Multifactoral Free Speech
28 Pages Posted: 17 Oct 2015 Last revised: 14 Jun 2016
Date Written: November 30, 2015
Abstract
This article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social factors arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the breadth of issues surrounding disputes with communicative components is meant to identify competing legal factors without rendering the First Amendment all-inclusive nor, on the flip side, irrelevant to broader ranges of activities. Coupling theoretical and practical considerations about a case best balances judicial deliberation. Rather than ad hoc balancing, judges should apply a rigorous multifactoral test that weighs expressive interests against any legally cognizable harms, such as those to reputation or fair competition; relevant historical considerations; countervailing government interests, on general welfare matters like public safety; whether the law is properly tailored to achieve the stated public aim; and any potential alternative means for achieving the underlying policy.
Part I examines the penumbral principles of the First Amendment. The primary focus is on the structural value of free speech for individuals living in a representative democracy. Part II discusses the relevance of understanding speech in a broader constitutional framework. Much of that discussion is doctrinal and intertextual. Part III of the article applies the multifactoral insights to the contemporary issues of corporate political speech, aggregate political contributions, and commercial communications. The upshot of the discussion is that contextual and sophisticated balancing is essential for the resolution of the difficult questions without the arbitrariness of judicial bias. Explicit analysis of government authority, conflicting private and public interests, pertinent constitutional and statutory values, legislative fit with stated policy aims, and potential alternatives is a transparent method for evaluating the impartiality of First Amendment decisions.
Keywords: First Amendment, Free Speech, Legal Theory, Free Speech Theory, Campaign Financing Reform, Commercial Speech
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