QUALIFIED ABSOLUTISM, CATEGORICAL BALANCING, AND NEW CATEGORIES.

• Author: Shiffrin, Steven H.

The First Amendment protects most political, ideological, and religious speech, not to mention the daily conversations of many millions of citizens. Speech, however, is not invariably protected under the First Amendment. Some categories of speech such as obscenity, (1) fighting words, (2) copyright violations, (3) child pornography, (4) perjury, (5) fraud, (6) some forms of advocacy of illegal action, (7) and some forms of defamation, (8) among many others (9) are not protected, even though the categories of speech are partly defined by their content. (10) In determining that these categories of speech should not be protected, the Court engaged in an analysis of the factors it thought relevant without attempting to provide a general theory of when speech should be protected and when it should not and without stating a "level of scrutiny" to be applied. (11) Subsequently, the Court ordinarily (12) began to apply what it called "strict scrutiny" in cases in which it determined the government regulation was content-based. (13) This was the state of First Amendment law involving content-based regulations when John Roberts became Chief Justice. The Roberts Court has changed this law in two ways. First, the Court has broadened the content discrimination definition, making more speech subject to strict scrutiny review. Second, it has made it more difficult for governments to establish that additional categories of speech are unprotected. It has ruled that any claims for additional categories of unprotected speech should be recognized only if they fit into a previously unrecognized tradition of proscription. (14) So when the federal government sought to regulate depictions of animal cruelty or California sought to prevent the sale of gruesomely violent video games to children, the Roberts Court rejected the claim that these regulations should be tested by determining whether the importance of furthering the state interests was outweighed by the free speech values that were impacted. (15) The Court characterized the contention that such a balancing methodology was previously used to create the unprotected categories as "startling and dangerous." (16) Instead, it purported to look for a history of proscription, and finding none (apparently the Framers did not regulate video games), refused to entertain the possibility of a new category. This has been characterized as the frozen categories approach. (17)

Ronald Collins refers to the Roberts Court's content-based jurisprudence as the "new absolutism." (18) This is the same Ronald Collins who has written an excellent book about Floyd Abrams called Nuanced Absolutism. (19) The debate between the absolutists and the balancers is part of a great First Amendment tradition. Of course, absolutism is always selective. The old absolutism was never absolute and neither is the new absolutism or the nuanced absolutism. (20) Absolutists are always forced to make exceptions, and too many of them do not justify the exceptions. In my view, justifying those exceptions without resort to balancing is often impossible. This does not mean that the absolutism/balancing debate was about nothing. It centers on the creation of new categories of unprotected speech. By definition, the absolutists are committed to making as few exceptions as possible to the protection of speech often by applying as few principles as possible. Balancers could advocate similar protection; most do not. (21) In my view, speech conflicts with too many important values in too many contexts to suppose that it should be invariably privileged, let alone that it should invariably prevail. Unprotected categories exemplify that point. On the other hand, absolutists criticize balancing on many grounds. Among other things, they claim that balancing is contrary to the rule of law, insufficiently constrains judges, and under protects rights.

In this Article, I will argue that both pillars of the new absolutism try to protect too much speech. I will provide only a limited discussion of the content discrimination principle because there is already a vast literature discussing it. (22) My basic argument here is that the Court's definition of the concept of content discrimination is too broad. (23) The argument given for that breadth is insufficiently connected to the purposes for concern about content discrimination. Some justices and commentators have worried that this broadening will permit further constitutional intrusions into desirable economic regulation. At this point, rather than producing constraint and uniformity, the lower courts have rebelled, and the result is doctrinal disarray.

The bulk of this Article will defend the proposition that examples like federal regulation of the depictions of animal cruelty or state regulation of the sale of violent video games to children should be subject to consideration of their advantages and disadvantages with due regard for any First Amendment values involved. In other words, I reject the absolutist frozen categories approach in favor of the balancing jurisprudence that has prevailed for many decades. (24) The frozen categories approach privileges speech of little value that threatens substantial state interests. (25)

I will argue that defenders of the frozen categories approach cannot provide an adequate answer to the following questions. If the Court has concerns about content discrimination, why didn't those concerns apply to the creation of unprotected categories? And what justifies its attempted ban on the creation of new ones? As Rodney Smolla has asked, "[W]hen new categories come knocking at the door that seem every bit as deserving as the categories that made the original list [of unprotected categories] why not grant them entry?" (26) The Court's primary arguments for the frozen categories approach are set forth in United States v. Stevens. (27) Those arguments primarily rely on misleading history and precedent. A more sophisticated analysis of the doctrine was filed in the Stevens case by a number of distinguished constitutional scholars. (28) They included Bruce Ackerman, Jack M. Balkin, Lee C. Bollinger, Erwin Chemerinsky, Daniel A. Farber, Craig Green (Lead Counsel), Sanford Levinson, Burt Neuborne, Lucas A. Powe, Rodney A. Smolla, Geoffrey R. Stone (Co-Counsel), Laurence Tribe, and William Van Alstyne. (29) I argue that their attempts to justify the frozen categories approach are unsuccessful and that the categories were arrived at through the very balancing process the Court was hoping to resist.

I then turn to a fuller discussion of absolutism and balancing. I discuss the rhetoric of absolutism and show that many arguments made in favor of an absolutist reading of the First Amendment, however effective as advocacy, are ad hominem in character and not worthy of substantive consideration. I discuss and assess the work of prominent scholars who have played an influential role in the absolutism/balancing debate.

In response to the criticisms of balancing, I will argue (1) that the claim that balancing violates the rule of law is simply wrong; (2) that in the frozen categories area limited (30) constraint is a vice, not a virtue, because, it interferes with government's ability to regulate harmful speech and that any small amount of constraint is mapping a small amount of constraint on to a chaotic regime; and (3) that balancing to determine whether additional categories of speech should be unprotected poses little threat to important rights.

The Roberts Court has been criticized by many for its failures in protecting dissent. (31) At the same time, the Roberts Court has subscribed to a free speech jurisprudence that does not take seriously enough the values with which it comes into conflict. (32) By using an overbroad concern about content discrimination accompanied by the sledgehammer of strict scrutiny, its frozen categories approach has crept to new lows. Protecting harmful speech of no redeeming value, such as depictions of animal cruelty and gruesomely violent video games, at the same time it casts a blind eye on a wide variety of content-neutral measures suppressing dissent (33) is shameful. It protects what should not be protected and does not protect speech, which has a serious claim to be at the heart of the First Amendment.

1. THE COURT'S JUSTIFICATION

   A fuller description of the two cases I have mentioned can help frame this discussion. In the first, United States v. Stevens (34) a federal statute prohibited the commercial creation, sale, or possession of depictions of animal cruelty (35) "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed" if that conduct violates federal or state law where "the creation, sale, or possession takes place." (36) The statute exempted depictions with "serious religious, political, scientific, educational, journalistic, historical, or artistic value." (37) As the brief for the United States makes clear, the purpose of the statute was to "prevent depraved acts of animal cruelty" (38) by removing financial incentives to commit the acts. (39) As the brief puts it, the statute "targets the 'visible apparatus of distribution' in order to stop the commission of illegal acts of animal cruelty, which are difficult to prosecute directly because of their clandestine nature." (40) Stevens was arrested and convicted for running a business in which he sold gruesome videos of pit bulls attacking dogs and other animals. (41) Stevens defended on First Amendment grounds.

   In the second, Brown v. Entertainment Merchants Association, (42) California outlawed the sale or rental of gruesome video games to children "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted" (43) in a manner appealing to a '"deviant or morbid interest of minors,' that is 'patently offensive to prevailing...