All in the Family?: In Search of an Accurate Description of First Amendment Coverage

Abstract:     
Over the years, thousands of scholars have written on the protection afforded by the First Amendment, but very few have discussed its coverage. Proponents of this coverage-protection distinction argue that only certain expressive activities fall within the scope of the First Amendment and thus trigger Constitutional scrutiny when restricted. Other expressive activities have so little expressive or social value that the First Amendment simply isn’t implicated at all. So the important question, for those who explore this coverage-protection distinction, is how to know which activities are which. And while a handful of scholars have devoted much of their work to this inquiry, it seems that there is no satisfactory answer to the question. The most promising proposal seems to be a 'family resemblance' explanation for our coverage jurisprudence, but no one has explored this possibility in depth.

So in this paper I attempt to satisfy my own curiosity regarding these matters. First, I explore the distinction between coverage and protection, and review its origins in the case law and academic literature. Second, I lay the groundwork necessary to test the family-resemblance hypothesis by identifying several coverage and non-coverage data points, and by selecting several factors that are known to affect coverage. Third, I construct several family-resemblance tests and evaluate them for accuracy. Finally, I reflect on the results before briefly concluding that a family-resemblance theory alone does not explain our coverage-protection jurisprudence, and that ultimately there is little or no practical value in the distinction.

Number of Pages in PDF File: 36

Keywords: First Amendment, coverage, scope, family resemblance

working papers series