Academic journal article William and Mary Law Review

The Politics and Incentives of First Amendment Coverage

Academic journal article William and Mary Law Review

The Politics and Incentives of First Amendment Coverage

Article excerpt

TABLE OF CONTENTS  INTRODUCTION: LOOKING FOR SPEECH IN ALL THE      WRONG (?) Places I.   ON COVERAGE AND PROTECTION II.  Coverage and the Supreme Court III. COVERAGE AND THE INCENTIVES OF LITIGATION IV.  THE FUTURE CONCLUSION: THE RISKS OF DOCTRINAL DISTORTION 

INTRODUCTION: LOOKING FOR SPEECH IN ALL THE WRONG (?) PLACES

In recent years, litigants have claimed that the First Amendment's Free Speech Clause limits the ability of the Securities and Exchange Commission to mandate financial disclosures, (1) restricts the power of regulatory agencies to compel disclosure of conflicts of interest in the pharmaceutical industry, (2) constrains the authority of a state to prevent licensed therapists from using therapeutic methods that have no scientific basis, (3) and controls the prerogative of a liquor control commission to prohibit anticompetitive franchise agreements between retailers and wholesalers. (4) Litigants have also argued that the First Amendment protects erroneous bond and credit ratings,5 prevents the seizure of computer equipment used in unlawful gambling,6 shields tattoo parlors from health regulations, (7) prohibits the government from requiring employers to inform employees of their legal rights, (8) limits legal sanctions for erroneous maps and charts, (9) guarantees the right of a citizen to warn potential targets of a police sting operation that they are in jeopardy of arrest, (10) and, similarly, ensures that citizens are free to flash their headlights in order to warn oncoming motorists of the presence of police seeking to apprehend speeders. (11)

Not to be outdone by actual litigants in actual courts, authors of law review articles and notes have recently argued that the First Amendment encompasses the right to engage in sports (12) and unprotected sexual activity, (13) immunizes auctioneers from the requirements of professional licensing, (14) protects people who wish to make deafeningly loud nonverbal noise in athletic arenas, (15) and even allows people to practice law without a license. (16) And a veritable industry has grown up around a diverse collection of claims that the First Amendment's protection extends to computer language, source code, and raw data in all of its infinite varieties. (17)

What is most interesting about these various claims and arguments is not merely that some of them have been taken seriously. (18) Rather, it is that they have been advanced at all, in contrast to what would have been expected a generation ago, when the suggestion that the First Amendment was even applicable to some of these activities would far more likely have produced judicial laughter or incredulity, if not Rule 11 sanctions. Accordingly, if we seek to examine the changing nature of the First Amendment landscape, both now and into the future, we might well train our attention not only on the degree of protection (or not) for activities that have long been taken to be at least relevant to the First Amendment, but also, and perhaps even more, on those activities that only recently have been thought to have anything to do with the First Amendment at all. In the past, many of the most important issues surrounding the First Amendment were issues about the nature and degree of its protection within its widely acknowledged coverage. (19) But now the pressure appears to be on coverage itself, with what seems to be an accelerating attempt to widen the scope of First Amendment coverage to include actions and events traditionally thought to be far removed from any plausible conception of the purposes of a principle of free speech. The goal of this Article is in part to document this outward pressure on the First Amendment's boundaries of applicability, but even more to offer some hypotheses about why this phenomenon appears to be occurring.

I. ON COVERAGE AND PROTECTION

In order to understand the question of coverage and to appreciate its importance, it is necessary to distinguish the idea of coverage from that of protection. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.