Is commercial speech really less valuable than political speech? On replacing values and categories in first amendment jurisprudence

American Business Law Journal

Volumn 34, Issue 1, 1996, Pages 1-38

  Reed, O Lee ^a  

^a NONE

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EID: 0039768890     PISSN: 00027766     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1744-1714.1996.tb00959.x     Document Type: Article

References (187)

1. The Supreme Court granted commercial speech little constitutional protection until Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). The commercial speech test articulated in Central Hudson Gas & Elec. Co. v. Public Serv. Comm'n, 447 U.S. 557 (1980) accords commercial speech less protection than political speech, excluding deceptive and misleading speech from protection altogether and allowing government to regulate even truthful commercial speech upon showing a "substantial" interest, instead of the "compelling" interest required to regulate political speech. Id. at 564.
2. E.g., R. H. Coase, Advertising and Free Speech, 7 J. LEGAL STUDIES 1, 4 (1977) ("There is simply no reason to suppose that for the great mass of people the market of ideas is more important than the market for goods."); Daniel A. Farber, Commercial Speech and First Amendment Theory, 74 NW. U. L. REV. 372 (1979). Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763 recognizes that a person's interest "in the free flow of commercial information" may be as keen, if not keener by far, than his interest in the day's most urgent political debate. Still, the Court does not accord commercial speech the constitutional protection given to political speech. See supra note 1.
3. E.g., R. H. Coase, Advertising and Free Speech, 7 J. LEGAL STUDIES 1, 4 (1977) ("There is simply no reason to suppose that for the great mass of people the market of ideas is more important than the market for goods."); Daniel A. Farber, Commercial Speech and First Amendment Theory, 74 NW. U. L. REV. 372 (1979). Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763 recognizes that a person's interest "in the free flow of commercial information" may be as keen, if not keener by far, than his interest in the day's most urgent political debate. Still, the Court does not accord commercial speech the constitutional protection given to political speech. See supra note 1.
4. E.g., MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 263 (1984) ("[T]here is ... no legitimate basis on which to distinguish political expression from other forms of expression ...."); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 148 (1993) ("Both commercial speech and pornography are political in the crucial sense that they reflect and promote a point of view, broadly speaking ideological in character, about how important things in the world should be structured.") Cf. MELVILLE B. NIMMER, NIMMER ON FREEDOM OF SPEECH: A TREATISE ON THE THEORY OF THE FIRST AMENDMENT § 3.01 (1984) ("[I]n a very real sense all speech relates to governmental 'policy,' and is, therefore, political."). See generally Frederick Schauer, Commercial Speech and the Architecture of the First Amendment, 56 U. CIN. L. REV. 1181 (1988).
5. E.g., MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 263 (1984) ("[T]here is ... no legitimate basis on which to distinguish political expression from other forms of expression ...."); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 148 (1993) ("Both commercial speech and pornography are political in the crucial sense that they reflect and promote a point of view, broadly speaking ideological in character, about how important things in the world should be structured.") Cf. MELVILLE B. NIMMER, NIMMER ON FREEDOM OF SPEECH: A TREATISE ON THE THEORY OF THE FIRST AMENDMENT § 3.01 (1984) ("[I]n a very real sense all speech relates to governmental 'policy,' and is, therefore, political."). See generally Frederick Schauer, Commercial Speech and the Architecture of the First Amendment, 56 U. CIN. L. REV. 1181 (1988).
6. E.g., MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 263 (1984) ("[T]here is ... no legitimate basis on which to distinguish political expression from other forms of expression ...."); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 148 (1993) ("Both commercial speech and pornography are political in the crucial sense that they reflect and promote a point of view, broadly speaking ideological in character, about how important things in the world should be structured.") Cf. MELVILLE B. NIMMER, NIMMER ON FREEDOM OF SPEECH: A TREATISE ON THE THEORY OF THE FIRST AMENDMENT § 3.01 (1984) ("[I]n a very real sense all speech relates to governmental 'policy,' and is, therefore, political."). See generally Frederick Schauer, Commercial Speech and the Architecture of the First Amendment, 56 U. CIN. L. REV. 1181 (1988).
7. E.g., MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 263 (1984) ("[T]here is ... no legitimate basis on which to distinguish political expression from other forms of expression ...."); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 148 (1993) ("Both commercial speech and pornography are political in the crucial sense that they reflect and promote a point of view, broadly speaking ideological in character, about how important things in the world should be structured.") Cf. MELVILLE B. NIMMER, NIMMER ON FREEDOM OF SPEECH: A TREATISE ON THE THEORY OF THE FIRST AMENDMENT § 3.01 (1984) ("[I]n a very real sense all speech relates to governmental 'policy,' and is, therefore, political."). See generally Frederick Schauer, Commercial Speech and the Architecture of the First Amendment, 56 U. CIN. L. REV. 1181 (1988).
