Journal of Free Speech Law: "Suspicion, Deference, and the First Amendment," by Helen Norton

From the "Gitlow v. New York at 100" symposium, held this year at the Arizona State University Sandra Day O'Connor College of Law; other papers from that symposium will be published here in the coming weeks.

The article is here; the Introduction:

First Amendment disputes frequently require courts to assess governmental assertions that contested expression is unacceptably dangerous. This assessment requires courts to choose when to defer to the government's assertions of danger—and when instead to distrust those assertions. The centenary of the Supreme Court's decision in Gitlow v. New York invites us to revisit the role that deference has played, and could play, in Free Speech Clause theory and doctrine. And because a great deal of the First Amendment law developed since Gitlow is at least as much about suspicion of the government as it is about deference to the government, Gitlow's centenary also invites us to consider the role that suspicion has played, and could play, in First Amendment law.

Benjamin Gitlow was charged not "with the commission of any overt illegal act," nor "with conspiracy to commit an illegal act," nor "with advocating that anyone else go out and commit an overt illegal act." Instead, he and his co-defendants "advocated ideas that, if enough people agreed with them, might lead to illegalities at some point in the future." In defense, Gitlow argued that the First Amendment did not permit the government to punish this advocacy absent evidence of its causal connection to "some substantive evil, consummated, attempted or likely." A majority of the Supreme Court disagreed, deferring to the legislature's determination that this advocacy, without more, carried sufficient potential for harm to justify its regulation. But the Court failed to explain why it chose to defer to the legislature's statutory conclusion that certain speech was dangerous by its very nature.

As we'll see, a variety of principled reasons can support a court's choice to defer to the government's assessment of expression's danger. So too can multiple principled reasons support a court's choice to treat the government's assessments instead with suspicion. As we'll also see, courts sometimes explain their choice to be deferential, and sometimes they don't—and courts sometimes explain their choice to be suspicious, and sometimes they don't. But exposing and justifying these choices helps courts improve the quality of their threshold decision to defer or distrust, as well as the quality of their subsequent operationalization of that decision through the creation and application of free speech doctrine.