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COPYRIGHT 2001 Stanford Law School
There is a problem in the basic structure of current free speech law. Consider two simple cases:
(A) A is ticketed for speeding. He claims a First Amendment violation. He argues--and this is his only argument--that a higher speed limit would have been safer and more fuel efficient.
(B) B is arrested for wearing a certain shirt. He claims a First Amendment violation. He argues--and the state concedes--that the legislature criminalized the wearing of such shirts solely because they bear a symbol expressing protest against state police practices.
Current doctrine gets these cases wrong. Believe it or not, under present Supreme Court case law, if A can prove what he alleges, his First Amendment argument ought to prevail, while B's might well be dismissed for failure to state a claim.
Part I of this Article explains these doctrinal problems and shows how to solve them. The solution is not complicated. All the difficulties disappear as soon as First Amendment analysis takes up what the Supreme Court has ostensibly sought to foreclose: an open and direct inquiry into the law's purpose. This purposivist solution to A's and B's cases has significant implications for the basic structure of free speech law.
Part II describes these structural implications. Among other things, purposivism would eliminate most of the cost-benefit, balancing-test rhetoric so common in today's free speech jurisprudence. The language of balancing in First Amendment law, appealing as it may seem, is unacceptable in its implications and unnecessary in the cases where it is supposedly indispensable. Of course a person does not have a right to express his political opinions by car-bombing the White House, but contrary to conventional wisdom, this kind of example does not show that First Amendment rights have to yield to weighty state interests. It merely shows that a person who breaks a law not directed at speech can claim no constitutional immunity just because he was acting for expressive reasons. There is no First Amendment "pass" from a law whose purpose is not to punish speech.
Part III illustrates how purposivism would yield clear answers to specific First Amendment questions that today seem extremely difficult and contestable. Three questions are considered: the constitutionality of antibegging ordinances, of campaign-spending restrictions, and of antidiscrimination laws as applied to private associations. On the latter point, the Supreme Court's recent decision in Boy Scouts of America v. Dale(1)--upholding the Scouts' right to exclude homosexuals--will be discussed at length.
Boy Scouts is an extraordinary case. It appears to be the first case in Supreme Court history in which a party won a constitutional right to discriminate on free speech grounds. The Boy Scouts merited this exemption, a five-justice majority found, because New Jersey's prohibition of discrimination against homosexuals would have "significantly affect[ed]" the organization's ability to express its antihomosexual views. Indeed, the majority reasoned, New Jersey's law would have "force[d] the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct."(2)
Purposivism completely rejects the Boy Scouts decision, both in reasoning and result. In essence, the Boy Scouts' claim was a simple one. The Scouts wanted or needed to discriminate for expressive reasons. If they could not exclude homosexuals, they would not be able effectively--or as effectively--to express their sincerely held anti-homosexual views. The majority accepted this claim; the dissenters rejected it, on the facts.
But the Court should never have reached the facts. People constantly want to violate laws for expressive reasons. Tax protestors want to disobey the tax laws for expressive reasons. Every person and every organization that wants to discriminate probably has good expressive reasons for doing so. Discrimination is profoundly expressive. It is by far the most effective way most people have of expressing their view of the superiority of their own group and the inferiority of others.
Title VII has "significantly affected" the ability of countless employers to express their views about race or sex. Indeed, it forced them to "send a message" of equality that many presumably oppose (or would oppose if permitted to do so), in the same sense that New Jersey's law forced the Boy Scouts to do so. Should racist and sexist employers be able to come to court with First Amendment challenges to Title VII, demanding that judges accord them the same strict scrutiny that the Boy Scouts received? Should they at least be permitted to go to trial to present evidence that they have been discriminating not for commercial reasons (they prove that discrimination has actually been bad for business), but to communicate to their employees and to "the world" their sincerely held view that the races should not mix or that women belong in the home? Should a person who can prove that he genuinely holds anti-government views, and that refusing to pay taxes is his most effective or only effective means of communicating these views, be exempt from the income tax?
The answer to all these questions is no, and the reason is that there is no such thing as a free speech immunity based on the claim that someone wants to break an otherwise constitutional law for expressive purposes. The actor's purposes are not relevant to free speech analysis. The state's purposes, on the other hand, are dispositive. When a law is otherwise constitutional, and when an actor has not been singled out because of his expression, the actor has no free speech claim. The Boy Scouts were not singled out in this way. As a result, the Scouts' First Amendment claim should have been taken no more seriously than that of a tax protestor or that of a racist employer who demanded an exemption from Title VII on the theory that he wanted to discriminate for expressive, rather than merely commercial, reasons.
