The mechanics of First Amendment audience analysis.

• Author: Han, David S.
• Position: Abstract through III. The Theoretical Goals of First Amendment Audience Analysis B. Predictive Versus Normative Approaches to Audience Analysis, p. 1647-1682

Abstract

When the government seeks to regulate speech based on its content, it generally assumes that listeners will process the speech in a manner that produces social harm. Because the chain of causation for such speech-based harm runs through the filter of an audience, courts must constantly make judgments regarding the audience's reception of such speech. How will the speech be interpreted by the audience? To what extent will the speech cause the audience either to suffer direct emotional harm or to react physically to the speech in a harmful manner? Although this sort of inquiry--which I refer to as "audience analysis"--is integral in resolving a broad range of First Amendment issues, there has been little, if any, holistic examination of its general position and role within First Amendment jurisprudence.

In this Article, I first seek to introduce a degree of theoretical and doctrinal clarity to this aspect of speech causation. After tracing the primary causal paths by which speech may give rise to social harm on account of its content, I observe that each of these paths requires courts to make judgments regarding the audience's comprehension of, or sensitivity to, the speech in question. I then outline how such analysis currently fits within First Amendment doctrine. Depending on the case, audience analysis can take place either at the front end, in the process of categorizing "borderline" speech, or at the back end, in the application of more generalized scrutiny analysis. These sorts of analyses often look very different from each other, and I delineate the different ways in which courts have approached them.

I then propose that audience analysis should generally be governed by a simple principle: courts should seek to determine, as accurately as possible, the extent to which the targeted audience would foreseeably process the regulated speech in a manner that produces social harm. In other words, courts should strive to conduct audience analysis based on a predictive view of how the targeted audience will likely process the speech, rather than on a strong normative view of how an idealized "rational audience" should process the speech. I argue that this basic principle should shape the tests that courts adopt to define low-value speech, promote greater solicitude for analyzing empirical data in scrutiny-stage audience analyses, and ultimately produce a more transparent jurisprudence that will provide courts with a clearer picture of the actual costs of speech in a wide range of circumstances.

TABLE OF CONTENTS INTRODUCTION I. THE THEORETICAL SIGNIFICANCE OF THE FIRST AMENDMENT AUDIENCE A. The Mechanics of Speech Causation 1. Reactive Harm 2. Direct Harm 3. Dissemination-Based Harm 4. Other Harms B. Audience Judgments in First Amendment Analysis 1. Comprehension 2. Sensitivity 3. Summary II. AUDIENCE ANALYSIS WITHIN THE ARCHITECTURE OF FIRST AMENDMENT DOCTRINE A. Case-Specific Audience Analysis in Categorizing "Borderline Speech" B. Generalized Audience Analysis Within the Scrutiny Framework III. THE THEORETICAL GOALS OF FIRST AMENDMENT AUDIENCE ANALYSIS A. Idiosyncratic Audiences and the Shortcomings of Pure Effects-Based Tests B. Predictive Versus Normative Approaches to Audience Analysis C. Foreseeability of Actual Harm as the Touchstone of Audience Analysis D. Potential Critiques of a Predictive Approach to Audience Analysis 1. Preventing the "Dumbing Down" of Public Discourse 2. Encouraging Citizens to Conform to Higher Standards 3. Preventing Government Agenda-Setting E. Summary F. Predictive Approaches in Generalized, Scrutiny-Stage Audience Analysis IV. THE RAMIFICATIONS OF ADOPTING A PREDICTIVE APPROACH TO AUDIENCE ANALYSIS A. Adopting a "Reasonable Speaker" Framework in Ex Post Speech Categorization Cases B. Embracing Empirical Rigor in Undertaking Scrutiny-Stage Audience Analyses 1. Deference, Intuition, and Empirical Evidence 2. The "Averting Their Eyes" Trope and the Dangers of Intuition 3. Erring on the Side of Empirical Rigor CONCLUSION INTRODUCTION

