I. MUST EVERY APPARENT FREE SPEECH CASE HAVE A MEANINGFUL ANSWER UNDER THE FREE SPEECH CLAUSE?
The litigation (1) challenging the recently adopted federal statute (2) and FDA rules (3) seeking to regulate tobacco package labeling focuses on freedom of speech. There is, no doubt, an obvious, literal sense in which these tobacco-labeling cases raise various free speech issues, evoke and debate free speech tests, and are judicially resolved on free speech grounds.
This article, however, raises an unusual but revealing question about what we might call the "legal space" that is apparently controlled by free speech law. In particular, this article asks whether an apparent free speech law case could, upon closer examination, ever turn out to not really involve a genuine free speech law case.
Certainly, in most free speech cases, we expect to encounter typical sorts of indeterminacies (4) and incommensurabilities. (5) This article asks whether there could also be what we might, by analogy, call something like gaps, cavities, faults, voids, lacunae, or vacua within the conceptual space of free speech law.
The idea would be roughly this: to begin with, a case that is located within a free speech "vacuum" might, contrary to initial appearances, not coherently implicate the distinctive basic reasons for according constitutional protection to speech in the first place. By consensus, the most fundamental of such reasons typically include one or more of the following: promoting the search for truth of one sort or another; furthering the value of self-realization or self-fulfillment in one sense or another; and promoting something like democratic self-government, perhaps including the civic virtue of tolerance and the maintenance of popular constraints on the exercise of political power. (6) Setting aside possible complications and qualifications, if none of the basic reasons for distinctively protecting speech are coherently or meaningfully at stake in a given case, we could say that the most basic of the various presuppositions or prerequisites of free speech jurisprudence is in that case not met.
Of course, the fact that no basic purpose of protecting freedom of speech is significantly implicated in a given case would most typically indicate not that we have entered a void or "vacuum" within the space of free speech law, but instead merely that the purported speaker should simply lose the free speech case on the merits. For example, literal or symbolic speech that does not intend to, and does not in fact, convey any cognizable message to any possible audience might well simply not count as speech for constitutional purposes.7 And we would presumably say in such cases that the purported speaker has merely lost the entirely genuine free speech case on the merits, (8)
Yet what if a particular case involved not only the absence of any sufficient, meaningful, coherent promotion of any of the distinctive basic purposes for constitutionally protecting speech, but the corresponding absence, on the other side of the case, of any sufficiently meaningful, coherent, distinctive, promotion of any legitimate or otherwise sufficient governmental interest, to be promoted through regulating the speech in question? We could, in some sense, still label the case as a free speech case, lost on the merits by whichever side bore the decisive burden of proof. (9)
But more substantively, we could in such a case rightly sense something like a free speech law "vacuum." The case would present not so much, say, a standard problem of free speech law indeterminacy, as of the absence of any sufficiently meaningful, non-self-contradictory, cogent reasons, based in free speech and regulatory law, (10) for deciding the case in any particular way, or for deciding the case on free speech and regulatory grounds at all.
Or we could say that a free speech law "vacuum" case presents not so much a standard problem of the incommensurability (11) of values and interests, but an absence of any sufficient such interests, bearing favorably or unfavorably upon freedom of speech, on both sides of the case. …