First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech

77 Pages Posted: 8 Oct 2009 Last revised: 15 Jan 2011

See all articles by Lawrence Rosenthal

Lawrence Rosenthal

Chapman University, The Dale E. Fowler School of Law

Date Written: October 8, 2009


Scholars have struggled to explain our sprawling First Amendment doctrine – once described by Justice Stevens as “an elaborate mosaic of specific judicial decisions, characteristic of the common law process of case-by-case adjudication.” The position that has gained the most traction in recent scholarship has stressed the primacy of governmental motive – this school of thought argues that the degree of scrutiny to be afforded a challenged regulation is based on an assessment of the likelihood that the regulation reflects a governmental motive to burden disfavored speech or speakers. This article offers a challenge to the purposivist account. It begins, in Part I, by considering the claims of the purposivists in light of the original meaning of the First Amendment, which has recently acquired greater prominence in First Amendment jurisprudence. Although there is something of a scholarly consensus that the intentions of those who framed the First Amendment are impossible to determine, in recent years, originalist thinking about constitutional interpretation has made a dramatic move away from a jurisprudence based on the intentions of the framers or ratifiers and toward the original public meaning of constitutional text as the touchstone for constitutional interpretation. An inquiry into original public meaning offers reason to question the purposivist account.

Part II examines the purposivist account of First Amendment jurisprudence as it has evolved since the framing, illustrating the role of governmental purpose in First Amendment doctrine by considering a yet-unresolved issue that has divided the lower courts and commentators – the extent to which the First Amendment constrains the ability of the government to undertake investigations on the basis of the protected speech of the investigation’s target. Terrorism investigations, for example, can be triggered when the government becomes aware of political extremists as a consequence of their statements expressing approval of jihadist violence, or their attendance at events that condone such conduct, even though these activities are constitutionally protected under contemporary doctrine. The purposivist account suggests these “First Amendment investigations” must clear the hurdle of strict scrutiny because they are unacceptably likely to be infected by governmental hostility toward the target’s ideology. Indeed, history suggests that the risk that an impermissible motivation may accompany such investigations is quite real. Yet, subjecting the government’s decision to undertake an investigation to strict scrutiny is inconsistent with fundamental principles of First Amendment doctrine, and encounters powerful pragmatic objections as well. The interaction between the First Amendment and criminal investigations inevitably involves an assessment of the justification for the investigation and the extent to which it inhibits constitutionally protected activity – precisely the kind of pragmatic balancing that the purposivists denounce. Indeed, the example of First Amendment investigations poses a challenge to any categorical or absolutist account of the First Amendment.

Part III considers the pragmatic structure of First Amendment doctrine. Part III contends that current doctrine reflects the centrality of pragmatic balancing, with the metaphor of a free marketplace of ideas providing the essential metric to govern the balancing inquiry. Regulations likely to distort the marketplace of ideas impose particularly heavy costs to First Amendment values, thereby requiring particularly powerful justifications. To be sure, the purposivists are right that balancing can be dangerously indeterminate, but First Amendment doctrine handles this objection with a highly structured approach to balancing based on a series of categorical judgments about the likelihood that a challenged regulation will distort the marketplace of ideas.

Structured balancing, however, breaks down when it becomes difficult to assess the likelihood that challenged government conduct will suppress disfavored speech or speakers. A prime of example of this problem is presented by First Amendment investigations, which can be performed in a responsible and discrete fashion unlikely to chill the exercise of First Amendment rights, or in an abusive and oppressive fashion. When it comes to First Amendment investigations, ad hoc balancing is the only tenable approach.

Keywords: First Amendment, Free Speech, Free Press, Originalism, Pragmatism, Branzburg V. Hayes, Laird V. Tatum, Balancing

Suggested Citation

Rosenthal, Lawrence, First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech (October 8, 2009). Indiana Law Journal, Vol. 86, p. 1, 2011, Chapman University Law Research Paper No. 09-36, Available at SSRN:

Lawrence Rosenthal (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

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