Multifactoral Free Speech

Alexander Tsesis, Loyola University Chicago School of Law, is publishing Multifactoral Free Speech in volume 110 of the Northwestern University Law Review (2016). Here is the abstract.

This article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh legitimate concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social factors arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the breadth of issues surrounding disputes with communicative components is meant to identify competing legal factors without rendering the First Amendment all-inclusive nor, on the flip side, irrelevant to broader ranges of activities. Coupling theoretical and practical considerations about a case best balances judicial deliberation. I explore the contours of this theory and provide concrete examples of its implication. Part I examines the penumbral principles of the First Amendment. The primary focus is on the structural value of free speech for individuals living in a representative democracy. Part II discusses the relevance of understanding speech in a broader constitutional framework. Much of that discussion is doctrinal and intertextual. Part III of the article applies the multifactoral insights to the contemporary issues of corporate political speech, aggregate political contributions, and commercial communications. The upshot of the discussion is that contextual and sophisticated balancing is essential for the resolution of the difficult questions without the arbitrariness of judicial bias. Explicit analysis of government authority, conflicting private and public interests, pertinent constitutional and statutory values, legislative fit with stated policy aims, and potential alternatives is a transparent method for evaluating the impartiality of First Amendment decisions.

Download the article from SSRN at the link.