8. E.g., "It is a fundamental principle long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish." Gitlow v. New York, 268 U.S. 652, 666 (1925).
9. One of the earliest Supreme Court statements of speech limitation is that of Holmes: "We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling of murder within the jurisdiction of Congress would be an unconstitutional interference with free speech." Frohwerk v. United States, 249 U.S. 204, 206 (1919). Holmes also observed that free speech would hardly protect someone from "falsely shouting fire in a crowded theater and causing a panic." Schenck v. United States, 249 U.S. 47, 52 (1919).
10. Even more concerned about categorization than judges have been scholars, who Justice Stevens asserts have shown "an almost hypnotic fascination with the endeavor to explain and to organize the development [of free speech] in rigidly defined compartments." John Paul Stevens, The Freedom of Speech, 102 YALE L.J. 1293, 1301 (1993). For a defense of speech categorization, see John H. Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482 (1975). However, Emerson has asserted that speech categorization is foreclosed "by the basic theory of the First Amendment." THOMAS I. EMERSON, THE SYSTEM OF FREE EXPRESSION 326 (1970).
11. Even more concerned about categorization than judges have been scholars, who Justice Stevens asserts have shown "an almost hypnotic fascination with the endeavor to explain and to organize the development [of free speech] in rigidly defined compartments." John Paul Stevens, The Freedom of Speech, 102 YALE L.J. 1293, 1301 (1993). For a defense of speech categorization, see John H. Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482 (1975). However, Emerson has asserted that speech categorization is foreclosed "by the basic theory of the First Amendment." THOMAS I. EMERSON, THE SYSTEM OF FREE EXPRESSION 326 (1970).
12. Even more concerned about categorization than judges have been scholars, who Justice Stevens asserts have shown "an almost hypnotic fascination with the endeavor to explain and to organize the development [of free speech] in rigidly defined compartments." John Paul Stevens, The Freedom of Speech, 102 YALE L.J. 1293, 1301 (1993). For a defense of speech categorization, see John H. Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482 (1975). However, Emerson has asserted that speech categorization is foreclosed "by the basic theory of the First Amendment." THOMAS I. EMERSON, THE SYSTEM OF FREE EXPRESSION 326 (1970).
13. Justice Stevens comments: "My experience on the bench has convinced me that these categories must be used with caution and viewed with skepticism. Too often, they neither account for the facts at issue nor illuminate the interests at stake." Stevens, supra note 6, at 1303. The pornography cases beginning with Roth v. United States, 354 U.S. 476 (1957), provide good examples of the confusion caused by categorization based on values. For a defense lawyer's view of how to manipulate this confusion in pornography cases, see generally EDWARD DE GRAZIA, GIRLS LEAN BACK EVERYWHERE (1992). For a good summary of the positive and negative values of pornography, see Kent Greenfield, Our Conflicting Judgments About Pornography, 43 AM. U. L. REV. 1197 (1994) (book review).
14. Justice Stevens comments: "My experience on the bench has convinced me that these categories must be used with caution and viewed with skepticism. Too often, they neither account for the facts at issue nor illuminate the interests at stake." Stevens, supra note 6, at 1303. The pornography cases beginning with Roth v. United States, 354 U.S. 476 (1957), provide good examples of the confusion caused by categorization based on values. For a defense lawyer's view of how to manipulate this confusion in pornography cases, see generally EDWARD DE GRAZIA, GIRLS LEAN BACK EVERYWHERE (1992). For a good summary of the positive and negative values of pornography, see Kent Greenfield, Our Conflicting Judgments About Pornography, 43 AM. U. L. REV. 1197 (1994) (book review).
15. The trumping concept comes from Ronald Dworkin, Rights as Trumps, in THEORIES OF RIGHTS 153, 153-54 (J. Waldron ed., 1984). Dworkin defines rights as trumps over communitarian utility. In this article the trumping concept is used to indicate that certain harms overcome, i.e., trump, free speech. In this usage the superordinate right to have the government protect citizens from harm trumps the right of free speech. It is acknowledged that this usage may not conform precisely to Dworkin's usage.
16. E.g., see infra note 120 and accompanying text.
17. ZECHARIAH CHAFEE, FREEDOM OF SPEECH 377 (1920).
18. E.g., "[I]t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail ...." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). Some Supreme Court statements have also acknowledged the self-fulfillment value of free speech. See cases cited in NIMMER, supra note 3, § 1.03 n.4.
19. Thomas I. Emerson, Toward A General Theory of the First Amendment, 72 YALE L.J. 877, 878-79 (1963).
20. Id.
21. Id.
22. Id.
23. ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 40 (1948). See also R. H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971).
24. ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 40 (1948). See also R. H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1 (1971).
