Equal Treatment and the Free Speech Clause

Abstract

The traditional Free Speech Clause burden is a law that directly impedes speech interests and that courts can remedy through invalidation. This model is simple in theory and remedy, but it accounts for surprisingly few cases. Instead, a substantial – and growing – number of cases involve what this Article calls “layered speech regulations”: laws that first impede speech broadly (layer 1), and then exempt some speech or speakers (layer 2). As the Court recently made clear in Barr v. AAPC, challenges to layer 2 attract scrutiny under the Free Speech Clause just like challenges to layer 1. In its analysis, however, the Court has brushed over the fact that such layered speech regulations allow rather than restrict speech with their layer 2 provisions. As a result, layer 2 challenges create a Free Speech Clause paradox, as invalidating the law does not allow the challenger to speak, while leaving it in place authorizes censorship through artful drafting. This Article resolves the paradox of layer 2 challenges by showing that such challenges rely on a mandate of equal treatment within the Free Speech Clause, and links that mandate to broader issues that plague freedom of speech law. After demonstrating the Court’s reliance on the equal treatment mandate, the Article provides two doctrinal grounds for the mandate: one concerned with coercion, and one concerned with how the Equal Protection Clause changed the shape of First Amendment protections. With the speech right in layer 2 cases triggered by unequal treatment, the remedy is equal treatment – striking layer 2 to vindicate the speech right and using legislative intent to determine if layer 1 can be severed. This approach resolves the Free Speech Clause and the Article III problems created by layer 2 challenges. It also has substantial implications for the Free Speech Clause more broadly. Specifically, it demonstrates how much room remains to legislatures to correct unequal treatment, including through redistributive regulation beneficial in today’s environment of digital speech, contrary to the common trend of comparing the Free Speech Clause to Lochner. Finally, it reveals the doctrinal changes required to bring the prohibition against content-based regulations in line with the Free Speech Clause’s equal treatment mandate.