Competing Free Speech Values in an Age of Protest

This Article endeavors to catalog and resolve cases involving competing free speech values, and then applies its solutions to violent and disruptive protests. Almost every First Amendment case can be framed as implicating free speech values on both sides of the First Amendment equation. Government action directly abridges speech, but government inaction may allow private parties too much control over others’ speech. First Amendment doctrine, which generally protects speech only from suppression by state actors, can thus compromise the very free speech values that form the rationales for the First Amendment. Scholars and litigants have argued that government regulation of speech, to preserve free speech values, is necessary in areas ranging from campaign finance, to access to media resources, to bigoted speech.

This Article argues that strict adherence to a formal state action doctrine should resolve most, but not all, clashes between free speech doctrine and values. A robust application of the state action doctrine—where government interference to preserve speech values is not considered as part of the First Amendment calculus—also best advances both formal and substantive First Amendment equality.

This Article proceeds in three parts. First, the Article chronicles the Supreme Court’s approach to cases involving competing free speech values. The Article then demonstrates why the state action doctrine, with its associated formal equality and neutrality principles, will ultimately advance free speech values. Finally, the Article considers political protests, and distinguishes between prosecution of violent protesters, which should be encouraged, and legislation criminalizing disruptive protest tactics, which may be unconstitutional.

Introduction

This Article endeavors to catalog and resolve conflicts between traditional free speech doctrine and “free speech values.” For the purposes of this Article, free speech values mean the ideals, goals, and rationales that provide support for legal protections for speech.1 The protections afforded by First Amendment doctrine apply only when the government censors speech, not when private parties’ actions stifle speech.2 As a result, application of First Amendment doctrine may yield results that undermine the very rationales behind the First Amendment. Recognizing this tension, my goal in this Article is to justify the virtues of strong First Amendment doctrine, interpreted using a formal state action doctrine and an animating principle in which the government must remain neutral with respect to speech.

Behind almost every restriction on speech lurks a potential argument that the lack of a speech regulation may be as deleterious to free speech values as a proposed speech regulation.3 As examples, without any liability for privacy torts, individuals would fear surreptitious recording of their conversations and would be more reluctant to speak about sensitive or controversial topics, chilling speech.4 Because anonymous speech is protected, many believe that the internet has become rife with attacks that “impoverish[] online dialog.”5 More informally and routinely, without government intervention, some individuals, perhaps those with stronger opinions or more resources, will be more vocal about their views or have larger audiences, leading to a skew in the information people have.

Many scholars also claim that certain types of harassing or hateful speech should be unprotected because, in the absence of regulation, this speech leads its targets to self-censor or causes their voices and perspectives to be disrespected.6 This argument is gaining ground, especially among young people.7 One of the justifications for the violent protest in response to the University of California, Berkeley’s hosting of alt-right speaker Milo Yiannopoulos was that his speech is so threatening and silencing to minority groups that their only recourse is to respond with violence.8

Further, because of free speech doctrine, private entities, especially those with their own speech rights and significant power and resources, have much greater leeway to restrict speech than the government. When the government regulates speech based on its content, those regulations are often subject to some form of strict constitutional scrutiny.9 By contrast, social media platforms are free to adopt speech policies banning certain types of speech to foster a greater sense of community or to facilitate the values of the company.10 In fact, a First Amendment violation would likely occur if the government banned these platforms from adopting their own policies or required them to adopt particular policies.11

If private entities chill too much speech, free speech values can be sacrificed by free speech doctrine, just as these values can be served by free speech doctrine. However, when private action or corporate policies lead to self-censorship or silencing, there is no First Amendment claim by the party seeking governmental regulation, whose speech values have been undermined.

Realist perspectives on legal interpretation acknowledge the potential for competing free speech values, leading some realist scholars to advance arguments for more speech regulations and a rethinking of the state action doctrine in First Amendment cases.12 These arguments have affected our free speech culture, or the way we view the virtues of the First Amendment. This, in turn, may impact how people think the First Amendment should be interpreted. Many believe that First Amendment doctrine, in many cases, does not promote the free speech values that animate it, and that our neutral and libertarian conception of the First Amendment reinforces existing power structures and compromises the goals of an egalitarian society.13 Although our current First Amendment jurisprudence is highly speech protective, many scholars and citizens have lost faith in, and desire for, strong free speech protections as against the government.14 They believe the real enemy, in many cases, is other individuals, and that the government must intervene to protect us.

This Article addresses the tension between government action and government inaction in promoting free speech values, and argues for a resurgence of a distinction between free speech doctrine and values. I demonstrate why elevating free speech doctrine will, counterintuitively, ultimately serve free speech values. I then apply my approach to current, urgent areas where free speech doctrine and free speech values collide—potentially destructive protests. I distinguish between prosecutions of violent protesters, on the one hand, and legislation that impermissibly criminalizes certain forms of destructive protest. Although scholars have proposed regulating speech in order to promote free speech values,15 the few scholars who have written directly about clashing First Amendment values have framed the issues differently and proposed very different solutions.16

In Part I, I chronicle the different ways courts resolve the tension between First Amendment doctrine and free speech values. In many cases where free speech doctrine may undermine free speech values, including campaign finance and right of access cases, the Supreme Court prioritizes free speech doctrine. The Court values our speech rights against the government above any free speech values compromised by private behavior.17 Not only is the First Amendment inapplicable to private parties, but the government generally cannot advance the desire to promote free speech values or equalize speech opportunities as an interest in restricting a private party’s free speech rights. Yet, in one limited context—the publication of illegally obtained information—the Supreme Court’s majority opinion explicitly notes that free speech interests exist on both sides of the First Amendment equation (or inequality, since the interests in any First Amendment case may not be of the same magnitude).18 In these types of cases, lower courts are instructed to resolve the conflicting speech values by resorting to a “public concern” type test, where the illegally obtained speech is protected if the media entity did not participate in the illegal interception, and the speech matters to the public or is “newsworthy.”19

The Article then moves from my descriptive claim to my normative claim. In Part II, I justify a strong state action doctrine and clearer tests to resolve the conflicts between free speech doctrine and free speech values. I argue that the best way to foster free speech values is through a formally neutral free speech doctrine, which allows speech protections to become greater for everyone as society and technology evolve.20 Despite the ascendance of the legal realist influence and methods of analysis, which has persuasively called the public/private distinction into question,21 a return to a robust, neutral First Amendment is now more important than ever.22 Ultimately, governmental intervention into speech is far more corrosive than any private interference or self-censorship, and neutral application of First Amendment principles is both possible and beneficial.

In Part II, I also discuss the use of public concern tests when balancing First Amendment doctrine against free speech values, or against other tort law interests. I argue that courts must clarify when speech qualifies as sufficiently within the public’s concern. Courts should apply a broad definition of “newsworthy” that can be applied as a matter of law, to minimize jury deliberation on these issues. Although the public concern test dominates much of First Amendment analysis in the speech-torts context, little has been written to clarify the contours of this test. Public concern, or newsworthiness, should be defined broadly because a narrow conception of newsworthiness enshrines too limited a vision of the First Amendment.23 Using the recent example of Hulk Hogan’s lawsuit against Gawker Media, I demonstrate that tests like Bartnicki’s newsworthiness standard are arbitrary and malleable, and may be improperly applied by a jury to censor speech the jury dislikes.24

Finally, in Part III, I apply my approach and conclusions to disruptive protests. I first argue that violent protesters, even those protesting speech that itself harms free speech values, must be prosecuted as a serious threat to our First Amendment scheme. I then distinguish between the prosecution of violent protesters and legislation designed to prohibit obstructive protests, which may be constitutionally impermissible.

In an era where many question the respect the President has for the First Amendment and constitutional rights more broadly,25 maintenance of the legitimacy of legal doctrine and the Court’s respect for rule of law is critically important. Eliminating as much subjectivity as possible in First Amendment analysis is critical. Preserving a strong state action doctrine, neutral public concern tests, and great skepticism for any type of viewpoint-based discrimination by the government will ultimately strengthen First Amendment doctrine and free speech values.

I. The Tension Between Government Action and Inaction

In many First Amendment contexts, a government action or regulation directly suppresses speech, but the absence of the government action would undermine free speech values. Courts have adopted a variety of methods for dealing with the clash between First Amendment doctrine, which primarily protects against interference by the state, and free speech values, which provide the reasons for First Amendment doctrine in the first place. The general rule that the First Amendment protects speech only against government abridgement leaves little room for balancing the speech benefits of government intervention versus non-intervention, except in limited contexts, such as when specific tort interests are implicated, and when speech falls somewhat on the border of an unprotected category of speech.26

In this Part, I first provide the general framework and principles courts apply when First Amendment doctrine compromises free speech values. As examples, I discuss cases involving campaign finance, access to broadcasting, and government speech. I then explore a limited example where courts do confront and resolve the tension between government action and inaction in fostering First Amendment values.

