Abstract

Those familiar with free speech jurisprudence know it as a complicated, contradictory, and incoherent agglomeration of hyper-technical three and four part tests. In this article, the authors look back at how each of these different doctrines and tests developed, the purposes it properly serves, and how it became unanchored from those purposes. We show that at bottom the Court approaches freedom of speech much as it does other constitutional rights. The ultimate issues it seeks to resolve are: (1) to what extent does government have a duty to avoid interfering with a speaker? (2) if government has a duty to the speaker, is its interference with speech intentional? and (3) if government intentionally interferes with speech in the face of a duty owed to the speaker, is that interference justified?

Because speech, and therefore litigation involving speech, is ubiquitous, the Court has felt compelled to develop numerous categorical approaches to facilitate the resolution of these three recurring issues in free speech cases. These include the development of the forum doctrines and tests, categorization of restrictions as content neutral, content based, viewpoint based, or secondary effects, and the development of the various categories of “unprotected speech.” When the different doctrines and tests are understood as shortcuts for resolving issues of duty, intent, and justification, they appear unified and coherent.

Problems arise when these tests become unanchored from the legitimate purposes they can serve. When this happens, the doctrines and tests themselves are made more important than the ultimate purposes they were intended to serve. They appear to be arbitrary, stand-alone, independent tests. Free speech jurisprudence becomes an incomprehensible morass. Decisions become inconsistent; arguments become self-contradictory; and reason seems to disappear.

This article unifies and brings coherence to free speech jurisprudence. We show how all of the doctrines and tests can be understood as part of a unified and straightforward approach to resolve the issues of duty, intent and justification. This has significant implications both for anyone seeking to understand free speech jurisprudence, and for how courts will apply these tests going forward.