incidental” effect of denying a venue to individuals who wish to deliver a speech in the park during the hours that it is closed.

As was the case with viewpoint and subject-matter restrictions, direct and incidental speech regulations receive different treatment in the courts. All direct regulations of speech, even if content-neutral, involve governmental targeting of expressive activity for special restriction. For that reason, although content-neutral regulations are not as troubling as are content-based restrictions, they always raise First Amendment concern. Content-neutral laws that have an incidental effect on freedom of speech only trigger First Amendment scrutiny if they operate similarly to direct regulations of speech.

The Supreme Court has identified two types of incidental restrictions that do so. The first type is a restriction that has “the inevitable effect of singling out those engaged in expressive activity” (Arcara v. Cloud Books, Inc., 1986). An example of such a law would be the imposition of a specific tax on the sale of large quantities of newsprint and ink (Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 1983). The second kind of incidental speech restriction that courts subject to First Amendment scrutiny is one that is applied to activity with “a significant expressive element” (Arcara). The classic example of such an application occurred in United States v. O’Brien (1968), in which a protestor who had publicly burned his draft card in protest of the Vietnam War was prosecuted for violating a federal law that generally outlawed intentional destruction of the cards. Accordingly, in the example given above, a law that required the closure of a public park during certain hours would trigger First Amendment scrutiny if it were applied to one who wished to give a speech in the park during those hours.

The Court’s decision in Arcara v. Cloud Books (1986) illustrates the kind of incidental restriction on speech that the Court treats as raising no First Amendment concern. A state law authorized the closure of buildings that are used for unlawful sexual activity such as prostitution and lewdness. State authorities used that statutory authority to close a so-called “adult” bookstore. The Court held that the incidental effect of the closure in preventing the sale of adult books at the site did not implicate the First Amendment, even though, as we shall see, the First Amendment protects such sales so long as the books are not obscene. What mattered to the Court was that the regulatory target of the state was the sexual activity that occurred in the bookstore, not the sale of books. The Court explained, “[U]nlike the symbolic draft card burning in O’Brien, the sexual activity carried on in this case manifests absolutely no element of protected expression.” Nor did the law single out bookstores or other premises dedicated to activity protected by the First Amendment: it applied generally to all buildings in which unlawful sexual activity took place. As Arcara illustrates, a pure incidental restriction of speech, that is, the kind of restriction that does not merit any First Amendment scrutiny, is one in which the government is neither applying the law to an expressive activity (such as symbolic draft card burning) nor restricting an activity that necessarily burdens speech (such as specific sales tax on newsprint).

Courts subject direct, content-neutral restrictions of speech—as well as the two types of incidental restrictions that essentially qualify as direct—to a form of “intermediate scrutiny.” As the label suggests, intermediate scrutiny occupies a middle position between the highly demanding strict scrutiny generally afforded content-based restrictions and the highly deferential rationality review generally applied to governmental infringements of individual liberty that do not unduly burden the exercise of a fundamental, constitutional right. The Supreme Court has offered various formulations of the intermediate scrutiny appropriate for content-neutral restrictions of speech, but all prescribe a three-part test along the following lines (Ward v. Rock Against Racism, 1989). The government first must show that the restriction serves a “significant” or an “important” public interest. Although that interest need not be “compelling,” it must carry more heft than the merely “legitimate” public purpose required in rationality review. Next, the restriction must be “narrowly tailored” to advance the identified public interest. The narrow tailoring requirement is less demanding for intermediate scrutiny than for strict scrutiny. The restriction need not be “necessary” for the government to serve the stated interest. It simply must not “burden substantially more speech than is necessary” to serve the government’s objective. Unlike the expectation with respect to content-based restrictions, a content-neutral regulation need not be the “least restrictive or intrusive” means available to the government (Ward). While the second requirement of intermediate scrutiny, like the first, is less rigorous than strict scrutiny, it nevertheless remains considerably more demanding that the mere showing of some rational connection between governmental means and ends that is required when fundamental rights are not at stake. The third element of intermediate scrutiny for content-neutral restrictions, unlike the first two, is unique to the First Amendment. It requires the government to satisfy a reviewing court that its restriction leaves open “ample alternative avenues of communication” for a speaker to deliver his or her message to the public. If speakers are prevented from delivering their message, the law prohibits rather than regulates speech, and therefore operates more as a content-based than as a content-neutral restriction on expression.

