The marrow of tradition: the Roberts Court and categorical First Amendment speech exclusions.

• Author: Magarian, Gregory P.

TABLE OF CONTENTS INTRODUCTION I. THE RISE AND DECLINE OF CATEGORICAL SPEECH EXCLUSIONS II. THE SPEECH-PROTECTIVE ROBERTS COURT: REJECTING NEW CATEGORICAL EXCLUSIONS III. THE SPEECH-RESTRICTIVE ROBERTS COURT: ENTRENCHING AND DEEPENING OLD CATEGORICAL LIMITS A. The Narrowness of the Speech-Protective Decisions B. Using Tradition to Justify Categorical Exclusions IV. ONCE MORE INTO THE BREACH? CONCLUSION INTRODUCTION

The Roberts Court has made a lot of First Amendment law. Since Chief Justice John Roberts took the Supreme Court's helm in 2006, the Court has issued decisions on the merits in about thirty-five free speech cases. With greater vigor than the late Rehnquist Court, the present Justices have waded into free speech controversies ranging from violent video games (1) to commercial speech (2) to campaign finance regulation. (3) In all those areas, the Court has handed important victories to First Amendment claimants. Free speech advocates' conventional (not to say universal) view of this Court is adoring. Renowned First Amendment lawyer Floyd Abrams has stated, "It is unpopular speech, distasteful speech, that most requires First Amendment protection, and on that score, no prior Supreme Court has been as protective as this." (4) Burt Neuborne, a leading academic and legendary civil liberties lawyer, concurs: "This court is the strongest First Amendment court in history.... The current majority uses the First Amendment as a powerful tool of deregulation that eliminates virtually all government efforts to regulate anything to do with the flow of information." (5) Former judge and current Baylor University President Kenneth Starr has called the Roberts Court "the most free speech Court in American history." (6)

Investigation of those bold claims must start in what, based on recent history, might seem like an obscure judicial precinct: cases about categories of speech that the First Amendment does not protect, like obscenity and fighting words. For nearly three decades the Supreme Court said very little of note about such categorical speech exclusions. (7) The Roberts Court, however, has given this neglected neighborhood a makeover. Some of this Court's most important, striking First Amendment decisions address proposals for new categorical exclusions or applications of familiar categorical doctrines. The Justices have not just resolved categorical issues. Rather, they have changed the law of categorical exclusions, announcing a new guiding star for assessing categorical First Amendment claims: tradition. According to the Roberts Court, a categorical exclusion can only pass constitutional muster if it reflects a substantial tradition of leaving speech open to regulation. In two prominent decisions, this focus on tradition has led the Court to reject government calls to make a new categorical exclusion for certain violent images. (8) Those decisions serve as exhibit A for commentators who praise the Roberts Court as strongly speech protective.

The decisions that reject new categorical exclusions deserve some of the acclaim they have received. Unfortunately, their speech-protective results carry limited precedential weight. Worse, these decisions actually undermine speech protection in other cases by tying categorical exclusions to the Court's account of what our law has traditionally let governments regulate. That linkage has led the Court to reinforce or fortify nonprotection for pandering nonexistent child pornography, freely using copyrighted material, and making legislative votes. The Court's most recent categorical speech decision, United States v. Alvarez, potentially advances expressive freedom by refusing to categorically exclude lies from First Amendment protection. (9) The Justices, however, could not agree on a rationale in that case, robbing it of precedential force. (10) The categorical speech cases, celebrated by the Roberts Court's enthusiasts, provide only limited, very mixed benefits for any robust model of free speech. For every stand the Roberts Court takes to protect speech, it hands down another decision that restricts speech. These cases, taken together, suggest this Court cares about protecting private speech from blatant censorship, but only within carefully managed limits that ensure speakers will not challenge social or political stability.

1. The Rise and Decline of Categorical Speech Exclusions

   The development of categorical speech exclusions stretches back to the beginning of First Amendment law. Decided in the shadow of World War I and the Russian Revolution, the Court's earliest free speech cases fixated on how speech could lead to violence. (11) The Justices repeatedly upheld convictions of communists and anarchists (the great paladins of 1920s First Amendment law) for urging violent overthrow of the government. (12) Fear that speech could spark violence broadened during World War II, as reflected in the pivotal case of Chaplinsky v. New Hampshire. (13) Chaplinsky involved a member of Jehovah's Witnesses (the great paladins of 1940s First Amendment law) who reportedly called a police officer "a God damned racketeer" and "a damned Fascist," on a public street. (14) The State convicted him of violating a local law that forbade "address[ing] any offensive, derisive, or annoying word to any other person... [or] calling] him by any offensive or derisive name." (15) In affirming the conviction, Justice Frank Murphy famously explained:

   There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. (16) The justification in Chaplinsky for permitting states to ban "fighting words" modeled the categorical approach to setting the First Amendment's boundaries.

   The categorical approach has fostered important limitations on First Amendment rights, some of which have stood the test of time. We properly hail New York Times Co. v. Sullivan as one of the Court's great speech-protective decisions because it severely limited government officials' power to sue their critics for defamation. (17) But with an evolutionary leap in nuance, Sullivan also effectuated the Chaplinsky dictum about "libelous" speech. (18) Expression that defames another person got only limited First Amendment protection, even as Sullivan provided a safe harbor for criticisms of public officials. (19) Similarly, in a series of decisions culminating in Miller v. California, the Court long ago decided that "obscene" speech--another item from the Chaplinsky catalog--gets no First Amendment protection. (20) Miller defined the legal category of "obscenity":

   The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work [at issue], taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (21) Other post-Chaplinsky doctrines deny First Amendment protection to fraudulent speech in a commercial setting (22) and to speech that conveys a "true threat." (23) These categorical doctrines still matter. People rely on defamation law to protect their reputations and fraud law to protect their pocketbooks. The Miller allowance for banning obscenity still puts quite a few people behind bars. (24) The true threat doctrine, although somewhat obscure, is crucial when relevant.

   As an active method for making law, though, the categorical approach has been declining for almost a half century. The Court has whittled the "advocacy of violence" category of unprotected speech down to a much narrower category of speech that actively and willfully incites someone to imminent violent action. (25) The Court has similarly reined in Chaplinsky itself, holding that denial of First Amendment protection to "fighting words" does not remove protection from emotionally charged, deeply offensive statements hurled at an unsuspecting audience but not at a particular person. (26) For decades the Supreme Court said very little in these categorical fields, even in the areas in which categorical limits on First Amendment protection still matter. Only once since the Court handed down Miller in 1973 has it announced a new category of unprotected speech--when the New York u. Ferber Court denied First Amendment protection to child pornography in 1982. (27) That categorical doctrine, which we will encounter again shortly, comes with an asterisk. The Ferber Court denied protection only to actual images of actual children engaged in sexual conduct. (28) The First Amendment still protects nonobscene simulated images or written descriptions of children having sex. (29) Unlike other categories of unprotected speech, the Ferber child pornography doctrine directly targets not speech but conduct--sexual exploitation of children--that the government obviously has power to regulate. (30)

   This musty history matters for our purposes because over the past few years, the Roberts Court has thought harder and done more about categorical First Amendment exclusions than the Court had during the preceding thirty-five years. (31) The present Court has forcefully declared that it will not expand categorical exclusions. At the same time, and based on the same mode of analysis, the Court has...