Sharpening the Focus of Free Speech Law: The Crucial Role of Government Intent

Abstract

Contemporary free speech law is typically misfocused. This misfocus serves neither the purposes underlying the institution of free speech nor any broader social rights and interests in conflict with freedom of speech. As a general matter, the adjudication of free speech claims should properly focus, centrally, on the intent of the regulating government. More specifically, courts should focus crucially on whether the government has, in enacting or enforcing its speech regulation, intended to suppress or disadvantage a presumed or actual idea or its expression. This sharpened focus would allow the courts to responsibly address a surprisingly broad range of free speech cases with a substantially diminished need for attention to a number of artificial, if not unnecessary, judicial doctrines that have gradually been incorporated into the free speech case law. This Article first briefly establishes the nature, and the typical costs, of official inhibition of speech in general. The Article then more extensively examines a range of the contemporary case law, with attention, successively, to the recent student speech case of Mahanoy Area School District v. B.L.; to cases involving various sorts of borderline and non-traditional forms of speech; and then to questions of content based and content-neutral regulations of commercial and non-commercial speech, as raised by the case of Reed v. Town of Gilbert, Arizona and the later case law. The Article then addresses the problem of properly inferring, or otherwise ascertaining, any meaningful government intent to suppress or disadvantage a particular idea. A brief conclusion then follows. Throughout, it will be useful to remember that in all sorts of free speech cases, the relevant government’s intentions are likely to have been multiple; partly conflicting; or perhaps mutually linked, if not inseparable. Commonly, a government that is restricting speech may have an intent to suppress or disadvantage an idea where that intent is somehow linked to a more benign intent to discourage some perceived public harm that is thought by the government to result from the speech in question. On our approach, if there is any causally significant government intent to suppress or disadvantage an idea, the speech restriction generally must fail. The result should follow even if the same restriction could have been adopted with no such invidious intent, and for worthy public purposes. Thankfully, not all substantial restrictions on speech involve any intent to suppress an idea. Thus some restrictions on, for example, political speech, along with many instances of restrictions on libelous speech; fraudulent speech; politically favored speech that is irrelevant to the forum; noisy or distracting speech; perjury; or speech that would impair national security can be enacted without any causally significant hostility to any idea that the speaker wishes to express. But again, regardless of the nature of the speech in question, if the restricting government harbors any causally relevant intention to suppress or disadvantage the idea in question, the speech restriction should generally be struck down. The social costs of such a judicial response to such a speech regulatory intent need not be substantial. Such a focus would, on the other hand, helpfully allow for reduced judicial attention to, if not a complete bypass of, a number of currently ubiquitous and largely distracting free speech tests and categories.