A. The General State Action Framework

Generally speaking, courts apply the state action doctrine rigidly to First Amendment cases.27 This means that free speech protections are triggered only when the government abridges speech.28 Easy cases, presenting no real clash of free speech values, involve courts striking down bans on flag burning or courts invalidating criminal convictions of those who stir crowds to anger with their unorthodox views.29 In these cases, courts uphold the paradigmatic First Amendment principle that the government is not permitted to discriminate against particular viewpoints.30

In harder cases, the government seeks to intervene to prevent private parties from limiting or overriding the speech of other private parties. Because the speech-limiting effects of private behavior or private markets are not covered by the First Amendment—and state intrusion into speech is suspect in a way private intrusion is not—government intervention that fosters private speech by limiting the speech of some is generally considered unconstitutional. In First Amendment analysis, courts usually ignore any free speech values served by government regulation of private parties as part of the First Amendment problem, not as a legitimate compelling interest.31 To allow the government to intervene to equalize speech opportunities often involves impermissible viewpoint discrimination. Thus, the speech effects of government inaction are not weighed against the speech effects of government action; only government action is constitutionally impermissible.32 Classic examples of the Supreme Court adhering strictly to state action principles and formal distinctions between public speech and private speech include campaign finance, access to broadcasting, and the government speech jurisprudence.

The current state of campaign finance law represents a (narrowly won) affirmation of libertarian free speech principles over egalitarian free speech principles.33 In Citizens United v. FEC,34 a 5-4 majority struck down a law that criminally banned a non-profit corporation from using corporate funds to produce a political video prior to an election.35 Part of the government’s historical justification for campaign finance reform law has been that corporations amass large amounts of money, through the corporate form, that will overwhelm the speech of individuals and distort the market of political speech.36 In rejecting this “antidistortion rationale” as a permissible basis for speech restrictions, the Supreme Court dismissed the view that the speech of some can be constrained to better foster the speech of those with fewer resources.37

The Court reverted to the rationale of its previous holding in Buckley v. Valeo,38 that campaign finance laws restrict political speech based on group association,39 and overruled the rationale in the more recent case of Austin v. Michigan Chamber of Commerce,40 which permitted campaign finance laws in order to prevent “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”41 Under Citizens United, direct campaign contributions can sometimes be regulated in order to prevent quid pro quo corruption of government officials.42 However, the ban on campaign expenditures to produce political speech did not survive First Amendment strict scrutiny.43 According to Justice Kennedy’s majority opinion, “[t]he rule that political speech cannot be limited based on a speaker’s wealth is a necessary consequence of the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”44

Thus, the government’s interest in banning speech to prevent wealthy speakers from exerting too much influence in the marketplace of ideas was dismissed as antithetical to the First Amendment. Citizens United produced outcry among legislators, scholars, and even President Barack Obama.45 Yet, in many ways, this decision hewed closely to general First Amendment principles—that only state action is of constitutional concern, and that the government cannot limit private speech to correct power imbalances that undermine free speech values.46

A similar conflict between free speech doctrine, which prevents the government from interfering with private speech, and the free speech value of encouraging a diversity of viewpoints arises in the context of what Gregory Magarian calls “claims for access,” such as access to property for expressive purposes or media access.47 Here again, the state action doctrine generally prevails to resolve any conflict. Speakers who wish to distribute leaflets at private shopping centers generally have no First Amendment claim against private entities that prohibit them from doing so.48 Private broadcasters and newspapers need not allow particular content or speakers on their media platforms; there is no state action or constitutional violation when private media exercises its own editorial judgment to exclude voices.49

In addition, the state may generally not legislatively require private parties to allow speech activities on their property,50 unless the private entity resembles the state in some way51 or the private entity does not have its own speech interest warranting First Amendment protection.52 There are instances where regulations forcing broadcasters to allow air time for political advertisements have been upheld, but these have been limited to special circumstances such as “legally qualified federal candidates” during an election.53 As a general rule, right of access claims are resolved by holding that only state action implicates First Amendment rights, and state action to compel access by private parties is often invalidated.54

Finally, cases involving speech by the government itself demonstrate the importance of the distinction between state action and private action in resolving clashing free speech values. The government is generally not permitted to discriminate against speech based on its viewpoint55 except in limited cases such as where the government is the speaker.56 This may ultimately lead to the Supreme Court’s categorizing speech as belonging to the government even though the speech’s characteristics are quite similar to private speech. An over-characterization of private speech as government speech may be the result of a strong state action doctrine, which does not countenance balancing government suppression with private suppression of speech. By characterizing speech as government speech, courts avoid the principle that the government cannot stifle the viewpoints of private speech in order to allow other viewpoints to thrive.

For example, in Walker v. Texas Division, Sons of Confederate Veterans, the Supreme Court held that specialty license plates on cars are government speech despite the fact that the license plates are designed by private parties and despite the large and varied number of specialty license plates the state of Texas approved.57 In so holding, the Court allowed Texas to deny a specialty license plate displaying a Confederate flag, a symbol that Texas concluded was reasonably offensive because of its association with expressions of hate.58 This decision avoided using a rationale that the government can censor the Confederate flag in order to allow those intimidated by it to have an equal voice in public discourse.

As Walker demonstrates, hewing closely to the state action doctrine, as the Court generally does, often requires courts to resolve difficult questions about when a particular regulation or decision emanates from a state actor or a private actor. Because of ways in which private actors can often resemble government actors or perform government functions, many criticize the state action doctrine as arbitrary and unpredictable. And many also view the state action doctrine as a tool for reinforcing current power structures and status hierarchies and permit private injustice. These criticisms will be discussed later in Part II. Despite these criticisms, many First Amendment cases involving competing free speech values are handily resolved using the state action doctrine.

B. Balancing Free Speech Values in Tort Law

Although many cases where speech interests are implicated by both government action and inaction are resolved by simply deferring to the state action doctrine, privacy torts is one area where the Supreme Court has explicitly acknowledged when speech interests lie on both sides of the equation. In tort law, courts are accustomed to balancing speech interests against other interests, such as reputation or emotional tranquility. When speech values collide with each other in some privacy torts, courts use the same type of balancing as in other tort cases where speech conflicts are not explicitly recognized. The formula for solving the free speech equation in these types of cases is that the government cannot regulate speech, even to promote more speech, if that speech touches on a matter of public concern or is newsworthy. The First Amendment’s protection against government suppression of free and open debate on important public issues supersedes any other interests at stake.59

The Supreme Court first began balancing First Amendment liberties against tort interests, without acknowledging a clash of free speech values, in tort areas such as libel and intentional infliction of emotional distress. The tests it created to balance tort interests and First Amendment freedoms were, later, not materially altered in contexts where speech values were acknowledged on both sides of the equation, indicating that the Court had not changed its framework based on competing free speech values.

Balancing tort interests against free speech began when the application of tort law was deemed state action in New York Times Co. v. Sullivan.60 In that case, the Court held that a public official could sue a newspaper for false speech that was injurious to his reputation only if the plaintiff public official satisfied his burden of proving that the false “statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”61 This constitutional standard was created to avoid chilling speech; the Court was concerned that truthful statements in the future might remain unpublished for fear that a jury might find them false.62 Subsequent cases balancing reputational interests against First Amendment rights further solidified that the greater the public interest in the speech, the greater the burden on the plaintiff before she could receive different types of damages for libel. The greater the speech at issue constitutes a matter of public concern, the greater the evidentiary burden on the libel plaintiff for receiving both compensatory and punitive damages.63

Courts frame libel law as balancing speech versus reputation,64 but libel law could have been framed as implicating speech interests on both sides. Government action, in imposing libel damages, directly abridges and punishes speech, but government inaction, if there were no damages for libel, would lead to an increased lack of trust in speech.65 A version of this argument is used to justify the government’s increased ability to regulate misleading commercial speech, despite the fact that false speech generally remains a protected category of speech.66 In the commercial speech context, the Supreme Court has recognized that because commercial speech is protected based on its informational value to consumers, the government has an increased ability to regulate false or misleading advertising.67 Similarly, false speech not only may ruin reputations, but injects speech into the marketplace of ideas that will pervert the search for truth. Libel damages thus give speech greater power because speech becomes more trustworthy and protects the free speech value of the search for truth through free exchanges of ideas.

