Freedom of speech, permissible tailoring and transcending strict scrutiny.

• Author: Volokh, Eugene

INTRODUCTION

The Supreme Court has often held that content-based restrictions on fully protected speech are valid if they are "narrowly tailored to serve a compelling state interest."(1) I believe this is wrong.

It is wrong descriptively: There are restrictions the Court would strike down--of which I'll give examples--even though they are narrowly tailored to serve a compelling state interest. It is wrong normatively: In striking these restrictions down, the Court would, in my view, be correct. And the official test is not just wrong but pernicious. It risks leading courts and legislators to the wrong conclusions, it causes courts to apply the test disingenuously, and it distracts us from looking for a better approach.(2)

After briefly restating strict scrutiny doctrine (Part I), I'll give three examples of speech restrictions that in my view would pass muster if the strict scrutiny framework were taken seriously, but that nonetheless would and should be struck down (Part II). I'll then point to some of the costs of the Court's reliance on an unsound doctrinal structure (Part III), and finally (Parts IV and V) suggest the rough foundations--and, I concede, only the rough foundations--of two alternative approaches.

The first alternative is for the Court to acknowledge that there is a third prong to strict scrutiny, which I call "permissible tailoring." Rather than just asking about the strength of the government's interest, or about whether the means are narrowly drawn to accomplish the interest, it asks whether the means are nonetheless impermissible: Whether, no matter how narrow they are, and no matter how compelling an interest they serve, the means are still contrary to some basic prohibitions that the Free Speech Clause imposes. This, I'll argue, is an inquiry quite distinct from what the Court requires under the "narrow tailoring" prong.

The second alternative, which I prefer, is for the Court to shift away from means-ends scrutiny, and toward an approach that operates through categorical rules--such as a per se ban on content-based speech restrictions imposed by the government as sovereign-coupled with categorical exceptions, such as the exceptions for fighting words, obscenity and copyright. I think this framework would better direct the Court's analysis, and would avoid the erroneous results that strict scrutiny seems to command.

1. A BRIEF RESTATEMENT OF STRICT SCRUTINY DOCTRINE

   Content-based speech restrictions, the Court says, are constitutional if they are "narrowly tailored to serve a compelling state interest";(3) many have aptly called this an "ends and means" inquiry.(4) The Court makes a normative judgment about the ends: Is the interest important enough to justify a speech restriction?(5) And the Court makes a primarily empirical judgment about the means: If the means do not actually further the interest, are too broad, are too narrow, or are unnecessarily burdensome, then the government can and should serve the end through a better-drafted law.(6)

   The Court has set forth four general principles related to compelling interests:

   1. The government can have no compelling interest in privileging particular subclasses of core protected speech--discussion about economic, social and political matters--over other subclasses. All such core protected speech "rest[s] on the highest rung of the hierarchy of First Amendment values."(7) The mere interest in furthering a subset of this speech (for instance, labor picketing) "without more, cannot justify [a content-based] exemption" for such speech.(8)

   2. Avoidance of offense and restriction of bad ideas are not compelling interests by themselves: "`[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.'"(9) Note though that the word "simply" here, like the phrase "without more" in the quote at the end of the last paragraph, leaves a good deal uncertain. What if society finds an idea offensive and the resulting offense leads to a particular bad result, such as employees of a particular religion, race or sex becoming so offended by workplace speech that they reasonably conclude that their workplaces have become hostile environments?(10) What if society wants to prevent disclosure of embarrassing facts about people, because people might find it "offensive or disagreeable" for their neighbors to know these facts about them?(11) The answers to both these questions, and to others like them, are far from settled.

