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The first part of this book challenges the US categorical approach and elaborates a theory for judicial contextual analysis. The United States Supreme Court and scholars tend to be libertarian in opposition to such a proportionality approach to free speech. Scholars, like Professor James Weinstein, express concern that judicial balancing might lead to “ideological bias” and thereby reduce the “rigorous protection from content regulation.”305 Essential to free expression is the ability to maintain robust discussion and an openness to heterodox, nonconformist, and unpopular ideas.
Courts use categories of communication to identify what subjects are protected under the First Amendment.341 The Supreme Court’s modern doctrine, announced in starkly absolute terms in a 2015 decision, reviews content-based restrictions under the rigorous strict scrutiny standard.342 This categorical approach is a formalistic and inadequate substitute for comprehensive assessments into the interests of speakers; public policies; means for achieving legal ends; and available alternatives for expression.
First Amendment jurisprudence contains a variety of rationales for allowing government to regulate speech in public employment, public school, and commercial contexts. Of late, however, the Roberts Court has made several statements about the First Amendment protecting all communications other than several low-value categories, including obscenity and incitement. Other than those judicially defined “historical” categories, the Court now presumes virtually all expression to be covered by the First Amendment. Ad hoc balancing is regarded to be impermissible in this field. Yet many cases contradict the Court’s statement in Reed v. Town of Gilbert: “A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”8 Such a bare statement overlooks the multifarious constitutional values at play in commercial regulations, national security statutes, and professional norms.
This chapter applies contextual free speech theory to terrorist incitement, recruitment, and propaganda. It relies on the frameworks of the Supreme Court‘s fighting words, true threats, and material support for foreign terrorist’s doctrines. While political declaration and self-expression are protected by the First Amendment, the same cannot be said of calls to commit political acts of violence. Contrary to an absolutist school of thought from organizations like the American Civil Liberties Union (ACLU), whose counterarguments are reviewed at the end of this chapter, the First Amendment does not prohibit the federal government from punishing communications coordinated with a foreign terrorist group or those under its direct control.
Supreme Court cases treat students as citizens who retain free speech rights, but the Justices also recognize disciplinary discretion is necessary to run elementary school and high school programs and courses. Categorical analysis is as insufficient here as it is in college campus settings for adjudicating the suppression of student voices. High school students are in the period of life, straddling childhood and adulthood, when special considerations about their blooming maturity and educational needs offer context to resolution.
This chapter evaluates the three most commonly held views on the constitutional purposes for protecting free expression. These theories tend to focus almost exclusively on aspects of speech, while paying little to attention to how communication fits with other aspects of deliberative democracy.
The First Amendment is a normative component of the US Constitution’s system of representative governance, instituted for persons to pursue their happiness by safeguarding fundamental rights essential to general welfare and safety.257 The US government is built on a foundation that safeguards deliberation, self-expression, self-affirmation, and scientific pursuits. These rights are not only guarded by the Amendment, by statutes, and by judicial opinions, but by the very structure of a government created by the people to preserve their inalienable interests in liberty and equality. The nation’s founding statement of purpose, which is set out by the Declaration of Independence, recites a commitment to establish a nation to protect ordinary citizens’ safety and happiness.
There is an alternative to the Supreme Court’s strict categorical interpretation, a method that uses balancing analysis within the context of specific cases. The First Amendment of the United States Constitution empowers individuals to participate in a pluralistic society. It prevents federal and state governments from inhibiting the exchange of ideas by placing restrictions on their messages and perspectives. Communications operationalize representative democracy and enable individuals to express organized thoughts, wondering musings, normative ideals, business ventures, political affiliations, novel notions, and collective aims.
Communication is neither simply an individual interest nor an associational right. Cases in the free speech area of law are a tangle of personal and group values. Each case, as Justice Brennan wrote in his opinion in a flag burning case, Texas v. Johnson, requires “careful consideration of the actual circumstances surrounding such expression.” 737 The reach of First Amendment protections is not defined through categories in existence when the nation ratified the Bill of Rights in 1791, but through proportional analyses of speech interests, countervailing government concerns, likelihood that the regulations will accomplish the stated policies, less restrictive regulatory alternatives, doctrines relevant to adjudication, and the aspirations of a free and equal people. Instead, the Roberts Court has relied on overly-simplified categories in decisions like Citizens United v. Federal Election Commission, McCutcheon v. Federal Election Commission, National Institute for Life Advocates v. Becerra, and United States v. Stevens rather than going through a complex analysis of all private and public values relevant to the resolution of conflicting legal claims. These judicial holdings are political in substance and limit legislative initiatives through cramped understandings of federalism, privacy, audiences, public health, and harm.
Universities are centers of culture, self-expression, and civil activism. As the Court explained in Tinker v. Des Moines Independent Community School District, “The Court has recognized that the campus of a public university, at least for its students, possesses many of the characteristics of a public forum At the same time, however, our cases have recognized that First Amendment rights must be analyzed ‘in light of the special characteristics of the school environment.’”502 They are places to clear away cobwebs of falsehood and to identify kernels of truth. The educational value of speech is determined by its context and content.503 While campuses are hives of intellectual activity, educational needs require structure and incidental time, place, and manner restrictions in order to impart and advance knowledge without unnecessary disruptions. Educational goals must be consistent with the dissemination of accurate knowledge. Institutions of higher education retain standards for advancing truth about various disciplines, but they also provide opportunities for dissent and disagreement.504 Accordingly, controversies are inevitable, given the many views represented by members of the faculty and student bodies. The rights of speakers should therefore be balanced with administrative requirements for maintaining pedagogical and scholarly standards, while warding off harassment.