Tuesday, May 4, 2021
Loren Jacobsen, The First Amendment and the Female Listener, 51 New Mexico L. Rev. 70 (2021)
When the Supreme Court has considered whether laws that affect women's decisions about their health and bodies violate the Free Speech Clause, it has ignored the informational needs of the very women that such laws regulate. I argue that, instead, the Supreme Court should value women's informational and decision-making needs and properly place them at the center of a First Amendment analysis of laws that affect women in particular. Towards that goal, the Supreme Court should take a listener-centered approach to laws that affect women's decision-making. There is a strong basis for a listener-centered approach in the Court's Free Speech precedents, particularly in its commercial speech cases. Following this listener-centered approach would allow the Court to apply the Free Speech Clause in a way that is consistent with these precedents, including the way in which the Court has distinguished speech compulsions and speech restraints. More important, an approach that values the female listener would accord women maximum dignity and autonomy, which is appropriate when laws involve free speech, informed consent, and the decisions women make about their bodies and their health.