Spheres of Autonomy: Reforming the Content Neutrality Doctrine in First Amendment Jurisprudence

Abstract

In recent decades, doctrine of content neutrality has become cornerstone of First Amendment jurisprudence. In leading case of Police Department v. Mosley (1972), Supreme Court declared that speech may be regulated because of its content, for that would be the essence of . . . censorship. If this view were taken literally, however, it would disable government from regulating speech even when necessary to prevent serious injury to individuals or society. In response to this concern, Court has carved out several exceptions to neutrality doctrine. Yet Justices have never succeeded in explaining rationale for these exceptions, or in squaring them with general principle of content neutrality. As a result, Court's First Amendment opinions often seem arbitrary and unpersuasive. Far from illuminating free speech problems, doctrine of content neutrality, when taken as central concern of First Amendment, only makes them more obscure. The time has come to reconsider content neutrality doctrine. In this Essay, I argue that content neutrality is an important element of free speech jurisprudence, but that it should not be regarded as the first principle of First Amendment. Instead, it should be understood within a broader normative framework. The neutrality doctrine is rooted in an underlying conception of autonomy. When individuals act within scope of their own autonomy, government may not intrude into this realm by regulating content of thought or expression. Nor may government interfere with collective autonomy of citizens by imposing unjustified restrictions on public debate. Some acts of speech, however, should be regarded as invading autonomy or rights of others. In such cases, rationale for content neutrality no longer holds; in regulating speech, government is not invading autonomy of speakers, listeners, or community, but instead is protecting rightful freedom of others. After developing this view, Essay explores shortcomings of content neutrality when it is treated as central principle of First Amendment, divorced from normative framework that is developed here. Focusing on judicial efforts to deal with hate speech in R.A.V. v. City of St. Paul, and with pornography in American Booksellers Association v. Hudnut, I argue that courts' increasing reliance on content discrimination doctrine to resolve difficult First Amendment problems only obscures crucial substantive issues at stake, and leads to hypertechnical decisions that are inaccessible to public. This approach not only gives short shrift to other values affected by speech, it also fails to persuasively articulate and defend values that underlie First Amendment itself. Finally, Essay discusses how theory and doctrine of content neutrality should be reformed in order to avoid these difficulties while preserving its legitimate role in First Amendment jurisprudence.