Professor Nimmer Meets Professor Schauer (and Others): An Analysis of 'Definitional Balancing' as a Methodology for Determining the 'Visible Boundaries of the First Amendment'
57 Pages Posted: 12 Jan 2010
Date Written: 2006
Despite the fact that it is phrased in absolutist terms (Congress and, by incorporation into the Fourteenth Amendment, the States “shall make no law... abridging the freedom of speech”), the First Amendment does not “give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses.” Indeed, as Professor Schauer has observed, there are large categories of “what would be called "speech" in ordinary language” that are not encompassed within the First Amendment. He also argues that “existing normative theories seem of little relevance to achieving a descriptive understanding of how the First Amendment came to look the way it does and how it came to include what it includes and exclude what it excludes.” He suggests “that the most logical explanation of the actual of boundaries of the First Amendment might come less from an underlying theory of the First Amendment and more from the political, sociological, cultural, historical, psychological, and economic milieu in which the First Amendment exists and out of which it developed.” Nonetheless, once the issue has reached the level of litigation, a practical methodology is needed to determine what is a First Amendment speech case and what is not, or to use Professor Schauer’s words, to determine “the visual boundaries of the First Amendment.”
Professor Nimmer used the phrase “definitional balancing” to describe what he thought was the appropriate methodology for the United States Supreme Court to use in “defining which forms of speech are to be regarded as ‘speech’ within the meaning of the First Amendment.” However, the Court has never explicitly said that it applies such a methodology. Nonetheless, Professor Nimmer found its application implicit in the Court’s decisions.
Used as a methodology for defining the scope of speech that the First Amendment includes and excludes, definitional balancing involves striking a balance between competing speech and governmental regulatory interests, based on First Amendment values, and the creation of rules that can be applied in subsequent cases. Professor Nimmer viewed definitional balancing as a middle ground between absolutism (in the sense that “literally all speech is protected”) and ad hoc balancing (a case by case weighing of the competing interests “for the purpose of determining which litigant deserves to prevail in a given case”). Commentators, however, are divided over its nature, desirability, and application. The article examines the Court’s use of definitional balancing and the issues raised by commentators.
Keywords: First Amendment
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