Free Speech and Generally Applicable Laws: A New Doctrinal Synthesis

Author:Dan T. Coenen
Position:University Professor & Harmon W. Caldwell Chair in Constitutional Law, University of Georgia School of Law
Pages:435-505
SUMMARY

A longstanding mystery of constitutional law concerns how the Free Speech Clause interacts with "generally applicable" legal restrictions. This Article develops a new conceptual framework for working through this puzzle. It does so by extracting from prior Supreme Court rulings an approach that divides these restrictions into three separate categories, each of which (at least presumptively) brings into play a different level of judicial scrutiny. An example of the first and most closely scrutinized category of generally applicable laws—that is, laws that place a "direct in effect" burden on speech—is provided by breach-of-the-peace statutes. These laws are generally applicable because they cover a great deal of... (see full summary)

 
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Free Speech and Generally Applicable
Laws: A New Doctrinal Synthesis
Dan T. Coenen*
ABSTRACT: A longstanding mystery of constitutional law concerns how the
Free Speech Clause interacts with “generally applicable” legal restrictions.
This Article develops a new conceptual framework for working t hrough this
puzzle. It does so by extracting from prior Supreme Court rulings an approach
that divides these restrictions into three separate categories, each of which (at
least presumptively) brings into play a different level of judicial scrutiny. An
example of the first and most closely scrutinized category of generally
applicable laws—that is, laws that place a “direct in effect” burden on
speech—is provided by breach-of-the-peace statutes. These laws are generally
applicable because they cover a great deal of behavior that has nothing to do
with speech, but they also often outlaw speech that triggers a violent response.
To the extent these laws do so, they proscribe speech in a direct-in-effect way,
in the key sense that their application depends on the communicative impact
of the regulated activity. In contrast, the second category of generally
applicable laws, which trigger only intermediate scrutiny, has nothing to do
with restricting speech based on any listener reaction. In United States v.
O’Brien, for example, the government relied on an across-the-board ban on
draft-card destruction to prosecute a war protester who burned his card as a
form of symbolic dissent. This case, the Court concluded, involved merely an
“incidental” (as opposed to a direct-in-effect) burden on speech because the
challenged statute covered each and every instance of draft card burning
wholly apart from the impact that any such action might have on the mind
of any observer. The third category of generally applicable laws received the
Court’s attention in Arcara v. Cloud Books, Inc., which involved a
challenge to an ordinance that required the closure of any place of business—
in this case a bookstore—where prostitution or other “lewd” activities had
occurred. Obviously, the closing of a bookstore imposed a burden on speech.
But this burden did not trigger any First Amendment scrutiny because the
defendants in Arcara were not (as was the defendant in O’Brien) punished
*
University Professor & Harmon W. Caldwell Chair in Constitutional Law, University of
Georgia School of Law. The author thanks Richard Fallon, Mark Tushnet, Sonja West, and
Michael Coenen for valuable comments on drafts and Jared Batte, Grayson Chambers, Kate
Ekstrand, and Ashley Klein for helpful research assistance.
436 IOWA LAW REVIEW [Vol. 103:435
for activity that itself involved expression; rather, those defendants were
punished for tolerating on-premises acts of lewdness, which did not involve
speech at all. Put another way, the case involved only a “doubly incidental”
burden on speech—that is, the sort of burden imposed by a wide range of laws
(including tax laws, labor laws, and health laws) that do not operate on
speech itself but instead diminish the resources or capacity of would-be
speakers to engage in expressive activity.
This Article develops in detail this tripartite structure for analyzing Free
Speech Clause challenges to generally applicable laws. In particular, it
highlights the complexity of this body of law, identifying the rich mix of
exceptions to the three core rules around which the Court’s governing doctrine
is organized. In addition, this Article shows that—and explains why—the
Court has taken a fundamentally different approach to generally applicable
laws in the free-speech and free-exercise-of-religion contexts. Along the way, the
Article notes that the current Court has signaled a potential willingness to
tinker with existing doctrine, including by expanding Free Speech Clause
limits on generally applicable antidiscrimination laws. At the same time, this
Article posits that the key features of the three-part approach toward which the
Court has haltingly, but discernibly, moved over the years comports with
overarching First Amendment theory.
I.INTRODUCTION ............................................................................. 437
II.THE CHALLENGES PRESENTED BY GENERALLY APPLICABLE
