The Volokh Conspiracy
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Journal of Free Speech Law: "The Free Speech Clause as a Deregulatory Tool," by Alexander Tsesis
A new article from the Daedalus (Journal of the American Academy of Arts and Sciences) Future of Free Speech Symposium.
The article is here; the Introduction:
The language of the Free Speech Clause is not self-definitional. Almost all human activities involve communications; even criminality can be infused with expressiveness, but that does not mean that conspiracy, assault, and hate crimes are protected by the First Amendment. The Supreme Court of the United States is tasked with explaining the scope of its coverage. In recent years, the Court has taken a decidedly libertarian approach to laws that impose even nominal restrictions on communications.
That approach has proven strategically beneficial to special interests who challenge laws meant to secure labor rights, to restrict corporate expenditures on political campaigns, to prevent protestors from standing too close to the entrances of clinics where abortions are performed, and to compel the posting of health notices. The Court's reasoning has become increasingly formalist, adopting judicial categories of interpretation to strike legislation without giving adequate consideration to countervailing government interests.
The Supreme Court's free speech jurisprudence has relied increasingly on a categorical understanding of free speech that purports to have historical pedigree. Close examination, however, reveals absolutist statements and historical inaccuracies. A series of recent cases have strictly construed the Free Speech Clause to strike various regulations. The predominant framework of analysis strengthens the Court's hand at the expense of legislative initiative. As the power of the judiciary has waxed, the ability of legislators to pass laws responsive to constituents' demands has waned. The Court's rigid free speech doctrine creates a model of governance that is "incapable of responding to new conditions and challenges."
Judicial formalism lacks transparency, which is essential to litigation and appeal. This essay argues for greater judicial clarity in balancing competing interests and in evaluating surrounding circumstances. It proposes an analytical approach for courts to undertake when assessing First Amendment challenges to traditional government functions. Rather than dismissing lawmakers' concerns, the Court should evaluate whether a law interferes with self-expression, civic participation, or factual assessment. A balance is needed for courts to reflect on speech concerns, how well the law fits with regulatory aims, and alternatives for communication.
