The politics and incentives of First Amendment coverage.

Author:Schauer, Frederick
 
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TABLE OF CONTENTS INTRODUCTION: LOOKING FOR SPEECH IN ALL THE WRONG (?) Places I. ON COVERAGE AND PROTECTION II. Coverage and the Supreme Court III. COVERAGE AND THE INCENTIVES OF LITIGATION IV. THE FUTURE CONCLUSION: THE RISKS OF DOCTRINAL DISTORTION INTRODUCTION: LOOKING FOR SPEECH IN ALL THE WRONG (?) PLACES

In recent years, litigants have claimed that the First Amendment's Free Speech Clause limits the ability of the Securities and Exchange Commission to mandate financial disclosures, (1) restricts the power of regulatory agencies to compel disclosure of conflicts of interest in the pharmaceutical industry, (2) constrains the authority of a state to prevent licensed therapists from using therapeutic methods that have no scientific basis, (3) and controls the prerogative of a liquor control commission to prohibit anticompetitive franchise agreements between retailers and wholesalers. (4) Litigants have also argued that the First Amendment protects erroneous bond and credit ratings,5 prevents the seizure of computer equipment used in unlawful gambling,6 shields tattoo parlors from health regulations, (7) prohibits the government from requiring employers to inform employees of their legal rights, (8) limits legal sanctions for erroneous maps and charts, (9) guarantees the right of a citizen to warn potential targets of a police sting operation that they are in jeopardy of arrest, (10) and, similarly, ensures that citizens are free to flash their headlights in order to warn oncoming motorists of the presence of police seeking to apprehend speeders. (11)

Not to be outdone by actual litigants in actual courts, authors of law review articles and notes have recently argued that the First Amendment encompasses the right to engage in sports (12) and unprotected sexual activity, (13) immunizes auctioneers from the requirements of professional licensing, (14) protects people who wish to make deafeningly loud nonverbal noise in athletic arenas, (15) and even allows people to practice law without a license. (16) And a veritable industry has grown up around a diverse collection of claims that the First Amendment's protection extends to computer language, source code, and raw data in all of its infinite varieties. (17)

What is most interesting about these various claims and arguments is not merely that some of them have been taken seriously. (18) Rather, it is that they have been advanced at all, in contrast to what would have been expected a generation ago, when the suggestion that the First Amendment was even applicable to some of these activities would far more likely have produced judicial laughter or incredulity, if not Rule 11 sanctions. Accordingly, if we seek to examine the changing nature of the First Amendment landscape, both now and into the future, we might well train our attention not only on the degree of protection (or not) for activities that have long been taken to be at least relevant to the First Amendment, but also, and perhaps even more, on those activities that only recently have been thought to have anything to do with the First Amendment at all. In the past, many of the most important issues surrounding the First Amendment were issues about the nature and degree of its protection within its widely acknowledged coverage. (19) But now the pressure appears to be on coverage itself, with what seems to be an accelerating attempt to widen the scope of First Amendment coverage to include actions and events traditionally thought to be far removed from any plausible conception of the purposes of a principle of free speech. The goal of this Article is in part to document this outward pressure on the First Amendment's boundaries of applicability, but even more to offer some hypotheses about why this phenomenon appears to be occurring.

  1. ON COVERAGE AND PROTECTION

    In order to understand the question of coverage and to appreciate its importance, it is necessary to distinguish the idea of coverage from that of protection. But because I have been writing about (harping on?) this distinction for more than thirty years, (20) I will keep the recapitulation mercifully brief.

    Like any other rule, (21) the First Amendment (22) does not regulate the full range of human behavior. Rather, the Free Speech Clause of the First Amendment (23) has a scope of application, and it is that scope of application that we can designate as its "coverage." When an act (whether a regulatory act of government or a communicative or expressive act of a speaker) is held to implicate the First Amendment--when a First Amendment-inspired test or standard of review applies--the act can be considered to be covered by the First Amendment. Conversely, when the First Amendment does not even apply--when a restriction is ordinarily evaluated only in accordance with a rational basis standard (24)--we can say that the activity is uncovered.