25. C. Edwin Baker, Scope of the First Amendment's Freedom of Speech, 25 UCLA L. REV. 964, 974 (1978).
26. NIMMER, supra note 3, § 1.02.
27. NIMMER, supra note 3, § 1.04.
28. See generally David A. Strauss, Persuasion and Autonomy, 91 COLUM. L. REV. 334 (1991) (asserting that persuasion principle supporting free speech can be defended as affirmation of individual's autonomy).
29. Martin H. Redish, Self Realization, Democracy and Freedom of Expression: A Reply to Professor Baker, 130 U. PA. L. REV. 678, 684 (1982). See also Martin H. Redish, The Value of Free Speech, 130 U. PA. L. REV. 591 (1982).
30. Martin H. Redish, Self Realization, Democracy and Freedom of Expression: A Reply to Professor Baker, 130 U. PA. L. REV. 678, 684 (1982). See also Martin H. Redish, The Value of Free Speech, 130 U. PA. L. REV. 591 (1982).
31. IX WRITINGS OF JAMES MADISON 103 (G. Hunt ed., 1910). See also Letter sent to the inhabitants of Quebec in 1774 by the Continental Congress, Rosenbloom v. Metromedia, 403 U.S. 29, 42 (1971) (stating of freedom of the press: "The importance [i.e., value] of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government ...."). It is unlikely, however, that the authors of these speech-value statements believed in speech without limitation or accountability for the harms it can cause. As Jefferson wrote in a letter to Madison: "A declaration that the federal government will never restrain the presses from printing anything they please, will not take away the liability of printers for false facts printed." See VERMONT ROYSTER, THE AMERICAN PRESS AND THE REVOLUTIONARY TRADITION 12 (1974) (quoting Jefferson letter).
32. See ROYSTER, supra note 22, at 8.
33. Charles Warren, The New Liberty Under the Fourteenth Amendment, 39 HARV. L. REV. 431, 461 (1925).
34. Id.
35. ROYSTER, supra note 22, at 4. Of this right, Duniway says that historically it was repeatedly denied by the Crown and often infringed by the intolerance of Parliament itself." CLYDE AUGUSTUS DUNIWAY, THE DEVELOPMENT OF FREEDOM OF THE PRESS IN MASSACHUSETTS 9 (1906).
36. ROYSTER, supra note 22, at 11 (original emphasis).
37. ROYSTER, supra note 22, at 13.
38. ROYSTER, supra note 22, at 23.
39. "The Founders' intention for the First Amendment, if there is such a thing, was not to eradicate censorship. It was to limit the central government's prerogatives." David Yasskey, Eras of the First Amendment, 91 COLUM. L. REV. 1699, 1710 (1991).
40. ROYSTER, supra note 22, at 12 (quoting Jefferson).
41. Warren, supra note 24, at 434-35 (quoting New Hampshire representative) (emphasis added).
42. Warren, supra note 24, at 435.
43. Quoting Chancellor Kent, Story reports that "it has become a constitutional principle in this country that every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right ...." III JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 742 (Rothman 1991) (1833) (original emphasis). A collection of the state free speech provisions of the day, which support Story's position, appear in THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 518-22 (4th ed. 1878).
44. COOLEY, supra note 34, at 527-34.
45. 4 Wheeler's Crim. Cas. 329-63 (N.Y. 1804).
46. Id.
47. See Joseph R. Long, The Freedom of the Press, 5 VA. L. REV. 225, 243 (1918).
48. Id.
49. Id. at 228 (quoting Hamilton).
50. "The Supreme Court of the United States did not decide a single significant case on the limits of freedom of speech in the entire nineteenth century." Lawrence Friedman, The Constitution and American Legal Culture, 32 ST. LOUIS U. L.J. 1, 5 (1987).
51. COOLEY, supra note 34, at 527-28.
52. Yasskey, supra note 30, at 1703.
53. Yasskey, supra note 30, at 1702.
54. This article identifies the beginning of modern free speech jurisprudence as Schenck v. United States, 249 U.S. 47, 52 (1919). As Yasskey asserts, however: "Not until the 1930s did the courts begin to recognize anything close to a prohibition on censorship. To the contrary, throughout the first 150 years of the First Amendment, federal courts regularly enforced severe restrictions on citizens' ability to speak freely." Yasskey, supra note 30, at 1700.
55. The cases include Whitney v. California, 274 U.S. 357 (1927); Gitlow v. New York, 268 U.S. 652 (1925); Gilbert v. Minnesota, 254 U.S. 325 (1920); Schaefer v. United States, 251 U.S. 466 (1920); Abrams v. United States, 250 U.S. 616 (1920); Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 211 (1919); Schenck v. United States, 249 U.S. 47 (1919).
56. Abrams v. United States, 250 U.S. 616 (1920) (Holmes, J., dissenting). Brandeis joined the dissent. An excellent essay on the origins of Holmes' First Amendment thinking is G. Edward White, Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension, 80 CAL. L. REV. 391 (1992). See also Gerald Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 STAN. L. REV. 719 (1975).
