Consider a generally applicable law that is being applied to speech, but that on its face doesn’t mention speech. Sometimes, as in United States v. O’Brien, the law may be triggered by the “noncommunicative impact of [the speech], and [by] nothing else.” A law barring noise louder than ninety decibels, for instance, might apply to the use of bullhorns in a demonstration. We might call such a generally applicable law “content-neutral as applied,” because it applies to speech without regard to its content.
But sometimes the law is triggered by what the speech communicates. The law may, for instance, prohibit any conduct that is likely to have a certain effect, and the effect may sometimes be caused by the content of speech. A person may violate a law prohibiting aiding and abetting crime, for example, by publishing a book that describes how a crime can be easily committed.
We might call such a law “content-based as applied,” because the content of the speech triggers its application. The law doesn’t merely have the effect of restricting some speech more than other speech -- most content-neutral laws do that. Rather, the law applies to speech precisely because of the harms that supposedly flow from the content of the speech: Publishing and distributing the book violates the aiding and abetting law because of what the book says.
In this post and coming posts, I’ll argue that laws that are content-based as applied should be presumptively unconstitutional, just as facially content-based laws are presumptively unconstitutional. Both presumptions may sometimes be rebutted, for instance if the speech falls within an exception to protection or if the speech restriction passes strict scrutiny. But generally speaking, when a law punishes speech because its content may cause harmful effects, that law should be treated as content-based.
This analysis also cuts against some commentators’ arguments that First Amendment doctrine should focus primarily on smoking out the legislature’s impermissible speech-restrictive motivations. (See, e.g., Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413 (1996); Jed Rubenfeld, The First Amendment’s Purpose, 53 Stan. L. Rev. 767 (2001).) When a law generally applies to a wide range of conduct, and sweeps in speech together with such conduct, there is little reason to think that lawmakers had any motivation with regard to speech, much less an impermissible one. Nonetheless, such a law should still be unconstitutional when applied to speech based on its content—even though the legislature’s motivations may have been quite benign.
The Court has confronted many cases where a law was content-based as applied. In all those cases, either the Court held that the speech was constitutionally protected, or -- if it held otherwise -- the decision is now viewed as obsolete.
Consider, for instance, the World War I-era cases Debs v. United States, Frohwerk v. United States, and Schenck v. United States. These cases, which upheld the criminal punishment of antiwar speech, are now generally seen as wrongly decided. But the defendants’ statements had violated a generally applicable provision of the Espionage Act, which barred all conduct -- speech or not -- that “willfully obstruct[ed] the recruiting or enlistment service of the United States, to the injury of the service or the United States.”
The Espionage Act could have been constitutionally applied to burning a recruiting office (nonspeech conduct), or perhaps to disrupting the business of a recruiting office by using bullhorns outside the office windows (speech punished because of its noncommunicative impact). But under modern First Amendment law, courts would overturn convictions for antiwar leafleting or speeches, and would treat the law as content-based, because it is the content of such antiwar speech that causes the interference with the draft.
More broadly, if generally applicable laws were immune from First Amendment scrutiny, the government could suppress a great deal of speech that is currently constitutionally protected, including advocacy of illegal conduct, praise of illegal conduct, and even advocacy of legal conduct.
For instance, a generally applicable ban on “assisting, directly or indirectly, conspiracies to overthrow the government” could prohibit advocacy of overthrow as well as physical conduct such as making bombs: Advocacy of overthrow assists such overthrow by persuading people to join, or at least not oppose, the revolutionary movement. A ban on “assisting interference with the provision of abortion services” could ban speech that praises or defends anti-abortion blockaders or vandals, and not just actual blockading or vandalism.
A ban on “conduct that knowingly or recklessly aids the enemy in time of war” could, among other things, ban speech that helps the election of an anti-war candidate. Such speech could even be banned by the existing law of treason -- which bars intentionally aiding the enemy during wartime -- if a prosecutor could persuade the jury that the speaker was motivated by a desire to help the other side. A ban on “conduct that interferes with the enforcement of judicial decrees” may be applied to speech that criticizes judges or judicial actions, on the theory that such criticism may lead people to lose respect for courts and thus to disobey court orders.
All the speech in these examples may help bring about the harms that the generally applicable law is trying to prevent. It may even involve “words that may have all the effect of force,” an example that Schenck gave as quintessentially unprotected speech (citing Gompers v. Buck’s Stove & Range Co., which used this reasoning to uphold an injunction against newspaper articles urging a labor boycott). The speech may thus have an effect that would be eminently punishable if the effect were brought about by force rather than communication. But the premise of the retreat from Schenck, and of the adoption of the Brandenburg v. Ohio rule, is that the government must generally tolerate such advocacy even when the persuasiveness or the informational content of the speech can lead to eventual harm.
