Free Speech and Generally Applicable Laws: A New Doctrinal Synthesis
72 Pages Posted: 26 Nov 2017
Date Written: November 22, 2017
A longstanding mystery of constitutional law concerns how the Free Speech Clause interacts with “generally applicable” legal restrictions. This Article develops a new conceptual framework for working through this puzzle. It does so by extracting from prior Supreme Court rulings an approach that divides these restrictions into three separate categories, each of which (at least presumptively) brings into play a different level of judicial scrutiny. An example of the first and most closely scrutinized category of generally applicable laws—that is, laws that place a “direct in effect” burden on speech—is provided by breach-of-the-peace statutes. These laws are generally applicable because they cover a great deal of behavior that has nothing to do with speech, but they also often outlaw speech that triggers a violent response. To the extent these laws do so, they proscribe speech in a direct-in-effect way, in the key sense that their application depends on the communicative impact of the regulated activity. In contrast, the second category of generally applicable laws, which trigger only intermediate scrutiny, has nothing to do with restricting speech based on any listener reaction. In United States v. O’Brien, for example, the government relied on an across-the-board ban on draft-card destruction to prosecute a war protester who burned his card as a form of symbolic dissent. This case, the Court concluded, involved merely an “incidental” (as opposed to a direct-in-effect) burden on speech because the challenged statute covered each and every instance of draft card burning wholly apart from the impact that any such action might have on the mind of any observer. The third category of generally applicable laws received the Court’s attention in Arcara v. Cloud Books, Inc., which involved a challenge to an ordinance that required the closure of any place of business—in this case a bookstore—where prostitution or other “lewd” activities had occurred. Obviously, the closing of a bookstore imposed a burden on speech. But this burden did not trigger any First Amendment scrutiny because the defendant in Arcara was not (as was the defendant in O’Brien) punished for activity that itself involved expression; rather, the defendant was punished for tolerating on-premises acts of lewdness, which did not involve speech at all. Put another way, the case involved only a “doubly incidental” burden on speech—that is, the sort of burden imposed by a wide range of laws (including tax laws, labor laws, and health laws) that do not operate on speech itself but instead diminish the resources or capacity of would-be speakers to engage in expressive activity.
This Article develops in detail this tripartite structure for analyzing Free Speech Clause challenges to generally applicable laws. In particular, it highlights the complexity of this body of law, identifying the rich mix of exceptions to the three core rules around which the Court’s governing doctrine is organized. In addition, this Article shows that—and explains why—the Court has taken a fundamentally different approach to generally applicable laws in the free-speech and free-exercise-of-religion contexts. Along the way, the Article notes that the current Court has signaled a potential willingness to tinker with existing doctrine, including by expanding Free Speech Clause limits on generally applicable antidiscrimination laws. At the same time, this Article posits that the key features of the three-part approach toward which the Court has haltingly, but discernibly, moved over the years comports with overarching First Amendment theory.
Keywords: Free Speech Clause, First Amendment, constitutional law, generally applicable laws, burden on speech, United States v. O’Brien, Arcara v. Cloud Books, Inc., Holder v. Humanitarian Law Project, hybrid rights, intermediate scrutiny, strict scrutiny
JEL Classification: K19
Suggested Citation: Suggested Citation