57. Abrams v. United States, 250 U.S. 616 (1920) (Holmes, J., dissenting). Brandeis joined the dissent. An excellent essay on the origins of Holmes' First Amendment thinking is G. Edward White, Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension, 80 CAL. L. REV. 391 (1992). See also Gerald Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 STAN. L. REV. 719 (1975).
58. Gunther, supra note 47, at 630.
59. 274 U.S. 357 (1927) (Brandeis, J., concurring). Holmes joined the concurrence.
60. Id. at 375.
61. Id.
62. Id. at 372.
63. Id. at 377.
64. Id.
65. Justice Holmes coined the phrase in Schenck v. United States, 249 U.S. 47, 52 (1919). The Court adopted the clear and present danger test in Herndon v. Lowry, 301 U.S. 242 (1937). Kalven asserts that during the 1940s clear and present danger became "in effect, the general all-purpose First Amendment test." HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 180 (1988).
66. In this Whitney concurrence, Brandeis, joined by Holmes, emphasized in an admonition likely influenced by Chafee, supra note 10 and accompanying text: "To reach sound conclusions on these matters [when speech constitutes a clear and present danger], we must bear in mind why a State is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequences." 274 U.S. at 374 (emphasis added). The next paragraph is Brandeis' paean to free speech values quoted in the text accompanying note 50, supra. Along with Holmes' appeal to values in Schenck, this call to balance free speech values against speech danger fostered the process that in the second half of the century produced speech value categories.
67. 268 U.S. 652 (1925).
68. Id. at 666. Immediately following Gitlow, Professor Warren wrote a devastating critique of the decision. Warren concludes: It should be noted that Judge Sanford in Gitlow cites no authority for holding the word "liberty" to include the right to free speech and free press. In a note to his opinion, he says "compare Patterson v. Colorado" and six other cases; but not one of the cases supports the contention. Warren, supra note 24, at 458 n.79.
69. See, e.g., in chronological order, Stromberg v. California, 283 U.S. 359, 369 (1931) (free speech needed "to the end that government may be responsive to the will of the people"); Grozjean v. American Press Co., 297 U.S. 233, 250 (1936) ("[U]ntrammeled press is a vital source of public information ...."); DeJonge v. Oregon, 299 U.S. 353, 364 (1937) (Free speech maintains "the opportunity for free political discussion, to the end that government may be responsive to the will of the people, and that changes if desired may be obtained by peaceful means."); Terminiello v. Chicago, 337 U.S. 1, 4 (1949) ("The vitality of civil and political institutions in our society depends on free discussion.")
70. Yasskey, supra note 30 at 1701-03.
71. Yasskey, supra note 30, at 1703.
72. See KENT GREENAWALT, FIGHTING WORDS: INDIVIDUALS, COMMUNITIES, AND LIBERTIES OF SPEECH 125 (1995).
73. E.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (protection of the rock musical "Hair"); Burstyn v. Wilson, 343 U.S. 495 (1952) (protection of motion pictures).
74. E.g., Alexander v. United States; 509 U.S. 544 (1993); Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991); FCC v. Pacifica Found., 438 U.S. 726 (1978); Young v. American Mini Theaters, 427 U.S. 50 (1976). See also GEOFFREY R. STONE, ET AL., CONSTITUTIONAL LAW 1146-69 (1986).
75. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
76. See, e.g., Schad v. Mt. Ephraim, 452 U.S. 61 (1981) (nude dancing as protected expression); Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969) (wearing of black arm band as protected expression). The protection of nonverbal expression actually goes back to Stromberg v. California, 283 U.S. 359 (1931) (flag display as protected expression). See generally O. Lee Reed, Should the First Amendment Protect Joe Camel: Toward an Understanding of Constitutional "Expression," 32 Am. Bus. L.J. 311 (1995).
77. "We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for the emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated." Cohen v. California, 403 U.S. 15, 26 (1971). See generally NIMMER, supra note 3, § 3.04.
78. 376 U.S. 255 (1964). It could also be argued that speech categorization began with Roth v. United States, 354 U.S. 476 (1957), the first major sexual expression case, or with Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the "fighting words" case. However, at the time these cases were decided, it was not clear that obscenity and fighting words were even considered within the ambit of First Amendment protection. The Times case was the first case to make a clear distinction between different categories of protected speech.
79. See generally supra notes 59-67 and accompanying text.
80. "Political speech, we have often noted, is at the core of the First Amendment." Shapero v. Kentucky, 486 U.S. 466, 483 (1988) (O'Connor, J., dissenting). See also Boos v. Barry, 485 U.S. 312, 318 (1988). Cf. Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) ("[S]peech concerning public affairs is more than self-expression, it is the essence of self-government.").
81. Cf. Roth v. United States, 354 U.S. 476, 484 (1957) ("The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."). See also Lamont v. Postmaster Gen., 381 U.S. 301 (1965). In Lamont, Justice Brennan originated the phrase "marketplace of ideas." Id. at 308.