LAWS ............................................................................................. 443
III.DIRECT-IN-EFFECT BURDENS ON SPEECH ...................................... 452
IV.INCIDENTAL BURDENS ON SPEECH ................................................ 462
A.THE PRECEDENT-BASED CASE FOR ABANDONING O’BRIEN ........ 464
B.PRECEDENT-BASED LIMITS ON O’BRIEN ................................... 468
C.ABANDONING O’BRIEN ON POLICY GROUNDS ........................... 473
V.DOUBLY INCIDENTAL BURDENS ON SPEECH .................................. 475
A.EXCEPTIONS RECOGNIZED BY THE SUPREME COURT .................. 479
1.The Inevitable-Effect Exception ................................... 479
2.The Intimate-Relation Exception ................................ 481
3.The Improper-Purpose Exception ............................... 483
B.EXCEPTIONS PUT FORWARD BY LOWER COURTS ........................ 485
1.The Lawful-Activity Exception...................................... 486
2.The Unprotected-Speech Exception ........................... 487
C.EXCEPTIONS BASED ON DEVELOPING CONSTITUTIONAL
PRINCIPLES ............................................................................. 489
D.EXCEPTIONS ADVANCED BY ACADEMIC COMMENTATORS ........... 491
2018] FREE SPEECH AND GENERALLY APPLICABLE LAWS 437
1.The Bad-Purpose-Prophylaxis Exception .................... 491
2.The Substantial-Effects Exception ............................... 492
VI.THE FUTURE OF THE COURTS GENERALLY APPLI CABLE LAW
DOCTRINE ..................................................................................... 494
VII. CONCLUSION ................................................................................ 504
I. INTRODUCTION
Categories are central to free-expression jurisprudence. The Supreme
Court, for example, has sharply distinguished between protected and
unprotected speech, content-discriminatory and content-neutral statutes, and
public and non-public forums.1 Another key dividing line separates laws that
directly burden speech from laws that burden speech only “incidentally.”2
1. See ERWIN CHEMERINSKY, CO NSTITUTIONAL LAW: PRINCIPLES AND POLICIES §§ 11.1–11.4.3
(5th ed. 2011).
2. Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1175,
1176–78 (1996). An expansive literature touches on the sweeping variety of issues raised by such
laws. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 12-2 to 12-7, at 789–832,
§ 12-23, at 977–86 (2d ed. 1988); Larry A. Alexander, Trouble on Track Two: Incidental Regulations
of Speech and Free Speech Theory, 44 HASTINGS L.J. 921 (1990); Ashutosh Bhagwat, Producing Speech,
56 WM. & MARY L. REV. 1029 (2015); David Bogen, Generally Applicable Laws and the First
Amendment, 26 SW. L. REV. 201 (1997); Wesley J. Campbell, Speech-Facilitating Conduct, 68 STAN.
L. REV. 1 (2016); Joshua P. Davis & Joshua D. Rosenberg, The Inherent Structure of Free Speech Law,
19 WM. & MARY BILL RTS. J. 131 (2010); David S. Day, The Incidental Regulation of Free Speech, 42
U. MIAMI L. REV. 491 (1988); Daniel A. Farber, Conte nt Regulation and the First Amendment: A
Revisionist View, 68 GEO. L.J. 727 (1980); Alan E. Garfield, The Mischief of Cohen v. Cowles Media
Co., 35 GA. L. REV. 1087 (2001); Raleigh E. Hansman, Doctrinal Development or Devolution?: An
Examination of the Incidental Regulation Test from Texas v. Johnson Through Holder v. Hu manitari an
Law Project, 57 SAN DIEGO L. REV. 122 (2012); Elena Kagan, Private Speech, Public Purpose: The
Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413 (1996); Wendy K.
Olin, Constitutional Survival Camp: What are the Chances that the General Applicability Test Will Make
It?, 68 S. CAL. L. REV. 1029 (1995); Robert Post, Recuperating First Amendment Doctrine, 47 STAN. L.
REV. 1249 (1995); Jed Rubenfeld, The First Amendments Purpose, 53 STAN. L. REV. 767 (2001);
Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 VAND. L. REV. 265
(1981) [hereinafter Schauer, Categories]; Frederick Schauer, Cuban Cigars, Cub an Books, and the
Problem of Incidental Restrictions on Communications, 26 WM. & MARY L. REV. 779 (1985) [hereinafter
Schauer, Cuban Cigars]; Jeffrey M. Shaman, Rules of General Applicability, 10 FIRST AMEND. L. REV.
419 (2012); Srikanth Srinivasan, Incidental Restrictions of Speech and the First Amendment: A Motive-
Based Rationalization of the Supreme Courts Jurisprudence, 12 CONST. COMMENT. 401 (1995);
Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46 (1987) [hereinafter Stone,
Content-Neutral Restrictions]; Geoffrey R. Stone, Free Speech in the Twenty-First Century: Ten Lesso ns
from the Twentieth Century, 36 PEPP. L. REV. 273 (2009) [hereinafter Stone, Free Speech]; Eugene
Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. REV. 1791 (1992) [hereinafter
Volokh, Workplace Harassment]; Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal
Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones, 90 CORNELL L. REV. 1277
(2005) [hereinafter Volokh, Speech as Conduct]; Keith Werhan, The O’Briening of Free Speech
Methodology, 19 ARIZ. ST. L.J. 635 (1987); Susan H. Williams, Content Discrimination and the First
Amendment, 139 U. PA. L. REV. 615 (1991); Note, Neutral Rules of General Applicability: Incidental

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