David Han, “Middle-Value Speech” and “Terrorist Advocacy and Exceptional Circumstances”

February 1, 2018 | Professor David S. Han has published two recent law review articles regarding judicial strict scrutiny analysis of speech under the First Amendment. Published in the Southern California Law Review, “Middle-Value Speech” (SSRN), 91 S. Cal. L. Rev. 65 (2017), examines granting courts greater discretion in making value-based speech distinctions. Published in the Fordham Law Review, “Terrorist Advocacy and Exceptional Circumstances” (SSRN), 86 Fordham L. Rev. 487 (2017), considers the scope of valid government regulation of abstract advocacy.

Abstract of “Middle-Value Speech”:

One of the cornerstones of First Amendment doctrine is the general rule that content-based restrictions on all speech — apart from a few narrow categories of low-value speech — are evaluated under strict scrutiny. As many have observed, this rule has produced considerable strain within the doctrine because it applies the same onerous standard throughout the vast and varied expanse of all non-low-value speech, which includes not only the core, highest-value speech for which such stringent protection is clearly warranted, but also less valuable speech to which the application of strict scrutiny is often dissonant. Nevertheless, traditional accounts maintain that this blunt, highly prophylactic approach is necessary given the significant costs and risks associated with granting courts greater discretion to make value-based speech distinctions.

This Article challenges these accounts. I argue that courts should more explicitly recognize a broad conceptual category of what I call “middle-value speech” — that is, speech that falls within the hazy center of the speech-value spectrum between clearly high-value speech, like political speech or truthful news reporting, and clearly low-value speech, like true threats or incitement. The scope of such speech is vast, potentially encompassing speech as diverse as public disclosures of sensitive private data, sexually explicit speech, professional advice, search engine results, and false statements of fact. Yet current First Amendment doctrine broadly fails to recognize middle-value speech as a discrete conceptual category, and this failure has produced substantial costs in the form of doctrinal distortion and a lack of analytical transparency. These costs have grown precipitously — and will continue to grow — in conjunction with the First Amendment’s broad expansion beyond the familiar precincts of core ideological expression into increasingly eclectic varieties of speech.

I therefore propose an adjustment to the doctrinal framework. Rather than broadly presume that all speech outside of the low-value categories is subject to maximum First Amendment protection, courts should affirmatively designate and carve out the particular categories of high-value speech that merit such protection, in a manner similar to how courts have dealt with low-value speech. Once both low-value and high-value speech categories have been carved out, all remaining uncategorized speech is, by definition, middle-value speech, and courts should adopt intermediate scrutiny as the default rule applicable to all such speech. This approach would greatly reduce the doctrinal distortion and analytical opacity associated with the traditional default rule of strict scrutiny, and it would do so at a limited cost to doctrinal consistency and administrability.

Abstract of “Terrorist Advocacy and Exceptional Circumstances”:

To all but the most extreme free speech absolutists, First Amendment protection has practical limits. That is, some tipping point exists at which the actual and potential harms associated with speech are so exceptionally severe as to justify a departure from longstanding First Amendment doctrines and principles, such that even fully protected speech may be constitutionally regulated. In recent years, as violent and deplorable acts of terrorism have multiplied both here and abroad, some scholars have suggested that this tipping point has been reached with respect to terrorist advocacy. As such, they have proposed broad revisions to First Amendment doctrine — such as modification of the Brandenburg incitement standard — in response to these circumstances.

This essay explores the question of how courts should proceed if and when this tipping point is ever reached. It argues that courts should not resort immediately to broad doctrinal revision in evaluating and accounting for these sorts of exceptional circumstances, but rather should always adhere — at least initially — to narrow strict scrutiny analysis as is required under the current doctrinal framework. By adhering to strict scrutiny, courts send an important message that valid government regulation of abstract advocacy is truly exceptional and that prevailing doctrine is sticky and not easily changed. Furthermore, this narrow approach affords courts the time, space, and case-by-case experience to carefully consider whether the present circumstances are truly indicative of a fundamentally changed reality or merely a troublesome outlier.

To be sure, broad doctrinal revision may ultimately be inevitable; perhaps our present communications culture is so fundamentally different from the world of Brandenburg that some categorical recalibration will be necessary. But as our history has shown, any incredibly weighty decision to systematically limit the scope of First Amendment protection — a decision that may not be easily reversible — calls for epistemic humility and cautious incrementalism. Adhering to narrow strict scrutiny analysis as an intermediate step to more far-reaching doctrinal revision helps to ensure that any such broad revision is the product of substantial deliberation and made at a sober distance, rather than a knee-jerk response driven by the often distorted perceptions of the present moment.

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