The public-concern type standards for when libel is actionable were also applied to the tort of intentional infliction of emotional distress. In Snyder v. Phelps,68 for example, the Supreme Court held that claims for intentional infliction of emotional distress involving speech are not actionable when the speech is on a matter of public concern.69 Chief Justice Roberts’s 8-1 opinion thus held that the First Amendment required reversal of the five million dollar judgment against the Westboro Baptist Church for protesting near a military funeral,70 even though the protest placards displayed homophobic epithets against the deceased.71

Courts applying Snyder followed its guidance to protect speech that concerns the public interest even in the face of valid emotional distress claims.72 Although courts do not explicitly do so, emotional distress liability could be framed as implicating speech interests both from government action and inaction. Grave emotional distress, including feelings of despair and powerlessness, may have a silencing effect on others.73 Courts have not framed the issue this way, however, because the greater interest implicated is emotional tranquility, and because the silencing effect from emotional distress would be a direct result of the viewpoint of the speech.74 Instead, as Chief Justice Roberts proclaimed, “[a]s a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”75

The one context where the Supreme Court has explicitly acknowledged speech interests on both sides of the equation is in the area of privacy torts and privacy statutes,76 specifically when speech has been illegally recorded. Other privacy torts, such as public disclosure of private facts (of legally obtained information), have unknown constitutional stature, and may indeed violate the First Amendment.77 The Supreme Court has, however, squarely addressed the question of whether there is a First Amendment right to publish illegally obtained information, in instances where the publisher was not responsible for the illegal interception. In those cases, prohibiting publication would involve direct government censorship of speech. On the other side of the equation, allowing the publication would lead to an increase in self-censorship by people afraid their private speech is being intercepted, thus undermining free speech values.

In acknowledging the competing free speech values presented, the Court nonetheless employed the same public interest test as in other speech torts cases, here using the term “newsworthy,” to determine when First Amendment interests trump privacy values and their concomitant speech values. In Bartnicki v. Vopper,78 the Supreme Court held that a radio station had a First Amendment right to air a tape of a phone call that had been illegally recorded by an unidentified, anonymous person, who gave the tape of a radio station.79 In invalidating portions of federal and state wiretapping acts, Justice Stevens’s majority opinion noted that the phone call between a union president and his chief negotiator, which threatened to violate the law to achieve the union’s purposes, was “newsworthy” and that the radio host was not involved in the illegal interception of the call.80 The Court left for another day the decision of whether the publication of illegally obtained domestic gossip, trade secrets, or other purely private information would merit First Amendment protection.81

Unlike in other First Amendment cases, the majority opinion explicitly noted the clashing free speech values and the presence of “important interests to be considered on both sides of the constitutional calculus.”82 The Court appreciated that the statute forbidding the media from publishing illegally intercepted information posed a direct threat of government censorship, but recognized that privacy of communication secured by government action was also an important interest.83 According to Justice Stevens, “fear of public disclosure of private conversations might well have a chilling effect on private speech.”84

Bartnicki and the privacy torts context seem fundamentally different than other cases presenting competing free speech values, because the speech at issue was illegally produced in the first place. Perhaps, for that reason, the Court was willing to acknowledge the possibility of speech values compromised by government action and government inaction, rather than simply rigidly applying the state action doctrine and recognizing only the speech values compromised by the government. The acknowledgement of clashing speech interests in Bartnicki did not alter the Court’s general framework for balancing tort interests against speech interests, however, and the Court again determined that “privacy concerns give way when balanced against the interest in publishing matters of public importance.”85

Tests involving the public concern, such as the newsworthiness test, are difficult to articulate and thus unpredictable, rendering the balance of free speech values somewhat subjective.86 In Hulk Hogan’s privacy tort against Gawker Media, for example, the Florida Court of Appeals reversed a preliminary injunction against Gawker, concluding that the illegally recorded tape published by Gawker was likely newsworthy.87 Even so, the trial court, on remand, allowed the jury to decide the newsworthiness issue, and the jury’s $140 million judgment bankrupted Gawker.88 This Article will explore in Part II ways to clarify this newsworthiness test, and will argue that its application should be limited to the privacy torts context, specifically where information has been illegally recorded.

C. The Confused Status of Bigoted Speech and Workplace Harassment

Scholars and lawyers have advanced other important arguments for exempting speech from First Amendment protection due to competing free speech values. These arguments have not generally been explicitly accepted by the courts, but have affected how courts interpret statutes that incidentally restrict speech. The treatment of bigoted speech is currently in a confused state, partially because free speech values are implicated both by government regulation and government passivity with respect to this speech. A significant portion of the public has also, to a large extent, embraced the idea that speech that harms or silences minorities should be unprotected.

For several decades, prominent scholars have argued that the government should be permitted to regulate speech that can be categorized as “hate speech.”89 This type of speech remains protected under the First Amendment but is banned in most other Western democracies.90 The view that speech that disparages individuals on the basis of race, gender, national origin, sexual orientation, or another historically oppressed status should be regulated—even if this speech does not rise to the level of unprotected incitement, true threats, or fighting words—is often supported by the argument that this type of speech actually silences the voices of others or marginalizes them such that their voices are more easily discredited or ignored.91 Under that rationale, unless the government acts to regulate hate speech, free speech values are compromised because members of minority groups will self-censor, or their contributions to public discourse will be unfairly and irrationally delegitimized.

Courts addressing this clash of free speech values generally apply the state action doctrine to prohibit viewpoint discrimination by the government, despite the competing free speech values. For example, proponents of a state statute outlawing pornography, defined as “the graphic sexually explicit subordination of women,”92 believed that pornography showing women as servile would contribute to men seeing women as lesser, thus diminishing their voices and status in society and leading to discrimination and violence.93 In American Booksellers Ass’n v. Hudnut, Judge Easterbrook agreed that certain types of pornography may be corrosive in this way, but claimed that regulating pornography for that reason is a form of “thought control.”94

Racial bigotry, anti-semitism, violence on television, reporters’ biases—these and many more influence the culture and shape our socialization. None is directly answerable by more speech, unless that speech too finds its place in the popular culture. Yet all is protected as speech, however insidious. Any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.95

The Seventh Circuit thus recognized that more speech cannot always remedy the effects of bigoted speech, but held that the government cannot direct culture by removing particular viewpoints.96

Thus, as evidenced by the protection of the homophobic slurs in Snyder v. Phelps,97 the First Amendment continues to protect hateful, objectionable, distressing speech. Yet, uncertainty abounds as to the level of protection of bigoted speech. Courts generally strike down speech restrictions on public university campuses and high schools that prohibit speech that degrades others based on group membership in a historically disadvantaged class.98 However, public universities continue to promulgate speech restrictions that appear to censor protected speech, and many of these restrictions remain unchallenged, often because students are unaware of their actual First Amendment rights.99

Further, federal civil rights statutes such as Title VII,100 which prohibits discrimination in the workplace on the basis of sex, race, color, national origin, or religion, and Titles VI and IX, which prohibit discrimination on the basis of race and gender in federally funded educational institutions,101 are often applied to penalize pure speech, without much First Amendment scrutiny.102 Courts have found that instances of what is generally considered core, protected speech—such as religious articles in a company newsletter or defendant’s conversations about defendant’s homosexuality that challenged plaintiff’s support for the Pope and others who decried same-sex relationships—was illegal harassment until Title VII.103 The application of these statutes to pure speech, which does not involve discriminatory conduct, constitutes state action that directly censors speech on the basis of viewpoint.104 On the other hand, invalidation of these statutes as applied to hateful speech arguably would compromise the opportunities of members of historically oppressed minorities and diminish their contributions to the “marketplace of ideas.”105 The inconsistency with which courts (and the public) determine the level of protection of hateful speech at universities, in the workplace, and in public spaces, had yielded an unpredictable status for speech that might be perceived as hateful.