Finally, Part IV answers some obvious objections to free speech purposivism and enlarges on the overall conception of the First Amendment implied thereby. This conception is organized around what I will call an anti-orthodoxy principle. It reintegrates the two strangely disjoined halves of the First Amendment: the freedom of speech and the freedom of religion.
A note of caution: I do not believe that purposivism can resolve all the questions free speech law has to answer. I am not even sure that purposivism can resolve the particular free spech questions I address here. But is worth trying to find out.
The purpose of purposivism is to reclaim an old idea: that there are certain First Amendment absolutes, which stand up regardless of any balancing of interests. Here is an example: no one can be punished for expressing himself on a matter of opinion. It makes no difference whether the subject matter is high (an opinion about the President) or low (an opinion about the weather), and it makes no difference what competing interests are at stake. What would it mean, against all the contemporary sentiment that there can be no such thing as a constitutional absolute, to reclaim this bedrock idea and take it to its conclusion? Can the idea be made good? If so, how much work can it do? These are the questions this Article tries to answer.
I. THE PROBLEM IN CURRENT DOCTRINE
A. The O'Brien Test
Current case law would analyze A's and B's claims under the so-called O'Brien test. O'Brien famously involved a man who burned his draft card as part of a public antiwar protest. O'Brien was subsequently convicted under a federal statute prohibiting the intentional destruction of Selective Service registration certificates.(3) To decide the case, the O'Brien Court announced a four-factor test, under which a law regulating nonverbal but expressive conduct will be upheld:
[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.(4)
Applying these criteria, the Court affirmed O'Brien's conviction. According to the Court:
[T]he continuing availability to each registrant of his Selective Service certificates substantially furthers the smooth and proper functioning of the [Selective Service] system.... ... We perceive no alternative means that would more precisely and narrowly assure the continuing availability of issued Selective Service certificates than a law which prohibits their wilful mutilation or destruction.(5)
In what follows, I will ignore the first "prong" of the O'Brien test, and I will treat the last not as a genuine least-restrictive-means test, but as a narrow tailoring requirement satisfied so long as the challenged law does not "substantially" overburden speech. These qualifications should create no analytic distortion, because the first prong is analytically insignificant, and the last prong has been interpreted (or reinterpreted) to have the effect just described.(6)
O'Brien remains the leading case in this area. It continues today to furnish the basic structure for First Amendment analysis of "expressive conduct." And its test is deeply, demonstrably flawed.
B. O' Brien-as-Lochner
Return now to A, arrested for speeding. For simplicity of analysis, assume that A was driving on a highway where a federally mandated fifty-five mile-per-hour speed limit had recently replaced a sixty-five mile-per-hour limit. Say that A was driving at sixty-five. Assume that the lower speed limit was adopted to serve two (and only two) state interests: improving highway safety and conserving fuel.
A's First Amendment argument invokes O'Brien's second factor: He says that the lower speed limit does not in fact "further[] an important... governmental interest." He has a team of trafficologists prepared to testify that a fifty-five mile-per-hour speed limit actually increases highway fatalities, while decreasing fuel efficiency. The judge agrees that O'Brien obliges him to conduct a trial on these issues. For if A's allegations are true, then the speed limit does not substantially further important governmental interests. After a month-long hearing, the judge finds in A's favor and strikes down the speed limit as a First Amendment violation.
What is wrong with this picture?
Something obviously is wrong. The First Amendment has here become a vehicle for constitutionalizing a policy question of purely legislative dimensions. If in a case like A's, O'Brien really called for judicial superlegislative review of whether a particular speed limit serves its policy objectives well enough to be sustained, then the O'Brien test would be something like Lochner v. New York all over again. To save words, call this the O'Brien-as-Lochner result.
But what exactly is the mistake being made here? Where did the judge go wrong, and how was he supposed to avoid the O'Brien-as-Lochner result?
Here is the answer that will have already occurred to most readers: A was not speaking. His conduct was not "expressive," and therefore he never stated a First Amendment claim at all. That is why the judge should not have entertained A's claims.
