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.