The central question courts decide when evaluating the constitutionality of content-neutral restrictions of speech is not whether the government has engaged in censorship, but whether officials have overregulated expressive activity in their efforts to address competing social interests. The three-part test, in effect, defines three kinds of overregulation. Government officials might overregulate by inappropriately subordinating free speech to public interests that are not sufficiently important to justify the restriction. Or, they might regulate more speech than is required to accomplish their goals. Or finally, they might spread a regulatory blanket so broadly that speakers lose the capacity to express their views. In addition to providing a multifaceted consideration of the possible overregulation of speech, intermediate scrutiny of content-neutral restrictions affords considerable flexibility to reviewing courts, which are freed from the constraints of strict scrutiny and thus allowed to calibrate more finely the strength of regulatory ends and means on a case-by-case basis. Context is crucial for evaluating content-neutral restrictions because they operate across terrain that is as vast and varied as is the range of government regulation itself.

Although the content distinction principle has proven to be more stable than has the categorization principle, it has not gone unchallenged. For one thing, the content distinction principle can be difficult to deploy. The line drawn between content-based and content-neutral restrictions is less treacherous than distinguishing between protected and unprotected speech, but at times the two kinds of restrictions blur. Moreover, the content neutrality of a restriction is not always a reliable guarantee that censorship is absent. United States v. O’Brien (1968) is perhaps the most striking illustration of the potential of the content distinction principle for underenforcing the anti-censorship rule of the First Amendment. In O’Brien, the Court used intermediate scrutiny to uphold application of the law that prohibited the intentional destruction of draft cards to an antiwar protester. Although the law was content-neutral (it prohibited all intentional destruction of draft cards), it strains credulity to view the prohibition, which Congress enacted only after war protestors began burning their draft cards, as anything other than an effort to silence a particularly provocative method of expressing dissent.

The central criticism of the content distinction principle has been more fundamental than these problems of application, however. It holds that content-neutral regulations, even if they are not the product of official censorship, are no less an “abridg[ment]” of freedom of speech than are content-based restrictions, and thus are equally deserving of strict scrutiny. In this criticism, the most important feature of content-neutral restrictions is their restrictiveness, not their neutrality. Although content-neutral laws do not prohibit the expression of entire categories of speech, as do many content-based restrictions, at times they are more restrictive than are comparable content-based restrictions. For example, a content-neutral law that prohibits all speeches in a public park during certain hours is more restrictive than a viewpoint-based law that prohibits only speeches protesting the Vietnam War in the park during those hours. Why, then, should the former law be subjected to less stringent judicial review than the latter? Indeed, is it defensible that the former law likely would be upheld (assuming the hours of closure are reasonably limited) and that the latter law almost certainly would be invalidated?

The most convincing answer to this objection posits that First Amendment analysis should turn more on the nature of a law’s restrictive effect on freedom of speech than on the extent of that effect. In this defense, the distinctive vice of content-based restrictions is not that they restrict speech, but that they distort public deliberation by gerrymandering the substantive boundaries of debate. Robbing public discourse of particular subjects—or worse, viewpoints—causes a “mutilation of the thinking process of the community,” in the influential description of one scholar. (Emphasis omitted.) This distortion is the essence of official censorship, which, the argument goes, is fundamentally inconsistent with freedom of speech. Although content-neutral regulations limit the quantum of speech, they do not, at least in the usual case, enforce official preferences for some subject matter or viewpoints over others. Content-neutral regulations limit all subjects and viewpoints indiscriminately. Moreover, all subjects and viewpoints remain equally eligible for public consideration in the speech contexts left untouched by the regulation. The differing nature of the harms that flow from content-based and from content-neutral speech restrictions account for the different justification that each requires. Intermediate scrutiny is adequate for content-neutral restrictions because it enables judges to assure themselves that any particular law has not restricted too much speech. Strict scrutiny is usually necessary for content-based restrictions, however, because it requires judges to invalidate such laws unless the government can demonstrate that the restriction is not what it appears to be, an official act of censorship.

