The Categorical Free Speech Doctrine and Contextualization
37 Pages Posted: 30 Jul 2015 Last revised: 9 Feb 2016
Date Written: September 21, 2015
Abstract
This Article discusses the impact of the Supreme Court’s recently strengthened categorical approach to free speech analysis. It demonstrates that, contrary to the concerns of some other scholars, the Court should not be understood to be entirely averse to balancing interests. In several cases – such as those dealing with government employee speech, civil defamation, and fraud – the Court continues to rely on balancing approaches. This has created a seeming internal contradiction among precedents that appear only to recognize the constitutionality of content based restrictions on low value categories of speech that have historically and traditionally been unprotected. These two lines of cases can and should be reconciled for the sake of adjudicative predictability and stability.
The Court’s categorical free speech doctrine should be understood as a bar only against ad hoc balancing but not as a total prohibition against a contextual analysis of expressive and countervailing social interests. Indeed, even some of the categories the Court has identified as being historically unprotected – specifically obscene, defamatory, and fraudulent speech – were judicially derived through evaluations of private and public concerns. I argue that the Court should approach free speech regulations from a holistic standpoint that evaluates whether a restriction on speech arises from a conflict with constitutional, statutory, or common law interests; whether the restricted expression has historically or traditionally been constitutionally protected; the breadth and strength of general welfare policies behind the speech restriction; the fit between the objectives and regulations; and whether a less restrictive means could be enforced to meet particularized goals. This balancing requires more complex analysis than categorical induction, but contextual reasoning is more likely to identify the full spectrum of factors pertinent to a decision.
Keywords: Free Speech, First Amendment, Legal Theory, Balancing, Weighing, Contexualization
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