    In many contexts, the distinction between the coverage of a rule and its degree of protection (or its other consequences) is so straightforward as to be invisible. Typically, we look to the language of a rule to determine its coverage, and that is why the coverage of the Eighth Amendment is largely delineated by the word "punishment," (25) why the coverage of the Second Amendment is close to the common definition of the word "arms," (26) and why the requirement of two witnesses for conviction in Article III, Section 3 applies to trials for treason but not for other crimes. (27)

    When we turn to the First Amendment, however, things are not nearly so straightforward. If the coverage of the First Amendment were even close to the ordinary meaning of the word "speech," then vast segments of human life would remain shielded by the First Amendment from regulation or other legal consequences. To provide just a few examples, the laws dealing with contracts, wills, trusts, gambling, warranties, and fraud all involve legal regimes that specify consequences, including negative ones, for using certain words--speech--in certain ways, but routinely present no First Amendment issues whatsoever. Moreover, a large portion of what is now taken to be uncontroversially covered by the First Amendment would become uncovered, including painting, (28) sculpture, (29) music, (30) the wearing of armbands, (31) and the display (32) or desecration (33) of flags, none of which involve speech in the ordinary sense of that word. And thus whether we travel by the route of distinguishing "the freedom of speech" from "speech" as the specification of coverage; (34) whether we understand "speech" as a term of art; (35) whether we look more directly at the underlying purpose or purposes of the speech, press, assembly, and petition clauses; (36) or whether we look at the history of the First Amendment, (37) we find ourselves in the position of attempting to locate the coverage of the First Amendment by means other than the ordinary language meaning of the word "speech."

    The question of coverage is thus an essential element in determining, for example, when the highest degree of First Amendment protection applies, (38) when the somewhat lower levels of intermediate scrutiny apply, (39) and when no heightened scrutiny applies at all. (40) We know that heightened scrutiny applies to the punishment of speeches urging the overthrow of the government, (41) that intermediate scrutiny applies to the regulation of advertisements for products, (42) and that nothing more than rational basis scrutiny applies to the legal control of the ordinary terms of an ordinary contract, to the words used to enter into an agreement to fix prices, and to the words used to perform an act of racial discrimination. And we know all of this precisely because, sometimes explicitly and sometimes not, we have made a largely purpose-based determination regarding the scope of coverage of the First Amendment.

  2. COVERAGE AND THE SUPREME COURT

    Historically, coverage questions explicitly addressed by the Supreme Court have been focused largely on four domains. Obscene materials were explicitly held to be uncovered in Roth v. United States, (43) a holding which was explicitly reaffirmed in Paris Adult Theatre I v. Slaton, (44) and which is seemingly still good law. (45) Libelous utterances were identified as uncovered in Beauharnais v. Illinois, (46) but it is clear that Beauharnais does not survive New York Times Co. v. Sullivan (47) and the corpus of doctrine it has spawned. (48)

    Commercial advertising was treated as outside the First Amendment in Valentine v. Chrestensen, (49) a decision rendered obsolete by Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (50) And although the Court's most famous statement about noncoverage appeared in the context of the exclusion of fighting words in Chaplinsky v. New Hampshire, (51) subsequent cases (52) have cast doubt on the importance of that conclusion even though the nominal noncoverage of fighting words remains in place. (53)

    Although none of the developments in the previous paragraph are new, a series of recent cases has brought the question of First Amendment coverage back to the forefront of the Supreme Court's attention. (54) Most important is United States u. Stevens, (55) in which the Court was asked to deem photographic depictions of actual torture of actual animals as outside the coverage of the First Amendment, and thus to be treated in the same manner as nonobscene child pornography after New York v. Ferber. (56) Under the not-quite-clear assumption that child pornography is genuinely noncovered, and thus to be treated as no more relevant to the First Amendment than verbal pricefixing or written consumer fraud, the Court, with Chief Justice Roberts writing for the majority, described the question explicitly in terms of "coverage" (57) and refused to accept the invitation to extend the First Amendment's noncoverage of certain film and similar images to depictions of animal cruelty. (58)...

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