This is in fact the escape route from O'Brien-as-Lochner offered by current doctrine. As the Supreme Court has reemphasized in subsequent cases such as Texas v. Johnson, a flag-burning decision, the O'Brien test is not triggered--indeed no First Amendment scrutiny is triggered--if the defendant was not engaged in "expressive conduct."(7) "We must first determine whether [defendant's acts] constituted expressive conduct, permitting him to invoke the First Amendment...."(8) If not, the First Amendment is not implicated. The "particular conduct" at issue must "possess[] sufficient communicative elements to bring the First Amendment into play."(9)
But suppose A says that his conduct was expressive. Suppose he says that driving fast is how he "expresses himself." Or that he was "expressing disagreement" with the federally mandated speed limit. Or that his speeding was "performance art." To all these claims, current doctrine offers a relatively clear answer, which at first blush seems cogent. Another test, the so-called Spence test, determines when nonverbal activity qualifies as "expressive conduct."
C. The Spence Test
The Spence test demands that two criteria be satisfied before nonverbal conduct will be recognized as sufficiently "communicative" to trigger First Amendment scrutiny. "In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether `an intent to convey a particularized message was present, and whether the likelihood was great that the message would be understood by those who viewed it.'"(10) Relying on Spence, a judge could be expected to find that A cannot get through the First Amendment door. Even if A intended to convey a "particularized message" by speeding, there was no "great likelihood" that viewers would understand this message, whatever it was. As a result, A cannot "bring the First Amendment into play."
So that is how current doctrine ostensibly avoids the O'Brien-as-Lochner result. A person trying to invoke the O'Brien test has to satisfy Spence. In typical situations, like A's, Spence will not be satisfied. Doesn't Spence therefore offer a sound answer to the problem of Case A described above?
No. Spence does not solve the problem at all. For three reasons.
First, Spence is a profoundly unsatisfactory test for deciding what nonverbal stuff counts as sufficiently "expressive" to trigger First Amendment scrutiny. Art, for example, defies the Spence test. The Supreme Court has recognized this: "[I]f confined to expressions conveying a `particularized message,'" the First Amendment "would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.(11) This point may seem to have no bearing on A's claim. But it does bear. For unless courts are to wall off art as its own special First Amendment category to which Spence does not apply--a highly unappealing idea, unless you think judges could successfully determine what is and is not art--then we are obliged to recognize that the Spence test merely states sufficient, not necessary, criteria for determining if conduct is expressive.
But that means that A could have a claim after all when he says his driving was "expressive." Perhaps driving fast really is how he "expresses himself." Perhaps A really was engaging in "performance art"--maybe high-performance art.
In all seriousness, the idea that speeding is "expressive" is in no way absurd. Remember that the difficulty here is that if A was engaged in "expressive" conduct, current doctrine has no clear escape from the O'Brien-as-Lochner result. The Spence test would seem to take care of this problem, but that is only because Spence adopts a wholly artificial definition of what nonverbal actions count as expressive. Modern dance, for example, could not pass Spence. To be sure, the Supreme Court would undoubtedly strike down a ban of modern dance, and would probably do so under the O'Brien test, but that is only because the Court would, without mentioning it, forget in such a case that the O'Brien doctrine is not supposed to be triggered if Spence is unsatisfied.(12) Once Spence's particularized-message test is seen no longer as a necessary condition, but only as a sufficient condition, of expressiveness, the assertion that speeding is not expressive actually becomes rather mysterious. For who can doubt that A, flying along in his orange convertible Porsche 914, is expressing something, and who can doubt that there is an audience "reading" this expression? Needless to say, if speeding is expressive conduct, nearly every action we take is or could be expressive. But that is the problem, not the solution.
The second reason why Spence does not solve the O'Brien-as-Lochner problem is still more important. An individual arrested for engaging in prohibited conduct should not be required to show that his conduct was "expressive" before he can raise First Amendment claims. Here we arrive at the case of B, described above, who was arrested for wearing a shirt.
Imagine that New Yorkers begin wearing a shirt with a certain symbol on the chest to protest city police practices. The city council then enacts an ordinance criminalizing the wearing of such shirts. Stipulate that the ordinance is passed solely and avowedly because of the shirts' protest message. B is arrested for wearing the offending shirt. But as it turns out, the hapless B just recently arrived in New York from Idaho. He bought the shirt because he thought it looked cool. He had no idea of the "particularized message" it conveyed. Under current doctrine, B goes to jail. He has no First Amendment claim.