II. Approach to Conflicting Speech Values

Cases that present potential conflicts between speech values are myriad, and many more areas of First Amendment law could be framed as presenting potential conflicts—intentional infliction of emotional distress, for example.106 The potential for eroding strong free speech protections, especially in an era of increasing free speech skepticism among young people,107 is great. As noted in the last Section, courts currently treat these conflicts haphazardly, using different approaches in different cases. In most cases, courts defer to the state action doctrine to avoid recognizing the conflict.108 In torts cases, courts use public concern type tests to resolve conflicts between speech values (and other values as well).109 Courts only infrequently acknowledge these conflicts and provide no justification for taking various approaches in various cases.110

In this Part, I provide a roadmap for how courts should approach cases where applying free speech doctrine may undermine free speech values. Part I defends using a robust, formal state action jurisprudence to implicate First Amendment protections generally only when created by government action, without diluting these protections by weighing them against free speech values compromised by government inaction. Part II defends the neutrality of both the state action doctrine and the public concern test, and explores when each test is appropriate. Part III provides some parameters for clarifying the public concern test so that it can be applied with more coherence and predictability.

A. Justifying the State Action Doctrine

Legal realists argue that rigid application of the state action doctrine to the First Amendment benefits mainly the rich and powerful, undermining substantive free speech equality and imposing a rigidly formal distinction between private speech suppression and government censorship.111 However, the state action doctrine preserves formal equality of free speech values and, as society evolves, will more fulsomely protect substantive free speech equality as well. Because no private entity, no matter how large, possesses the government’s monopoly power on the use of coercive force, the government’s ability to suppress speech should be considered to generally overwhelm free speech values compromised by private suppression of speech. Case-by-case balancing, which is subjective and unpredictable, will ultimately compromise free speech values and the formal neutrality of the First Amendment.112 A formalist application of the state action doctrine—where the state’s abridgement of free speech is necessarily worse than a private party’s chilling of speech—also preserves the First Amendment rights of property owners whose property serves expressive purposes, and is thus the appropriate answer to most speech problems that present conflicting speech values. Applying a formalist state action doctrine means that only speech abridged by the government is appropriate for consideration in First Amendment analysis. This solution is ultimately the best way to foster free speech values, especially given the ease of creating conflicts between speech values.

The state action doctrine, as applied to the provisions of the Constitution, recognizes that only the government is restrained from abridging constitutional rights.113 This distinction between private action and government action preserves spheres of liberty in which private parties are free to act.114 For example, any government action that discriminates on the basis of gender is subjected to Fourteenth Amendment scrutiny, but individuals are free to use this status characteristic when selecting romantic partners.115 If a homeowner refuses to allow guests to bring guns onto his land, there is no Second Amendment violation.116

In the free speech context, the state action doctrine is written explicitly into the text of the First Amendment.117 The First Amendment’s prohibition on Congress making no law abridging the freedom of speech has been interpreted to mean that federal and state actors cannot discriminate against speech on the basis of viewpoint or even create substantial burdens on speech.118 Content- and viewpoint-based restrictions on speech by the government are subject to strict scrutiny.119 Even “time, place, [and] manner” restrictions, which do not discriminate against speech on the basis of content, are permissible only if the government’s speech restriction allows for ample channels of communication of the speech affected.120

However, First Amendment state action is not triggered when the government neutrally enforces background state laws unrelated to the suppression of expression, such as property and contract rights, even if this enforcement incidentally impacts speech.121 Private citizens can thus refuse entry into their homes to anyone whose views, on any topic, from the best city for pizza to the most suitable presidential candidate, they disagree with. If the uninvited guest refuses to leave, the state can enforce property laws, even if they incidentally affect that speaker’s message. Private employers can often fire individuals for speech they dislike, and social media platforms can remove users for speech they find hateful or otherwise objectionable.122 Individuals can contract to limit each other’s speech rights, to the extent these contracts do not interfere with a state’s public policy.123 A newspaper can refuse to publish an editorial whose viewpoint it disdains.124

In this way, the state action doctrine preserves the speech and associational rights of private parties by allowing them to restrict the speech of other private parties. Formally, we are all equal with respect to free speech.125 We have equal rights as against the government restricting our speech, no matter our views, and we have formally equal rights as against each other. Under the First Amendment, we are all permitted to allow whatever views we want on our own property, in our own associations,126 and with our own for profit and non-profit organizations.

This formal equality means that the First Amendment is also fairly neutral with respect to speech. Neutrality is preserved by the state action doctrine because the government cannot, except for in limited circumstances, discriminate against speech on the basis of content and viewpoint.127 Private parties may discriminate on these bases, thus preserving private parties’ First Amendment rights, but government action must generally be neutral with respect to the content of the speech. Further, when the government seeks to intervene to suppress the speech of some to foster the speech of others, this intervention is often based on the identity of the speaker, like in campaign finance reform legislation,128 or the viewpoint of the speaker, like in proposed regulations of bigoted speech.129 As a result, abandoning the state action doctrine, even if First Amendment laws are applied equally to all private parties, will compromise the neutrality of the First Amendment, especially given the government’s relative power in suppressing speech.

Some scholars argue that the First Amendment is not, in fact, neutral because it carves out certain categories of unprotected speech on the basis of content, such as obscenity, or because courts engage in more deferential review of time, place, and manner restrictions.130 These arguments are overstated. Although there are a limited number of categories of speech that do not receive First Amendment protection, none of these categories is based on the viewpoint of the speech, and only a few are based on the content. The Supreme Court believes that these categories are based on speech that was historically unprotected—with history being a neutral way of distinguishing between protected and unprotected speech.131 The Court has also articulated that new categories of speech should not be created by weighing the harms and benefits of speech,132 and even speech that is truly objectionable to all of the Justices cannot be unprotected by creating new unprotected categories of speech.133

First Amendment formal equality and neutrality thus enshrines a process of achieving truth. Because no one is forbidden to express her viewpoint, perspectives clash and resolve through individuals changing their minds and voting on their ultimate views. No idea is completely out of bounds, and we are all the arbiters of what we believe, not the government. Formal equality is justified by all three of the rationales animating free speech doctrine.134

The result of this formal state action doctrine, according to many realist critiques, is an actual reduction in speech and free speech values. Realist scholars thus criticize strict application of the state action doctrine, with its concomitant distinction between public speech and private speech.135 The reason, they believe, that formal equality for speech liberties diminishes substantive liberty is that the government has some limited power to restrict speech on its own property, but generally cannot censor speech in public forums or private spheres.136 Individuals thus have limited ability to speak in public spaces, and they may not have adequate property or resources to communicate their message in the private sector. The government’s inability to censor private censorship (happening on private property), in conjunction with the fact that state action does not apply to background contract and property enforcement, means that those with power, resources, and property will have inflated opportunities for speaking, and will have complete discretion to restrict others who do not express agreeable viewpoints. The voices of the powerless, or those without property or other opportunities for speaking, will be artificially marginalized from the marketplace of ideas.137 Corporations, in particular, can pool resources and unduly influence political elections or restrict the speech of their employees.138

These critiques present compelling reasons for the government to intervene to equalize speech opportunities, in the name of the free speech values of promoting truth and democratic participation. A rigid application of the state action doctrine prevents this government intervention to equalize speech markets and may compromise free speech values and substantive free speech liberties. Because less and less speech takes place on public property, there are fewer opportunities for effectively conveying one’s message for those who do not own a significant amount of property.139

This realist critique is, in many ways, descriptively accurate, but there are equally plausible reasons to think that the state action doctrine can improve substantive speech equality without compromising the First Amendment freedoms gained by formal speech equality. Thus, in addition to the respect for the constitutional text that the state action doctrine affords, formal speech equality should be the top priority in First Amendment jurisprudence.

In other legal contexts, government intervention is often necessary to right historical wrongs.140 Because of our unequal standing in society, a formal position of neutrality in many areas may dramatically compromise substantive equality. However, in the First Amendment context, formal neutrality may ultimately produce greater and greater substantive equality of speech. Speech must be given a pride of place different than generalized economic regulations because of both the text of the First Amendment and because of the speech rights of the private parties whose speech would be restricted in the name of substantive equality of speech.

The government, using its monopoly of force, can completely ban a person from speaking his viewpoint, whereas a private employer can prevent that person only from working at its company. This may present a Hobson’s choice for the employee, but companies can compete for employees using their views about free speech or particular speech. Plus, although a private mall may prevent protests on its property, there are still plenty of public spaces to gather, so long as the government must meet its constitutional burden before enacting time, place, and manner restrictions. The increased protest activity in the wake of Donald Trump’s election evidences the fact that public fora are still amenable to free speech activity.141

Further, free speech intermediaries, such as newspapers and social media platforms, may have increasing control over speech, but that control will never rise to the level of government control.142 With the advent of the internet, the scarcity issues related to property ownership that have prevented the powerless from communicating their views are all but gone. Social media platforms, like Facebook, may create speech policies that some find restrictive, like its policy on nudity and breastfeeding, but it cannot criminalize speech.143 Facebook’s ability to abridge speech is limited to its own platform. Other social media platforms can experiment with their own community norms and speech restrictions, some of which will allow for more speech.144 This experimentation fosters different varied speech communities based on different free speech norms, which only enhances opportunities for discourse and a diversity of ways of engaging. The Internet has heralded in an era where speech is almost costless. As society evolves, there will be more opportunities for speech and less disparity between the communication opportunities of the rich and the poor. There is less and less reason to compromise formal free speech equality, which allows everyone at least an opportunity to be heard, for substantive speech equality.