First Amendment doctrine is built on the fundamental premise that unfettered speech is valuable, either because it leads to certain social benefits or because it is an integral aspect of human autonomy and self-realization. (1) But free speech, of course, also comes at a cost. Speech is capable of inflicting significant harm upon others: it can drive people to act in socially destructive ways, destroy reputations, or bring about serious emotional damage. (2) The First Amendment has practical meaning only insofar as we are willing to absorb--to a greater extent than we would with nonspeech--these social harms in return for the value associated with uninhibited speech. (3) As a result, much of First Amendment jurisprudence is, at its root, a balancing analysis that requires courts to weigh the value of speech against the resultant harms. (4)

As modern First Amendment doctrine has developed over the past century, courts analyzing content-based speech restrictions have focused most of their attention on the value side of the ledger. The all-encompassing term "speech" in the constitutional text has by now been subdivided into a multitude of categories and subcategories, each corresponding to a different level of First Amendment value and protection. Courts have paid comparatively little attention, however, to the harm side of things. (5) In particular, courts' approaches to issues of speech causation--the processes by which speech translates into potentially regulable social harms--have remained relatively undeveloped and inconsistent.

When the government seeks to regulate speech based on its content, speech causation is inextricably tied to judgments courts must make regarding the audience of speech. Content-based restrictions are generally premised on the assumption that the audience will somehow translate the speech into social harm; it might, for example, be persuaded to do something harmful as a result of the speech, or it might suffer direct psychological harm as a result of the speech. (6) In other words, the chain of causation linking the speech the government seeks to regulate to the social harm must flow through an intermediary in the form of an audience because the extent to which the speech causes harm depends on how the audience processes the speech. Courts' determinations of how an audience might process speech--which I refer to as "audience analysis"--play a significant role across a wide range of First Amendment issues, but there has been little holistic analysis of the general characteristics and mechanics of such analysis. (7)

This Article has two primary aims. First, I seek to introduce a degree of clarity to this aspect of speech causation by highlighting the theoretical significance of audience analysis and detailing how such analysis fits within the doctrinal architecture of the First Amendment. Second, I propose that audience analysis should generally be governed by a simple principle: courts should seek to determine, as accurately as possible, the extent to which the regulated speech would foreseeably be processed by the targeted audience in a manner that produces social harm. In other words, courts should generally strive to make judgments regarding the audience's comprehension of, and sensitivity to, speech based on a predictive view of how the targeted audience will likely process the speech, rather than on a strong normative view of how an idealized "rational audience" should process the speech. I argue that this basic principle should shape the tests that courts adopt to define low-value speech, promote greater solicitude for analyzing empirical and social science data in scrutiny-stage audience analyses, and ultimately produce a more transparent jurisprudence that will provide courts with a clearer picture of the actual costs of speech across a wide range of circumstances.

In Part I, I discuss the theoretical significance of audience analysis in evaluating content-based restrictions on speech. First, picking up on recent work from Professor Frederick Schauer, (8) I outline the major causal paths by which speech may give rise to harm on account of its content. All of these causal paths, by nature, require courts to make basic judgments regarding the audience of the speech in question. These audience judgments can be boiled down to two basic categories: comprehension judgments and sensitivity judgments. As I demonstrate, at least one of these judgments must be made for a court to evaluate the content-based harm resulting from particular speech.

In Part II, I explain how audience analysis fits within the architecture of First Amendment doctrine. Depending on the case, the analysis can take place either at the front end, in the process of categorizing the speech in question, or at the back end, in the application of scrutiny analysis. These sorts of audience analyses can look very different from each other, and in delineating these differences, I focus on the two paradigmatic modes of analysis that commonly arise within First Amendment jurisprudence. In the first, audience analysis is conducted in order to determine, as a matter of ex post categorization, whether particular statements made by a particular speaker ought to be designated "low-value" speech undeserving of First Amendment protection. In the second, audience analysis is conducted on a more generalized level within First Amendment "scrutiny" analysis, in which the goal is to evaluate the extent to which government regulation of a particular subset of constitutionally protected speech actually serves to advance the government's asserted regulatory interests.

In Part III, I address the question of how courts should conduct audience analysis. I describe two general approaches that courts might take: they could premise such analysis around a strong normative ideal, such as a "rational," sophisticated, thick-skinned audience, or they could simply...