Are there First Amendment 'vacuums'? The case of the free speech challenge to tobacco package labeling requirements.

• Author: Wright, R. George

1. MUST EVERY APPARENT FREE SPEECH CASE HAVE A MEANINGFUL ANSWER UNDER THE FREE SPEECH CLAUSE?

   The litigation (1) challenging the recently adopted federal statute (2) and FDA rules (3) seeking to regulate tobacco package labeling focuses on freedom of speech. There is, no doubt, an obvious, literal sense in which these tobacco-labeling cases raise various free speech issues, evoke and debate free speech tests, and are judicially resolved on free speech grounds.

   This article, however, raises an unusual but revealing question about what we might call the "legal space" that is apparently controlled by free speech law. In particular, this article asks whether an apparent free speech law case could, upon closer examination, ever turn out to not really involve a genuine free speech law case.

   Certainly, in most free speech cases, we expect to encounter typical sorts of indeterminacies (4) and incommensurabilities. (5) This article asks whether there could also be what we might, by analogy, call something like gaps, cavities, faults, voids, lacunae, or vacua within the conceptual space of free speech law.

   The idea would be roughly this: to begin with, a case that is located within a free speech "vacuum" might, contrary to initial appearances, not coherently implicate the distinctive basic reasons for according constitutional protection to speech in the first place. By consensus, the most fundamental of such reasons typically include one or more of the following: promoting the search for truth of one sort or another; furthering the value of self-realization or self-fulfillment in one sense or another; and promoting something like democratic self-government, perhaps including the civic virtue of tolerance and the maintenance of popular constraints on the exercise of political power. (6) Setting aside possible complications and qualifications, if none of the basic reasons for distinctively protecting speech are coherently or meaningfully at stake in a given case, we could say that the most basic of the various presuppositions or prerequisites of free speech jurisprudence is in that case not met.

   Of course, the fact that no basic purpose of protecting freedom of speech is significantly implicated in a given case would most typically indicate not that we have entered a void or "vacuum" within the space of free speech law, but instead merely that the purported speaker should simply lose the free speech case on the merits. For example, literal or symbolic speech that does not intend to, and does not in fact, convey any cognizable message to any possible audience might well simply not count as speech for constitutional purposes.7 And we would presumably say in such cases that the purported speaker has merely lost the entirely genuine free speech case on the merits, (8)

   Yet what if a particular case involved not only the absence of any sufficient, meaningful, coherent promotion of any of the distinctive basic purposes for constitutionally protecting speech, but the corresponding absence, on the other side of the case, of any sufficiently meaningful, coherent, distinctive, promotion of any legitimate or otherwise sufficient governmental interest, to be promoted through regulating the speech in question? We could, in some sense, still label the case as a free speech case, lost on the merits by whichever side bore the decisive burden of proof. (9)

   But more substantively, we could in such a case rightly sense something like a free speech law "vacuum." The case would present not so much, say, a standard problem of free speech law indeterminacy, as of the absence of any sufficiently meaningful, non-self-contradictory, cogent reasons, based in free speech and regulatory law, (10) for deciding the case in any particular way, or for deciding the case on free speech and regulatory grounds at all.

   Or we could say that a free speech law "vacuum" case presents not so much a standard problem of the incommensurability (11) of values and interests, but an absence of any sufficient such interests, bearing favorably or unfavorably upon freedom of speech, on both sides of the case. In a sense, the commensurability in such a "vacuum" case might be all too easy: there would be zero to negligible coherent free speech interests on either side of the case, along with zero to negligible coherent governmental interests sufficiently and distinctively furthered by regulating the actual or purported speech in question. (12)

   What this amounts to is the possibility that what appears to be a meaningful free speech law case might actually, on closer inspection, fail to sufficiently exhibit the jurisprudentially necessary presuppositions of a genuine free speech law case. The mere presence of speech, (13) and of some sort of binding government regulation, may well not exhaust the prerequisites or presuppositions of a meaningful free speech law case to be appropriately decided one way or another on the free speech merits.

