Heidi Kitrosser, Containing Unprotected Speech

57 Fla. L. Rev. 843 (2005) | | | |

INTRODUCTION :: The Supreme Court long has deemed a few categories of speech so harmful and so lacking in value as to be unworthy of First Amendment protection. Under this approach, which this Article calls categorization doctrine, legislatures may regulate-even ban-unprotected speech categories in their entirety. Specifically, legislatures may pass laws punishing all speech within the following categories: threats, fighting words, obscenity, child pornography, and speech that imminently incites illegal activity.

Because of categorization doctrine, one might reasonably assume that legislatures can choose either to regulate all speech within an unprotected speech category, e.g., by imposing a ban on all threats, or instead to regulate subcategories of such speech, e.g., by banning only race-based threats or threats that relate to terrorism. This assumption could stem from a simple “greater includes lesser” rationale to the effect that the power to regulate all threats must include the power to regulate some threats. Or it could stem from the notion that the rationale that supports making a category of speech “unprotected” supports making any subcategory of that larger category “unprotected.” Hence, if all threats are so lacking in value or so harmful as to justify the withholding of First Amendment protection, surely the same can be said of race-based threats or threats that relate to terrorism.


These assumptions are as wrong descriptively as they seem reasonable normatively. They are wrong descriptively because the Supreme Court has made clear for over a decade that while legislatures constitutionally may regulate unprotected speech categories in their entirety, it raises serious constitutional concerns when legislatures single out only “content-based” subcategories of unprotected speech. In other words, serious constitutional concerns arise when legislatures single out subcategories of unprotected speech defined by viewpoint, subject matter, or communicative impact. Thus, while it is constitutionally unproblematic for legislatures to ban all threats, serious constitutional problems arise when legislatures ban only those threats that are based on race or that relate to terrorism. While such restrictions are not per se unconstitutional, they must pass challenging doctrinal tests to be upheld.

Despite the momentousness of the Supreme Court’s conclusions that unprotected speech is not fully unprotected and that content-based regulations of such speech must pass tough doctrinal tests, the Court offers only the barest of rationales for these conclusions. Specifically, the Court suggests that content-based regulations of unprotected speech are intrinsically troubling and that they cause instrumental problems by skewing debate in the marketplace of ideas. Put differently, the Court applies the rationale for the content-distinction rule, whereby content- based regulations of protected speech are deemed presumptively unconstitutional for intrinsic and instrumental reasons, to the realm of unprotected speech. The problem with such application is that the content-distinction rule is based largely on the premise that protected speech is of significant intrinsic and instrumental value. The rule does not translate to the realm of unprotected speech if a major premise of categorization doctrine is taken seriously. This premise is that unprotected speech categories are so intrinsically valueless and so instrumentally harmful that their abolition is consistent with, possibly even dictated by, free speech values. From this premise, it simply does not follow that the uneven regulation of unprotected speech is intrinsically or instrumentally troubling.

The doctrinal standards that the Court applies to content-based regulations of unprotected speech suffer badly for their lack of a coherent rationale. The Court has crafted a grab bag of standards that range from the superfluous to the affirmatively damaging. For example, the Court purports to apply strict scrutiny to content-based regulations of unprotected speech when in fact it applies a heightened, virtually insurmountable level of scrutiny. The Court also crafts exceptions to its presumption against such regulations, but its most promising exception morphs in character from case to case, making it subject to manipulation depending on the Court’s gut feeling about a given regulation. Finally, the Court hints that it holds viewpoint-based regulations in particular disdain and that it is less concerned about regulations based on the use of particular symbols or expressive modes. The doctrinal implications of this hint are not entirely clear, which creates another avenue for ad hocery based on the Court’s hunches about particular regulations. To the extent that this hint does manifest itself in doctrine, this is bad news for free speech, as it enables content-based regulations to pass muster so long as they can be described, however questionably, as based on communicative impact rather than viewpoint or subject matter.

This Article seeks to fill the gap left by existing doctrine and scholarship by establishing a sound theoretical footing for the position that content-based regulations of unprotected speech raise important First Amendment concerns. Once such footing is established, coherent doctrinal standards can be created. This Article thus establishes a solid theoretical basis for the position that content-based regulations of unprotected speech raise First Amendment concerns. The Article then crafts new doctrinal standards for such regulations and explains the practical implications of these standards for legislation.

As a matter of theoretical grounding, this Article argues that the missing analytical link in doctrine and scholarship can be found in the close relationship between protected speech and unprotected speech. From this close relationship stems a phenomenon that this Article calls the categorization paradox: the notion that categorization is both necessary to free speech doctrine and necessarily problematic. Categorization is necessary because it is a relatively speech-protective means of accounting, doctrinally, for the fact that speech sometimes must be regulated for its content. At the same time, categorization is necessarily problematic because the same qualities that might make speech unprotected can bring the same speech very close on the doctrinal spectrum to protected, even deeply valued, speech. Given this inescapably close relationship between protected and unprotected speech, the reach and use of unprotected speech categories must be carefully contained. The categorization paradox gives rise, in short, to what this Article calls the containment principle.

