The First Amendment Structure for Speakers and Speech
59 Pages Posted: 11 May 2014
Date Written: May 9, 2014
A noticeable trend in the Roberts Court’s free speech decisions is heightened attention to the dimensions of the First Amendment. From holding false factual statements, violent video games, and animal cruelty depictions are covered by the First Amendment, to determining that a legislator’s vote, the government’s acceptance of a monument, and a law school’s refusal to allow access to military recruiters are not, the Court has highlighted the importance of evaluating both the scope of the First Amendment and the appropriate attribution of communicative efforts. But the Court has failed to announce an overarching structural framework for resolving these prefatory coverage and attribution issues, instead compartmentalizing speech and speaker concerns into separate doctrinal strands.
This Article illustrates the interrelationship of these speech and speaker issues and their amenability to a structural framework based upon historical traditions and contemporary communicative utility. Linguistic communications presumptively fall within First Amendment coverage except when historically treated as outside the guarantee’s scope or when traditionally viewed as attributable to the government or polity. The presumption, though, is reversed for nonlinguistic communicative attempts; founding-era traditions indicating the form’s predominant expressiveness are necessary to presume coverage. Yet even communicative efforts outside the First Amendment’s presumptive scope may be covered based on contemporary insights regarding the expressive value of the communicative effort when compared to its associated harms.
The Supreme Court’s doctrine supporting this coverage structure reveals both the salience of originalism in determining the First Amendment’s baseline scope and the implausibility of a single unifying free expression theory. The fundamental question of First Amendment coverage is informed by a combination of historical practices and contemporary insights. These traditions and attitudes have not developed from an integrative force, but through our nation’s experiences and an ongoing dialectic in which different visions of the core purposes of the First Amendment have been proposed, debated, and absorbed within the American expressive commitment.
Keywords: First Amendment, free speech, speech coverage, unprotected speech, government speech, expressive conduct, originalism
JEL Classification: K10, K19, K39, K49
Suggested Citation: Suggested Citation