Similarly, consider NAACP v. Claiborne Hardware Co., where the Court held that speech constituting tortious interference with business relations may nonetheless be constitutionally protected. Tortious interference with business relations covers a variety of conduct, not just speech. But when the interference flows from the persuasive or informative effect of speech -- for instance, when the speech in Claiborne Hardware persuaded people to boycott a business, publicized the names of people who weren’t complying with the boycott, or persuaded others to ostracize people who refused to join the boycott -- courts treat the tort as a speech restriction.
In some situations, the tort may be a constitutionally permissible restriction, for instance when the speech is a constitutionally unprotected threat, incitement, or the like. But if the speech falls outside one of these exceptions to protection, then the First Amendment protects the speech against the generally applicable tort -- so long as the speech triggers the tort through its content -- and not just against facially content-based laws.
The same is true, in considerable measure, for antitrust laws and other laws that prohibit restraint of trade. Like the interference with business relations tort, laws that prohibit restraint of trade are generally applicable and are used to punish conduct, not speech. But when organizations help restrain trade by lobbying legislatures and the public for anticompetitive regulations, Eastern Railroad Presidents Conference v. Noerr Motor Freight Inc. and United Mine Workers v. Pennington make clear that the speech may not be punished.
This principle also applies when the speech causes harm because of its offensive content rather than its persuasive or informative content. Consider Hustler Magazine v. Falwell, which held that the tort of intentional infliction of emotional distress couldn’t be used to impose liability on Hustler for publishing a cruel and vulgar satire of Jerry Falwell. Though claims under the emotional distress tort are often based on speech, speech is not an element of the tort. The publisher of Hustler, for instance, would have been equally guilty of intentional infliction of emotional distress if he had played a highly embarrassing practical joke on Falwell. But when the general law was applied to the magazine because of the content of its speech, the Court held such liability to be unconstitutional.
The same is true of Cohen v. California, in which Cohen had been prosecuted for violating a generally applicable breach of the peace statute. The statute would have applied equally to conduct (fighting), speech that breaches the peace because of its noncommunicative impact (loud speech in the middle of the night), and speech that breaches the peace because of its content (wearing a “Fuck the Draft” jacket). But the Court struck down the application of the law in this last situation, precisely because the law’s application to Cohen was triggered by Cohen’s speech.
Likewise, Hess v. Indiana, Edwards v. South Carolina, Terminiello v. City of Chicago, and Cantwell v. Connecticut all set aside breach of the peace and disorderly conduct convictions, though the statutes involved were content-based only as applied, not on their face. As the Court pointed out in Cantwell, “breach of the peace” legitimately “embraces a great variety of conduct destroying or menacing public order and tranquility,” including “violent acts”; but the Court set aside the conviction because the speech constituted breach of the peace only because of “the effect of [the speaker’s] communication upon his hearers.”
All the laws in these examples were facially speech-neutral. Most, and probably all, were enacted by legislatures or created by courts without any censorious motive, partly because their creators were trying to punish and prevent harm, not speech as such. Yet these cases -- or, as to the Espionage Act cases, the modern repudiation of those cases -- treat the application of these laws based on the content of speech just as skeptically as the Court has treated facially content-based restrictions. Likewise, later decisions treat Cantwell, Cohen, Edwards, and Terminiello as involving content-based speech restrictions.
Thus -- unless we're willing to reverse the doctrine expressed in these precedents -- the laws I described in the first post in this chain should be treated as involving content-based speech restrictions. They shouldn’t evade serious First Amendment scrutiny on the grounds that they are generally applicable.
In coming days, I’ll say more about laws of general applicability, including about the Free Press Clause discussion in Cohen v. Cowles Media and about the Free Exercise Clause discussion in Employment Division v. Smith. I’ll also argue that the Court has indeed been right to condemn restrictions that are content-based as applied.
Related Posts (on one page):
- Ample Alternative Channels:
- Content-Based Speech Restrictions vs. Content-Neutral Speech Restrictions:
- Free Speech, Content-Based Laws, and Legislative Motives:
- Laws of General Applicability and Cohen v. Cowles Media:
- Laws of General Applicability, Content-Based as Applied and Content-Neutral as Applied:
- "It's Conduct, Not Speech":