First Amendment (Update 2)

• Author: Geoffrey R. Stone
• Pages: 1055-1057

Page 1055

As a general matter, the Supreme Court has held that laws directly restricting the freedom of individuals to express particular messages because those messages might have harmful or undesirable effects are presumptively?perhaps conclusively?unconstitutional. Indeed, the Court has not upheld a direct restriction on speech because it might persuade readers or listeners to engage in criminal activity since DENNIS V. UNITED STATES (1951); it has not upheld a direct restriction on speech because the ideas expressed might provoke a HOSTILE AUDIENCE response since FEINER V. NEW YORK (1951); and it has never upheld a direct restriction on the publication of truthful information because its disclosure would interfere with public or private interests in keeping the information confidential.

This powerful presumption against content-based restrictions on the FREEDOM OF SPEECH derives from the Court's judgment that such laws are particularly likely to distort public debate, to be enacted for constitutionally "improper" reasons (such as hostility to or disagreement with the particular views suppressed), and to be defended in terms of considerations that are thought to be inconsistent

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with the basic premises of the First Amendment (such as paternalism and intolerance). The paradigm of such a content-based restriction?"no person may criticize the war"?clearly illustrates each of these concerns.

Despite its strong presumption against content-based restrictions, the Court has upheld such restrictions in the special context of LOW-VALUE SPEECH. The low-value concept had its genesis in CHAPLINSKY V. NEW HAMPSHIRE (1942), where the Court stated in dictum:

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.? 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.

Although some commentators have criticized the low-value concept as incompatible with First Amendment theory, the DOCTRINE is essential to a well-functioning system of free expression. Without such a safety valve, one of two unacceptable results would follow: Either the burden of justification imposed on regulations of high-value speech, such as pure political expression, would be diluted, or the very demanding standards applied to regulations of high-value speech would have to be applied to low-value speech, with the result that government would not be able to regulate speech that should appropriately be regulated.

But even if the concept of low-value speech is legitimate, two questions remain: What categories of...