Details: Specific Facts and the First Amendment
62 Pages Posted: 30 Sep 2011 Last revised: 7 May 2013
Date Written: September 28, 2011
First Amendment theory and judicial decisions have traditionally focused their analysis primarily on the regulation and suppression of ideas, opinions, and advocacy. The great free speech disputes of the Twentieth Century have produced a robust body of law which, at least in the political sphere, gives very strong protection to such speech. But ideas and opinions are not the only sorts of information conveyed by speech. What about facts, and in particular, what about specific facts, what I call details? Cases such as New York Times v. Sullivan and its progeny discuss the proper treatment of false facts, but what of true, accurate details? Here, both the courts and the commentators have been almost entirely silent. An examination of recent cases reveals, however, that factual speech has been at the center of in a number of important First Amendment disputes, and that with the rise of the Internet such disputes are increasing in number. Such cases arise in a wide variety of contexts, including privacy disputes over disclosure of personal details, attempts to regulate dangerous speech, disputes over technical and scientific speech, and disclosure of military or diplomatic secrets. Furthermore, the judicial decisions in this area are in utter disarray. Courts apply inconsistent doctrinal rules to essentially identical cases, and reach wildly varying results. Some reconsideration is clearly needed here.
Turning to First Amendment theory, I argue that if one accepts (as I do) the view that the primary, albeit not necessarily the only, purpose of the First Amendment is to protect the process of democratic self-governance, then it will often be true that specific, factual speech is less central to First Amendment values than ideas or opinions, because it contributes little to self-governance. On the other hand, sometimes details can play a central role in self-governance, and furthermore details may also have some, albeit reduced, value because of their contribution to other goals relevant to free speech such as the search for truth. As such, no categorical denial or even reduction of constitutional protection for details is warranted. Instead, I propose a two-tiered approach. In a case where the government seeks to regulate or suppress details (or punish the disclosure of details), courts must first evaluate the relationship between the specific details at issue and the process of self-governance (defined with sufficient breadth). If a direct such relationship exists, then courts should continue to apply the extremely protective doctrine it has developed in cases involving advocacy and ideas, including the strict scrutiny test and the highly stringent incitement test of Brandenburg v. Ohio. However, if the details at issue are only peripherally connected to self-governance or are unrelated altogether, then a more permissive approach is called for. My solution is to apply, in such cases, a version of the intermediate scrutiny test developed in the Supreme Court’s commercial speech jurisprudence. This test is sufficiently robust to permit significant protection for such details, but sufficiently flexible to permit courts to consider both the constitutional value of the relevant speech, and scale of the social harm threatened by disclosure of the details, in drawing a proper balance. I conclude the article by considering how this approach would have altered the analysis in a number of litigated cases.
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