   3. A law's underinclusiveness--its failure to reach all speech that implicates the interest--may be evidence that an interest is not compelling, because it suggests that the government itself doesn't see the interest as compelling enough to justify a broader statute.(12)

   4. An interest might itself be impermissibly underinclusive, even if the law is quite narrowly fitted to the interest: The government (at least under some circumstances) may not assert a compelling interest in fighting one particular ill, and then refuse to deal with other ills that seem almost indistinguishable. There's only one case that squarely raises this point, so the boundaries of this principle are still quite vague.(13)

      Outside these general areas, the Court has recognized a number of specific interests as compelling: "maintaining a stable political system";(14) ensuring that "criminals do not profit from their crimes" and that crime victims are compensated by the criminals;(15) protecting the right of "members of groups that have historically been subjected to discrimination . . . to live in peace where they wish";(16) protecting voters from confusion, undue influence and intimidation;(17) preventing vote-buying;(18) "eliminating from the political process the corrosive effect of political `war chests' amassed with the aid of the legal advantages given to corporations";(19) and protecting "the unique role [of] the press," which may justify otherwise impermissible speaker discrimination.(20) In the associational rights and religious freedom contexts, the Court has held that preventing race and sex discrimination,(21) preserving the integrity of the tax system,(22) and "procuring the manpower necessary for military purposes"(23) are also compelling. Query whether these interests apply equally in the free speech context.

      On the other hand, the Court has held that the interests in "equalizing the relative ability of individuals and groups to influence the outcome of elections,"(24) in "reducing the allegedly skyrocketing costs of political campaigns,"(25) in "preserving party unity during a primary,"(26) and in protecting speakers who "are incapable of deciding for themselves the most effective way to exercise their First Amendment rights"(27) are not compelling. If the substantive due process and equal protection cases are any guide, neither is the interest in administrative efficiency.(28)

      Most cases striking down speech restrictions, however, rely primarily on the narrow tailoring prong, which, according to the Court, contains four components:(29)

   1. Advancement of the Interest For a law to be narrowly tailored, the government must prove to the Court's satisfaction that the law actually advances the interest.(30) The government need not, however, prove this scientifically; a sufficiently persuasive common-sense foundation is enough.(31)

   2. No Overinclusiveness A law is not narrowly tailored if it restricts a significant amount of speech that doesn't implicate the government interest.(32) The theory here is that if the government can serve the interest while burdening less speech, it should.

   3. Least Restrictive Alternative A law is not narrowly tailored if there are less speech-restrictive means available that would serve the interest essentially as well as would the speech restriction.(33) The justification for this requirement is similar to that for the overinclusiveness inquiry, though one can imagine a law that isn't overinclusive--that restricts only the speech that implicates the interest--but is still not the least restrictive alternative. This might happen when the interest can be served equally well with a restriction on unprotected conduct rather than on speech,(34) or with a restriction that merely limits the speech in some ways rather than barring it altogether.(35) The government need not, however, choose an alternative that "fall[s] short of serving [the] compelling interests."(36)

      These three components are closely related, and all of them could be subsumed within the "least restrictive alternative" inquiry. If the law doesn't actually advance the interest, then not having the law at all would be a less restrictive but equally effective alternative. Likewise, if the law is overinclusive, then a narrower law that exempted speech which doesn't implicate the interest would be less restrictive and equally effective. When the Court says, as it sometimes does, that a law must be "`necessary to serve a compelling state interest,'"(37) it seems to be referring to these three components.(38)

   4. No Underinclusiveness Finally, a law is not narrowly tailored if it fails to restrict a significant amount of speech that harms the government interest to about the same degree as does the restricted speech.(39) Underinclusiveness might suggest, as mentioned above, that the interest isn't very important, or that the government's real interest wasn't the stated one but was rather just a desire to favor one form of speech over another, or to suppress offensive or otherwise disfavored speech.(40) Underinclusiveness may also show the presence of content discrimination beyond that justified by the compelling interest. Because content discrimination is disfavored, and allowed only when justified by a compelling interest, the presence of this extra, unjustified distinction makes the law unconstitutional.(41)

      Some cases have condemned content distinctions because speech on both sides of the line implicated...