The First Amendment's purpose.

• Author: Rubenfeld, Jed

There is a problem in the basic structure of current free speech law. Consider two simple cases:

(A) A is ticketed for speeding. He claims a First Amendment violation. He argues--and this is his only argument--that a higher speed limit would have been safer and more fuel efficient.

(B) B is arrested for wearing a certain shirt. He claims a First Amendment violation. He argues--and the state concedes--that the legislature criminalized the wearing of such shirts solely because they bear a symbol expressing protest against state police practices.

Current doctrine gets these cases wrong. Believe it or not, under present Supreme Court case law, if A can prove what he alleges, his First Amendment argument ought to prevail, while B's might well be dismissed for failure to state a claim.

Part I of this Article explains these doctrinal problems and shows how to solve them. The solution is not complicated. All the difficulties disappear as soon as First Amendment analysis takes up what the Supreme Court has ostensibly sought to foreclose: an open and direct inquiry into the law's purpose. This purposivist solution to A's and B's cases has significant implications for the basic structure of free speech law.

Part II describes these structural implications. Among other things, purposivism would eliminate most of the cost-benefit, balancing-test rhetoric so common in today's free speech jurisprudence. The language of balancing in First Amendment law, appealing as it may seem, is unacceptable in its implications and unnecessary in the cases where it is supposedly indispensable. Of course a person does not have a right to express his political opinions by car-bombing the White House, but contrary to conventional wisdom, this kind of example does not show that First Amendment rights have to yield to weighty state interests. It merely shows that a person who breaks a law not directed at speech can claim no constitutional immunity just because he was acting for expressive reasons. There is no First Amendment "pass" from a law whose purpose is not to punish speech.

Part III illustrates how purposivism would yield clear answers to specific First Amendment questions that today seem extremely difficult and contestable. Three questions are considered: the constitutionality of antibegging ordinances, of campaign-spending restrictions, and of antidiscrimination laws as applied to private associations. On the latter point, the Supreme Court's recent decision in Boy Scouts of America v. Dale(1)--upholding the Scouts' right to exclude homosexuals--will be discussed at length.

Boy Scouts is an extraordinary case. It appears to be the first case in Supreme Court history in which a party won a constitutional right to discriminate on free speech grounds. The Boy Scouts merited this exemption, a five-justice majority found, because New Jersey's prohibition of discrimination against homosexuals would have "significantly affect[ed]" the organization's ability to express its antihomosexual views. Indeed, the majority reasoned, New Jersey's law would have "force[d] the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct."(2)

Purposivism completely rejects the Boy Scouts decision, both in reasoning and result. In essence, the Boy Scouts' claim was a simple one. The Scouts wanted or needed to discriminate for expressive reasons. If they could not exclude homosexuals, they would not be able effectively--or as effectively--to express their sincerely held anti-homosexual views. The majority accepted this claim; the dissenters rejected it, on the facts.

But the Court should never have reached the facts. People constantly want to violate laws for expressive reasons. Tax protestors want to disobey the tax laws for expressive reasons. Every person and every organization that wants to discriminate probably has good expressive reasons for doing so. Discrimination is profoundly expressive. It is by far the most effective way most people have of expressing their view of the superiority of their own group and the inferiority of others.

Title VII has "significantly affected" the ability of countless employers to express their views about race or sex. Indeed, it forced them to "send a message" of equality that many presumably oppose (or would oppose if permitted to do so), in the same sense that New Jersey's law forced the Boy Scouts to do so. Should racist and sexist employers be able to come to court with First Amendment challenges to Title VII, demanding that judges accord them the same strict scrutiny that the Boy Scouts received? Should they at least be permitted to go to trial to present evidence that they have been discriminating not for commercial reasons (they prove that discrimination has actually been bad for business), but to communicate to their employees and to "the world" their sincerely held view that the races should not mix or that women belong in the home? Should a person who can prove that he genuinely holds anti-government views, and that refusing to pay taxes is his most effective or only effective means of communicating these views, be exempt from the income tax?

The answer to all these questions is no, and the reason is that there is no such thing as a free speech immunity based on the claim that someone wants to break an otherwise constitutional law for expressive purposes. The actor's purposes are not relevant to free speech analysis. The state's purposes, on the other hand, are dispositive. When a law is otherwise constitutional, and when an actor has not been singled out because of his expression, the actor has no free speech claim. The Boy Scouts were not singled out in this way. As a result, the Scouts' First Amendment claim should have been taken no more seriously than that of a tax protestor or that of a racist employer who demanded an exemption from Title VII on the theory that he wanted to discriminate for expressive, rather than merely commercial, reasons.

Finally, Part IV answers some obvious objections to free speech purposivism and enlarges on the overall conception of the First Amendment implied thereby. This conception is organized around what I will call an anti-orthodoxy principle. It reintegrates the two strangely disjoined halves of the First Amendment: the freedom of speech and the freedom of religion.

A note of caution: I do not believe that purposivism can resolve all the questions free speech law has to answer. I am not even sure that purposivism can resolve the particular free spech questions I address here. But is worth trying to find out.

The purpose of purposivism is to reclaim an old idea: that there are certain First Amendment absolutes, which stand up regardless of any balancing of interests. Here is an example: no one can be punished for expressing himself on a matter of opinion. It makes no difference whether the subject matter is high (an opinion about the President) or low (an opinion about the weather), and it makes no difference what competing interests are at stake. What would it mean, against all the contemporary sentiment that there can be no such thing as a constitutional absolute, to reclaim this bedrock idea and take it to its conclusion? Can the idea be made good? If so, how much work can it do? These are the questions this Article tries to answer.

1. THE PROBLEM IN CURRENT DOCTRINE

   1. The O'Brien Test

      Current case law would analyze A's and B's claims under the so-called O'Brien test. O'Brien famously involved a man who burned his draft card as part of a public antiwar protest. O'Brien was subsequently convicted under a federal statute prohibiting the intentional destruction of Selective Service registration certificates.(3) To decide the case, the O'Brien Court announced a four-factor test, under which a law regulating nonverbal but expressive conduct will be upheld:

      [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.(4) Applying these criteria, the Court affirmed O'Brien's conviction. According to the Court:

      [T]he continuing availability to each registrant of his Selective Service certificates substantially furthers the smooth and proper functioning of the [Selective Service] system.... ... We perceive no alternative means that would more precisely and narrowly assure the continuing availability of issued Selective Service certificates than a law which prohibits their wilful mutilation or destruction.(5) In what follows, I will ignore the first "prong" of the O'Brien test, and I will treat the last not as a genuine least-restrictive-means test, but as a narrow tailoring requirement satisfied so long as the challenged law does not "substantially" overburden speech. These qualifications should create no analytic distortion, because the first prong is analytically insignificant, and the last prong has been interpreted (or reinterpreted) to have the effect just described.(6)

      O'Brien remains the leading case in this area. It continues today to furnish the basic structure for First Amendment analysis of "expressive conduct." And its test is deeply, demonstrably flawed.

   2. O' Brien-as-Lochner

      Return now to A, arrested for speeding. For simplicity of analysis, assume that A was driving on a highway where a federally mandated fifty-five mile-per-hour speed limit had recently replaced a sixty-five mile-per-hour limit. Say that A was driving at sixty-five. Assume that the lower speed limit was adopted to serve two (and only two) state interests: improving highway safety and conserving fuel.

      A's First Amendment argument invokes O'Brien's second factor: He says that the lower speed limit does not in fact "further[] an...