First Amendment (Update 1)

• Author: Pierre Schlag
• Pages: 1053-1055

Page 1053

Within the legal culture, the First Amendment is typically understood to protect from government abridgment a broad realm of what might be called "symbolic activity," including speech, religion, press, association, and assembly. Because these symbolic activities are intertwined with many other activities that the government is clearly empowered to regulate?for instance, education and economic relations?the courts have experienced considerable difficulty in distinguishing impermissible infringement on First Amendment freedoms from legitimate exercises of government authority. Much of Supreme Court doctrine in the First Amendment area is an attempt to develop and refine precisely this sort of distinction.

One dominant principle that has informed the Supreme Court's doctrinal development of this distinction is the principle of content neutrality. The principle of content neutrality suggests that government must be neutral as to the conceptual content of speech, religion, press, and symbolic activity in general. Hence, according to First Amendment doctrine, it is only in extreme circumstances and for the most important reasons that the Court will allow government to regulate symbolic activity because of its conceptual content. The converse of this judicial principle is that the Court will recognize a relatively broad governmental power to regulate symbolic activity because of its effects or its form. Putting these two principles side by side, the result is that content-based regulation is often found unconstitutional, whereas content-neutral regulation is often found to be constitutional. These two broad imperatives with their sharply divergent implications for case outcomes place great conceptual pressure on distinguishing the content-based from the content-neutral, or more specifically on distinguishing the conceptual or substantive content of symbolic activity from its form and effects.

Although there has been no shortage of attempts, both scholarly and judicial, to specify and refine the gist of this distinction, First Amendment doctrine remains relatively undeveloped and unstable in dealing with this recurrent tension. Indeed, the Supreme Court seems continually to shift the terrain for making the predicate determination of whether the government action is content-based or content-neutral. Often the Justices are divided on the question whether the critical content-neutrality determination should be made with respect to the express or apparent state interest, the underlying governmental intent or motivation, the statutory or regulatory description of the symbolic activity, the judicial description of the symbolic activities actually affected, or the judicial description of symbolic activities conceivably affected. Although the Supreme Court has fashioned numerous diverse and detailed doctrines to specify the appropriate grounds on which to make the content-neutrality determination, there is so much of this doctrine and it is so obviously overlapping that ample room remains for disagreement among the Justices, the advocates, and the commentators about how to characterize and hence decide particular First Amendment cases. The result is that in the 1980s the First Amendment?especially in the area of religion?has followed the FOURTH AMENDMENT in an entropic proliferation of fragmentary, ephemeral, and highly bureaucratized doctrine.

In consequence, it has...