Content-neutral regulations, however, do restrict the freedom of speech, and on occasion, they disguise official censorship. The content distinction principle succeeds only to the extent judges review content-neutral restrictions, in Justice Thurgood Marshall’s phrase, with a “salutary skepticism of governmental decisionmaking” (Clark v. Community for Creative Non-Violence, 1984, dissenting opinion). The most troubling difficulty associated with the content distinction principle has been that it engenders a false sense of security that content-neutral speech restrictions are trouble-free and that government officials can be trusted to balance the public’s interest in free speech with other social goods. Legislators and, perhaps especially, government administrators, often overregulate expression even when they lack censorial motivation. Public officials cannot always be expected to sacrifice majoritarian demands for public order and instrumental efficiency in the name of First Amendment values. The courts must strike the final balance at intermediate scrutiny—conscientiously and independently—between speech and nonspeech interests for there to be meaningful constitutional protection. Otherwise, as Justice Marshall has argued, the content distinction principle is turned on its head, “transform[ing] a ban against content distinctions from a floor that offers all persons at least equal liberty under the First Amendment into a ceiling that restricts persons to the protection of First Amendment equality—but nothing more” (Clark v. CCNV, 1984, dissenting opinion).

The Architecture of Free Speech Analysis

Courts use the categorization principle and the content distinction principle in specific cases to create a framework within which to analyze free speech problems. The figure on p. 79 depicts the interaction of these two central organizing principles of free speech doctrine into one integrated methodology. In this most basic outline, a case that involves a content-based restriction of protected speech triggers strict scrutiny, and a court in most cases can be expected to invalidate the law. A case that involves a content-neutral restriction of protected speech is tracked to intermediate scrutiny, where a court tempers its review, thereby allowing more regulatory room for the government. Finally, a court which determines that the speech at issue falls within a category that is not protected by the First Amendment avoids any form of heightened scrutiny and simply engages in the low-level rationality review that is appropriate for cases that do not involve fundamental rights. Such regulations are routinely upheld precisely because fundamental individual rights are not at stake.

The interplay between the categorization principle and the content distinction principle helps to explain the development of subversive advocacy doctrine recounted in the preceding chapter. The Court began, in Schenck through Whitney, essentially with the view that subversive advocacy was an unprotected category of speech. For that reason, the justices routinely upheld restrictions of subversive advocacy without demanding special justifications by the state. Brandenburg, by contrast, represents the culmination of the Court’s gradual acceptance of subversive advocacy as fully protected by the First Amendment. Laws that explicitly prohibit such advocacy, moreover, are based on the content of that speech and thus are constitutionally suspect. The Brandenburg test, which prescribed the strongest version of the clear and present danger test ever accepted by the Court, comes into focus as a specific application of strict scrutiny to such speech. Brandenburg, in short, reversed the Court’s original approach to the problem of subversive advocacy because the justices finally had come to accept that category of speech as fully protected by the First Amendment.

The integration of the categorization principle and the content distinction principle have provided the framework within which the Supreme Court has developed contemporary free speech doctrine. The figure above depicts only the basic framework in free speech cases. At times, the Court’s struggle to resolve free speech problems has led the justices to revise that methodology in important ways. Those revisions, in a sense, are the story of the development of contemporary free speech jurisprudence, which is the subject of the remaining chapters.