The Supreme Court’s Categorical Free Speech Doctrine

Alexander Tsesis, Loyola University (Chicago) School of Law, is publishing The Categorical Free Speech Doctrine and Contextualization in volume 65 of the Emory Law Journal (2015). Here is the abstract.

This article analyzes the impact of the Supreme Court’s recently developed categorical approach to free speech doctrine. It demonstrates that, contrary to the concerns of some other scholars, the Court should not be understood to have placed a complete restriction on interest balancing. In several cases – such as those dealing with government employee speech, civil defamation, and fraud – the Court continues to rely on balancing approaches. This has created a seeming internal contradiction with other precedents that appear to only recognize the constitutionality of content based restrictions on categories of speech that have historically and traditionally been unprotected. These two lines of cases can and should be reconciled for the sake of adjudicative predictability and stability. The Court’s categorical free speech doctrine should be understood as a bar only against ad hoc balancing but not as a total prohibition against a contextual analysis of expressive and countervailing social interests. Indeed, even some of the categories the Court has identified as being historically unprotected – specifically obscene, defamatory, and fraudulent speech – were first derived through evaluations of private and public concerns. I argue that the Court should approach free speech regulations from a holistic standpoint that evaluates whether a restriction on speech arises from a conflict with constitutional, statutory, or common law interests; whether the restricted expression has historically or traditionally been constitutionally protected; the breadth and strength of general welfare policies behind the speech restriction; the fit between the objectives and regulations; and whether a less restrictive means could be enforced to meet particularized goals. This balancing requires more complex analysis than categorical induction, but contextual reasoning is more likely to identify the full spectrum of factors pertinent to a decision.

Download the article from SSRN at the link.