Producing speech.

AuthorBhagwat, Ashutosh
PositionII. Penumbral Rights and the Press Clause through Conclusion, with footnotes, p. 1054-1081

    In Griswold v. Connecticut, Justice Douglas famously wrote that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." (138) Admittedly, the Griswold Court's conclusion that one of those penumbral rights was "marital privacy" to use contraceptives is rather questionable, as the asserted right has no close relationship to any textual right. (139) Nonetheless, there is more than a grain of truth in Justice Douglas's assertion--the Court undoubtedly has regularly recognized that a constitutional provision is best understood to protect conduct beyond what the bare text would require, if that protection is necessary to effectuate the textual right. In particular, in the context of the First Amendment, the Court has long protected a right to expend money in order to purchase the means to disseminate speech, (140) as well as the right to sell and profit from the sale of books. (141) More generally, as Seth Kreimer points out, the Court has regularly extended protection to conduct associated with the distribution of speech such as "handing out leaflets that may end up as litter, placing newsracks on public property, or distributing books to stores." (142) Moreover, Robert Post is surely correct that the First Amendment would not permit a state to "prohibit the use of projectors without a license." (143)

    All of these examples involve restrictions on the distribution of speech, in which the connection between the regulated conduct and speech is both extremely close and obvious. The Court has also protected conduct preceding speech, that is, conduct related to the production of speech. An example of such protection that we have already discussed is the Court's conclusion in Minneapolis Star & Tribune that a tax on ink and paper used by publishers violated the First Amendment. (144) Presumably, a special tax on celluloid film would also have raised serious First Amendment issues, when that film was necessary for photography. Another prominent example of penumbral protections for conduct related to the production of speech can be found in the Court's "expressive association" jurisprudence. In a series of cases extending back to the Civil Rights Era, the Court recognized that as a corollary to its explicit protections, the First Amendment also protects an implicit right to associate with others for expressive purposes. (145) The protected act of association need not be itself expressive. In the leading case on this subject, the Court protected the right to maintain anonymous membership in a civil rights organization because of the attendant risk of retaliation, even though the act of anonymous membership is not itself expressive. (146) The First Amendment protects association because it is a necessary precondition of speech. (147)

    There is thus doctrinal and logical support in the Supreme Court's jurisprudence for the proposition that the First Amendment extends some protection to conduct associated with the production of speech. The Press Clause of the First Amendment provides a textual foundation for such protection. (148) As discussed earlier, the dominant historical and modern understandings of the Press Clause is that the Clause protects the technology of the printing press, not certain favored speakers, such as the institutional press. (149) It should be noted, however, that regulation or licensing of printing presses does not impact actual communications. It rather constrains the production of a printed item (for example, a leaflet or a newspaper) which, when distributed to the public, will communicate thoughts and ideas. Regulation of the press is thus regulation of the production of communication rather than of communication itself, and so the Press Clause by its terms protects the production of written speech.

    It might not, however, protect all speech-producing acts. The printing press is a means to produce speech for broad distribution. Indeed, at the time of the Framing, (150) the printing press was the only technology available for the mass dissemination of messages. (151) There is no particular reason to think that the Press Clause would have been understood at the time of the Framing to extend to the production of other forms of speech such as oil paintings or handwritten letters. It does, however, seem eminently sensible, if the Press Clause is to have any meaning in the modern, electronic world, that its protections must be extended to all modern technologies that create messages for mass dissemination. (152) In other words, the press today is not just a printing press, but also a television studio or a reporter's camera. This seemingly innocuous insight, however, has profound implications in the era of the Internet and social media. In our time, many citizens speak instantaneously to audiences larger than those available to the average colonial printer. In the age of Youtube, Facebook, and Twitter, we are all publishers of mass communications. This in turn means that while the Press Clause may not originally have protected the speech-productive conduct of most speakers, today it does, at least with respect to the production of digital speech intended for electronic dissemination. If I record a photograph or video on my cell phone intending to post it to Facebook, that act of recording is no less the creation of mass speech than is the printing of a paper copy of the New York Times (or for that matter the posting of an electronic copy to the Times's website). The Press Clause should be understood to provide some degree of protection for all of these acts.

    Finally, it should be noted that even if the Press Clause does not, by its terms, protect the creation of "private" speech--speech intended for limited audiences--that does not necessarily mean such conduct receives no protection. As just noted, the Court has long interpreted the Speech Clause to extend penumbral protection to conduct closely associated with speech, notably distribution of speech but also some speech-preceding conduct. Furthermore, there seems no reason not to read the Press Clause to also provide some penumbral protections. Indeed, this is arguably what the Court did in Minneapolis Star & Tribune, albeit by implication. In combination, it seems clear that these penumbral protections should provide some degree of protection for some conduct associated with the production of even private speech.

    At the same time, however, it seems unlikely that all conduct related in any way to the production of speech can be protected--remember the example of regulating logging (153)--nor can protection be absolute, any more than protection for speech itself. (154) Furthermore, given the penumbral nature of the protection of speech production, and the fact that the production of speech entails conduct that can cause social harms entirely independent from any communicative impact, the protections for speech-production should arguably be less rigorous than protections for actual communication.


    As the above discussion suggests, it seems clear that the First Amendment protects not only literal acts of communication but also penumbral conduct associated with the distribution and production of speech. Protection of distribution appears to be coextensive with protection of speech itself, and is uncontroversial. Production, however, raises more complex problems. For one thing, it has long been clear that the press is not immune from generally applicable regulations of conduct. (155) This is in contradistinction to speech--the extant doctrine at least purports to subject generally applicable regulations of conduct that incidentally impinge on expression to a moderately rigorous level of scrutiny. (156) Why then is speech production treated differently?

    One source of the difficulty lies in the fact that there are no clear boundaries delineating the scope of conduct related to the production of speech. The distribution of speech is typically a straightforward, time-limited event. That is not so in the chain of events that eventually produces speech. The physical act of producing speech may be time limited, but many preceding steps are necessary before actual production can commence. Most notably, as discussed earlier, the process of gathering information is necessary to many forms of speech, even though it predates the actual writing/recording of speech. (157) And indeed, necessary steps go further back, including logging trees to produce paper, or quarrying sand to produce the silicon needed to manufacture the modern memory chips used for digital photography. It seems facially implausible that the First Amendment would provide substantial protection to all of this conduct, nor is it clear that penumbral protections are entirely missing for conduct prior to the actual, physical production of speech. After all, a ban on the importation, production, or sale of memory chips would be a pretty effective means to suppress digital photography, just as restrictions on ink could destroy print publishing.

    Moreover, even if one chose to limit protection to acts of production, the level of protection that should be accorded is unclear. The difficulty lies in the fact that the production of speech is itself conduct, which can cause social harm. When the main forms of speech production were publishing and writing (and oral speaking), the risk of noncommunicative harms was obviously limited. Today, however, speech production covers conduct ranging from making audio and visual recordings to photography, tattooing, or having sex before a camera. All of these forms of conduct can cause social harm. Some of those harms, such as the health risks associated with tattooing or making bareback pornography, have no link whatsoever to communicative impact. In other situations, the nature of the harm is more complex...

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