Tuesday, February 28, 2017
Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, is publishing When Speech is Not 'Speech' in the Ohio State Law Journal. Here is the abstract.
First Amendment law has reached a crossroads. Over the past several years, the Supreme Court has made three analytic moves that, in combination, are putting unsustainable pressure on its current doctrinal structure. First, the Court appears to be defining the word “speech” expansively, to include all forms of communication and information sharing. Second, the Court has severely limited the scope of “low-value” speech, suggesting that except for a few historically defined categories of speech, all oral and written communication deserves full constitutional protection. Third, the Court has held that any law or regulation that regulates protected speech based on its content must be subject to extremely stringent, “strict” scrutiny, and is presumptively unconstitutional. The result is that under current law, it is exceedingly difficult to regulate speech based on harms associated with its content except in a few, narrow, and usually irrelevant circumstances. This catholic approach to free speech protections, however, is unsustainable. The reason, quite simply, is that in the world of the Internet and modern computing, information and communication are instantaneously and universally shared, impossible to suppress or control, and at times highly dangerous or destructive. As a result, the harm associated with some forms of speech has been vastly magnified, at the same time that the Court has severely constrained the ability to regulate speech to prevent such harms. In addition, the primary commodity traded and stored in the new information economy — data — is technically “speech” on the Court’s current view, and so essentially immune from regulation. This tension is not sustainable. The solution, I would posit, is that we must reconsider what exactly constitutes “speech” for First Amendment purposes — in Fred Schauer’s words, we must reconsider the “coverage” of the First Amendment. Moreover, rather than excluding specific types of speech from coverage on an ad hoc fashion, as courts have done to date, we must develop a theoretical structure to guide those decisions. Otherwise, the entire free-speech project risks descending into judicial favoritism. This paper begins the task for identifying a methodology for defining First Amendment coverage. I begin by demonstrating that the word “speech” in the First Amendment does not, and cannot, literally refer to all uses of language. In particular, I note that language — both oral and written — can sometimes be used in non-communicative ways, and that such uses of language may not be constitutional “speech,” even if they are literally speech. I then discuss other situations where even acts of communication are and must be subject to extensive regulation based on their content for a variety of reasons. All language, then, is not “speech,” nor even is all communication. Ultimately, some gauge is necessary by which to judge when speech is, or is not, “speech.” Moreover, the only possible source of guidance in developing such a standard is free speech theory. Until now, the Supreme Court has refused to adopt an overarching theory of free speech, and scholars remain divided on the issue. Moving forward, however, this studious ambiguity is not sustainable. What is needed is a new paradigm, firmly rooted in the history, text, and purposes of the First Amendment. I ultimately conclude that the advancement of democratic self-government is the only plausible candidate for such an overarching theory. Such a reading of the First Amendment is supported by text, drafting history, and historical context, and enjoys widespread support among scholars. Once this understanding is accepted, however, it has profound implications for the question of First Amendment coverage. Even if one adopts a sophisticated and capacious view of what sorts of communicative activities are relevant to self-governance — an approach that I fully endorse — clearly not all uses of language qualify. The First Amendment poses no barriers to regulating such speech, because it is not “speech” within the meaning of the Constitution.
Download the article from SSRN at the link.