Closing the Barn Door after the Genie is Out of the Bag: Recognizing a 'Futility Principle' in First Amendment Jurisprudence

Abstract

This article argues for a simple proposition: the First Amendment imposes a presumption against the suppression of speech when suppression would be futile. Suppression is futile when the speech is available to the same audience through some other medium or at some other place. The government can overcome this presumption of futility only when it asserts an important interest that is unrelated to the content of the speech in question, and only when the suppression directly advances that interest.

In Part I, the article explores the role that this unarticulated "futility principle" has played in Supreme Court and other decisions concerning the suppression of core political speech by prior restraint, denial of access, and subsequent punishment. In addition, Part I demonstrates how that principle has often, though not always, been disregarded by the Court in cases involving the regulatory suppression of commercial speech. In Part II, the article more fully articulates the rule developed by the case law and justifies its wider application by reference to the values it supports. Finally, in Part III, the article applies the rule to actual situations involving computer-assisted communications technology, an integral part of the convergent communications environment that will soon be upon us.

Keywords: futility principle, public information, First Amendment, commercial speech, Internet, media, courts

JEL Classification: K19, K29, K39, K49