Speech-Facilitating Conduct

65 Pages Posted: 1 Feb 2016

See all articles by Jud Campbell

Jud Campbell

University of Richmond School of Law

Date Written: January 31, 2016


Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law — restrictions on photography and audiovisual recording, limits on campaign contributions, putative news gathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on downstream effects on speech as the touchstone for First Amendment coverage. The usual conclusion is that the Supreme Court’s decisions are in disarray.

This Article argues that key features of doctrine are easily overlooked when employing a granular focus on particular rights. Instead, the Article presents an overarching framework that brings together, descriptively and normatively, otherwise disparate strands of free speech law. The guiding principle of this framework is that First Amendment coverage for nonexpressive conduct depends on whether the government uses a rule that targets speech (e.g., a special tax on newspapers), not on whether expression is indirectly burdened by particular applications of otherwise constitutional rules (e.g., a child labor law applied to newspapers). Applications of this “anti-targeting” principle vary by context, but the general concept offers a surprisingly comprehensive account of most Supreme Court decisions. Tracing the development of the anti-targeting principle also reveals an underappreciated shift in the way that the Court has dealt with claims based on nonexpressive conduct. This historical argument shows that the reasoning in many of the Court’s foundational cases — including Buckley v. Valeo, Branzburg v. Hayes, Abood v. Detroit Board of Education, and Roberts v. United States Jaycees — is now out of step with current doctrine.

Keywords: First Amendment, free speech, freedom of association, nonexpressive conduct, news gathering, campaign finance, compelled subsidies, right to record

Suggested Citation

Campbell, Wesley, Speech-Facilitating Conduct (January 31, 2016). Stanford Law Review, Vol. 68, No. 1, 2016. Available at SSRN: https://ssrn.com/abstract=2725493

Wesley Campbell (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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