Further, the formal equality of the state action doctrine can actually increase substantive equality—not just become less and less problematic for substantive equality as society evolves. Applying First Amendment protections only to government action in cases of conflicting free speech values means that Facebook’s own speech rights (to control expression on its own medium) are preserved, in addition to the rights of those who can speak on Facebook, subject to Facebook’s restrictions, or speak more freely on other speech platforms, or speak entirely freely, subject to lawful government restrictions on speech, on their own blogs.145 Although the efficacy of communicating a message may depend on one’s resources or the size of her platform, so long as the government does not discriminate against speech on the basis of viewpoint, opportunities are created for all voices to be heard. Even those with relatively few resources and power can be heard quite loudly if their views are compelling to enough people.146

Finally, preserving the formal equality of the state action doctrine helps mitigate the slippery-slope problems inherent in balancing competing free speech values. Scholars and courts who believe that strong First Amendment protections harm their preferred causes, or who disfavor particular speech, can find a way to convince others that the particular speech at issue is too corrosive to other free speech values and must be regulated.147 In Citizens United, for example, the government’s rationale also supported the banning of political pamphlets (quite close to banning books).148 Scholars believe that a wide variety of speech is too harmful to society to be unrestricted. Giving courts wide latitude to consider speech values that are undermined by government inaction in their First Amendment calculus provides ample cover for viewpoint discrimination and increased suppression of speech. In these troubled political times, where the President has been chastised for having little knowledge of or respect for constitutional rights, our country needs as broad and as principled free speech rights as possible. Perverting the doctrine or its animating principles to serve other political ends will render others cynical about the First Amendment and will give the government too much power to restrict speech.

Hard questions abound, of course, in applying First Amendment doctrine in this way, such as to how to determine when the state or a private party is the relevant actor abridging speech,149 or when private behavior should even be considered speech, worthy of First Amendment protections.150 These questions demand coherent answers, but abolishing the state action doctrine entirely will engender much greater legal incoherence, reducing every clash of free speech values to an unpredictable and unconstrained balancing problem.151 As I will argue in the next Section, in the limited context of privacy torts involving illegally obtained information, resolving the clash of speech values by employing a “public concern” test is appropriate because, if properly articulated, this test preserves the neutrality of a strong state action doctrine.

B. Limited Application for the Public Concern Test

For the reasons mentioned in the previous Section, most cases that can be styled as presenting competing speech values should not result in courts weighing those values when navigating First Amendment rights. Instead, courts should consider only speech interests directly infringed by government action. However, in Bartnicki v. Vopper, the Supreme Court explicitly considered speech interests compromised by both action and inaction and determined that innocent publishers of illegally obtained speech are given First Amendment protection so long as the speech is “newsworthy.”152 This approach mirrors the way courts handle other speech torts issues—speech that matters to the public concern receives a higher level of First Amendment protection, even when that speech causes material harm.153 In this Section, I argue that Bartnicki rightly applied the newsworthiness test to the publication of illegally obtained speech, but that this type of test should not be applied beyond this context.154

The newsworthiness test, when applied in limited contexts, does not undermine the benefits of formal equality provided by the First Amendment for several reasons. First, the newsworthiness test, like the state action doctrine,155 can be decided using tests that are neutral with respect to the views expressed in the speech at issue. This neutrality preserves the benefits of formal equality of First Amendment doctrine.156 Courts can determine whether speech is a matter of public concern based on how much speech matters to public discourse, not based on the content or viewpoint of the speech. There are neutral ways for judges to assess whether speech is newsworthy that do not unduly give judges discretion to import their subjective opinions of the speech. By contrast, if judges enjoy too much discretion in defining whether speech fits into a particular legislative category, for example if speech is “disparaging,”157 that discretion provides leeway for judges to engage in impermissible viewpoint-based discrimination.158

In contrast, as the next Section explores, there are ways to cabin public concern tests to limit a judge’s discretion.159 Determining whether speech is a matter of public concern, the newsworthiness analogue, presented in emotional distress and libel claims, takes into account factors such as the “context, form, and content” of the speech at issue.160 Courts also examine how much the plaintiff has already inserted speech similar to the alleged privacy violation into public conversation.161 There are ways, further explored in the next Section, to define public concern that avoid giving courts and juries too much discretion in deciding whether speech is newsworthy.162

Second, because the newsworthiness test is the same test used in other torts contexts,163 applying this test to resolve the competing speech values in privacy torts cases does not compromise a strong state action doctrine or lead to slippery slope balancing problems. Even though in Bartnicki the Supreme Court acknowledged that there are speech interests on both sides of some privacy torts,164 the Court did not materially alter its approach to handling speech torts in which the Court has not countenanced speech interests on both sides of the First Amendment equation. Thus, the limited acknowledgement of speech interests from government action and government inaction in Bartnicki does not open the door to balancing competing speech values in other contexts outside of the speech torts realm.165

Finally, the publication of illegally obtained speech involves particularly troubling speech. Because this speech is troubling not because of its content or viewpoint, there is less of a censorship threat in regulating the speech.166 Speech that has been illegally recorded does not belong to the publisher of that speech in the same way as speech created by or communicating the ideas of the publisher. For this reason, this speech may be less worthy of First Amendment protection. Further, publication of speech that has been illegally recorded can, in some ways, be considered “fruit of the poisonous tree.”167 But for an illegal act that is not protected by the First Amendment, there could be no publication of the speech. The type of speech at issue in Bartnicki, and cases like Bollea v. Gawker, discussed in the next Section, therefore occupies a distinct place in First Amendment jurisprudence such that the Supreme Court can limit its consideration of conflicting free speech values to this context without conducting this balancing in other types of cases.

C. Defining “Newsworthy”

In the limited number of cases where conflicting speech values are weighed against each other, courts apply the “newsworthiness” test to determine whether our First Amendment interests prevail.168 This term currently lacks a clear definition, leaving room for courts and juries to impose their own content-based judgments on whether, for example, the publication of illegally obtained information is newsworthy. Courts should give this term a broad definition.169 Defining newsworthy broadly, to encompass all speech with some relevance to public discourse, honors the more comprehensive set of free speech values and rationales animating First Amendment doctrine, not just those that value speech for its connection to democratic self-governance. A broad definition would give courts greater ability to find speech newsworthy as a matter of law, thus removing the issue from jury consideration and mitigating the threat of juror bias against the content or viewpoint of speech. A broad definition of newsworthy, with cleaner, bright-line rules, could avoid what happened in Gawker v. Bollea, where a Florida jury awarded a judgment so large that it bankrupted an online media company,170 likely based on the jury’s distaste for the speech at issue.

