Academic journal article Harvard Law Review

Speech Exceptions

Academic journal article Harvard Law Review

Speech Exceptions

Article excerpt

INTRODUCTION

In Illinois, a condominium resident has the right to fly the American flag, despite any of his building's contracts or covenants with contrary effect; if his neighbor wishes to fly a Russian flag, her covenants to the contrary nevertheless remain binding. (1) In Washington, D.C., federal regulators have licensing power over the export of certain computer encryption code in electronic form (2)--but not in printed and published book form. (3) In Cuba, the U.S. regulations governing the embargo formerly prohibited American businessmen from paying their Havana hotel bills, but permitted American journalists to do so. (4)

These odd situations have arisen from piecemeal attempts by legislatures to lighten or remove the restraints on speech created by otherwise valid state or federal legal regimes. Although legislatures may restrain First Amendment freedoms in ways that are both incidental (5) and not-so-incidental, (6) they do not always choose to restrict speech to the maximum extent that they can. Sometimes a legislature salvages a certain amount of First Amendment speech from rules that would otherwise validly silence it by creating a statutory carve-out (a "speech exception") designed to protect First Amendment interests. Such legislatures, although concerned with the protection and promotion of speech, are perhaps not fully cognizant of the extent to which their schemes for distributing First Amendment rights may have unacceptably inequitable or arbitrary results.

In the courts, the apparently laudable legislative motive behind a speech exception often obscures from judges the fact that the exception's structure may offend competing First Amendment values. Since speech exceptions are intended to be speech-protective, they naturally invite less suspicion from judges than speech-restrictive enactments. First, because such exceptions overprotect First Amendment rights, a judge might reason that as long as no hidden or improper motive is at work, the legislature is entitled to significant leeway in determining the extent of its bounty. Second, when incidental restraints are concerned, legislatures can often safeguard First Amendment rights more effectively than courts can. Without a coherent theory for when speech exceptions ought to be grafted onto otherwise neutral and valid rules, (7) courts are reluctant to create such carve-outs. (8) A legislative speech exception slices through this Gordian knot and allows speech to flourish where it otherwise would not. Third, invalidating a speech-protective provision would often have the apparently perverse result of suppressing speech that had been permitted, and judges may experience a natural reluctance to effectuate such an outcome. On the other hand, underinclusive speech exceptions may distort public debate or confer special rights on favored speakers, content, or media. Such disparities may be so severe as to make the exception itself offensive. When faced with a speech exception, then, a court must balance these competing concerns and choose to which of the central trinity of First Amendment principles it wishes to pay obeisance--legislative motive, formal neutrality, or sheer volume.

This Note unravels this tangle and weaves the analysis of speech exceptions back into the larger tapestry of First Amendment doctrine. Part I illustrates that courts faced with constitutional challenges to speech exceptions tend to favor motive and volume considerations over neutrality concerns. Courts apply minimal scrutiny to the particular distinctions drawn by speech exceptions despite the fact that speech exceptions often differentiate on the basis of content or speaker. Part II begins the normative project of the Note by describing how selective legislative efforts to protect speech offend entrenched First Amendment doctrines that reflect an underlying commandment of legislative neutrality to content and speaker (the "neutral forum principle"). …

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