The Categorical Free Speech Doctrine and Contextualization

• Publication year: 2015

The Categorical Free Speech Doctrine and Contextualization

Alexander Tsesis

THE CATEGORICAL FREE SPEECH DOCTRINE AND CONTEXTUALIZATION

Alexander Tsesis^*

Abstract

This Article discusses the impact of the Supreme Court's recently enhanced categorical approach to free speech analysis. It demonstrates that, contrary to the concerns of some other scholars, the Court should not be understood to be entirely averse to balancing interests. In several cases—such as those dealing with government employee speech, civil defamation, and fraud—the Court continues to rely on balancing approaches. This has created a seeming internal contradiction among precedents that appear only to recognize the constitutionality of content-based restrictions on low-value categories of speech that have historically and traditionally been unprotected. These two lines of cases can and should be reconciled for the sake of adjudicative predictability and stability.

The Court's categorical free speech doctrine should be understood as a bar only against ad hoc balancing, but not as a total prohibition against a contextual analysis of expressive and countervailing social interests. Indeed, even some of the categories the Court has identified as being historically unprotected—specifically obscene, defamatory, and fraudulent speech—were judicially derived through evaluations of private and public concerns. I argue that the Court should approach free speech regulations from a holistic standpoint that evaluates whether a restriction on speech arises from a conflict with constitutional, statutory, or common law interests; whether the restricted expression has historically or traditionally been constitutionally protected; the breadth and strength of general welfare policies behind the speech restriction; the fit between the objectives and regulations; and whether a less restrictive means could be enforced to meet particularized goals. This balancing requires

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more complex analysis than categorical induction, but contextual reasoning is more likely to identify the full spectrum of factors pertinent to a decision.

Introduction

The Supreme Court has long sought to make sense of First Amendment principles. Over the past century, the Court has created a variety of context-rich doctrines preserving the liberty of expression while recognizing that some forms of communication are not constitutionally protected. Free speech jurisprudence has consistently identified categories that are outside the heightened protection of the Free Speech Clause and explained the constitutional rationales behind decisions. The complex nature and variety of expressive issues associated with one of America's most treasured rights have required the Court to wrestle with multifarious constitutional values. The weight of stare decisis has always required judges to apply reasoning and classifications from previous decisions but to remain open to the arguments of litigants seeking fresh understandings, especially in the context of ever-advancing technologies and countervailing sociolegal concerns.

Several recent cases have announced a more bright-line-sounding doctrine than the Court had relied on in previous decisions. Heralding this new trend, United States v. Stevens emphatically announced that there is no "freewheeling authority to declare new categories of speech outside the scope of the First Amendment."¹ The Court recognized only a short list of unprotected speech categories.² In subsequent cases, majorities emphasized a presumptive hesitancy to lengthen that list of traditionally unprotected speech.³ Several scholars have pointed out that this rule of decision appears to inflexibly disregard living constitutional developments⁴ and to be historically inaccurate.⁵

The modern categorical approach is particularly difficult to square with the various balancing doctrines the Court has created for adjudicating matters, such as fighting words, that cause an immediate threat to public order.⁶ Curiously, even as the Court asserted its case against "ad hoc balancing of

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relative social costs and benefits,"⁷ it continued to balance public concerns in other areas. For example, in a case upholding the material-support-for-terrorism statute, the Supreme Court used strict scrutiny analysis to balance the interests of public safety against those of persons wishing to provide political advice to statutorily designated foreign terrorist groups.⁸

The seeming contradiction between the new line of categorical speech cases and the continued validity of free speech balancing precedents raises a curious conundrum. Parsing the Court's meaning is necessary to reconcile these conflicting-sounding lines of reasoning. Only by unpacking the Court's meaning and taking it on its own terms will it be possible to discern the relevance of existing precedents and the likely direction of future litigation.

