7 Contemporary Speech Doctrine and the Principle of Content Discrimination

As the previous chapter showed, prior to Schenck the Supreme Court did not have a coherent approach to addressing free speech problems, as both incorporation doctrine and the view that government could punish speech as needed limited the need to do so. After incorporation, an increasingly speech-protective Court needed clearer principles as to what types of speech would be protected, as well as where and when.

As the incitement cases above illustrate, there was little agreement on specific approaches. Some justices preferred balancing freedom against other interests, an approach that often resulted in deference to the government. Others preferred formal tests—such as the one in Brandenburg—that created stricter limits on government and would better guide lower courts in resolving cases. Still others supported establishing a hierarchy of rights as seen in Footnote Four of Carolene Products, in which some freedoms, such as those in the Bill of Rights, would be granted greater protection than others, such as the “economic freedoms” supported prior to the New Deal Revolution. Within these hierarchies, different tests might apply to different tiers of speech.

Support for this third “preferred freedoms” approach grew in the 1950s and 1960s, as the Court both heard more speech cases and became more protective of individual rights. As discussed later in Chapter Eight, the Court would hold in Chaplinsky v. New Hampshire (1942) that there existed a distinction between protected political speech, and unprotected categories of speech such as fighting words, libel and slander, and obscenity that merited less or even no protection. In making this distinction, the Court greatly expanded the “core” of protected speech beyond the common-law focus on prior restraints to political, ideological, artistic, and to a lesser extent, commercial speech. It would be these types of speech that would gain the full protection of the First Amendment, while speech within unprotected categories would receive different and lesser protections.

The story of unprotected categories and their evolution is critical to understanding the free speech clause and will be addressed at length in later chapters. In this chapter, though, we ask a different question: how do federal courts treat laws that impact protected or “core” speech?