Apr 20, 2010

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The First Amendment and Balancing Tests

In United States v. Stevens, the Court seemed to reject the use of balancing tests in identifying categorical exclusions under the First Amendment.

In a section that may make Justice Breyer cringe, the Court rejected a balancing test approach to free speech.

The Government thus proposesthat a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection dependsupon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.The Government thus proposesthat a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection dependsupon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.As a free-floating test for First Amendment coverage,that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balanc-ing of relative social costs and benefits. The First Amendment itself reflects a judgment by the Americanpeople that the benefits of its restrictions on the Govern-ment outweigh the costs. Our Constitution forecloses anyattempt to revise that judgment simply on the basis thatsome speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).

But is this correct? Does the Supreme Court abstain from using balancing tests in First Amendment Jurisprudence? Not really.

The Supreme Court emphatically rejected Justice Black’s absolutist approach to the First Amendment. As I noted in Omniveillance:

Justice Hugo Black famously stated that free speech is an absolute right, observing that the First Amendment is an “unequivocal command that there shall be no abridgment of the rights of free speech.”332 However, Justice Black’s minority position is not widely accepted, as not all speech is equally protected with the same level of scrutiny.333 As such, the Supreme Court applies a balancing approach that weighs free speech against other interests.334 For example, the Supreme Court has repeatedly held that libel, slander, and defamation suits, which all abridge the speaker’s free speech, are constitutional.335

333. See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 (1985) (“We have long recognized that not all speech is of equal First Amendment importance.”); Ohralik v. Ohio Star Bar Ass’n, 436 U.S. 447, 456 (1978) (finding that commercial speech is a “subordinate position in the scale of First Amendment values”); Cass R. Sunstein, Low Value Speech Revisited, 83 NW. U. L. REV. 555, 557 (1989) (arguing that protecting free speech depends on “making distinctions between low and high value speech, however difficult and unpleasant that task may be”).

334. See, e.g., Branzburg v. Hayes, 408 U.S. 665 (1972) (holding that the freedom of the press guaranteed by the First Amendment does not exempt reporters from appearing and testifying before state or federal grand juries because of the importance of criminal trials); SOLOVE, supra note 12, at 128.

Invariably, the court will balance interests in First Amendment jurisprudence. So perhaps Justice Breyer just swallowed that bitter pill, but he’ll get the last laugh when SCOTUS decides to balance First Amendment interests in future cases.

And, I wonder if any other provisions in the Bill of Rights can get such protection. You know, maybe that amendment that comes after the First Amendment, and before the Third Amendment? Just saying.

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  • steve rappoport

    You are correct in stating that the Court has used a balancing test for the First Amendment in the past, but perhaps it will stop doing so now, although I note that the opinion states on page 9 that “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. . . . We need not foreclose the future recognition of such additional categories to reject the Government’s highly manipulable balancing test as a means of identifying them.”

    The Court thus sets up a pretty clear limit (“Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”) and then gives itself an “out” for the future. Moreover, the Court makes it clear that social value or any other subjective standard that establishes a threshold requirement for protection has no place in First Amendment jurisprudence. (“Most of what we say to one another lacks “religious, political, scientific, educational, journalistic, historical, or artistic value” (let alone serious value), but it is still sheltered from government regulation.”)

    I do not have the Court’s previous rulings on these matters readily at hand, but I think that if the Court takes the statements in today’s decision seriously, it has broadened the scope of First Amendment protection beyond what it has been willing to hold in the past. Its previous statements on the scope of the First Amendment must be read in the specific context of those decisions and should not be accepted as defining the general scope of the amendment anymore.

    The ruling is a major victory for freedom of expression. You think that the balancing test will come back in the future. Please offer a suggestion of a situation in which that could occur.

    • Josh Blackman

      I could imagine some future court revisiting the topic of “hate speech,” and using a balancing test. Just an initial thought.

  • steve rappoport

    If the hate-speech case were to reach the Court in the next couple of years, it seems unlikely that the Court would rule for the proponents of the concept.

    • Josh Blackman

      Unlikely in the near future, but I can imagine if Justice Kennedy and Scalia are replaced during a Democratic administration, its possible.

  • Mike

    I haven’t had the chance to read today’s opinion yet, but I would imagine that a balancing test might make a comeback in the context of a law that burdens advertisements of some disfavored product.

    He very well may have been completely mistaken, but (then) Justice Rehnquist, dissenting in Virgina Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 789 (1976), claimed that interest balancing tests were “fairly typical [for] First Amendment problem[s].” In that case, a Virginia law prohibited pharmacists from advertising the prices of any prescription drug. It seems that Rehnquist would have used a balancing test whenever the speech that was prohibited was devoid of the kind value that makes political speech worthy of heightened protection. (I wouldn’t suggest such a vague categorical distinction, but that’s what I get from his dissent.)

    In the way of providing some precedential support for balancing tests, the following may provide some, even if tenuous in light of the rest of the Court’s jurisprudence in the area:

    “When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented. . . .

    “[L]egitimate attempts to protect the public, not from the remote possible effects of noxious ideologies, but from present excesses of direct, active conduct, are not presumptively bad because they interfere with and, in some of its manifestations, restrain the exercise of First Amendment rights. . . . In essence, the problem is one of weighing the probable effects of the statute upon the free exercise of the right of speech and assembly against the congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce and that Communists and others identified by § 9 (h) pose continuing threats to that public interest when in positions of union leadership. We must, therefore, undertake the ‘delicate and difficult task . . . to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.'”
    American Communications Ass’n v. Doud, 339 U.S. 382, 399-400 (1950).

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