The First Amendment as a Procrustean Bed?: On How and Why Bright Line First Amendment Tests Can Stifle the Scope and Vibrancy of Democratic Deliberation argues that bright line, categorical rules potentially come at a high cost to the political marketplace of ideas. Quite often, judicial discretion can be essential to vindicating speech claims when a would-be speaker requires the government’s assistance in order to speak. The Warren Court, and to some extent the Burger Court, both embraced balancing tests that vested the lower federal and state courts with broad discretion to vindicate or reject First Amendment claims in contexts where the government, as a manager, possessed valid arguments for withholding its assistance from a would-be speaker. Pickering v. Board of Education provides a good example of this jurisprudential approach – as do Brown v. Louisiana and Tinker v. Des Moines Independent Community School District. By way of contrast, however, the Roberts Court gave us Garcetti v. Ceballos and Morse v. Frederick; the Rehnquist Court handed down United States v. Kokinda. Rather than embrace open-ended balancing tests in First Amendment cases, the Roberts and Rehnquist Courts consistently deploy bright line, categorical rules. This trend makes it easier for lower courts to apply the governing tests and reach consistent results in cases presenting similar facts. But this jurisprudential approach also reduces quite significantly the scope and vibrancy of the political marketplace of ideas. For those seeking to use government property to speak, government employees who seek to speak out about matters of public concern, persons engaged in news gathering and reporting, students and faculty at the nation’s public schools, colleges, and universities, and persons and organizations engaged in transborder speech activities, free speech rights have been declining, rather than expanding, over time – and a consistent migration from balancing tests to categorical rules is responsible for this erosion in constitutionally protected expressive freedom. To be sure, balancing tests in First Amendment cases can give rise to an appearance of content, viewpoint, or even speaker discrimination because reasonable jurists can and will reach conflicting results on very similar facts. Bright line rules, by way of contrast, will produce consistent and predictable results. Consistent results in cases presenting similar facts is certainly desirable – but so is an “uninhibited, robust, and wide-open” public debate about government officials, candidates for public office, and matters of public concern. Free speech rules that require judges to exercise discretion will produce free speech winners and losers who have similar, if not identical, constitutional claims. Nevertheless, this approach – a hallmark of the free speech jurisprudence of the Warren Court – possesses the distinct virtue of broadly facilitating the democratic discourse essential to making elections an effective means of securing government accountability. Bright line rules too often result in a less vibrant, open, and inclusive marketplace of political ideas. Accordingly, the Roberts Court needs to address this serious downside risk of categorical rules more directly when it jettisons balancing tests in favor of bright line rules that will inevitably protect fewer speakers and less speech.
This Article explores the dramatic changes that have occurred over the last thirty years in the First Amendment doctrines governing sexual speech. As a prism through which to evaluate these changes, I consider the thirtieth anniversary of the landmark Robert Mapplethorpe trial, the first censorship prosecution against an art museum in the history of this country and the defining battle in the culture wars that roiled post-Reagan America. The target was the exhibition of formally beautiful, sexually hard-core photographs by Robert Mapplethorpe on view at a museum in Cincinnati. The controversy that erupted over those images—fueled by anxieties about AIDS, homosexuality, sadomasochism, race, government funding for the arts, and the vanishing boundary between art and pornography—spilled out of the courtroom into popular culture and into the halls of the United States Congress. I analyze the shifting trajectories over the years of the two legal doctrines that were at the center of the Mapplethorpe case—obscenity law and child pornography law—and I show the starkly divergent paths these two areas of law have taken. While obscenity law has receded in importance, and while the allegedly obscene photos from the trial have become prized in museums and in the art market, child pornography law has followed the opposite course. In contrast to the allegedly obscene pictures, which pose almost no legal risk today, the two photographs of children that were on trial have become more, not less, controversial over the past thirty years, to the point where curators are quietly reluctant to show these images at all. In my view, these photos now occupy a space of legal and moral uncertainty. What explains these differing legal and artistic trajectories? What happened to change the dynamics of showing these works? In tracing the divergent paths taken by these two doctrinal areas, I explore not only the stark changes in the law of sexual speech, but ultimately the mutually productive relationship between censorship law and culture. Free speech law governed this chapter in the culture wars, yet in surprising ways, the changing social norms unleashed by the culture wars have also governed free speech law.
A robust public debate is currently underway about the responsibility of online platforms. We have long called for this discussion, but only recently has it been seriously taken up by legislators and the public. The debate begins with a basic question: should platforms should be responsible for user-generated content? If so, under what circumstances? What exactly would such responsibility look like? Under consideration is Section 230 of the Communications Decency Act—a provision originally designed to encourage tech companies to clean up “offensive” online content. The public discourse around Section 230, however, is riddled with misconceptions. As an initial matter, many people who opine about the law are unfamiliar with its history, text, and application. This lack of knowledge impairs thoughtful evaluation of the law’s goals and how well they have been achieved. Accordingly, Part I of this Article sets the stage with a description of Section 230—its legislative history and purpose, its interpretation in the courts, and the problems that current judicial interpretation raises. A second, and related, major source of misunderstanding is the conflation of Section 230 and the First Amendment. Part II details how this conflation distorts discussion in three ways: it assumes all Internet activity is protected speech; it treats private actors as though they were government actors; and it presumes that regulation will inevitably result in less speech. These distortions must be addressed in order to pave the way for clear-eyed policy reform. Part III offers potential solutions to help Section 230 achieve its legitimate goals.