The containment principle embodies the notion that content-based regulations of unprotected speech must be contained to defend against two risks. First, such regulations operate within a realm of at least some free speech value and thus raise free speech value-based concerns similar to those that underscore the content- distinction rule. In particular, such regulations make it easier for legislatures to regulate speech, enabling them to hone in solely on the most unpopular forms of unprotected speech. By so acting, legislatures may skew public discourse, cause intrinsic harms to speakers, and cause intrinsic social harms borne of legislative bad faith. Second, such regulations threaten to serve as vehicles to infringe upon unprotected speech’s close cousin: protected speech.

Identification of the second risk-that content-based regulations of unprotected speech will infringe on protected speech-is of particular importance, both because of its novelty and because of the strong light it sheds on the close relationship between protected speech and unprotected speech. The risk takes three forms. First, such regulations can cause any “chilling effect” on protected speech to be distributed in an uneven, content-based manner. Second, such regulations threaten to punish persons partly for using protected speech and partly for using unprotected speech. For example, a regulation punishing race-based threats may be drawn or applied in such a way as to punish protected, racist thoughts or speech that accompany, but that do not form part of, the relevant threats. Third, such regulations threaten to steer speakers and factfinders toward the conclusion that speech that might otherwise be deemed merely close to the “unprotected line” in fact crosses the line where a targeted content element is present. For example, a regulation on threats conveyed through cross- burning may serve as a cue to factfinders that a cross-burning is inherently likely to constitute a threat, given the relative salience of the cross-burning factor and the relative ambiguity as to what constitutes a punishable threat.

After establishing these theoretical foundations, this Article explains that the grab bag of doctrinal standards crafted by the Court does not mesh well with these foundations. This Article crafts new doctrinal standards responsive to this Article’s theoretical foundations and explains that these standards offer more satisfying and more predictable approaches to statutes such as those cited above. Specifically, this Article explains that only two doctrinal standards are called for in assessing content-based regulations of unprotected speech. First, courts should ask whether a content-based regulation of unprotected speech relates substantially to a harm of the same nature, but more compelling, than that against which the larger unprotected speech category is directed. This question-which resembles, but is less malleable than, one of the exceptions crafted by the Supreme Court is designed to ensure that a regulation is important enough to outweigh any containment- based risks, and that the regulation is sufficiently related to the larger unprotected speech category to affect only unprotected speech. Second, courts also should ask if a regulation threatens protected speech in a manner not likely to be identified through a general standard. Finally, this Article makes clear that a hierarchy of “better” and “worse” content-based regulations-specifically, a hierarchy of viewpoint-based, subject-matter-based, and communicative impact-based regulations-is not appropriate. While the hierarchy has intuitive appeal, it is not responsive to the concerns posed by content-based regulations of unprotected speech.

The present time is a uniquely fitting one in which to reconsider this longstanding conundrum of free speech law. First, neither the Court nor commentators have considered the implications of the protected speech/unprotected speech relationship for content-based regulations of unprotected speech. In particular, neither the Court nor commentators have considered the threat that content-based regulations of unprotected speech pose to protected speech. Second, a revisiting of the Court’s doctrine is particularly appropriate now. While the Court first formulated its doctrine in the 1992 case of R.A.V. v. City of St. Paul, the Court recently revisited the doctrine in the 2003 case of Virginia v. Black. While the Black Court purported to embrace the doctrine and theoretical underpinnings of R.A.V., it applied R.A.V.’s doctrinal standards in a way that some deem a sharp break from R.A.V. Black thus sheds important new light on the doctrinal standards crafted in R.A.V. Among other things, it suggests that the standards are troublingly malleable. It also bolsters the view that the Court places substantial weight on its characterization of a regulation as viewpoint-based or communicative impact-based. These points cast light, in turn, on the poverty of R.A.V.’s theoretical underpinnings and their consequent inability to generate useful doctrinal standards.

In short, the time is ripe to revisit the doctrine and theory of R.A.V. and its progeny. This Article begins this task in Parts II and III by describing and critiquing existing case law and scholarship. Part II describes and critiques the theoretical foundations of R.A.V. and Black. Part III evaluates and critiques existing scholarship on the topic, most of which was written in the wake of R.A.V. Part III explains that existing scholarship neither reassesses the role and scope of categorization doctrine nor looks beyond the assumption that the regulations at issue impact only unprotected speech.

Parts IV and V develop this Article’s alternative theoretical and doctrinal approaches. Part IV develops the former, explaining the categorization paradox and the containment principle as new means to explain why content-based regulations of unprotected speech raise constitutional concerns. Part V develops the latter, explaining the doctrinal standards that should apply to content-based regulations of unprotected speech in light of the concerns that those regulations raise.

Finally, Part VI applies this Article’s approach to the regulations at issue in R.A.V. and Black and to two hypothetical statutes. The hypothetical statutes include a statute punishing race-based threats and a statute punishing fighting words that involve profane language. As Part VI demonstrates, judicial review of these hypothetical statutes would likely lead to different outcomes depending on whether or not this Article’s approach were followed. Furthermore, even where practical outcomes would not differ, judicial reasoning would differ substantially with significant import for future cases and for free speech doctrine generally.

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