Academic journal article William and Mary Law Review

The Mechanics of First Amendment Audience Analysis

Academic journal article William and Mary Law Review

The Mechanics of First Amendment Audience Analysis

Article excerpt

Abstract

When the government seeks to regulate speech based on its content, it generally assumes that listeners will process the speech in a manner that produces social harm. Because the chain of causation for such speech-based harm runs through the filter of an audience, courts must constantly make judgments regarding the audience's reception of such speech. How will the speech be interpreted by the audience? To what extent will the speech cause the audience either to suffer direct emotional harm or to react physically to the speech in a harmful manner? Although this sort of inquiry--which I refer to as "audience analysis"--is integral in resolving a broad range of First Amendment issues, there has been little, if any, holistic examination of its general position and role within First Amendment jurisprudence.

In this Article, I first seek to introduce a degree of theoretical and doctrinal clarity to this aspect of speech causation. After tracing the primary causal paths by which speech may give rise to social harm on account of its content, I observe that each of these paths requires courts to make judgments regarding the audience's comprehension of, or sensitivity to, the speech in question. I then outline how such analysis currently fits within First Amendment doctrine. Depending on the case, audience analysis can take place either at the front end, in the process of categorizing "borderline" speech, or at the back end, in the application of more generalized scrutiny analysis. These sorts of analyses often look very different from each other, and I delineate the different ways in which courts have approached them.

I then propose that audience analysis should generally be governed by a simple principle: courts should seek to determine, as accurately as possible, the extent to which the targeted audience would foreseeably process the regulated speech in a manner that produces social harm. In other words, courts should strive to conduct audience analysis based on a predictive view of how the targeted audience will likely process the speech, rather than on a strong normative view of how an idealized "rational audience" should process the speech. I argue that this basic principle should shape the tests that courts adopt to define low-value speech, promote greater solicitude for analyzing empirical data in scrutiny-stage audience analyses, and ultimately produce a more transparent jurisprudence that will provide courts with a clearer picture of the actual costs of speech in a wide range of circumstances.

TABLE OF CONTENTS

INTRODUCTION

  I. THE THEORETICAL SIGNIFICANCE OF THE FIRST
     AMENDMENT AUDIENCE

     A. The Mechanics of Speech Causation
        1. Reactive Harm
        2. Direct Harm
        3. Dissemination-Based Harm
        4. Other Harms
     B. Audience Judgments in First Amendment Analysis
        1. Comprehension
        2. Sensitivity
        3. Summary

 II. AUDIENCE ANALYSIS WITHIN THE ARCHITECTURE
     OF FIRST AMENDMENT DOCTRINE

     A. Case-Specific Audience Analysis in Categorizing
        "Borderline Speech"
     B. Generalized Audience Analysis Within the
        Scrutiny Framework

III. THE THEORETICAL GOALS OF FIRST AMENDMENT
     AUDIENCE ANALYSIS

     A. Idiosyncratic Audiences and the Shortcomings of
        Pure Effects-Based Tests
     B. Predictive Versus Normative Approaches to Audience
        Analysis
     C. Foreseeability of Actual Harm as the Touchstone of
        Audience Analysis
     D. Potential Critiques of a Predictive Approach to
        Audience Analysis
        1. Preventing the "Dumbing Down" of Public
           Discourse
        2. Encouraging Citizens to Conform to Higher
           Standards
        3. Preventing Government Agenda-Setting
     E. Summary
     F. Predictive Approaches in Generalized,
        Scrutiny-Stage Audience Analysis

 IV. THE RAMIFICATIONS OF ADOPTING A PREDICTIVE
     APPROACH TO AUDIENCE ANALYSIS

     A. … 
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