Proactive legislation and the First Amendment.

• Author: Benjamin, Stuart Minor

It is a commonplace that the world is changing rapidly, with whole sectors of the economy being transformed. New forms of communication, like the World Wide Web, e-mail, and satellite television, have risen from obscurity to ubiquity in less than a decade. The speed of these changes has led some to express concern about the ability of governments to respond. The fear is that governments cannot keep up with developments as they occur and thus get hopelessly behind.(1) The solution, according to some, is for the government to act proactively -- before a harm has arisen, so that the government can push developments along the appropriate path and avoid problems before they occur. Indeed, there have been many calls for such legislation.(2)

Concern about the government's ability to keep pace with marketplace innovation is not new. James Landis, the central figure in the structuring of administrative agencies in the New Deal era, argued that unless legal constraints on agency action were reduced, the government would not be as nimble as private actors and therefore would find itself outmaneuvered and overwhelmed; he considered it essential that government be organized to act with the same rapidity as industry, so that it could shape the course of events.(3) More recently, some have expressed fear (or hope, depending on their perspective) that the rapid pace of technological developments will overwhelm the government's ability to respond to them.(4)

One response to these considerations is that the government should regulate an industry or technology while it is still in the formative stages. For instance, Senator James Exon, the sponsor of the Communications Decency Act,(5) argued for his approach by focusing on the future harms that the Internet presented, rather than the ones that had already arisen (at a time when home Internet use was still relatively unusual). Notably, he justified his position by stating: "The information superhighway is, in my opinion, a revolution that in years to come will transcend newspapers, radio and television as an information source. Therefore, I think this is the time to put some restrictions or guidelines on it."(6)

Congress enacted the Communications Decency Act after the harms to which it responded -- the dissemination of pornography in a manner available to minors -- had already begun. On other occasions, however, legislation is entirely proactive, in that it is passed before any cognizable harm has materialized. In Turner Broadcasting System, Inc. v. FCC,(7) for instance, the harms to broadcasters that justified the must-carry statute (requiring cable companies to carry local broadcasters) had not occurred before the legislation was passed.(8) Similarly, the current debate on whether to require cable modem Internet providers to open up their lines to competing Internet service providers has arisen in anticipation of harms that have not yet occurred.(9) In such circumstances, government action may be particularly effective: The government is likely to have significant leverage, as there is no entrenched pattern that the legislation must attempt to redirect or undo. But the potential costs are great, as it is impossible to know if the anticipated harm would actually have arisen such that the legislation would be appropriate.

There is particular reason for concern when the relevant legislation infringes upon speech interests, in light of the long-standing wariness of anticipatory overreaction in the First Amendment context.(10) And, for better or worse, predictive legislation frequently will affect speech interests and therefore will implicate the First Amendment. As a result, it is important to determine the appropriate judicial response to legislation based on predictive harms that infringes upon First Amendment interests. Thus far, this question has received little attention. This Article focuses on this hitherto unaddressed issue, by asking the question of how courts should respond to legislation that affects First Amendment rights and is premised on predictive harms.

In this Article, I contend that First Amendment principles dictate a presumption against legislation that is based on predictive harms, but that the presumption will be overcome if a court independently determines that there is a likelihood of irreparable harm. Part I briefly discusses the level of harm required to justify legislation that infringes upon First Amendment rights. Part II turns to proactive legislation, giving some examples of predictive harms. Part III describes the Supreme Court's responses to legislative findings in the First Amendment context, and Part IV discusses the difference between predictive harms and other legislative findings. Part V addresses the circumstances under which there should be a presumption against legislation predicated upon predictive harms and concludes that, when the First Amendment is implicated, we should be wary about reliance on predictive but provable harms. This formulation leaves open the question of what might overcome this presumption. Part VI suggests that the answer is a likelihood of effectively irreparable substantial harm. Part VII then focuses on whether courts should defer to legislative predictions of such irreparable harm, concluding that, because we can have confidence in neither courts' nor legislatures' predictions, the presumption against these predictive harms counsels against deference and in favor of redundancy. Finally, Part VIII considers the application of this analysis to other predictions contained in legislation. The upshot is that a tempting option for governments -- legislating before harms arise -- merits skepticism rather than acceptance.

1. THE FIRST AMENDMENT THRESHOLD

   Assuming that we want the government to head off problems before they arise, who should do it? Courts are not great candidates. Not only does it seem illegitimate (where do judges get the authority to proactively manage the economy?), but also judicial involvement almost always occurs after a long course of events has taken place. Federal courts have to wait until there is an injury in fact, and courts generally address only controversies brought to them by aggrieved parties.(11) By that time, the harms have already occurred, so avoiding the problem in the first place is not an option.

   Legislatures seem better equipped for proactive measures. They can survey the landscape as they see fit, obtain information from any source by a variety of means, hold hearings on any subject that interests them, and seek to influence the course of future events (i.e., legislate prospectively).(12) Indeed, one of the hallmarks of legislation is prospectivity.(13) Legislatures are thus the natural institutions for proactive regulation.(14)

   Legislatures might plausibly seek to legislate proactively -- that is, before the harms that they fear have actually arisen -- in any of a number of areas. They might, for example, perceive dangers in the importation of cheaper foreign foods (say, sugar(15)) and thereby limit those imports even before any farmer has been hurt by them. But one of the more tempting targets is the communications industries -- the industries that create, alter, or package words and symbols. The companies and individuals engaged in the manipulation of words and symbols include programmers (video and computer), production companies, creators, editors, etc. They have helped to change society in countless ways. Legislatures may therefore be tempted to regulate activities in this segment of the economy, and to do so before the next wave hits (whatever that wave may be).

   If legislatures act against companies that deal in petroleum rather than words, their actions will likely raise few concerns. There is no provision in the Constitution that prohibits statutory limitations on ordinary business dealings, and the Due Process and Equal Protection Clauses have been reasonably interpreted to give legislatures fairly wide latitude. And if legislatures act via general legislation that applies to all sectors of the economy (e.g., maximum hour laws), the fact that this legislation happens to affect, say, newspapers and Internet companies because of their demanding work schedules will not raise First Amendment concerns.(16) But a legislature may want to do more than that; it may want to pass legislation more specifically aimed at a particular aspect of expressive activities, or at a particular company, just as it could do to a particular aspect of extractive activities (e.g., oil drilling), or to Exxon/Mobil. When a legislature acts specifically against a speech-manipulation activity or company, its action likely will, and should, raise serious First Amendment concerns.

   Others have made this point at some length, and I will not recreate their arguments here. But it does bear mentioning briefly the arguments against this position, and the arguments for it. The obvious argument against it is that, though the legislation deals with speech-related companies, it should be seen as ordinary economic legislation in order to avoid a revival of Lochner through the First Amendment.(17) This argument will be strongest when the regulation appears to have nothing to do with the expressive aspects of an industry or company; even a maximum-hour law specifically applicable to Internet companies might not be subject to heightened scrutiny. But when the regulation of speech, or a means of communicating speech, is involved, then the counterarguments loom large. The textual basis for the distinction is obvious enough: the Constitution provides special protections for speech by virtue of the First Amendment, which treats speech differently from other activities. The normative arguments, to grossly oversimplify, usually revolve around two related propositions -- that speech is a distinctive kind of good and that governments have an incentive to limit it. As to the former, the idea is that speech is...