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

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 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 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. 435 436 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. T HE P RECEDENT -B ASED C ASE FOR A BANDONING O’BRIEN ........ 464 B. P RECEDENT -B ASED L IMITS ON O’BRIEN ................................... 468 C. A BANDONING O’BRIEN ON P OLICY G ROUNDS ........................... 473 V. DOUBLY INCIDENTAL BURDENS ON SPEECH .................................. 475 A. E XCEPTIONS R ECOGNIZED BY THE S UPREME C OURT .................. 479 1. The Inevitable-Effect Exception ................................... 479 2. The Intimate-Relation Exception ................................ 481 3. The Improper-Purpose Exception ............................... 483 B. E XCEPTIONS P UT F ORWARD BY L OWER C OURTS ........................ 485 1. The Lawful-Activity Exception...................................... 486 2. The Unprotected-Speech Exception ........................... 487 C. E XCEPTIONS B ASED ON D EVELOPING C ONSTITUTIONAL P RINCIPLES ............................................................................. 489 D. E XCEPTIONS A DVANCED BY A CADEMIC C OMMENTATORS ........... 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 COURT’S GENERALLY APPLICABLE 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, CONSTITUTIONAL 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, Content 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. Humanitarian 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 Amendment ’ s 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 , Cuban 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 Court ’ s 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 Lessons 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’Brien ing 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 438 IOWA LAW REVIEW [Vol. 103:435 Restrictions on defamation, for example, fall into the direct-burden category because they provide redress for reputation-harming expression itself. 3 In contrast, a law that prohibits vandalism burdens speech only incidentally...