A HALF-HEARTED DEFENSE OF THE CATEGORICAL APPROACH.

• Author: Flanders, Chad
• Position: Symposium: The Roberts Court's First Amendment

INTRODUCTION

One of Professor Magarian's more impressive achievements in Managed Speech is paying the Roberts Court the compliment of providing a theory that runs through its various First Amendment cases. (1) The book shows us surprising and hidden connections between disparate opinions by the Justices of the Court, and between different areas of First Amendment law. Importantly, the "managed speech" theory goes beyond just name-calling: "managed speech" is a coherent and even possibly defensible theory, not a label, like calling the Court "right-wing" or "pro-Business." (2) But there are some problems with Magarian's approach. The first is that it works better for some areas of First Amendment law (government speech, campaign finance) than others--as Magarian himself might admit. A second problem is that Magarian's alternative, "dynamic diversity," is not as fully fleshed out as "managed speech," (3) so his book, in the end, operates more in the mode of diagnosis and critique rather than a positive blueprint for change. I will have something more to say about this in what follows.

But it is a third problem I mostly want to focus on in my short essay in this Symposium. Dynamic diversity, like managed speech, operates at the level of theory, not at the level of constitutional doctrine. So while it may be clear what results in cases dynamic diversity would like, it is less clear what doctrinal route we should take to get to those results. (4) In trying to figure out what route dynamic diversity could take, I make a partial--and somewhat half-hearted--defense of the Court's so-called categorical approach, developed in Stevens, (5) Brown, (6) and Alvarez, (7) and about which Magarian seems ambivalent. (8) I think there is a lot to be said for the categorical approach, and even its reliance on the perhaps malleable and certainly vague idea of "tradition." Maybe the categorical approach is not our first choice or the choice for understanding the First Amendment. But it might just work as a second-best compromise in a lot of ways, and it may be the best way doctrinally to realize some of the goals of "dynamic diversity." (9)

My paper has three parts. In the first, 1 describe the appeal of the categorical approach, giving my own impressionistic view of where and why some people tend towards favoring First Amendment speech protections (including myself). In the second part, I try to list some of the problems with dynamic diversity. It is not only underdeveloped as a doctrinal matter--an objection I pursue more in the third part--but it is also strangely undermotivated as a theory. Stability has its appeal; less obvious is why disruption or social and political change as such are valuable. I also question whether dynamic diversity can support the results in Brown, Stevens, and Alvarez--which Magarian says he favors. In the third part, I turn more explicitly to doctrine and defend the categorical approach against some of Magarian's brickbats.

1. A HALF-HEARTED DEFENSE OF THE CATEGORICAL APPROACH (10)

   I find the First Amendment hard to love, unlike some of my students who have an ability to defend the thought they really do hate, (11) up to and even sometimes beyond the point where that speech turns into incitement, causes harm, etc. My first instinct, instead, is to want to limit and maybe even suppress the thought that I hate--racist speech, sexist speech, hate speech of all sorts. Of course, 1 do not want to do that at all costs, but I do want to do it (and I find a little mysterious those who do not cop to having this desire even a little). Why should my initial impulse be to protect thought that I view as not only wrong, but also badly wrong and harmfully wrong? I do not support an unregulated market in goods; why should I want to defend one in ideas?

   But then I end up backing into the First Amendment's protections through a familiar and well-traveled route. Sure, I want to limit those ideas that I find hateful, and if I were king of the world and if I were sure I were infallible, then I would limit them. But I am not king of the world, and I am not always right. So the First Amendment ends up for me as at least a pragmatic ideal. I will accept the compromise that I do not get to suppress my disfavored ideas (about which I might be mistaken) so long as you accept the deal, too. Out of this grudging abstinence, the virtue of tolerance and acceptance may be born. I learn to put up with you, and may find you are not all that bad, despite the terrible things you say. I might even someday find myself being persuaded by you: a possibility that would have never come about had I suppressed your ideas. This sort of tolerance and acceptance is not the main reason for protecting your speech, though. I really do doubt in most instances that I will be persuaded by your speech or think that there is something especially valuable in your autonomously being badly wrong.

