First Amendment (Update 1)

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FIRST AMENDMENT (Update 1)

Within the legal culture, the First Amendment is typically understood to protect from government abridgment a broad realm of what might be called "symbolic activity," including speech, religion, press, association, and assembly. Because these symbolic activities are intertwined with many other activities that the government is clearly empowered to regulate—for instance, education and economic relations—the courts have experienced considerable difficulty in distinguishing impermissible infringement on First Amendment freedoms from legitimate exercises of government authority. Much of Supreme Court doctrine in the First Amendment area is an attempt to develop and refine precisely this sort of distinction.

One dominant principle that has informed the Supreme Court's doctrinal development of this distinction is the principle of content neutrality. The principle of content neutrality suggests that government must be neutral as to the conceptual content of speech, religion, press, and symbolic activity in general. Hence, according to First Amendment doctrine, it is only in extreme circumstances and for the most important reasons that the Court will allow government to regulate symbolic activity because of its conceptual content. The converse of this judicial principle is that the Court will recognize a relatively broad governmental power to regulate symbolic activity because of its effects or its form. Putting these two principles side by side, the result is that content-based regulation is often found unconstitutional, whereas content-neutral regulation is often found to be constitutional. These two broad imperatives with their sharply divergent implications for case outcomes place great conceptual pressure on distinguishing the content-based from the content-neutral, or more specifically on distinguishing the conceptual or substantive content of symbolic activity from its form and effects.

Although there has been no shortage of attempts, both scholarly and judicial, to specify and refine the gist of this distinction, First Amendment doctrine remains relatively undeveloped and unstable in dealing with this recurrent tension. Indeed, the Supreme Court seems continually to shift the terrain for making the predicate determination of whether the government action is content-based or content-neutral. Often the Justices are divided on the question whether the critical content-neutrality determination should be made with respect to the express or apparent state interest, the underlying governmental intent or motivation, the statutory or regulatory description of the symbolic activity, the judicial description of the symbolic activities actually affected, or the judicial description of symbolic activities conceivably affected. Although the Supreme Court has fashioned numerous diverse and detailed doctrines to specify the appropriate grounds on which to make the content-neutrality determination, there is so much of this doctrine and it is so obviously overlapping that ample room remains for disagreement among the Justices, the advocates, and the commentators about how to characterize and hence decide particular First Amendment cases. The result is that in the 1980s the First Amendment—especially in the area of religion—has followed the fourth amendment in an entropic proliferation of fragmentary, ephemeral, and highly bureaucratized doctrine.

In consequence, it has become easy for Justices to find ample legal resources to disagree about whether some particular government action is content-neutral. The result is that a government action that is described as content-based by one group of Justices will often be characterized as effect-based or form-based by another group of Justices. Often the Justices will disagree about whether—and if so, to what extent—the conceptual content of a symbolic activity is divisible from its form or effects. In making determinations about whether some government action is content-neutral and in deciding to what extent the conceptual content of symbolic activity is distinguishable from its form, there is virtually no guiding Supreme Court doctrine. The result is that the importance of political ideology in the production of the legal conclusions of the Justices has become relatively transparent in the First Amendment area.

In Texas v. Johnson (1989), for instance, the Court over-turned the conviction of a flag burner on the ground that the flag desecration statute was aimed at suppressing speech on the basis of its content. Counsel for Texas had argued that the statute was aimed at preserving the flag as a symbol of nationhood and national unity. The majority concluded that this state interest was an instance of content-based suppression because it singled out for punishment those messages at odds with what Texas claimed to be the flag's meaning. For the majority, the state interest was intricately related to the content-based suppression of certain ideas. The dissent by Chief Justice william h. rehnquist (joined by Justice byron r. white and Justice sandra day o'connor), by contrast, viewed flag burning in less conceptual, less content-oriented terms. The dissent characterized flag burning as "a grunt and a roar"—not an essential part of the expression of ideas. Unlike the majority, these dissenters characterized the form and the content of the flag burner's protest as easily divisible. Indeed, the dissenters argued that the defendant could easily have chosen any number of vehicles other than flag burning to express his views. Accordingly, for the dissenters the Texas flag desecration statute merely removed one of these vehicles from the defendant's arsenal of available forms of expression.