Once again, I am not saying that courts today would clearly reject B's First Amendment claim. I hope and expect they would sustain it. The point, however, is that current doctrine not only lacks the conceptual resources to reach this result, but actually cuts against it. Having had no intention to communicate any particularized message, B's conduct would not be "expressive" under Spence, and B would therefore be unable to "bring the First Amendment into play." Having neither literally spoken nor engaged in expressive conduct, B would not be "permitt[ed] to invoke the First Amendment" at all.(13)
Finally, Spence cannot dispose of A's case because A did satisfy the Spence test. Perhaps I forgot to mention it: On the roof of A's car, there was a huge sign saying, "If you see me driving at 65, it means I'm protesting the 55 mile-per-hour speed limit." Such a sign allows A fully to establish both Spence criteria. A was speeding-to-speak: He had a particularized message, and, circumstances permitting, there was every likelihood that his message would be understood.
For this third reason alone, Spence provides no escape route from the O'Brien-as-Lochner result. Nearly anyone violating any law will be able, with a little ingenuity, to pass the Spence test. Anyone will then be able to demand, under O'Brien, a full-blown judicial determination of whether the law he violated actually furthers (or "substantially" furthers) important governmental interests.
To summarize, current First Amendment doctrine makes problematic two cases that ought to be extremely easy. First, taken at its word, current doctrine allows A to convert an ordinary traffic violation into a Lochner-like exercise in constitutional review of a law's policy merits. Second, it condemns to jail the hapless B, arrested for wearing a protest shirt whose message he did not understand.
What is the mistake being made here, and how is it to be resolved?
D. The Centrality of Purpose in First Amendment Law
To see where Spence and O'Brien go wrong, look a little more closely at the latter case. O'Brien contended that Congress's real purpose in prohibiting the destruction of draft cards was to target antiwar protesters. This contention was entirely plausible,(14) but the O'Brien Court explicitly and emphatically dismissed it as irrelevant. "It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive."(15) "[U]nder settled principles the purpose of Congress... is not a basis for declaring this legislation unconstitutional."(16)
In fact, under "settled principles" an impermissible legislative purpose undoubtedly can render an otherwise valid law unconstitutional. This is particularly clear in equal protection cases.(17) The more interesting point, however, is that the O'Brien test itself is centrally concerned with legislative purpose, despite the Court's protests to the contrary.
Determining the purpose to be attributed to state action is in a sense the entire point of the O'Brien test, which inquires into the "governmental interest" the law is supposed to serve, asks whether this "interest" is "related.... to the suppression of free expression," and scrutinizes the law to ensure that its provisions are narrowly tailored to serve this interest.(18) In fact, in deciding that Congress's "interest" in prohibiting draft-card destruction was "limited to the noncommunicative aspect of [the] conduct," the O'Brien Court distinguished a prior case on the ground that the prior case involved a "statute... aimed at suppressing communication."(19) Aim is of course a synonym of purpose. If the ultimate question, then, as the Court's own language suggests, is whether the statute in question was "aimed" at punishing dissent, then the real function of the O'Brien test is nothing other than ascertaining the law's purpose.(20)
As it should be.
A's and B's cases are solved the moment we allow into First Amendment analysis what the O'Brien Court strained unsuccessfully to foreclose: an open and direct look at governmental purpose. The only real First Amendment question in these cases is whether the state's purpose was to punish someone for speaking.
What does it mean to be punished for speaking? It does not mean being punished as a result of speaking, which happens all the time. Someone refuses to pay his taxes. His refusal to pay may well have been a speech act; he may have been, through his conduct, intentionally communicating a host of specific or general messages of political dissent. The fact that his actions were expressive, however, gives him no First Amendment immunity. He can be prosecuted as a result of his speech act, so long as he is not punished for speaking. In other words, so long as the Internal Revenue Service does not, say, single him out because of what his actions communicated, and so long as, under the generally applicable tax laws, the communicativeness of his actions has no bearing on his liability, he can be punished for what he did, regardless of what he might have been saying through what he did.
Spence asks whether the action at issue was expressive, and this question puts the focus on the individual's purpose in acting. In effect, Spence asks whether an individual was speaking (or attempting to speak) through his conduct. By contrast, in deciding what the person is being punished for, the focus is on the state's purpose: either the purpose of the law that was violated or, in an appropriate case, the purpose of those enforcing it.
