Low-Value Speech

• Author: Steven Shiffrin
• Pages: 1646-1647

Page 1646

The role that assessments of the value of particular speech or categories of speech should play in FIRST AMENDMENT theory is much contested. Everyone agrees, however, that at some point judges should be barred from making assessments about the value of particular speech in deciding whether it may be regulated or prohibited. Moreover, the image of a content-neutral government, at least as a regulative ideal, is a powerful force in First Amendment law.

Commentators ordinarily describe judicial judgments about the value of speech as "exceptions." The norm is said to be that speech is protected and that judgments about the value of speech are foreign to the judiciary. Exceptions are often explained in terms of "low value" theory. Speech does not get protection or it gets less protection than other speech because it has low value.

Geoffrey R, Stone, the theory's principal exponent, argues that low-value theory justifiably plays a major role in the JURISPRUDENCE of the First Amendment. It is neccesary, he argues, because otherwise we should have to apply the same standards to private blackmail as to public debate. If we do not treat harmful, but relatively unimportant speech differently, we will dilute the expression "at the very heart of the guarentee." As Stone charecterizes the law, "the Court, applying [the low-value] approach, has held that several classes of speech have only low first amendment value, including express incitement, false statements of fact, obscenity, commercial speech, fighting words and child pornography." Once the Court has decided that speech has low value, according to Stone, it engages in "categorical balencing, through which it defines the precise circumstances in which the speech may be restricted." By contrast, in assesing high-value speech, "the court employees, not a balancing approach akin to its content-neutral balancing, but a far more speech-protective analysis." Thus low-value theory functions to preserve the autonomy of high-value speech from government regulation.

No doubt, many categories of unprotected speech are explainable in part because they are thought to be of low value. Moreover, some forms of otherwise protected speech are afforded less generous protection than is given to other forms of protected speech almost exclusively because they are seen to have less value. But no sharp line divides low-value from high-value speech, and low value theory cannot account for all...