Speech-facilitating conduct.

• Author: Campbell, Wesley J.
• Position: Introduction through II. Before Arcara B. Campaign Contributions, p. 1-34

Table of Contents Introduction I. Basic Principles A. Expressive and Nonexpressive Conduct B. Doctrinal Possibilities C. Anti-Targeting II. Before Arcara A. Information Gathering B. Campaign Contributions C. Compelled Subsidies D. Associational Rights 1. Compelled-disclosure cases 2. Associational-membership cases III. Current Doctrine A. Information Gathering B. Campaign Contributions C. Compelled Subsidies D. Associational Rights 1. Compelled-disclosure cases 2. Associational-membership cases E. History and Speech-Facilitating Conduct IV. Anti-Targeting and Disproportionate Burdens A. Disproportionate Burden Claims B. Recording Restrictions V. Defending Anti-Targeting A. Protecting Nonexpressive Conduct B. Problems with Conduct-Based Approaches 1. Domain-specific approaches 2. Substantial-burdens approaches C. Advantages of an Anti-Targeting Approach Conclusion Introduction

A familiar, if sometimes nebulous, distinction between "expression" and "nonexpressive conduct" undergirds modern free speech doctrine. (1) Expressive acts--from speaking and publishing to burning flags and dancing in the nude--generally "bring the First Amendment into play," triggering closer judicial scrutiny. (2) But when the regulated conduct is nonexpressive, courts often say that the First Amendment does not apply at all. (3) Expressive conduct does not have to convey "a narrow, succinctly articulable message," (4) but the Supreme Court has derided the idea that "an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." (5)

Yet it is widely recognized that some protections for nonexpressive conduct are essential to basic First Amendment freedoms. Ordinary commercial transactions are not expressive, for instance, but prohibitions on the distribution or acquisition of printing presses or computers would raise obvious First Amendment concerns. (6) Picture taking and video recording are often not expressive, (7) but courts have ridiculed the "extreme" and "extraordinary" idea that such conduct "is wholly unprotected by the First Amendment." (8) Similarly, although financial transfers are often thought of as nonspeech, "virtually every means of communicating ideas in today's mass society requires the expenditure of money." (9)

In this vein, the Supreme Court has recognized some First Amendment protection for the speech process, and not merely the expressive end product. "Laws enacted to control or suppress speech may operate at different points in the speech process," the Court recently explained. (10) To many, this notion of protection for the speech process is intuitive. We can hardly "disaggregate Picasso from his brushes and canvas," or "value Beethoven without the benefit of strings and woodwinds," one court of appeals colorfully opined. (11)

But full First Amendment coverage for nonexpressive acts that are tied to speech would quickly become unwieldy. "[F]ew restrictions on action," the Court observed fifty years ago, "could not be clothed by ingenious argument in the garb of decreased data flow." (12) Confronted with claims for protection of nonexpressive acts that facilitate speech, the Court has steadfastly remained "unwilling to embark the judiciary on a long and difficult journey to ... an uncertain destination." (13) How, then, should courts decide whether to apply some form of elevated First Amendment scrutiny to governmental restrictions of nonexpressive conduct?

The academic literature about First Amendment coverage for speech-facilitating conduct generally falls into three camps. First are studies that focus on particular types of conduct, like gathering information, financing campaigns, engaging in scientific research, or associating with others. (14) A second group of scholars takes a much broader approach by considering all incidental burdens on speech, whether falling on expressive or nonexpressive conduct. (15) Finally, a third camp denies that a claimant's expressive purposes implicate the First Amendment when the government regulates nonexpressive conduct, but this group of scholars does not explore other ways that free speech doctrine might cover nonexpressive conduct. (16)

This Article charts a different path by considering speech-facilitating conduct as a distinct category within First Amendment law. (17) The nonexpressive conduct involved in these cases may come before speech (e.g., donating money or traveling to a protest) or afterward (e.g., receiving speaker fees or traveling home). The potential reach of these rights is broad, but this Article does not address protection for actions that count as "expressive" on their own, like writing or delivering books. (18) Rather, it explores the coverage that the Supreme Court has provided and denied to nonexpressive conduct, addressing only whether the First Amendment applies at all--not whether any particular restriction can survive some form of elevated scrutiny. (19)

By looking at speech-facilitating conduct as a distinct category, an overarching framework can bring together, descriptively and normatively, otherwise disparate strands of First Amendment law. The guiding principle of this framework is that coverage for nonexpressive conduct depends on whether the government uses a rule that targets speech--including speech-related rules that target the speech process. (20) Applications of this "anti-targeting" principle vary by context, (21) but the general concept offers a surprisingly comprehensive account of most on-point Supreme Court decisions.

Examining speech-facilitating conduct as a distinct category also reveals a substantial, yet mostly unannounced, shift in the Supreme Court's approach to First Amendment coverage for nonexpressive conduct. Prior to the mid-1980s, the Supreme Court often treated all sorts of incidental burdens on speech as implicating the First Amendment, even when the laws being applied did not explicitly target speech. (22) During this bygone era, the Court issued rulings that continue to undergird some of the most significant and contentious areas of free speech law, including newsgathering privileges, campaign finance law, compelled-subsidy doctrine, and associational rights.

Ever since its 1986 decision in Arcara v. Cloud Books, Inc., (23) however, the Court has mostly stopped applying First Amendment scrutiny to general (i.e., nontargeted) regulations of nonexpressive conduct (24) When nonexpressive conduct is regulated, only the law--not individual expressive aims--can bring the First Amendment into play. Conceptually, free speech rights in this Field operate as rules about rules, not as "shields," "immunities," or "trumps" that protect particular forms of speech-facilitating conduct against governmental infringement. (25)

The Court's decision in Arcara did not require overruling prior decisions, and the Justices failed to mention their significant departure from earlier reasoning--what some have described as "stealth overruling." (26) Confusion has been widespread ever since. Scholarly assessments of newsgathering privileges, campaign finance law, compelled-subsidy doctrine, and associational rights, for instance, continue to rely on the outdated reasoning in seminal decisions like Branzburg v. Hayes, (27) Buckley v. Valeo, (28) Abood v. Detroit Board of Education, (29) and Roberts v. United States Jaycees (30) Broader analyses of the Court's approach to incidental burdens on speech similarly depend on old cases. In particular, this Article takes issue with the arguments of Michael Dorf and Geoffrey Stone that significant incidental burdens trigger heightened scrutiny. (31) And beyond these lines of cases, the failure to grapple with the Court's shift has skewed discussions of novel questions involving nonexpressive conduct, like how courts should assess the constitutionality of restrictions on photography and other forms of audiovisual recording. (32)

In sum, reexamining the Supreme Court's approach to speech-facilitating conduct offers...