This paper, prepared for a University of Chicago Law School symposium on “What’s the Harm? The Future of the First Amendment,” on October 25, 2019, seeks to analyze the circumstances under which even speech admittedly covered by the First Amendment may be justifiably restricted, and the First Amendment thus justifiably overridden. This is the idea implicit in Holmes’s notion of a “clear and present danger” of a century ago, but that idea persists. Although “clear and present danger” has been superseded by the test in Brandenburg v. Ohio for speech advocating illegality, clear and present danger still remains part of the doctrinal architecture of the First Amendment in numerous other contexts, most saliently these days with respect to the circumstances in which speakers may be restricted because of the dangers ensuing from the presence of a hostile audience. After exploring the doctrinal status of clear and present danger in the hundred years since Schenck, the article concludes with some tentative thoughts about the puzzle of compensation for those who free speech rights are justifiably overridden. If those whose property rights are justifiably taken for the public good are entitled to compensation under so-called takings doctrine, then should those whose free speech rights are also justifiably taken for the public good be similarly entitled to compensation or other redress?
The First Amendment is supposed to provide important protections against criminal prosecutions for speech crimes. In practice, however, those protections are inadequate: in a world of vanishing trials, criminal defendants lack meaningful opportunities to litigate often fact-bound First Amendment questions. Through the lens of prosecutions for false speech, this article proposes refocusing First Amendment protections in criminal cases on criminal procedure rather than substantive questions about what the First Amendment protects. It suggests two procedural reforms—revitalizing the indictment and unanimity requirements—to help make the First Amendment’s ostensible protections more of a reality for criminal defendants.
Thirty-five years ago, in Roberts v. Jaycees, the Supreme Court instructed that “unique evils” inhered in discrimination in public commerce. In this essay, I then sketch the import of the unique evils of public accommodation discrimination for free speech. I argue that this arena manifests unified conventions. By inviting the general public, public accommodations generate expectations of service, expectations always realized by the in-group—often defined by race, religion, and gender—and sometimes denied to minorities. Unlike employment, housing, and other spheres of antidiscrimination, public accommodations operate according to accepted conventions of nonselectivity. The public expects businesses to deliver goods and services on a first-come, first-served basis, to charge the same prices, and to treat people with respect for their status as consumers. I show that social expectations of public accommodations indicate an overlooked asymmetry in the communicative potential of service and denial. Because of the conventions of the public marketplace, a business communicates little, if anything, when it provides a good or service to any particular customer. It signals no approval of the person or the use of the goods by its service. By contrast, denial of service powerfully expresses that a person (or group) does not merit status as a consumer. The message conveyed by breaking uniform conventions of service does not depend on the artistic or bespoke nature of the product sold or the celebration of any particular event. Free speech claims built around denial of service cannot be so cabined. Instead, they risk the foundations of a consumer market that operates with an ideal of neutrality toward identity traits and aspires to frictionless transactions and movement.
Two revelations are central to the meaning of the #MeToo movement. First, sexual harassment and assault are ubiquitous. And second, traditional legal procedures have failed to redress these problems. In the absence of effective formal legal procedures, a set of ad hoc processes have emerged for managing claims of sexual harassment and assault against persons in high-level positions in business, media, and government. This Article sketches out the features of this informal process, in which journalists expose misconduct and employers, voters, audiences, consumers, or professional organizations are called upon to remove the accused from a position of power. Although this process exists largely in the shadow of the law, it has attracted criticisms in a legal register. President Trump tapped into a vein of popular backlash against the #MeToo movement in arguing that it is “a very scary time for young men in America” because “somebody could accuse you of something and you’re automatically guilty.” Yet this is not an apt characterization of #MeToo’s paradigm cases. In these cases, investigative journalists have carefully vetted allegations; the accused have had opportunities to comment and respond; further investigation occurred when necessary; and the consequences, if there were any at all, were proportional to the severity of the misconduct. This Article offers a partial defense of the #MeToo movement against the argument that it offends procedural justice. Rather than flouting due process values, #MeToo’s informal procedures have a number of advantages in addressing sexual misconduct while providing fair process when the accused person is a prominent figure.
The reality of human nature is that facts and statistics do not move people to action — stories and personal connections do. Narratives, more than raw numbers, help people see the relationship between social and economic inequality and crime. For most Americans, the stories that have informed their view of criminal justice have created the misleading impression that many, if not most, people who commit crimes are violent by nature and unredeemable. With that perception, the statistics cannot break through because the public incorrectly believes the people in prison must all deserve to be there and retribution and public safety demand no less. This essay, part of a symposium celebrating The Wire, argues that the show provided a different narrative that vividly demonstrated for its viewers the way crime and policing really look in America, offering many of its viewers their first realistic view of these dynamics. It showed how structural forces propel people to commit crimes and vividly captured the daily struggles of people living in poverty in America’s cities. Viewers came to care about the shows characters and saw their humanity even when they committed crimes. For many viewers, it would be the first time they had a realistic view of crime and policing up close. And once you have that perspective, you cannot help but see all that is wrong with the current approach to crime. The Wire was art at its transformative best.