   Consider how this plays out in two cases, Stevens and Brown. I am one of those who probably would find nothing redeeming in even the material that falls under the (overbroad) law of Stevens, a case that involved a law designed to curtail the circulation of depictions of animal cruelty. What contribution to public debate do "crush videos" or films of dogs mauling one another provide? Should they even be considered a type of speech? I don't really understand why people would watch these things--I don't even understand why people would want to watch bullfighting (live or taped), or a documentary on pit bulls. (12) Or take violent video games, the subject of regulation in the Brown case: some of these are now much more graphic, much more explicit than even the ones discussed by Justice Alito in his concurring opinion. One which I was exposed to (although my memory is fuzzy) involves your character violently vomiting on everybody, and then somehow also dismembering them, urinating on them, and doing all of this in a vaguely racist and homophobic way. (13) What is the good that comes from people playing these video games? And, I mean this not just as relates to the risk that these video games will cause people to be more violent; I just worry about the general coarsening of sensibilities that comes from being around these things. (14) I don't think I am alone in reacting in this way. So when I read about legislation that tries to restrict animal cruelty videos and violent video games, my first impulse is not that we should fight to the death to protect views that we loathe, and which may even be "fraught with death." (15) My first impulse is to ask, "Well, why not try to shut these things down?"

   The answer to "why not?" comes in Justice Roberts's response to the approach favored by the government in Stevens: where and how do you draw the line? The government says the values here (preventing cruelty to animals; protecting kids from images of violence) outweigh protecting the speech that is at issue--but who decides which values are relevant and how to balance those values? That results in a sort of "free-floating test" (Roberts' phrase), which invites all sorts of subjectivity and bias into the analysis. (16) What we need--and what Roberts gives us--is something that says: look, here is a brake on the sort of free form analysis we might be tempted to do. It is a list of those things we have "traditionally" said get no protection from speech. It is a relatively short list, but it is exhaustive, as far as we know. And the thing the government wants to prohibit, depictions of animal cruelty, is not on the list. Justice Scalia does the same thing in Brown. Here is this list of things we can ban, Scalia says, and the thing you want to ban isn't on it. (17) The result is garbled in Stevens (because the case was decided on other grounds), clearer in Brown, and muddled again in Alvarez (because there was no majority), but the idea is the same. The list dictates what kinds of speech the government can regulate and even ban, and if the thing isn't on the list, the government does not just get a free hand (or "free-floating power" (18)) in regulating it. End of discussion, pretty much.

   But does it not matter what the list has on it? How did we decide to use this list? Does not the list itself have to be interpreted? All of these are important questions, and I will get to them in the Part III. But the list of categorical exceptions to First Amendment protection (hence the name, the "categorical approach") has the right kind of feel to it--it's purported objectivity and straightforward application fills the right kind of space--especially as Justice Roberts defines it. It opposes itself to the idea that we can just do free-form balancing to decide speech questions. That involves too much subjectivity. If we can point to a list, a list to which categories cannot be added (but from which categories could possibly be subtracted), that puts the appropriate kind of brake on the temptation to limit the kind of speech we do not like--because next time, it may be our ox that is gored.

2. DYNAMIC DIVERSITY

   How does dynamic diversity--Magarian's counter-theory to "managed speech"--deal with all this? That is, how does it rein in the inevitable temptation to suppress speech the government does not' like? The answer is unclear, because dynamic diversity is underdeveloped in two respects. First, dynamic diversity is not doctrine. It operates, or seems to operate, in the same conceptual space as managed speech. It is a theory about speech and the regulation of speech. (19) "Dynamic diversity" does not and cannot tell courts, at least not directly, how they should decide cases. The Court cannot rule on a case and say, "we strike down this law because it harms dynamic diversity," any more than it can say, "We uphold this law because it...