The Bartnicki test for whether speech is newsworthy reflects the view that speech important to the public is more valuable, and thus warrants greater protection, than speech that is of a purely private concern.171 This view is also articulated in the public concern tests deployed when balancing speech rights against tort interests like libel or intentional infliction of emotional distress.172 The Supreme Court has deemed not all speech equally worthy of First Amendment protection.173 Speech on purely private matters does not implicate the critical free speech value that debate on public issues be open, robust, and rigorous.174 According to the Court, “speech concerning public affairs is more than self-expression; it is the essence of self-government.”175

Despite these articulations, the connection between free speech and able participation in democratic self-government is only one rationale claimed by courts as animating First Amendment protections. Another “significant goal of the First Amendment’s speech and press protections is to foster a ‘marketplace of ideas.’”176 Sharing private details with others can help individuals come to their own private truths about the world, and these truths may ultimately help them in their public lives as well. Public concern tests, like the newsworthiness test, dismiss the value of private details and enshrine a particular view of the value of free speech that fails to account for other rationales, such as speech’s truth-seeking function, and its respect for autonomy and connection to self-actualization through expression.177 A broad definition of newsworthy (and of public concern) could harmonize these rationales while recognizing that speech material to public discourse does occupy a special place in the First Amendment pantheon.178

The Supreme Court’s articulation of the newsworthiness standard offers little help in defining the term because the speech was so obviously newsworthy. In Bartnicki v. Vopper, the speech at issue—a telephone conversation between a union president and the union’s chief negotiator—was deemed a newsworthy matter of public concern as a matter of law.179 This telephone conversation, although illegally recorded, was clearly newsworthy because the union leaders discussed engaging in illegal action to affect wage negotiations for public school teachers, and thus implicated our educational system and our understanding of union practices.180 Not all cases involving the media’s publishing of speech will be this obviously newsworthy, but courts should generally decide these issues as a matter of law, to prevent juries from converting a neutral test like newsworthiness into an opportunity for viewpoint-based discrimination.181

In a recent case, a Florida jury awarded a $140 million judgment to Hulk Hogan in his invasion of privacy suit against Gawker Magazine.182 The verdict was based on Gawker’s publishing, with commentary, a tape that included nine seconds of Hogan participating in sexual acts with the ex-wife of his best friend.183 The trial court allowed the issue of newsworthiness to be decided by the jury, who found that the tape was not newsworthy.184 This sizeable judgment exists in tension with a ruling by the Florida Court of Appeals, which, in overturning a preliminary injunction, found that Hogan was unlikely to win on the merits because Gawker excerpted only a tiny portion of the sex tape onto its website, and sexually explicit content does not nullify speech’s newsworthiness.185 Importantly, Hogan, as a reality star, placed his own sex life into the public discourse, rendering the video a topic for shared, public dialog.186 In a different iteration of Bollea v. Gawker, a federal district court judge came to the same conclusion.187

Although the speech at issue in Bollea v. Gawker is likely objectionable to many, distaste for speech is not a legally permissible reason to abridge it.188 There is reason to believe that the jury punished Gawker, bankrupting the media company, for the sensationalist coverage of Hogan instead of applying facts to law to decide if the speech was newsworthy. Hulk Hogan’s lawyers stressed how the out-of-state, New York–based media company did not share the Florida jury’s values.189 Further, the lawsuit was funded by someone who may have sought to silence Gawker for personal reasons. Peter Thiel, the billionaire venture capitalist and political activist, helped finance Hogan’s suit against Gawker, perhaps because the media company had published an article identifying Thiel as gay several years prior.190 Thiel claimed that instead of being motivated by censorious revenge, he was protecting the integrity of other media sources from having to compete with privacy-invading tabloids like Gawker.191

Bollea v. Gawker also demonstrates that the clash between free speech doctrine and free speech values can have disastrous consequences on both sides of the equation: as raised by Thiel, free speech interests such as respect for journalistic integrity may be promoted by Hulk Hogan’s lawsuit, but forcing Gawker into bankruptcy for publishing pure speech has far-reaching free speech implications.192 To truly honor the speech interests at stake, this case, which contained subject matter brought to the public’s attention by the plaintiff himself, should have never gone to trial.

Instead, courts should broadly interpret the term newsworthy, looking to “content, form, and context,” like in other public concern applications,193 and fashion bright-line rules to give media companies and individuals clarity about their First Amendment rights. Newsworthiness should encompass, as the Second Circuit held, “political happenings, social trends or any subject of public interest.”194

Most speech capturing conversations that a public figure plaintiff himself has made relevant to the public should be considered newsworthy, to avoid self-censorship by the media and by individuals. For example, if a public figure discusses his sex life and relationships, and if the media company is not responsible for the illegal recording of the speech, the publication of that speech should be protected, as is most pornography.195 The video in Bollea v. Gawker serves as proof that Hogan’s marriage, one of the subjects of his reality television show, was not particularly monogamous. This situation is quite distinct from a celebrity, whose body is secretly captured on film, who has never made claims about her body or voluntarily turned her body into a topic of public discussion. If naked photographs are unnecessary to substantiate an item placed into public discourse by the public figure herself, they would not be newsworthy.

Courts should determine other bright-line rules in applying the newsworthiness test, to reduce the unpredictability already engendered by courts balancing free speech values. What qualifies as newsworthy should be defined broadly, so that juries are given minimal opportunity to punish speech for its content.196 A public figure, like Hulk Hogan, deserves some privacy, but federal and state laws prohibiting the illegal recording of information already deter wiretapping and secret videotaping.197 The media is protected only when it is not involved in the illegal interception of information. First Amendment rights exist in order to protect speech that many people would find objectionable, to let newspapers use their own journalistic standards to decide what they will and will not disclose to the public. Publishing tapes of a celebrity’s sex act will not enhance a newspaper’s reputation, but the government should not be policing media integrity and taste in this way.198

III. Free Speech Values and Protest

In our climate of increasing political polarization,199 individuals on the extremes of both the right and the left have increasingly resorted to or legitimized violence against their political enemies. On the far right, individuals marching in alt-right and white supremacist rallies have assaulted others, and, in one instance, murdered a counter-protester.200 The leaders of these rallies often do not denounce the violence and may be interpreted as glorifying it.201 On the left, due to increasing concern about how certain types of speech undermine free speech values or instigate hateful conduct, a movement is growing that seeks, through aggressive action, to eliminate hateful or bigoted speech.202 This movement has gained new traction,203 especially on college campuses, where students have for generations protested private speech or government behavior they deemed incompatible with their sense of social justice.204

When peaceful protests turn violent, the protected speech of a protest morphs into the unprotected conduct of property destruction, threats of violence, or outright physical assault.205

In response to violent protests, or protests that engage in unprotected conduct such as blocking highways or destroying property, legislators have introduced bills criminalizing certain methods of protesting and enabling private individuals to avoid harm from the protestors’ tactics.206 In this Part, I use the above-established framework for understanding the clash between the free speech doctrine and free speech values to distinguish between prosecution of violent protestors, on the one hand, and legislation designed to target particular forms of protest, on the other. I argue that, to properly serve the First Amendment and free speech values, the state should arrest and prosecute those who coordinate or contribute to violence that occurs during protests, including at public universities. However, many legislative responses to the specter of violent or obstructive protests may reflect the impermissible goal of targeting particular viewpoints and are unconstitutionally chilling of speech.

A. “Speech as Violence”

Public universities, bound by the dictates of the First Amendment, cannot discriminate against students’ speech or expression on the basis of viewpoint.207 As a result, public universities must often host controversial speakers invited by student groups.208 Students who dislike the speaker’s message express their outrage, at both the speaker and the university for seemingly sanctioning the speaker, by exercising their right to protest the speaker. However, when students believe that a speaker’s message is itself a form of violence, they may feel a greater sense of entitlement to protest violently. A growing number of students classify certain types of protected speech, often referred to as “hate speech,” as a form of violence that silences traditionally disenfranchised voices.209 According to this view, reacting violently to pure speech actually serves both free speech values and equality, because hateful speakers chill minority voices, muting the richness and diversity of expressions of the American experience.210

Hard questions exist about when an ideology is inherently violent, especially in light of increased visibility of white supremacists marching with torches or weapons.211 Legally, unless speech threatens or results in imminent lawless action, the speech is protected. Speakers and rallies, regardless of viewpoint, should be considered nonviolent as long as the individuals speak or march with the immediate purpose of simply expressing a viewpoint and the leaders of the protest profess nonviolence.

This Section applies the competing free speech values framework to analyze violent and disruptive protests on college campuses, although the principles can be extrapolated more broadly to non-university contexts. This Section tackles only how to resolve competing free speech values in the context of violent campus protests. Individuals, on both the right and the left,212 who threaten violence against speakers or professors without raising issues of competing free speech values present even easier analysis and justification for criminal prosecution in light of free speech values.

Unless speech is legally unprotected as incitement,213 public universities are constitutionally required to allow speakers invited by student groups. University officials and state actors must not credit those who wish to blur the line between speech and conduct and react violently to speech. The view that speech should be met with violence cannot be tolerated under traditional free speech doctrine, and ultimately does not serve free speech values.

First, the argument that even if a speaker is permitted to spread his vile sentiments, universities should not place their imprimatur on the speech by giving the speaker a venue is constitutionally unsound. Public universities, as state actors under the First Amendment, may not discriminate against speech on the basis of viewpoint.214 Allowing student groups to host speakers whose message the university condones but not speakers the university opposes constitutes unconstitutional viewpoint-based discrimination, just as allowing a student Republicans group but not a student Democrats group would.215 The university does not have to invite a speaker whose views it opposes as an official university-sponsored speaker, but it cannot forbid students from inviting speakers on the basis of viewpoint.

