McCullen, Disparagement, and the Redskins

June 29th, 2014

The Chief Justice’s opinion in McCullen v. Coakley strongly suggested that a law that prohibits speech because of its “undesirable effect,” such as making “listeners uncomfortable,” would not be content neutral.

To be clear, the Act would not be content neutral if it were concerned with undesirable effects that arise from “the direct impact of speech on its audience” or “[l]isteners’ reactions to speech.” Ibid. If, for example, the speech outside Massachusetts abortion clinics caused offense or made listeners uncomfortable, such offense or discomfort would not give the Commonwealth a content-neutral justification to restrict the speech. All of the problems identified by the Commonwealth here, however, arise irrespective of any listener’s reactions. Whether or not a single person reacts to abortion protestors’ chants or peti­ tioners’ counseling, large crowds outside abortion clinics can still compromise public safety, impede access, and obstruct sidewalks.

To follow up on my previous post, a law that denies a statutory right based on how some may find the speech “disparaging” would fall outside the bounds of content neutrality. This would seem to weaken the reasoning of the decision to deny the Washington Redskin’s trademark, due to disparagement.

On a somewhat related note, another key limitation recognized in McCullen on crimes that regulate speech, is a requirement of intent. It’s not enough that speech may have an incidental effect that harms another. Rather, the speaker must have the intent to “intimidate” or “harass” someone else.

The second supposed defect in the alternatives we have identified is that laws like subsection (e) of the Act and the federal FACE Act require a showing of intentional or deliberate obstruction, intimidation, or harassment, which is often difficult to prove. Brief for Respondents 45–47. As Captain Evans predicted in his legislative testimony, fixed buffer zones would “make our job so much easier.” App. 68. Of course they would. But that is not enough to satisfy the First Amendment. To meet the requirement of narrow tailoring, the government must demonstrate that alterna­ tive measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency. In any case, we do not think that showing intentional obstruction is nearly so difficult in this context as respondents suggest. To determine whether a protestor intends to block access to a clinic, a police officer need only order him to move. If he refuses, then there is no question that his continued conduct is knowing or intentional.

The tailoring requirement does not sim­ ply guard against an impermissible desire to censor. The government may attempt to suppress speech not only because it disagrees with the message being expressed, but also for mere convenience. Where certain speech is associated with particular problems, silencing the speech is sometimes the path of least resistance. But by demand­ ing a close fit between ends and means, the tailoring requirement prevents the government from too readily “sacrific[ing] speech for efficiency.”

Laws that criminalize various forms of online speech, that may embarrass others, but the speaker lacks the intent to do so, would now be constitutionally suspect. It is not enough to say that it is difficult to prove that intent, or that prosecutions are tougher. The First Amendment stands in the way of making the job of law enforcement “so much easier.” “The prime objective of the First Amendment is not efficiency.”