February 16, 2016 — An article by Pepperdine Law professor David Han entitled Transparency in First Amendment Doctrine has been published in the Emory Law Journal (65 Emory L. J. 359 (2016)). Professor Han’s article was recently featured in Larry Solum’s Legal Theory Blog.
The broad tension between rule-like categorical approaches and standard-like balancing approaches to doctrinal design has been a longstanding issue within First Amendment jurisprudence. Since each approach has its benefits and costs, First Amendment doctrine has sensibly evolved into a hybrid framework that incorporates both approaches in different contexts. This Article evaluates the extent to which current doctrine has successfully integrated the two approaches. In other words, does our doctrinal framework optimally maximize the benefits associated with abstract rule-like approaches and open-ended balancing approaches?
This Article focuses on one particular dimension of this broad theoretical question: the idea of doctrinal transparency. When doctrine is transparent, it encourages or forces courts to analyze cases openly, in a fashion that elicits direct discussion of foundational speech value and speech harm issues. Such transparency is particularly valuable within the First Amendment context, where difficult or novel questions of speech value and harm are often avoided or distorted by doctrinal formalities and empty sloganeering. Tough First Amendment cases are valuable opportunities for forthright discussions — amongst courts and within society at large — that seek to clarify in nuanced terms why exactly we value speech and the extent to which we are willing to tolerate speech-based harms. At the same time, however, doctrinal transparency cannot be the sole consideration in designing First Amendment doctrine, since such transparency often carries costs in the form of diminished predictability and consistency.
Through this lens of doctrinal transparency, this Article analyzes two distinct areas of First Amendment doctrine touched upon in recent Supreme Court cases: the historical test for low-value speech set forth in United States v. Stevens and its progeny, and the longstanding default rule that strict scrutiny applies to content-based speech restrictions that underlay the Court’s decisions last Term in Williams-Yulee v. Florida Bar and Reed v. Town of Gilbert. I argue that the Court has struck the wrong doctrinal balance in these areas, sacrificing the substantial benefits of doctrinal transparency in exchange for a comparatively lesser gain in predictability and consistency. I then suggest some doctrinal adjustments that would better capture the significant benefits associated with doctrinal transparency at limited cost.