The University of California, Berkeley recognized this constitutional duty when it permitted Milo Yiannopoulos, invited by the Berkeley Republicans, to speak on its campus.216 Yiannopoulos, promoting his book Dangerous, often gave speeches where he mocked feminists, lesbians, and transgender students.217 The sentiment that universities should not permit Yiannopoulos to speak on their campuses, circulated among many students at Berkeley before his speaking engagement.218 This view misunderstands a public university’s constitutional obligation to treat protected speech equally and not discriminate on the basis of viewpoint when student groups choose to invite speakers.219 Yiannopoulos’s speech, for the most part, contains purely political expressions, entitled to the highest degree of First Amendment protection,220 regarding his distaste for progressive politics and legislative agenda and his disdain for what he sees as the hypocrisy of the feminist movement. None of the highly offensive statements of Yiannopoulos incite immediate lawless action or are reasonably perceived as a serious expression of intention to cause bodily harm.221 Although he sometimes mocks students, these students have made their causes public in student newspapers, and his remarks about particular students are factually true, if distastefully crass.

There are aspects of Yiannopoulos’s speeches that are less obviously protected, but are still fully protected nonetheless. Anonymous sources claimed that Yiannopoulos was planning on disclosing the names of undocumented immigrants.222 If these names were released in a way that was intended to incite others to violently attack the students or to threaten the students with bodily harm, Yiannopoulos’s speech would then not receive First Amendment protection. Otherwise, if true, his speech contained factual statements on a matter of public concern related to America’s foreign policy and California’s commitment to Sanctuary Cities.223 As much as his speech is highly disturbing and morally blameworthy, meriting peaceful protests, the speech is protected by the First Amendment.224 Significantly, Yiannopoulos has also denied the claim that he was planning on releasing the names of undocumented students.225

In addition to misunderstanding a university’s constitutional obligations, students’ views that universities are obligated to deny certain speakers entry to their speaking venues also reflect a diminishing appreciation for some free speech values. Many universities appear to recognize that, in addition to their upholding free speech doctrine, free speech values are ultimately served when academic institutions do not sanitize objectionable viewpoints from public discourse. Academia, like the media, is a true “First Amendment institution”226—where debate should be open and robust, and where clashing viewpoints should compete for individuals’ acceptance. Further, members of minority groups are often galvanized to engage in counterspeech when exposed to hateful speech, fostering free speech values.227

Protesting Yiannopoulos peacefully can be a vital part of this conversation. However, when protests turn violent, speakers are forced to silence their message for fear of imminent physical injury. The protests at Berkeley, which ultimately became destructive and violent, forced the university to cancel Yiannopoulos’s speaking event.228 Protesters threw fire bombs, looted ATM machines, smashed car windows, and punched people waiting to hear Yiannopoulos speak.229 However much of these protestors believed that Yiannopoulos’s speech resembled violence, these destructive actions actually transcended speech and became unprotected conduct.

The divide between pure speech—no matter how objectionable—and conduct is fundamental to preserving First Amendment freedoms.230 Unless speech imminently threatens violence or imminent lawless action, it cannot be regulated or abridged, whereas the state retains wide latitude to regulate conduct. The distinction between speech and conduct, although difficult to discern at the margins, is not only necessary to operationalize the First Amendment, but it is necessary for a peaceful, “pluralistic” society.231 A society that blurs the line between speech and conduct, and thus reacts to speech with violence as if the two are commensurate, becomes a place where those who embody nonviolent views or lifestyles, which are objectionable or hurtful to some segment of the population, cannot openly share those views or lifestyles.232 Speech that is attenuated from violence must be given room to flourish.

In seeking to advance their own brand of free speech values, violent protesters undermine the very foundations of our First Amendment protections. Because violence as a response to speech seeks to undermine the premises of the First Amendment, this violence is perhaps the greatest threat to free speech values. Accepting violent reactions to objectionable speech means that we, as a society, have abandoned the idea that violence is always more destructive than expression. This abandonment extends to the critical components of pluralism and a free speech culture—the ethos that all views should be permitted in the search for truth, that democratic legitimacy requires that the governed are able to share their criticisms of the functioning of society, that individuals must be permitted to express their own values and ways of life, so long as they do not violently coerce others to abandon their own identities.

The state should thus deter, using punishment, the unprotected acts of destroying property and assaulting people in response to speech. Movements that promote violence as a tactic, on both the right and the left, subvert free speech values, and allowing these movements to silence speakers ultimately compromises First Amendment doctrine. The government is not constitutionally permitted to acquiesce to the “heckler’s veto” by silencing or arresting speakers in the face of listener violence without attempting to protect speakers’ First Amendment rights, or even charging controversial speakers more to obtain speaking permits in order to cover the costs of listener reactions.233 To further protect the expressive rights of speakers, the government should arrest and prosecute those who seek to undermine, through violence, fear, and destruction, these free speech protections.234

When the state enforces general laws prohibiting property destruction and physical violence, unrelated to the expression of those engaging in the conduct, this state action does not implicate First Amendment doctrine.235 The state can neutrally, without selecting among viewpoints, attempt to thwart any violent reactions seeking to silence those with objectionable views. Arresting violent protesters to deter violence is therefore constitutionally permissible. However, President Trump’s response, which threatened to deny federal funding to Berkeley because of its protects, may be unconstitutional state action.236

Threatening Berkeley with the divestment of hundreds of millions of dollars in federal funding,237 despite Berkeley’s behaving admirably from the First Amendment perspective, may evince a censorious motive. Perhaps President Trump, whose election Yiannopoulos supported,238 sought to punish Berkeley for the liberal views of its students, or at least its student protesters. As I explore in the next Section, when government actors, instead of enforcing background, generally applicable criminal prohibitions, create laws and policies that explicitly regulate destructive protests and particular protest techniques, this type of state action has problematic implications for both First Amendment doctrine and free speech values. Thus, while violent protests should be actively discouraged and punished, legislative action targeting protesters may not always withstand constitutional scrutiny and is bad policy that may unduly jeopardize free speech values.

B. Legislation to Prohibit Unprotected Disruption by Protests

In response to disruptive protests, specifically those that block highways or interfere with law enforcement activity, politicians have proposed legislative solutions that impose significant penalties on protesters. In these cases, the state action component of First Amendment scrutiny attaches not simply to enforcing background laws protecting property and bodily integrity. Instead, legislators are targeting tactics of known protesters, with known positions.

A recent spate of proposed legislation, initiated by right-leaning politicians in what appears to be a response to protests supporting left-leaning causes, has the potential to impair important speech and one’s ability to protest, and raises concerns for both First Amendment doctrine and First Amendment values. On the left, lawmakers in the future may also consider banning protesters from carrying firearms, and city or university officials make seek to deny permits to protesters marching with legally owned firearms.239

Republican lawmakers in several states have proposed criminal legislation that appears to target the highway-blocking techniques of supporters of the Black Lives Matter Movement or opponents of the construction of the Dakota Access Pipeline.240 For example, in North Dakota, a House bill would absolve motorists of negligence liability for causing injury or death to anyone blocking traffic on a public road or highway.241 A proposed Minnesota bill would increase maximum penalties for obstructing the freeway from $1000 and ninety days in jail to $3000 and a year in jail.242 A separate Minnesota bill imposes a maximum of $10,000 and not less than a year in jail if an emergency responder’s access to a highway is blocked.243 A Washington senator sought to classify certain instances of blocking public transportation as “economic terrorism,” worthy of a class C felony.244 University administrators are also considering rules expelling students for disruptive speech.245

Blocking highways does not constitute legally protected speech. Disrupting traffic is dangerous, and can be fatal, both to the protesters and to the public, especially if emergency responders cannot traverse public roads.246 Police may legally arrest or disperse these activists, who are engaging in civil disobedience. However, this latest round of proposed restrictions increases penalties so dramatically, in response to certain protests, that they deserve some amount of First Amendment scrutiny. Coordinated efforts to disrupt speech are also not protected speech,247 but any efforts to target speech disruptions would be either vague or overbroad unless defined narrowly.