82. For a content-based restriction (as opposed to a merely incidental one) on political speech to withstand constitutional scrutiny, it must serve a compelling state interest. See Burson v. Freeman, 504 U.S. 191, 198 (1992); Perry Educ. Ass'n v. Perry Local Educator's Ass'n, 460 U.S. 37, 45 (1983); Buckley v. Valeo, 424 U.S. 1, 44-45 (1976).
83. E.g., "We have always been careful to distinguish commercial speech from speech at the First Amendment's core." Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2376 (1995). "Commercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values ...." Board of Trustees v. Fox, 492 U.S. 469, 477 (1989). Commercial speech receives "a limited form of First Amendment protection." Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S. 328, 340 (1986).
84. "As to the particular consumer's interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day's most urgent political debate." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976).
85. Id. at 749 n.24. See also Coase, supra note 2.
86. 447 U.S. 557 (1979).
87. Id. at 564.
88. See, e.g., Barnes v. Glenn Theater, Inc., 501 U.S. 560, 570 (1991) ("Several of our cases contain language suggesting that nude dancing of the kind involved here is expressive conduct protected by the First Amendment."); Renton v. Playtime Theaters Inc., 475 U.S. 41, 49 n.2 (1986).
89. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).
90. The tests for obscenity are found in Miller v. California, 413 U.S. 15 (1973); Memoirs v. Massachusetts, 383 U.S. 413 (1966); and Roth v. United States, 354 U.S. 476 (1957). When sexual expression is not obscene, yet has been regulated, it is sometimes tested under the formula for incidental speech regulation found in United States v. O'Brien, 391 U.S. 367 (1968).
91. Central Hudson v. Public Serv. Comm'n, 447 U.S. 557, 564 (1979).
92. See discussions of content and viewpoint neutrality in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) Perhaps the most often-quoted statement of content neutrality is in City of Chicago v. Mosley, 408 U.S. 92, 95 (1972) ("[A]bove all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.").
93. A good discussion may be found in NIMMER, supra note 3, § 4.11.
94. E.g., Kent Greenawalt, Free Speech Justifications, 89 COLUM. L. REV. 119, 127 (1989) ("There is no single correct way of presenting the justifications that matter for a principle of freedom of speech."); Sheldon H. Nahmod, Artistic Expression and Aesthetic Theory: The Beautiful, the Sublime, and the First Amendment, 1987 WIS. L. REV. 221, 226 n.19 ("I suspect that no comprehensive first amendment theory, especially one which relies on unitary purpose, will ever be satisfactory."); Steven Shiffrin, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 NW. U. L. REV. 1212 (1983).
95. E.g., Kent Greenawalt, Free Speech Justifications, 89 COLUM. L. REV. 119, 127 (1989) ("There is no single correct way of presenting the justifications that matter for a principle of freedom of speech."); Sheldon H. Nahmod, Artistic Expression and Aesthetic Theory: The Beautiful, the Sublime, and the First Amendment, 1987 WIS. L. REV. 221, 226 n.19 ("I suspect that no comprehensive first amendment theory, especially one which relies on unitary purpose, will ever be satisfactory."); Steven Shiffrin, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 NW. U. L. REV. 1212 (1983).
96. E.g., Kent Greenawalt, Free Speech Justifications, 89 COLUM. L. REV. 119, 127 (1989) ("There is no single correct way of presenting the justifications that matter for a principle of freedom of speech."); Sheldon H. Nahmod, Artistic Expression and Aesthetic Theory: The Beautiful, the Sublime, and the First Amendment, 1987 WIS. L. REV. 221, 226 n.19 ("I suspect that no comprehensive first amendment theory, especially one which relies on unitary purpose, will ever be satisfactory."); Steven Shiffrin, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment, 78 NW. U. L. REV. 1212 (1983).
97. See supra note 3.
98. See supra note 4.
99. See supra notes 30-31 and accompanying text.
100. See supra note 34.
101. See supra note 34.
102. Gitlow v. New York, 268 U.S. 652 (1925).
103. E.g., Black acknowledged that the government's power to regulate fraudulent speech "has always been recognized in this country and is firmly established." Donaldson v. Read Magazine, Inc., 333 U.S. 178, 190 (1948). He also did not believe that freedom of communicative conduct was absolute in spite of that conduct's inclusion within the concept of free speech. See NIMMER, supra note 3, § 2.01. Perhaps Black believed in absolute free speech in the sense this article views speech as absolutely protected by the First Amendment unless it is trumped by harm. Perhaps he also considered that few (or no) situations of political speech generated the necessary harm to trump free speech protection.
104. Compare Edward J. Eberle, Practical Reason: The Commercial Speech Paradigm, 42 CASE W. RES. L. REV. 411, 470 (1992) ("[U]ltimately, harm provides the only sound basis on which to restrict speech.").
