The mechanics of First Amendment audience analysis.

• Author: Han, David S.
• Position: III. The Theoretical Goals of First Amendment Audience Analysis C. Foreseeability of Actual Harm as the Touchstone of Audience Analysis through Conclusion, with footnotes, p. 1682-1717

3. Foreseeability of Actual Harm as the Touchstone of Audience Analysis

   In evaluating how courts ought to conduct First Amendment audience analysis, it is once again instructive to view the issue through the lens of tort law. Again, whenever speech is regulated on the basis of its content, the chain of causation between the speech and the resulting social harm typically runs through an audience.141 In conducting audience analysis, courts must determine whether the audience's processing of the speech effectively breaks the chain of causation--that is, should the harm resulting from the audience's processing of the speech be attributed to the speaker? Thus, First Amendment audience analysis is, in essence, a form of the superseding or intervening cause analysis that arises frequently in tort law: both confront the question of whether the subsequent intervention by another causal force should be sufficient to sever the chain of causation such that the harm inflicted should not be imputed to the actor. (142)

   How, then, does tort law approach the issue of intervening cause? Traditional tort principles identify foreseeability as the touchstone of intervening cause analysis: whether a subsequent cause breaks the chain of causation between an allegedly tortious action and a resulting harm is premised on the ex ante foreseeability of that cause. (143) As one treatise puts it, "Foreseeable intervening forces are within the scope of the original risk, and hence of the defendant's negligence." (144) This principle extends to situations in which the foreseeable intervening cause involves third party negligence, intentional wrongdoing, or even criminal action. (145) And since tort law generally takes actors' knowledge of specific relevant circumstances into account, (146) even harm caused by highly idiosyncratic intervening causes may be imputed to an actor, provided that he knew or should have known that the intervening cause could foreseeably result from his actions. (147)

   This longstanding tort principle makes both practical and normative sense. The fundamental goal of tort law is often conceptualized as maintaining the appropriate social balance between people's freedom to act and people's interest in personal security. (148) In premising liability on the foreseeability of intervening causes and their associated harms, tort law makes the sensible judgment--one that accords with basic notions of fairness--that actors ought to bear responsibility for the foreseeable consequences of their actions, even if those consequences may be highly idiosyncratic or the product of third party negligence or criminality.

   The same rationale fits the First Amendment context, in which courts are similarly tasked with maintaining the appropriate social balance between the far-reaching value of unfettered speech and the potential harms that can result from such speech. Tort principles thus suggest a generally predictive approach to First Amendment audience analysis. If foreseeability is the touchstone of such analysis, then courts should be concerned with determining the reasonable likelihood that the targeted audience will actually process the speech in a harmful manner, rather than hypothesizing how an idealized rational audience should process the speech.

   Professor Lyrissa Lidsky, however, has suggested that courts ought to adopt a broadly normative approach in undertaking audience analysis. (149) In her view, it is an "article[] of faith in modern First Amendment theory" that "audiences are capable of rationally evaluating the truth, quality, credibility, and usefulness of core speech." (150) That is, the audience is generally presumed to be "rational, skeptical, and capable of sorting through masses of information to find truth." (151) Lidsky argues that despite significant theoretical challenges to the "marketplace of ideas" theory and cognitive psychological studies highlighting people's propensity to cling to irrational beliefs, courts ought to adhere to the "rational audience" assumption. (152)

   Lidsky's "rational audience" argument is pitched at a broad theoretical level and is, on its face, limited only to "core" speech. (153) Her argument suggests, however, that as a general matter, the proper approach to conducting audience analysis is to presume a "savvy and sophisticated" audience (154)--one that is non-impulsive, thick-skinned, and generally resistant to processing speech in harmful ways. Lidsky argues against adopting "[a] presumption of audience irrationality" (156)--a general assumption that audiences are apt to process speech in a harmful manner--and against approaches that would attempt to predict the actual effects of speech on a targeted audience, arguing, among other things, that such approaches risk "dumbing down" (156) public discourse and affording the government opportunities to interfere with the marketplace of ideas. (157)

