Abstract: INTRODUCTIONDesigning First Amendment doctrine1 is a tricky business. On the one hand, the framework can be broadly conceptualized as a set of foundational balancing judgments. The Free Speech Clause is ultimately rooted in a longstanding, constitutionally enshrined intuition that speech has special value that affords it greater protection than other types of conduct.2 But at the same time, speech can cause a wide variety of social harms, ranging from hurt feelings to criminal violence.3 One of the fundamental goals of First Amendment doctrine is to reconcile these two aspects of speech: to capture our basic intuitions as to what exactly makes speech constitutionally valuable and how that value ought to be weighed against different types and degrees of social harm.4 And these intuitions are, in turn, driven by the foundational rationales for extending special protection to speech, such as speech's role in uncovering truth, its necessity as a means of effectuating democratic selfgovernance, and its status as a significant aspect of individual autonomy.5On the other hand, the practical imperatives of designing effective First Amendment doctrine dictate that courts cannot simply apply this foundational balancing judgment in an ad-hoc manner to every individual First Amendment case. Such limitless balancing would leave judicial discretion unchecked, which could lead to unpredictable and inconsistent results, which could in turn lead to significant chilling effects.6 Abstract, categorical rules that are simpler, more predictable, and easier to apply work to constrain not only the inconsistency driven by the judges attempting to apply open-ended standards in good faith, but also the conscious and unconscious biases that might affect such judges, particularly amidst strong majoritarian pressures.7This broad tension between rule-like categorical approaches and standardlike balancing approaches has been recognized since the earliest days of modern First Amendment jurisprudence.8 The result of this tension has been a First Amendment jurisprudence that mixes categorical approaches with more open-ended balancing approaches-a hybrid framework that makes practical sense, since each approach has its benefits and costs, and certain contexts are more amenable to one approach over the other.9 The practical question that I explore in this Article is whether current First Amendment doctrine has done a good job of integrating the two approaches. That is, does our 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 transparency10-and it analyzes a number of recent Supreme Court decisions through this lens. 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. Thus, transparency can be viewed as a countervailing force against abstract rule creation, trading off simplification and abstraction for a direct foundational analysis of speech value and harm.Doctrinal 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 formalities and empty sloganeering.11 Tough First Amendment cases are valuable opportunities for forthright discussions- amongst courts and within society at large-that attempt to clarify in nuanced terms why exactly we value speech and the extent to which we are willing to tolerate speech-based harms. While transparent approaches may not necessarily guarantee a clearer or more coherent framework, they establish the conditions under which such clarity and coherence can emerge, as they lay bare the fundamental value judgments and empirical assumptions underlying courts' decisions. …
Publication Year: 2015
Publication Date: 2015-11-01
Language: en
Type: article
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Cited By Count: 1
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