Article by David S. Han
From Volume 91, Number 1 (November, 2017)
One of the cornerstones of First Amendment doctrine is the general rule that content-based restrictions on all speech—apart from a few narrow categories of low-value speech—are evaluated under strict scrutiny. As many have observed, this rule has produced considerable strain within the doctrine because it applies the same onerous standard throughout the vast and varied expanse of all non-low-value speech, which includes not only the core, highest-value speech for which such stringent protection is clearly warranted, but also less valuable speech to which the application of strict scrutiny is often dissonant. Nevertheless, traditional accounts maintain that this blunt, highly prophylactic approach is necessary given the significant costs and risks associated with granting courts greater discretion to make value-based speech distinctions.
This Article challenges these accounts. I argue that courts should more explicitly recognize a broad conceptual category of what I call “middle-value speech”—that is, speech that falls within the hazy center of the speech-value spectrum between clearly high-value speech, like political speech or truthful news reporting, and clearly low-value speech, like true threats or incitement. The scope of such speech is vast, potentially encompassing speech as diverse as public disclosures of sensitive private data, sexually explicit speech, professional advice, search engine results, and false statements of fact. Yet current First Amendment doctrine broadly fails to recognize middle-value speech as a discrete conceptual category, and this failure has produced substantial costs in the form of doctrinal distortion and a lack of analytical transparency. These costs have grown precipitously—and will continue to grow—in conjunction with the First Amendment’s broad expansion beyond the familiar precincts of core ideological expression into increasingly eclectic varieties of speech.
I therefore propose an adjustment to the doctrinal framework. Rather than broadly presume that all speech outside of the low-value categories is subject to maximum First Amendment protection, courts should affirmatively designate and carve out the particular categories of high-value speech that merit such protection, in a manner similar to how courts have dealt with low-value speech. Once both low-value and high-value speech categories have been carved out, all remaining uncategorized speech is, by definition, middle-value speech, and courts should adopt intermediate scrutiny as the default rule applicable to all such speech. This approach would greatly reduce the doctrinal distortion and analytical opacity associated with the traditional default rule of strict scrutiny, and it would do so at a limited cost to doctrinal consistency and administrability.
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