105. PHILOSOPHY OF LAW 141-42 (Conrad Johnson ed., 1993) (quoting J. S. Mill).
106. U.S. CONST. art. I, § 8.
107. 395 U.S. 444 (1969).
108. Id. at 447.
109. Whitney v. California, 274 U.S. 357, 378 (1927) ("whether the danger, if any, was imminent"). If the word present means the same as imminent, then the belief goes back to Holmes' first articulation of clear and present danger in Schenck v. United States, 249 U.S. 47, 52 (1919).
110. 341 U.S. 494 (1951).
111. Note that Brandenburg does not actually use the words "clear and present danger."
112. Tom Hentoff, Note, Speech, Harm, and Self-Govemment: Understanding the Ambit of the Clear and Present Danger Test, 91 COLUM. L. REV. 1453, 1458 (1991) (Imminence is the element of the test that makes clear and present danger so speech protective."). General discussions of the clear and present danger test are also found in HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 119-240 (1988) and Staughton Lynd, Comment, Brandenburg v. Ohio: A Speech Test for All Seasons, 43 U. CHI. L. REV. 151 (1975).
113. Tom Hentoff, Note, Speech, Harm, and Self-Govemment: Understanding the Ambit of the Clear and Present Danger Test, 91 COLUM. L. REV. 1453, 1458 (1991) (Imminence is the element of the test that makes clear and present danger so speech protective."). General discussions of the clear and present danger test are also found in HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 119-240 (1988) and Staughton Lynd, Comment, Brandenburg v. Ohio: A Speech Test for All Seasons, 43 U. CHI. L. REV. 151 (1975).
114. Tom Hentoff, Note, Speech, Harm, and Self-Govemment: Understanding the Ambit of the Clear and Present Danger Test, 91 COLUM. L. REV. 1453, 1458 (1991) (Imminence is the element of the test that makes clear and present danger so speech protective."). General discussions of the clear and present danger test are also found in HARRY KALVEN, JR., A WORTHY TRADITION: FREEDOM OF SPEECH IN AMERICA 119-240 (1988) and Staughton Lynd, Comment, Brandenburg v. Ohio: A Speech Test for All Seasons, 43 U. CHI. L. REV. 151 (1975).
115. Another difference between the two situations of speech is that fraudulent speech, even if directed privately to one person, is likely to cause substantial harm (to that person). "Incitement to overthrow," however, is hardly likely to produce substantial harm to individuals or the institutions of government when directed privately to one or more persons. Talk about government overthrow can be viewed as just rhetorical flourish not rising to the level of harm, until the acts incited become imminently present. In general, this analysis supports the view that societally regulable harm is less likely to occur from political than from commercial speech.
116. One could argue that the test advanced here for speech regulation - requiring likelihood to produce substantial harm - resembles the clear and present danger test as interpreted by Dennis v. United States, 341 U.S. 494 (1951), even more than it does the Brandenburg test. In Dennis the Court held that the clear and present danger test requires courts to "ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion as is necessary to avoid the danger." Id. at 510 (quoting Dennis v. United States, 183 F.2d 201, 212 (2d Cir. 1950) (L. Hand, J.)). However, the test here does not entail the "discounting" and balancing demanded by the adaptation of Hand's negligence formula. More appropriately, this test adapts the Brandenburg approach.
117. For instance, the Supreme Court has repeatedly asserted that political speech is more valued than commercial speech. See supra note 73. Not only do these assignments of political and commercial speech into different value layers necessitate different tests to determine the constitutionality of government speech regulation, they raise the avoidable problems of determining whether speech is political or commercial. They also can cause the states inappropriately to distinguish political and commercial speech. See, e.g., Cincinnati v. Discovery Network, 507 U.S. 410 (1993) (City's selective ban on newsrack distribution of commercial handbills, but not newspapers, violates First Amendment).
118. 104 COOLEY, supra note 34.
119. Richard H. Eliel, Freedom of Speech During and Since the Civil War, 18 AM. POL. SCI. REV. 712, 722 (1924) (emphasis added).
120. JOEL FEINBERG, HARM TO OTHERS 36 (1984).
121. Id.
122. Id. at 11.
123. For a good discussion of First Amendment balancing, see NIMMER, supra note 3, §§ 2.02.06.
124. Dworkin, supra note 8.
125. Cf. EDWARD LEVI, INTRODUCTION TO LEGAL REASONING 1 (1949) (stating that in applying legal rules to appellate court issues, courts usually confront "gaps of ambiguity," i.e., interpretational uncertainties that allow "policy" to be made).
126. On the general importance of categories to free speech analysis, see Ely, supra note 6.
127. 347 U.S. 483 (1954).
128. 435 U.S. 748 (1976).
129. 316 U.S. 52 (1942).