The strictest First Amendment scrutiny would apply if protesters could prove that state legislation was motivated by the desire to target particular speech or particular causes.248 Some scholars have even suggested that viewpoint-based discrimination against speech is per se unconstitutional, meaning courts need not even apply the strict scrutiny applicable to content-based regulations.249 If a court deemed any of these highway-blocking laws (or potential gun-possession laws) to be motivated by viewpoint-based animus, the restriction would likely be invalidated as impermissible viewpoint-based discrimination without determining whether the speech restriction was narrowly tailored to serve a compelling government interest.250 Because the government cannot target viewpoints to restrict even speech that is unprotected, such as fighting words,251 even laws regulating conduct, such as blocking a highway, may be deemed unconstitutional if the reason for the regulation is the suppression of particular views.252 The fact that these highway-blocking laws are so onerous, and were passed in the wake of specific protests by lawmakers of only one political party, provides some evidence of viewpoint-based animus. The North Dakota law insulating drivers from negligence liability for killing a protester blocking a road is particularly concerning from a First Amendment perspective, especially given that the bill’s co-sponsor claimed that accidents might happen if a motorist “punched the accelerator rather than the brakes.”253

State legislators, however, will likely take the position that their proposed laws were enacted after particularly disruptive protests, regardless of the message. In that case, if the state laws pass, the state governments may have a legitimate argument that the laws were simply regulating the time, place, and manner of speech, or that the laws were permissible restrictions on expressive conduct.254

When the government regulates conduct with an expressive component, these regulations are subject to more deferential First Amendment scrutiny. Expressive conduct refers to the regulation of behavior, not speech, that has an expressive element. Generally, the conduct must be intended to communicate a message, such as the burning of a draft card to protest the Vietnam War, the expressive conduct at issue in United States v. O’Brien,255 or burning the flag, at issue in Texas v. Johnson.256 Whether conduct is considered expressive depends on whether an individual displayed an intent to convey a message that would likely be understood by a viewer or listener.257 Unlike burning a draft card, protesters of the construction of the Dakota Access Pipeline are not communicating their message by blocking the highway. The blocking of the highway does not express their actual message of opposition to the pipeline, and a reasonable viewer is not likely to understand the message based on the protest tactic. Instead, the blocking of the highway is a way of communicating the intensity and seriousness of their message; it is a way of getting the message across. Thus, the First Amendment scrutiny for expressive conduct may be inapposite.

Under a more expansive view of expressive conduct, the legislative solutions to the real problems of highway obstruction may trigger scrutiny as expressive conduct because these laws are aimed directly at protesters and are a direct reaction to specific protests. In O’Brien, the Court defined expressive conduct as cases where “‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct.”258 The Supreme Court has found the wearing of black armbands to protest the Vietnam War to be sufficiently expressive to trigger First Amendment scrutiny,259 even though the message may not be obvious from the armband. Similarly, a “sit-in” at a whites only area to protest segregation was considered expressive conduct.260

Thus, the fact that blocking a highway261 is not immediately associated with a particular message may not defeat scrutiny under O’Brien. Highway-obstruction laws are directly aimed at protesters and their methods of protesting, such that speech and non-speech elements do combine. In some instances, courts have held that the methods of protesting may be considered part of expressive conduct, subject to the O’Brien test. For example, sleeping in tents for the purpose of bringing awareness to the plight of the homeless was assumed to be expressive conduct, although the Supreme Court did not decide the issue.262 Although this method of protesting is more interlinked with the message than blocking a highway, protesters could argue that their methods are inextricably tied to their message; they wish to show how many people are greatly distressed by government action, and how far they are willing to go to advance their cause. These methods have also been associated with particular types of protest and particular points of view.

If the O’Brien test is applied, protesters have at least as valid an argument that the laws are unconstitutional as the government does that the laws should be upheld. Under O’Brien, “a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.”263 A regulation of expressive conduct is permissible only if (1) it furthers an important governmental interest; (2) the governmental interest is unrelated to the suppression of free expression; and (3) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.264 The incidental restrictions from these proposed bills have great effects on protesters’ ability to communicate their message or organize to raise awareness about their case. Protest movements rely on increased social attention, and protesters increasingly have few public places to congregate. Onerous criminal sanctions, of years in jail or thousands of dollars in fines, are a draconian price to pay for peaceful protest.

The government, however, could also advance a persuasive argument that previous criminal sanctions have been ineffective at deterring unprotected aspects of protesting that have endangered the lives of protesters and non-protesters or caused major traffic disruptions for people trying to use public roads and highways. These important government interests are unrelated to the protests and must be enforced through greater criminal penalties. Ultimately, the protesters’ evidence about how chilling these laws are on free expression will compete with the government’s evidence on how dangerous these protests have become. In O’Brien, the Court upheld regulations prohibiting the burning of draft cards because “the continuing availability to each registrant of his Selective Service certificates substantially furthers the smooth and proper functioning of the system that Congress has established to raise armies.”265 In contrast, in Texas v. Johnson, the Court overturned defendant’s criminal conviction for burning the American flag, holding that O’Brien was not satisfied because no breaches of the peace occurred and the government sought to suppress viewpoints disrespectful to our national symbol.266 The state’s proposed legislation may satisfy a court as unrelated to the suppression of expression, or a court may deem that the incidental effects on speech are too great to justify the laws.

Protesters could also attempt arguments that courts should analyze state laws like the ones proposed in response to protests by the Black Lives Matter Movement and the Dakota Access Pipeline opponents using the court’s scrutiny for time, place, and manner restrictions. These restrictions, as the name suggests, regulate when speech can occur, where speech may be uttered, and how speech can be communicated. The Supreme Court clarified its scrutiny of time, place, and manner restrictions in a case involving a city’s sound amplification laws, as applied to a rock concert.267 According to the Court,

the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.268

This test is likely inapposite to highway-blocking laws because the protesters’ obstruction of public roads is not protected speech, the way music was in Ward v. Rock Against Racism.269 However, in some cases, the Court has applied time, place, and manner scrutiny to cases involving expressive conduct.270 In a roughly similar situation, a state trial court held that Occupy Wall Street protesters, seeking to call attention to wealth disparities, could not show that restrictions on “the erection of structures, the use of gas or other combustible materials, and the accumulation of garbage and human waste in public places” were not reasonable time, place, and manner restrictions, designed to allow a public park’s “owner to maintain its space in a hygienic, safe, and lawful condition.”271

Some of the laws at issue here, however, although justified without reference to the content of the speech (the laws block all highway obstructions or all weapons possession during protests, for example), are not narrowly tailored to serve the significant public interest of highway safety. Insulating motorists from liability for negligence in killing a protester will not only deter protesters who are blocking traffic but may deter protesters who are standing in permissible locations. For this reason, civil liberties lawyers believe that laws that greatly enhance penalties for peaceful protest are unconstitutionally chilling to speech. These lawyers also argue that imposing large penalties for “stepping in the wrong place, or [encouraging] a driver to get away with manslaughter because the victim was protesting, is about one thing: chilling protest.”272

The protesters’ argument that these proposed bills are unconstitutional deserves consideration, in contrast to the police reacting to violent and disruptive protests by applying background statutes involving assault and property destruction. The proposed bills involve state action that will have a serious impact on peaceful protest and may even have been designed to target particular messages. This chilling of protesters may violate First Amendment doctrine and will have a deleterious effect on free speech values, such as the ability to associate with others to express displeasure with government behavior. In contrast, applying generalized criminal laws to target coordinated, disruptive protests evinces no intent to suppress protesters’ message, and actually serves free speech values by ensuring that individuals do not react to speech with violence.

Conclusion

Free speech values are served by both government action and government inaction, and thus exist on both sides of almost every First Amendment equation. Precisely because of the ease with which litigants can frame speech restrictions as actually serving free speech values, courts should continue to apply a formal state action doctrine to First Amendment cases. This formal state action would credit only free speech values abridged by the government, except in limited cases, such as where speech is illegally recorded. In those cases, courts should apply a broad definition of public concern to protect speech that is newsworthy. Ultimately, adhering to First Amendment doctrine, even in cases where government suppression of speech promotes some free speech values, will enhance free speech values overall. A formal conception of the state action doctrine demonstrates why even though violent protests are not protected speech, and thus law enforcement should take punishing violent protests to serve free speech values, legislation targeting specific types of protests may nonetheless be unconstitutional.


* Assistant Professor of Law, University of Dayton Law School. This Article benefitted greatly from the insights of the Harvard Climenko Program’s Fellows, many of whom vigorously disagreed with my positions, from the faculty at Ohio Northern Law School, and from the participants at the Loyola Law School Constitutional Law Colloquium. Special thanks to Susannah Barton-Tobin, Dallan Flake, Kyle Langvardt, Leah Litman, and Joseph Kovell.