Academic journal article William and Mary Law Review

Producing Speech

Academic journal article William and Mary Law Review

Producing Speech

Article excerpt

II. PENUMBRAL RIGHTS AND THE PRESS CLAUSE

In Griswold v. Connecticut, Justice Douglas famously wrote that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." (138) Admittedly, the Griswold Court's conclusion that one of those penumbral rights was "marital privacy" to use contraceptives is rather questionable, as the asserted right has no close relationship to any textual right. (139) Nonetheless, there is more than a grain of truth in Justice Douglas's assertion--the Court undoubtedly has regularly recognized that a constitutional provision is best understood to protect conduct beyond what the bare text would require, if that protection is necessary to effectuate the textual right. In particular, in the context of the First Amendment, the Court has long protected a right to expend money in order to purchase the means to disseminate speech, (140) as well as the right to sell and profit from the sale of books. (141) More generally, as Seth Kreimer points out, the Court has regularly extended protection to conduct associated with the distribution of speech such as "handing out leaflets that may end up as litter, placing newsracks on public property, or distributing books to stores." (142) Moreover, Robert Post is surely correct that the First Amendment would not permit a state to "prohibit the use of projectors without a license." (143)

All of these examples involve restrictions on the distribution of speech, in which the connection between the regulated conduct and speech is both extremely close and obvious. The Court has also protected conduct preceding speech, that is, conduct related to the production of speech. An example of such protection that we have already discussed is the Court's conclusion in Minneapolis Star & Tribune that a tax on ink and paper used by publishers violated the First Amendment. (144) Presumably, a special tax on celluloid film would also have raised serious First Amendment issues, when that film was necessary for photography. Another prominent example of penumbral protections for conduct related to the production of speech can be found in the Court's "expressive association" jurisprudence. In a series of cases extending back to the Civil Rights Era, the Court recognized that as a corollary to its explicit protections, the First Amendment also protects an implicit right to associate with others for expressive purposes. (145) The protected act of association need not be itself expressive. In the leading case on this subject, the Court protected the right to maintain anonymous membership in a civil rights organization because of the attendant risk of retaliation, even though the act of anonymous membership is not itself expressive. (146) The First Amendment protects association because it is a necessary precondition of speech. (147)

There is thus doctrinal and logical support in the Supreme Court's jurisprudence for the proposition that the First Amendment extends some protection to conduct associated with the production of speech. The Press Clause of the First Amendment provides a textual foundation for such protection. (148) As discussed earlier, the dominant historical and modern understandings of the Press Clause is that the Clause protects the technology of the printing press, not certain favored speakers, such as the institutional press. (149) It should be noted, however, that regulation or licensing of printing presses does not impact actual communications. It rather constrains the production of a printed item (for example, a leaflet or a newspaper) which, when distributed to the public, will communicate thoughts and ideas. Regulation of the press is thus regulation of the production of communication rather than of communication itself, and so the Press Clause by its terms protects the production of written speech.

It might not, however, protect all speech-producing acts. …

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