130. For the assertion that the Supreme Court might be amenable to a broad-based, harms-oriented free speech test, see Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). In this case the Court acknowledged that the language "substantial likelihood of material prejudice" [a type of harm] was functionally equivalent to "clear and present danger" and to the Brandenburg test. Id. at 1036-37.
131. See supra notes 47-56 and accompanying text.
132. See supra note 68 and accompanying text.
133. See supra notes 34-40 and accompanying text.
134. From 1980 through 1994, the word value(s) was used 85 times in Supreme Court First Amendment cases; the word harm(s) was used 62 times. Search of LEXIS, Genfed Library, US file (Dec. 1, 1995).
135. See supra note 70 and accompanying text.
136. See generally Harry Kalven, Jr., The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 SUP. CT. REV. 245. Dean Stone is in implicit accord with Kalven when he observes that the differential treatment of low and high value speech is necessary to enable the court to "deal sensibly with potentially harmful but relatively 'unimportant' speech without diluting the protection accorded expression at the very heart of the [free speech] guarantee." Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 196 n.24 (1983). However, a well-developed constitutional concept of speech harm allows for the regulation of harmful speech while still treating all speech equally. It also accounts for the regulation of speech harm without the unnecessary complications caused by a values-driven speech categorization methodology that even Dean Stone acknowledges is "somewhat obscure." Id. at 194.
137. See generally Harry Kalven, Jr., The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 SUP. CT. REV. 245. Dean Stone is in implicit accord with Kalven when he observes that the differential treatment of low and high value speech is necessary to enable the court to "deal sensibly with potentially harmful but relatively 'unimportant' speech without diluting the protection accorded expression at the very heart of the [free speech] guarantee." Geoffrey R. Stone, Content Regulation and the First Amendment, 25 WM. & MARY L. REV. 189, 196 n.24 (1983). However, a well-developed constitutional concept of speech harm allows for the regulation of harmful speech while still treating all speech equally. It also accounts for the regulation of speech harm without the unnecessary complications caused by a values-driven speech categorization methodology that even Dean Stone acknowledges is "somewhat obscure." Id. at 194.
138. E.g., Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 657 (1990); Buckley v. Valeo, 424 U.S. 1, 44-45 (1976).
139. Professor Redish offers a unified compelling interest analysis that is similar, though not identical, to the harms analysis offered here. See REDISH, supra note 3, at 125. Redish contends that "as long as the courts begin each case with the premise that expression may be regulated only in the presence of a truly compelling governmental interest, the values of free expression will be appropriately served." REDISH, supra note 3 at 126.
140. See supra note 3 and accompanying text.
141. See generally JEROME FRANK, LAW AND THE MODERN MIND (1936). 127 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974).
142. Buckley v. Valeo, 424 U.S. 1 (1976).
143. Metromedia v. City of San Diego, 453 U.S. 490 (1981).
144. Turner Broadcasting Sys., Inc., v. Federal Communications Comm'n, 114 S. Ct. 2445 (1994).
145. 408 U.S. 92 (1972).
146. Id. at 95.
147. 427 U.S. 50 (1976).
148. Id. at 65-70.
149. Id. at 64.
150. Id. at 65-70 (giving cites); R.A.V. v. City of St. Paul, 505 U.S. 377, 399-400 (1992) (White, J., concurring) (giving cites).
151. Cf. New York v. Ferber, 458 U.S. 747 (1982). [I]t is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted [i.e., the harm] so overwhelmingly outweighs the expressive interests, if any, at stake that no process of case-by-case adjudication is required. Id. at 763-64.
152. "Situation-altering" speech neither transmits information nor asserts values. It changes social context. KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGUAGE 57-63 (1936). It includes "exercises of official authority, agreements, promises, orders, offers, manipulative inducements, and manipulative threats." Id. at 58. Cf. J. L. AUSTIN, How TO DO THINGS WITH WORDS (1962). Austin uses the phrase "performative utterances" to reference how language can do things (e.g., enter people into a contract) as well as say things. See also J. L. Austin, Performative Utterances, in PHILOSOPHICAL PAPERS 233 (J. Urmson & G. Warnock eds., 3d ed. 1979).
153. "Situation-altering" speech neither transmits information nor asserts values. It changes social context. KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGUAGE 57-63 (1936). It includes "exercises of official authority, agreements, promises, orders, offers, manipulative inducements, and manipulative threats." Id. at 58. Cf. J. L. AUSTIN, How TO DO THINGS WITH WORDS (1962). Austin uses the phrase "performative utterances" to reference how language can do things (e.g., enter people into a contract) as well as say things. See also J. L. Austin, Performative Utterances, in PHILOSOPHICAL PAPERS 233 (J. Urmson & G. Warnock eds., 3d ed. 1979).