   This possibility of a "vacuum" within the "general space" of free speech law, where the presuppositions of free speech case law are not sufficiently met, should not surprise us. Consider, by analogy, the idea of justice as analyzed by the philosopher David Hume. Questions of justice might superficially seem to always and everywhere be proper or "in order." But Hume sensibly argues that the idea of justice or injustice in distribution actually involves certain presuppositions which may not always be met. (14) For Hume, the idea of justice or injustice is meaningless in the absence of what might be called "moderate scarcity." (15) As Hume argues, "if every man had a tender regard for another, or if nature supplied abundantly all our wants and desires, that [] jealousy of interest, which justice supposes, could no longer have place." (16) Or, at the other end of the scale of presuppositions of justice, consider hypothetical circumstances, such as people's separation in time or space, such that they could not relevantly affect each other. (17) Here also, the presuppositions of justice or injustice might not be sufficiently met.

   We might still imagine, in every apparent free speech law case, that even ff there is not always a uniquely right answer (18) under the Free Speech Clause, (19) there must still be at least some practically useful set of fully justified coherent theories and resulting outcomes under the Free Speech Clause. We shall briefly explore this unfortunately overly optimistic claim below in the context of the new regulations of tobacco package labeling. (20)

   For the moment, though, we should reinforce, by a more exotic though more demonstrable analogy, the idea that it is entirely possible that there may not always be answers, knowable or unknowable, or "facts of the matter" in all the cases where our common sense suggests there should be. (21) Consider an analogy from physics. To begin with, consider an ordinary basketball in the course of a shot. Generally, a basketball shot either goes through the hoop, or it does not. There is, in any given such case, a determinate fact of the matter.

   Not all objects, however, are in this respect like basketballs and basketball hoops. In particular, in the quantum realm, our common sense ideas of the scope and realm of causation, of the paths of objects or their determinate trajectories, and more generally of the common sense describability of phenomena, are surprisingly limited in their coherent applicability. (22) Not every apparently quite sensible question about quantum phenomena turns out to have a coherent answer. (23)

   In this realm, our common sense categories do not govern or apply. (24) A grammatically well-formed statement or question about, say, causation may turn out to be genuinely meaningless. This is not most basically a matter of our ignorance of key pieces of information. (25) Thus,

   in quantum mechanics, ... events really [do] occur at random [and not from some unknown specific cause]. No cause is at work to make an excited atom decay at a given moment. There are, of course, laws governing the whole process, but they only express the probability of the event taking place at one time rather than another. (26) Similarly, we cannot meaningfully ask about the '"path' or [the] 'trajectory"' that an electron takes; the question turns out to have "no definable meaning," (27) apparently quite apart from any possible jostling or other disturbing of the electron in measuring it. (28) We may indeed have a mental image of an electron, rather like a basketball, taking some discrete route from Point A to a distant Point B. (29) But our mental images, intuitions, analogies, and our common sense may in this context profoundly mislead us. (30)

   The point of this analogy is not that quantum physics generally tracks what can be sensibly asked of free speech law, even in most typically hard cases. The point is instead to suggest that in some apparently ordinary, if contested, free speech cases, our mental images, intuitions, analogies, and common sense may overstate what the underlying logic of free speech law, under the circumstances, can deliver.

2. THE CURRENT TOBACCO LABELING REGULATIONS: IS A DISTINCTIVE AND COHERENT FREE SPEECH ANALYSIS AND RESOLUTION REALLY POSSIBLE?

   Even at a glance, the current tobacco package labeling regulation cases (31) may strike us as doctrinally complex. Complexity (32) by itself, however, hardly rules out the possibility of a distinctive, coherent, and genuinely meaningful free speech analysis and resolution. The complexity of, say, some of the free speech law of electoral campaign funding, (33) as measured merely by the page length of some Supreme Court opinions, (34) does not by itself rule out a meaningful resolution of such cases on free speech grounds.

   While the current tobacco package labeling cases are complex in the number, subtlety, and interactivity and mutual dependence of some of the issues raised, (35) these sorts of complexities are not...