Transparency in First Amendment Doctrine

• Publication year: 2015

Transparency in First Amendment Doctrine

David S. Han

TRANSPARENCY IN FIRST AMENDMENT DOCTRINE

David S. Han^*

Abstract

The broad tension between rule-like categorical approaches and standard-like balancing approaches to doctrinal design has been a longstanding issue within First Amendment jurisprudence. Since each approach has its benefits and costs, First Amendment doctrine has sensibly evolved into a hybrid framework that incorporates both approaches in different contexts. This Article evaluates the extent to which current doctrine has successfully integrated the two approaches. In other words, does our doctrinal framework optimally maximize the benefits associated with abstract rule-like approaches and open-ended balancing approaches?

This Article focuses on one particular dimension of this broad theoretical question: the idea of doctrinal transparency. When doctrine is transparent, it encourages or forces courts to analyze cases openly, in a fashion that elicits direct discussion of foundational speech value and speech harm issues. Such transparency is particularly valuable within the First Amendment context, where difficult or novel questions of speech value and harm are often avoided or distorted by doctrinal formalities and empty sloganeering. Tough First Amendment cases are valuable opportunities for forthright discussions—amongst courts and within society at large—that seek to clarify in nuanced terms why exactly we value speech and the extent to which we are willing to tolerate speech-based harms. At the same time, however, doctrinal transparency cannot be the sole consideration in designing First Amendment doctrine, since such transparency often carries costs in the form of diminished predictability and consistency.

Through this lens of doctrinal transparency, this Article analyzes two distinct areas of First Amendment doctrine touched upon in recent Supreme Court cases: the historical test for low-value speech set forth in United States

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v. Stevens and its progeny, and the longstanding default rule that strict scrutiny applies to content-based speech restrictions that underlay the Court's decisions last Term in Williams-Yulee v. Florida Bar and Reed v. Town of Gilbert. I argue that the Court has struck the wrong doctrinal balance in these areas, sacrificing the substantial benefits of doctrinal transparency in exchange for a comparatively lesser gain in predictability and consistency. I then suggest some doctrinal adjustments that would better capture the significant benefits associated with doctrinal transparency at limited cost.

Introduction

Designing First Amendment doctrine¹ is a tricky business. On the one hand, the doctrinal framework can be broadly conceptualized as a set of foundational balancing judgments. The Free Speech Clause is ultimately rooted in a longstanding, constitutionally enshrined intuition that speech has special value that affords it greater protection than other types of conduct.² But at the same time, speech can cause a wide variety of social harms, ranging from hurt feelings to criminal violence.³ One of the fundamental goals of First Amendment doctrine is to reconcile these two aspects of speech: to capture our basic intuitions as to what exactly makes speech constitutionally valuable and how that value ought to be weighed against different types and degrees of social harm.⁴ And these intuitions are, in turn, driven by the foundational rationales for extending special protection to speech, such as speech's role in uncovering truth, its necessity as a means of effectuating democratic self-governance, and its status as a significant aspect of individual autonomy.⁵

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On the other hand, the practical imperatives of designing effective First Amendment doctrine dictate that courts cannot simply apply this foundational balancing judgment in an ad-hoc manner to every individual First Amendment case. Such limitless balancing would leave judicial discretion unchecked, which could lead to unpredictable and inconsistent results, which could in turn lead to significant chilling effects.⁶ Abstract, categorical rules that are simpler, more predictable, and easier to apply work to constrain not only the inconsistency driven by the judges attempting to apply open-ended standards in good faith, but also the conscious and unconscious biases that might affect such judges, particularly amidst strong majoritarian pressures.⁷

This broad tension between rule-like categorical approaches and standard-like balancing approaches has been recognized since the earliest days of modern First Amendment jurisprudence.⁸ The result of this tension has been a First Amendment jurisprudence that mixes categorical approaches with more open-ended balancing approaches—a hybrid framework that makes practical sense, since each approach has its benefits and costs, and certain contexts are more amenable to one approach over the other.⁹ The practical question that I explore in this Article is whether current First Amendment doctrine has done a good job of integrating the two approaches. That is, does our doctrinal

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framework optimally maximize the benefits associated with abstract, rule-like approaches and open-ended, balancing approaches?