154. "Situation-altering" speech neither transmits information nor asserts values. It changes social context. KENT GREENAWALT, SPEECH, CRIME, AND THE USES OF LANGUAGE 57-63 (1936). It includes "exercises of official authority, agreements, promises, orders, offers, manipulative inducements, and manipulative threats." Id. at 58. Cf. J. L. AUSTIN, How TO DO THINGS WITH WORDS (1962). Austin uses the phrase "performative utterances" to reference how language can do things (e.g., enter people into a contract) as well as say things. See also J. L. Austin, Performative Utterances, in PHILOSOPHICAL PAPERS 233 (J. Urmson & G. Warnock eds., 3d ed. 1979).
155. 505 U.S. 377 (1992).
156. Id.
157. See the discussion in NIMMER, supra note 3, § 4.11.
158. As of late 1995, there are approximately 24 Supreme Court decisions involving commercial speech that begin with Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
159. E.g., Florida Bar v. Went For-It, Inc., 115 S. Ct. 2371, 2377-81 (1995).
160. False or fraudulent commercial speech, for example, is much more likely to cause substantial harm to the citizenry than is virtually all political speech. Certainly, incitement to overthrow the government can become a substantial harm, but given the solid bedrock of our democratic institutions, such incitement must portend imminent likelihood of achieving the harm to be avoided before the government can regulate it under either the Brandenburg test or harms analysis.
161. E.g., City of Chicago v. Mosley, 408 U.S. 92 (1972); Thornhill v. Alabama, 310 U.S. 88 (1940).
162. E.g., Brown v. Louisiana, 383 U.S. 131 (1966); Garner v. Louisiana, 368 U.S. 157 (1961).
163. E.g., Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991); Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922 (1975).
164. E.g., United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989); Street v. New York, 394 U.S. 576 (1979).
165. Ward v. Rock Against Racism, 491 U.S. 781 (1989).
166. See Reed, supra note 66.
167. See supra note 123 and accompanying text.
168. See supra note 106 and accompanying text.
169. Thomas Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 VA. L. REV. 1349, 1350 (1975).
170. Coleman v. MacLennan, 98 P. 281, 291 (Kan. 1908).
171. Randall P. Bezanson, Libel Law and the Realities of Litigation: Setting the Record Straight, 71 IOWA L. REV. 226, 228 (1985).
172. Id. at 226.
173. 376 U.S. 255 (1964).
174. Id. at 279-80.
175. 485 U.S. 46 (1988).
176. Id. at 56-57.
177. E.g., Texas v. Johnson, 491 U.S. 397, 401 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."); FCC v. Pacifica Found., 438 U.S. 726, 745 (1978) ("The fact that society may find speech offensive is not a sufficient reason for suppressing it.").
178. 354 U.S. 476, 481 (1957).
179. Id. at 486.
180. Miller v. California, 413 U.S. 15, 26 (1973).
181. Id. at 24.
182. For example, it is far too simplistic to conclude that much sexual material, even of the "hard core" variety, is valueless. Historians have argued that pornography has, at various times, led both social and political change in society. See Margaret C. Jacobs, The Materialist World of Pornography, in THE INVENTION OF PORNOGRAPHY: OBSCENITY AND THE ORIGINS OF MODERNITY, 1500-1800, at 162 (Lynn Hunt ed., 1993) (Pornography made the spiritual realm irrelevant and offered justification for satisfying the pleasures of the body.); Lynn Hunt, Pornography and the French Revolution, in THE INVENTION OF PORNOGRAPHY: OBSCENITY AND THE ORIGINS OF MODERNITY, 1500-1800, at 301 (Lynn Hunt ed., 1993) (Pornography as political satire helped bring about the French Revolution.).
183. For example, it is far too simplistic to conclude that much sexual material, even of the "hard core" variety, is valueless. Historians have argued that pornography has, at various times, led both social and political change in society. See Margaret C. Jacobs, The Materialist World of Pornography, in THE INVENTION OF PORNOGRAPHY: OBSCENITY AND THE ORIGINS OF MODERNITY, 1500-1800, at 162 (Lynn Hunt ed., 1993) (Pornography made the spiritual realm irrelevant and offered justification for satisfying the pleasures of the body.); Lynn Hunt, Pornography and the French Revolution, in THE INVENTION OF PORNOGRAPHY: OBSCENITY AND THE ORIGINS OF MODERNITY, 1500-1800, at 301 (Lynn Hunt ed., 1993) (Pornography as political satire helped bring about the French Revolution.).
184. Miller v. California, 413 U.S. 15, 26 (1973).
185. Memoirs v. Massachusetts, 383 U.S. 413, 418 (1966).
186. 458 U.S. 747 (1982).
187. Cf. Rowan v. United States Post Office Dep't, 397 U.S. 728 (1970) (Statute permitting homeowners to block offensive home mailings is constitutional.); Breard v. Alexandria, 341 U.S. 622 (1951) (Ban on residential magazine sales without homeowners' consent is constitutional.).