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

By Smolla, Rodney A. | Albany Law Review, Fall 2012 | Go to article overview
Save to active project

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


Smolla, Rodney A., Albany Law Review


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.