This Article focuses on one particular dimension of this broad theoretical question—the idea of "doctrinal transparency"¹⁰ —and it analyzes a number of recent Supreme court decisions through this lens. When doctrine is transparent, it encourages or forces courts to analyze cases openly, in a fashion that elicits direct discussion of foundational speech value and speech harm issues. Thus, doctrinal transparency can be viewed as a countervailing force against abstract rule creation, trading off simplification and abstraction for a direct foundational analysis of speech value and harm.

Doctrinal transparency is particularly valuable within the First Amendment context, where difficult or novel questions of speech value and harm are often avoided or distorted by doctrinal formalities and empty sloganeering.¹¹ Tough First Amendment cases are valuable opportunities for forthright discussions—amongst courts and within society at large—that attempt to clarify in nuanced terms why exactly we value speech and the extent to which we are willing to tolerate speech-based harms. While transparent approaches may not necessarily guarantee a clearer or more coherent doctrinal framework, they establish the conditions under which such clarity and coherence can emerge, as they lay bare the fundamental value judgments and empirical assumptions underlying courts' decisions. At the same time, however, the substantial value of doctrinal transparency must be measured against its costs in terms of predictability and consistency. If doctrinal transparency were the sole consideration, then courts would presumably adopt an individualized, ad hoc balancing approach in every case, which would be practically unmanageable and, to most, philosophically undesirable.¹²

Through this lens of doctrinal transparency, this Article analyzes two distinct areas of First Amendment doctrine touched upon in recent Supreme Court cases: the historical test for low-value speech set forth in United States v.

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Stevens¹³ and its progeny, and the longstanding default rule that strict scrutiny applies to content-based speech restrictions that underlay the Court's decisions last Term in Williams-Yulee v. Florida Bar¹⁴ and Reed v. Town of Gilbert.¹⁵ In these two areas, the Court has adopted largely opaque doctrinal approaches that discourage courts from participating in candid, direct discussions of fundamental free speech values. I argue that the Court has struck the wrong doctrinal balance in these areas, sacrificing the substantial benefits of doctrinal transparency in exchange for a comparatively lesser gain in predictability and consistency. I then suggest some doctrinal adjustments that would better capture the significant benefits associated with doctrinal transparency at a limited cost.

This Article proceeds in four parts. In Part I, I lay the theoretical foundation for my discussion by describing the interplay between foundational balancing and abstract rule-creation in First Amendment doctrine. I then outline the substantial benefits associated with transparent First Amendment doctrine, which provides courts—and, by extension, society at large—with valuable opportunities to discuss difficult foundational questions of speech value and harm in a frank and open manner. As I observe, however, there are also costs associated with transparent doctrinal approaches, which must always be taken into account in identifying the contexts in which transparent doctrine can be most valuably deployed.

In Part II, I examine a set of recent Supreme Court decisions addressing two distinct areas of First Amendment doctrine: the test for identifying unprotected low-value speech, and the longstanding default rule that strict scrutiny applies to content-based restrictions on speech. In analyzing these cases, I outline the significant costs associated with the Court's adoption of largely opaque doctrinal approaches in these areas. In Part III, I argue that the Court's chosen doctrinal approaches in these areas fail to capture the optimal balance between doctrinal transparency and opacity; in other words, the Court has sacrificed, to some extent, the substantial value of doctrinal transparency for comparatively small or nonexistent gains in predictability and consistency. As such, I propose some doctrinal adjustments that would better capture the benefits of such transparency at limited cost. Part IV concludes.

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I. The Value of Doctrinal Transparency

A. The Foundational Balancing Inquiry Underlying First Amendment Doctrine

The First Amendment's protection of free speech represents a constitutionally enshrined recognition of the idea that speech carries special value. Practically speaking, the Free...