CHAPTER 8

The First Amendment: Freedom of Speech and of the Press

§8.1 INTRODUCTION AND OVERVIEW

As usual, we begin with the text. The words are simple and straightforward: “Congress shall make no law … abridging the freedom of speech, or of the press.” There is power in this simplicity. The blunt proscription would seem to preclude any legislation that limits or punishes the protected activities. No law. But as the length of this chapter attests, the simplicity of text does not translate into a paucity of doctrine, and the doctrines rarely, if ever, speak in terms of absolutes. Rather, the freedoms of speech and press are, like other rights protected by the Constitution, both contextual and contingent, providing a range of possibilities as varied as the human imagination. The text is not, however, meaningless. The seemingly absolute proscription, at the very least, describes a powerful constitutional commitment to the freedoms of speech and press. That is our starting point.

This commitment stems from a variety of philosophical perspectives, some emphasizing the importance of freedom of expression to human growth or self-realization, others noting the essential role of free expression within a political democracy, and still others seeing this freedom as the only method through which falsehood can be exposed and some approximation of transient truth discovered. Given the wide range of First Amendment doctrines, it is not too surprising that each of these perspectives can find some voice in the Court’s opinions. The predominant theme of those opinions, however, is the centrality of political speech to the core purposes of the First Amendment, not because political speech is inherently more valuable than other types of speech, but because our system of self-governance is dependent on free inquiry and debate and because a centralized governmental power has the potential to constrict knowledge and to distort that debate through the suppression of opposing viewpoints. In the Court’s words, therefore, the First Amendment represents “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times v. Sullivan, 376 U.S. 254, 270 (1964).

Political speech does not, however, represent a rigidly defined category. Rather, in practice, all speech is treated with the same dignity as that afforded political speech unless the speech at issue falls into a specifically defined category of lesser protected expression—obscenity being an obvious example. Thus, the freedoms of speech and press fully protect commentary and debate on an almost boundless range of topics from the profound to the mundane. Political speech is simply the nucleus around which these other categories revolve.

In terms of analysis, you will find that the doctrines of freedom of speech and press share much with the analysis applied to problems involving equal protection and due process. Thus, content-based restrictions on political speech are subject to strict scrutiny, requiring both a compelling state interest and the application of the least restrictive means test. And as speech strays from the core values of the First Amendment, the level of scrutiny will decrease in a manner similar to the three-tiered or the sliding-scale model of equal protection. Commercial speech, therefore, receives something like mid-level scrutiny. Moreover, the analytical tie to these other constitutional provisions applies even in those contexts in which special First Amendment doctrines have been developed to address particular types of problems. The specialized jargon of these doctrines often reflects a particular instance of strict, mid-level, or rational basis scrutiny.

Similarly, one will see the strands of substantive due process analysis in the treatment of governmental regulations that burden speech in a content-neutral fashion. Although the precise test used—time, place, and manner—speaks in terms of burdens on speech, the elements of the test are closely allied with the familiar balancing formula of due process.