Whether a person is being punished for speaking, rather than as a result of it, depends on the kind of wrong or harm that the state seeks to prevent. Some harms arising out of our actions are independent of whatever we might be expressing through those actions. A speeding driver creates safety risks to others regardless of whether he is speeding-to-speak and regardless of what he might be trying to express thereby. But other harms are communicative; the communicativeness of the action is a but-for cause of the harm. There are many kinds of harm or alleged harm that arise out of communication. The message communicated might be said to be immoral. Or the message might annoy or alarm its audience. Or the communication might be effective and lead others to take actions harmful either to themselves or others.
The First Amendment is implicated when the government makes communicative harm the basis for liability.(21) This is so not only with respect to laws regulating "expressive conduct," but with respect to laws directly regulating speech. Indeed this is why the distinction between "content-based" and "content-neutral" regulations is so important to First Amendment law. Because a content-based regulation makes communication itself an element of the prohibited act, the communication effected by the act must be a but-for cause of whatever wrong or harm the regulation is supposed to prevent.
The point is not that the government acts unconstitutionally whenever it addresses communicative' harms. Fraud laws, for example, typically target communicative harms. I will address fraud below, together with other kinds of speech acts that can be constitutionally prohibited. The point for now is that if the state punishes someone solely for doing noncommunicative harm, the person is not punished for speaking. And if a person is not punished for his speech, his freedom of speech has not been violated.
When a person is prosecuted in the ordinary course for violating an ordinary prohibitory law, he will have no First Amendment claim because he will not be punished for speaking, even if he was speaking (or trying to speak) through his illegal conduct. Conversely, if the state's purpose was to punish him for speaking, then his First Amendment rights will be implicated--even if he was not speaking. This simple line of thought completely and satisfactorily answers A's and B's cases.
(A): Even if A really was speeding-to-speak (with the sign attached to his car), he still has stated no First Amendment claim because his evidence about highway fatalities and fuel efficiency is constitutionally irrelevant. No matter how persuasively this evidence may prove that the fifty-five mile-per-hour speed limit was a stupid law, A would still have proved only that the speed limit was--a stupid law. His evidence would not remotely raise a colorable inference that the law had been passed in order to target speech or that the police had selectively targeted him because of his speech. That is why a judge could and should dismiss A's allegations for failure to state a claim.
To be sure, in certain circumstances, a challenge to the putative public policy interests behind a law could raise an inference that speech was the real target. Such a case was O'Brien itself. But as we have seen, the O'Brien Court precisely did not want to face this issue and as a result left us with a deeply unsatisfactory articulation of First Amendment doctrine.
(B): By contrast, B does have a valid First Amendment claim, even though he was not trying to say anything. The individual's purpose is irrelevant here; the state's purpose is dispositive. And the state's purpose, by stipulation, was to punish political dissent. That is the end--or should be the end--of B's case. The First Amendment does not permit any state action undertaken to punish someone for expressing political dissent. Period.
II. PURPOSIVISM--COSTS AND BENEFITS
I want to stress that "period," because a purposivist First Amendment jurisprudence, of the kind I am proposing, would demand a full stop here that current doctrine does not recognize. As a result, it calls for a reconceptualization of the basic structure of free speech law.
A. First Amendment Absolutes
Here is what I mean. What happens, under today's case law, if a court applying O'Brien determines that the state interest behind a particular law is "related to the suppression of free expression"? For example, what happens under current doctrine if a court determines that a state has criminalized the burning of flags solely because of the message communicated thereby?
The answer is not that the law is therefore unconstitutional period. Instead the O'Brien test here yields to a more stringent standard of review. If the "State's regulation is related to the suppression of free expression ... then we are outside of O'Brien's test, and we must ask whether" the law is "justifie[d]" "under a more demanding standard."(22) Under this "more demanding standard," usually called strict scrutiny, the law will be struck down unless it is "narrowly tailored" to further a "compelling state interest."(23)
The compelling state interest test is undoubtedly an exacting standard of review, but it is still not the same as holding a law unconstitutional period. The significance of the difference can be described as follows. A purposivist view of the First Amendment does not involve balancing. It is absolute. It does not purport to determine if the constitutional "costs" in a given case are "outweighed" or "justified" by the governmental "benefits."
Contemporary First Amendment opinions, especially in their deployment of strict scrutiny and other, intermediate levels of review, are loaded with the rhetoric of balancing--of deciding whether First Amendment "burdens" are "justified" in a given case by countervailing state interests. Buckley v. Valeo, the famous campaign finance case, offers a particularly clear example. According to the Buckley Court, "the governmental interest in preventing corruption and the appearance of...
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