In recent years, a large number of disputes have arisen in which parties invoke the First Amendment, but the government action they challenge does not directly regulate "speech," as in communication. Instead, the government is restricting the creation of communicative materials that are intended to be disseminated in the future--in other words, they restrict producing speech. Examples of such disputes include bans on recording public officials in public places, Los Angeles County's ban on bareback (condom-less) pornography, restrictions on tattoo parlors, so-called "Ag-Gag" laws forbidding making records of agricultural operations, as well as many others. The question this Article addresses is whether such laws pose serious First Amendment problems.
I conclude that they do. Two distinct reasons justify First Amendment protection for conduct associated with producing speech: first, because such protection is necessary to make protection for communication meaningful; and second, because the Press Clause provides a textual and historical basis for such protection. However, because speech production involves conduct that can have substantial, negative social consequences, First Amendment protection of speech production must be limited, and is probably less extensive than protection of actual communication.
In the balance of this Article, I propose a doctrinal framework for how restrictions on speech production might be analyzed. The framework draws on broader free speech principles such as the content-based/content-neutral dichotomy, and the Supreme Court's repeated statements that the First Amendment accords special importance to speech relevant to the democratic process. However, the framework is distinct from general free speech analysis, and for the reasons discussed above, is generally more tolerant of regulation. I close by applying my proposed doctrinal rules to a number of recent disputes.
TABLE OF CONTENTS INTRODUCTION I. Regulation of Speech Production A. Taxing Ink and Paper B. Recording Public Officials C. Bareback Pornography D. Tattooing E. Ag-Gag F. Photography G. The Right to Gather Information II. PENUMBRAL RIGHTS AND THE PRESS CLAUSE III. REGULATING SPEECH PRODUCTION IV. APPLYING THE TEST A. Taxing Ink and Paper B. Recording Public Officials C. Bareback Pornography D. Tattooing E. Ag-Gag F. Photography G. The Right to Gather Information CONCLUSION INTRODUCTION
"Congress shall make no law ... abridging the freedom of speech, or of the press." (1) These are the words of the Speech and Press Clauses of the First Amendment, and they have been recognized since at least the mid-twentieth century as protecting some of the most important rights granted by the Constitution. (2) But what exactly do these words refer to? Presumably the answer is oral and written communication, the former being protected by the Speech Clause, and the latter by the Press Clause. (3) Of course, in modern times there are many more forms of communication than oral speech and writing, and the Supreme Court has freely extended First Amendment protections to such technologies as video games (4) and the Internet. (5) In so doing, as numerous commentators point out, the Court has not in modern times distinguished between the Speech and Press Clauses. (6) It has rather used the Speech Clause as the primary source of protection, treating the Press Clause as "a superfluous subset of the Speech Clause." (7) In short, under current law, the Speech and Press Clauses of the First Amendment protect communications in any and all forms, primarily though the Speech Clause. (8)
The Court's focus on the Speech Clause, however, has obscured some important differences between various forms of communication. (9) The paradigmatic communication protected by the Speech Clause is in-person, oral communication. (10) Indeed, when the states ratified the First Amendment in 1791, this was of course the only form of oral communication and thus the only thing protected by the Speech Clause (assuming that the Press Clause protected written communication). (11) Pure, oral speech, however, has a distinct characteristic in that it is "created" simultaneously with its dissemination. The speaker makes noise, and the noise is heard at the same time. (12) The same is true for in-person, symbolic conduct. The "speaker" burns a draft card (13) or a flag, (14) and the audience instantaneously receives the message. (15) Critically, however, this characteristic does not hold for many other forms of communication. Rather, there is a time lag, sometimes a substantial one, between creating the message and its dissemination to its intended audience. Thus, a book is printed, but may not be distributed or read until much later. A movie is filmed, but probably will not be screened for several months, if not years. A photograph is taken, but may not be printed or posted to the Internet or shown to others for some time. Indeed, because books are reread over the years and movies are rescreened, the time lag between production and communication can be very significant, even centuries.
The existence of this time lag has an important implication. It means that a meaningful distinction can be drawn between the act of creating, of producing communication, and the act of actually communicating. The act of producing a communication--all of which the modern Court designates "speech" because of its focus on the Speech Clause (16)--can take many forms and involve many different steps. The question that obviously arises is whether, and if so to what extent, the First Amendment protects the antecedent act of producing speech, not just the eventual communication. Does a prohibition on openly recording public conversations between police officers and members of the public without the consent of both participants violate the First Amendment? (17) What about a ban on tattoo parlors? (18) A ban on making pornographic movies unless the actors wear condoms? (19) What about a tax on paper and ink used in publications? (20) More broadly, does the First Amendment protect a right to gather information, if that information is needed to produce, say, a news story? (21) In each of these situations, we are faced with a law that does not directly prohibit or regulate an act of communication, but makes it difficult or impossible to create the message to be distributed. As we shall see, courts are deeply divided, and even more deeply confused, about whether and when the First Amendment protects such conduct. (22)
Interestingly, despite the foundational nature of this question, it has received remarkably little scholarly attention. The most extensive recent discussion of these issues is in Seth Kreimer's article about image capture. (23) There is also an extensive literature about news gathering that touches upon this problem. (24) Indeed, there is even a burgeoning literature on protection for "bareback" (condomless) pornography. (25) However, all of this scholarship focuses on First Amendment protections for one particular form of conduct involved in producing speech, rather than on the broader questions of whether and why the First Amendment should be understood to protect all forms of conduct associated with producing speech. Those are questions this Article addresses.
My conclusion is that the First Amendment should be read to provide some protection for producing speech, but that the protections cannot and should not be absolute, or even as strong as the protections accorded to actual communication. The theoretical reason to protect speech production is that failure to do so would largely denude protection for communications. Moreover, there is a logical historical and textual source for such protections: the Press Clause. The Press Clause protects technology--in 1791 the printing press, today of course many other things as well--used to produce communications intended for later mass dissemination. On the other hand, the reason that protection for producing speech must be limited is because producing speech can involve a wide range of conduct that can cause social harm entirely independent of the communicative impact of the eventual speech. Therefore, although rules for protecting speech production can draw upon free speech doctrine, they cannot import the doctrine wholesale. Instead, courts need to develop a more nuanced jurisprudence.
Part I summarizes a number of recent disputes, all of which raise the question of whether restrictions on producing speech implicate the First Amendment. Part II presents a theoretical framework for why conduct associated with producing speech should receive First Amendment protection. Part III begins to sketch out some limiting principles and doctrinal formulations regarding how courts should analyze regulations of conduct related to the production of speech. Finally, Part IV applies my proposed test to some of the cases and conflicts discussed in Part I.
REGULATION OF SPEECH PRODUCTION
In recent years, a number of lawsuits and other disputes have arisen in which parties invoked the First Amendment, but in fact, the challenged government action did not directly restrict an act of communication. (26) Instead, the restriction...