This Article seeks to locate a middle ground—one that provides clarity to judges faced with free speech cases. It reflects on the potentially negative ramifications of abandoning the balancing of speakers' and society's concerns in favor of an inflexibly historical interpretation of the First Amendment. A contextual balancing of interests need not be ad hoc, but should be nuanced in the evaluation of pertinent history, tradition, government policy, and case-by-case specifics. Part I reviews the Stevens line of cases. Part II reviews several criticisms of the categorical free speech doctrine. Part III parses the categorical approach to demonstrate its shortcomings for explaining the contexts of several free speech precedents on which the Roberts Court relied. Part IV presents a contextual mode of balancing that is not ad hoc but, rather, sensitive to the historical value of communicative content, along with the multiple factors typically involved in difficult cases.

I. Unprotected Categories of Speech

In United States v. Stevens, an opinion with far-reaching implications, the Supreme Court announced a historical-sounding categorical approach for identifying low-value speech.⁹ The 8-to-1 majority opinion in that case, written by Chief Justice John Roberts, found unconstitutional the Animal Crush Videos Act, which prohibited the creation, distribution, or possession of crush videos depicting actual suffocation, drowning, and infliction of injuries on non-human animals.¹⁰ The statute was clearly passed with the moral intent of

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punishing and deterring the viciously brutal treatment—intentional torture, mutilation, killing, and other cruelties—of living animals.¹¹ The legislation targeted visual recordings, which typically showed women in high heels torturing cats, dogs, monkeys, mice, hamsters, and other animals.¹² On the videos, animals were heard screaming in pain.¹³ Because the time and place of the recordings were typically unknowable, defendants in state courts were often successful in having cases dismissed for lack of jurisdiction or as untimely filed under a state's statute of limitations.¹⁴ Moreover, although all states had statutes against cruelty to animals, "none ha[d] a statute that prohibits the sale of depictions of such cruelty."¹⁵ The defendant in Stevens did not fit into the mold. He sold videos not of perverse sexual cruelty but of pit bulls fighting among themselves and attacking other animals.¹⁶ The laws of all fifty states and the District of Columbia prohibit dogfighting and other acts of animal cruelty.¹⁷

In his majority opinion, Chief Justice Roberts identified a finite set of unprotected speech categories.¹⁸ He disavowed any "free-floating test for First Amendment coverage," prohibiting the state from using "ad hoc balancing of relative social costs and benefits."¹⁹ Stevens rejected a weighing analysis that the government had proposed,²⁰ finding it "highly manipulable."²¹ On its face, Chief Justice Roberts seemed to be saying that judges could only identify low-value speech categories through strictly historical findings rather than through a principle-rich analysis. Ultimately, the Court held animal cruelty videos were not among any historically banned category of speech and therefore struck down the Crush Videos Act for being substantially overbroad.²²

Justice Alito alone dissented, taking a more nuanced approach. He understood the depiction of animal cruelty to be inherent to the underlying

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criminality. As he put it, while "[t]he First Amendment protects freedom of speech . . . it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes."²³ He understood that these videos could not have been created but for the violation of legal standards on the treatment of animals and that the majority's decision would hinder Congress from deterring future commissions of the crimes:

The Court strikes down in its entirety a valuable statute that was enacted not to suppress speech, but to prevent horrific acts of animal cruelty—in particular, the creation and commercial exploitation of "crush videos," a form of depraved entertainment that has no social value. The Court's approach, which has the practical effect of legalizing the sale of such videos and is t₂h₄us likely to spur a resumption of their production, is unwarranted.²⁴

Unlike the majority, Justice Alito recognized the legitimacy of regulating the wanton production, sale, and consumption of actual (rather than digitally contrived) brutality against animals.

In a doctrinal portion of his dissent, Justice Alito challenged the Court's finding that the Act constituted an overbroad restriction on constitutionally protected speech.²⁵ As a general principle, the overbreadth doctrine recognizes the need to "strike a balance between competing social costs."²⁶ That balance is meant to maintain the social need to regulate antisocial criminal conduct unless the law's sweep "prohibits a substantial amount of protected speech."²⁷ While the majority in Stevens quoted the...