   I certainly agree with Lidsky's position in part. Much of the philosophical underpinnings of modern First Amendment jurisprudence are premised on the assumption that people generally process speech in a rational manner. Take, for instance, the "marketplace of ideas" metaphor famously set forth by Justice Holmes, who stated that "the ultimate good desired is better reached by free trade in ideas," and that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." (158) This "pursuit of truth" rationale for protecting speech--which has gone on to play a prominent role within the Supreme Court's First Amendment rhetoric (159)--necessarily assumes that public discourse occurs in a rational, honest, and fair manner such that the truth will ultimately emerge from an open clash of conflicting ideas. (160)

   But the mere fact that the broad philosophical underpinnings of much of our First Amendment jurisprudence assume a rational audience does not necessarily mean that courts should calculate the harm resulting from speech based on an idealized rational audience construct. As I noted above, as a purely descriptive matter, First Amendment doctrine can be conceptualized at its core as a balancing analysis. (161) In crafting speech categories, assembling scrutiny tests, and the like, the Supreme Court has generally sought to determine when the far-reaching value of speech outweighs the often more immediate harms caused by the speech, and to calibrate the scope of First Amendment protection accordingly. (162) The overarching rational audience assumption adopted by Holmes and Brandeis at the inception of modern First Amendment jurisprudence recognizes the tremendous value that certain speech, such as political advocacy, has in uncovering and ascertaining truth. It also might serve to dictate, in general terms, what types of harms ought to be recognized as colorable speech harms. (163) But once certain social harms are identified as legitimate subjects of government regulation, the rational audience assumption does not necessarily lead to the premise that courts should measure those harms only insofar as an idealized hypothetical audience would suffer them.

   I do agree that First Amendment audience analysis should not be geared towards the "least sophisticated audience." (164) As described above, the mere fact that someone might process the speech in a harmful manner should not, by itself, require that the harm in question be imputed to the speech. (165) But if First Amendment doctrine, at its most basic level, seeks to identify the optimal balance between the value and harms of uninhibited speech, then courts' ultimate goal should be to forecast, as accurately as possible, the extent to which the speech in question would actually be processed by the targeted audience in a harmful manner.

   Again, this sort of predictive and context-sensitive approach to audience analysis naturally follows from the parallel tort doctrine of intervening cause. (166) But it is also rooted in the fundamental premises of modern First Amendment jurisprudence. In seeking to properly tailor the scope of First Amendment protection, courts should weigh the value of speech against the harm that will foreseeably result from the actual audience's processing of such speech, not against some idealized notion of how a rational audience should process the speech.

   If courts instead were to adopt a highly idealized rational audience standard in conducting audience analysis, then a number of very real social harms would simply be ignored. For example, in the Skokie-inspired example above, (167) if it is clear that the speech will foreseeably cause legitimately regulable harm to the audience--even if that harm may be idiosyncratic to that particular audience--then it is not clear why a court should not be entitled to take that social harm into account in determining the appropriate scope of First Amendment protection. Just as much as a strong irrational audience assumption, a strong rational audience assumption would skew courts' ability to maintain the appropriate balance between speech value and harm that rests at the center of First Amendment doctrine.

4. Potential Critiques of a Predictive Approach to Audience Analysis

   In arguing that courts generally ought to adopt a rational audience assumption, Lidsky suggests that such an assumption produces independent benefits that would presumably justify courts' departure from pure accuracy and calibration concerns. She argues, among other things, that such an assumption would guard against the "dumbing down" of public discourse, that it would exhort citizens to conform to appropriate social standards, and that it would protect against government interference with the marketplace of ideas--benefits that would not accrue under either an "irrational audience" or "actual audience" assumption. I address each of these arguments in turn.

   1. Preventing the "Dumbing Down" of Public Discourse

      Lidsky suggests that failing to adopt a "rational...