Categories, Tiers of Review, and the Roiling Sea of Free Speech Doctrine and Principle: A Methodological Critique of United States V. Alvarez

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I. INTRODUCTION

In United States v. Alvarez, (1) the Supreme Court struck down the Stolen Valor Act of 2005, (2) in a splintered decision with no five-Justice majority. (3) The failure of five Justices to agree on a single rationale, rather than the merits of the case itself, is the principal focus of this article.

The modest hypothesis of this article is that the Supreme Court has lacked doctrinal discipline in adhering to any consistent and clear set of doctrinal principles when analyzing content-based regulation of speech. This lack of disciplined consistency, highly visible in Alvarez, diminishes stability and predictability in First Amendment analysis. Such instability poorly serves legislative bodies, by diminishing the quality of constructive guidance as to what forms of speech regulation are or are not constitutional. The instability also handicaps lower courts tasked with judicial review of speech regulation.

Setting the formulaic world of legal doctrine aside, Alvarez offers a good rough and ready guide to three very different judicial sensibilities regarding the preferred position of freedom of speech in the constitutional hierarchy. Visible in the spread of the three opinions in Alvarez are (1) the view, represented by Justice Kennedy's plurality opinion, that freedom of speech occupies an exalted position, rarely trumped by other societal values, (4) (2) the view, represented by Justice Breyer's concurrence, that freedom of speech deserves some elevated stature in the constitutional scheme, but not a stature so elevated that it cannot be overtaken by well-crafted laws vindicating other significant society values, (5) and (3) the view, represented by Justice Alito's dissent, that speech may be divided into that speech which serves some plausible positive purpose, which is deserving of constitutional protection, and that speech which advances no legitimate end worth crediting, yet is highly offensive to good order and morality, which is not deserving of any protection. (6)

II. THE GHOST OF CHAPLINSKY V. NEW HAMPSHIRE

First Amendment analysis has long been plagued by the ghost of Chaplinsky v. New Hampshire, (7) in which the Supreme Court suggested that the best way to handle judicial review of laws regulating speech was simply to list certain classes of speech as outside of the First Amendment's coverage. (8) In one of the most famous passages in the history of free speech jurisprudence, the Court in Chaplinsky confidently declared:

   There are certain well-defined and narrowly limited classes
   of speech, the prevention and punishment of which have
   never been thought to raise any Constitutional problem.
   These include the lewd and obscene, the profane, the
   libelous, and the insulting or "fighting" words--those which
   by their very utterance inflict injury or tend to incite an
   immediate breach of the peace. (9)

This passage has haunted free speech law for sixty years. The struggle of the Justices in Alvarez to unify behind any one coherent test for measuring the validity or invalidity of the Stolen Valor Act is the most recent example. (10)

Purely as a description of contemporary First Amendment case outcomes, the Chaplinsky standard is all but worthless. Chaplinsky is both an overstatement and an understatement of the state of play.

Chaplinsky is an overstatement in that many of the classes of speech listed by the Court as not "rais[ing] any Constitutional problem" have come to be understood as raising big constitutional problems. (11) Indeed, elaborate bodies of law have evolved to resolve those problems, providing substantial constitutional protection for speech that is lewd, obscene, profane, libelous, and insulting. (12)

Take--as an especially graphic example--the legal fate of the "F Word," the mother of all words commonly labeled lewd or profane, in the years since Chaplinsky. In Cohen v. California, (13) the Court held the phrase "Fuck the Draft," worn on a jacket in a public place, was protected by the First Amendment. …