Academic journal article
By Kende, Mark S.
Brigham Young University Law Review , Vol. 2007, No. 6
The First Amendment to the United States Constitution is heralded domestically and abroad for protecting freedom of speech and thus promoting democracy, individual self-realization, and the search for truth. This assessment is well justified, especially when comparing the United States to authoritarian regimes. One scholar, however, has described the U.S. Supreme Court's First Amendment jurisprudence as "arbitrary and unpersuasive."1 Another has said it "resembles the Ptolemaic system of astronomy in its last days."2
In particular, the Court has divided speech into protected and unprotected categories.3 The Court also maintains that laws restricting protected expression, based on the speech's content, must be viewed with great skepticism.4 The Court's use of strict scrutiny helps explain why it has found most federal laws passed to protect minors from non-obscene Internet pornography unconstitutional. Such material is known as indecent speech. Grafting a law that can meet the Court's formalistic strict scrutiny in these cases is like trying to pass a camel through a needle's eye.
Yet, strict scrutiny is not always justified or used for indecent speech cases. In some non-Internet cases the Court has actually ignored content discrimination. The Court has instead used a relaxed scrutiny level and then concluded that the state's interest outweighs the speaker's interest. The Court has also on other occasions ignored its usual categorical speech divisions.5
In this paper, I recommend that the Court stop the formalism and the inconsistencies. Actually, I go a step further and recommend that the Court borrow a page from the way foreign courts, such as the South African Constitutional Court, have engaged in an explicit balancing of interests and values while also being minimalist when possible. South Africa provides an excellent comparative lens for several reasons. Its constitutional drafters examined the best provisions from countries like Canada, Germany, Namibia, and the United States and then tried to improve upon them.6 Moreover, its Constitutional Court's decisions are highly regarded internationally, it has a racial history that parallels the United States, and the Court's opinions are stylistically accessible.7
There has recently been controversy over the U.S. Supreme Court's increasing use of foreign constitutional law.8 Chief Justice Roberts, Justice Scalia, and various conservative, scholars have said that foreign law is used selectively in order to promote the agendas of particular members of the Court.9 The implication is that this agenda is liberal. Yet this paper shows that foreign law can support a speech restriction that would cause discomfort to some liberals. Perhaps foreign law does not have to be ideological after all if courts survey foreign sources more comprehensively.
This paper has six parts. Part II discusses key U.S. Supreme Court cases establishing the speech categories and the rule against content discrimination. Part III shows how these principles play out in the Court's Internet free speech decisions. Part IV demonstrates how the Supreme Court has been inconsistent in its treatment of unprotected speech and in its treatment of content discrimination. Part V shows how the most important American Internet speech case would have been resolved if the Supreme Court openly adopted the proportionality analysis used in South Africa, which is derived from Germany and Canada.10 Part V also addresses some possible criticisms. Part VI offers a brief conclusion.
II. THE SUPREME COURT'S CATEGORIES
The U.S. Supreme Court has a categorical approach to speech. Several kinds of expression are unprotected including obscenity, fighting words, incitement, threats, child pornography, and libel.11 The Supreme Court cases establishing these categories balanced the speaker's interests against the state's interests and tried to provide clear rules for the future. …