This pattern of conflicting characterizations of state interests aimed at content, on the one hand, or form or effect, on the other, recurs frequently throughout the law of freedom of speech and freedom of the press. For instance, in American Booksellers Assn., Inc. v. Hudnut (1986), Judge Frank Easterbrook of the Seventh Circuit Court of Appeals, struck down the Indianapolis version of an antipornography civil rights ordinance originally drafted by Catharine MacKinnon and Andrea Dworkin. The ordinance defined pornography as the graphic sexually explicit subordination of women and provided various civil rights remedies for injured parties. The proponents of the ordinance emphasized the subliminal socializing effects of pornography. They described pornography as harmful in its institutionalization of a subordinate role and identity for women. The proponents of the ordinance thus emphasized the material, constitutive, and hence instantaneous manner in which pornography visits its injurious effects on women. Judge Easterbrook, however, characterized the ordinance as based on content viewpoint, for the ordinance had the explicit aim and effect of condemning the view that women enjoy pain, humiliation, rape, or other forms of degradation. Judge Easterbrook noted that the harmful effects of poronoraphy, like the effects of political views, depend upon—and are indeed indivisible from—the conceptual content of pornography.

In the related context of zoning restrictions on adult theaters, the Court, in city of renton v. playtime theaters, inc. (1986), upheld a zoning ordinance that prohibited adult motion picture theaters from locating within 1,000 feet of a residential zone, church, park, or school—the effect being to exclude such theaters from approximately ninety-four percent of the land in the city. Writing for the Court, Chief Justice Rehnquist rejected the view that this ordinance was content-based and instead found that the "predominate intent" was to prevent undesirable secondary effects such as crime or decrease in property value. On the basis of this conception of predominant intent, the Chief Justice classified the zoning ordinance as one that did not offend the fundamental principle against content-based regulation. By contrast, Justice william j. brennan, dissenting with Justice thurgood marshall, argued that the ordinance's exclusive targeting of adult motion picture theaters—theaters that exhibit certain kinds of motion pictures—demonstrated the absence of content neutrality. For the dissent, the content-based character of the regulation was further evidenced by indications of the city council's hostility to adult motion pictures and by the failure of the ordinance to target other activities that could conceivably give rise to the undesirable secondary effects.

These divergences among the judges and commentators are readily understandable, given that as yet no coherent basis has been provided to distinguish content-neutral from content-based regulation or to specify the extent to which content is divisible from form or effect in the various kinds of symbolic activities. The absence of a coherent basis for such a distinction permits political preferences concerning the speech at issue and the importance of governmental interests at stake to play a role, though not necessarily a determinative role, in the decisions of the courts.

The same kind of politicization, the same problem of distinguishing content-neutral from content-based regulation, and the same tendency to produce more complex context-specific doctrine has been evident in the Supreme Court's treatment of religion cases. In county of allegheny v. aclu (1989), for instance, the Court fragmented over the constitutionality of two religious displays on public property during the Christmas-Hanukkah season. One display was of a crèche; the other display exhibited a Christmas tree and a menorah. On the basis of some exceedingly fine distinctions, the various opinions established that the menorah exhibition was constitutional while the crèche was not.

The importance of the distinction between content, on the one hand, and form and effect, on the other, was especially evident in the judicial disagreement over the constitutionality of the crèche display. Writing at times for the Court, for a plurality, and for himself, Justice harry a. blackmun concluded that the display of a crèche on public property during the Christmas season violated the establishment clause because it endorsed a patently Christian message. Focusing on the message conveyed by the display, Justice Blackmun noted that the crèche was accompanied by the words "Glory to God in the Highest" and that unlike the crèche in the case of lynch v. donnelly (1984), there was nothing in the context of the display to detract from the crèche's religious message. Accordingly, Justice Blackmun concluded that the government was endorsing a religious message in violation of the establishment clause. One group of dissenting and concurring justices, Justice anthony m. kennedy, Justice White, and Justice antonin scalia, rejected Justice Blackmun's establishment clause requirement of no government endorsement of religion. Turning away from an inquiry into the meaning of the government display of a crèche, this group of Justices focused attention on the effects of the crèche: they noted that there was no evidence of coerced participation in religion or religious ceremonies or of significant expenditures of tax money. On the whole then, the judicial disagreement here also organized itself around the determination of whether it is the conceptual meaning of the government action that matters or its forms and effect.

In the area of freedom of the press, the distinction between content-based and content-neutral regulation also plays an important role. In Arkansas Writers' Project, Inc. v. Ragland (1987) the Court found unconstitutional a state law that imposed taxes on general-interest magazines but exempted newspapers and religious, professional, trade, and sports journals. The Court found this selective taxation scheme particularly disturbing because the different treatment accorded to the various magazines depended upon their content. The dissent of Justice Scalia and Chief Justice Rehnquist, by contrast, focused on the form and the effects of the tax scheme. Noting that the tax scheme merely withheld an exemption from the disfavored magazines, the dissent refused to equate the denial of an exemption to regulation or penalty on the disfavored magazines. The dissent noted that unlike direct regulation or prohibition, the denial of a subsidy was unlikely to be coercive. Focusing next on the effects of the tax scheme, the dissent noted that the tax was so small that it would be unlikely to inhibit the disfavored magazines. The dissent closed by hinting that given the indivisibility of form from subject matter in written material, it would not be possible to insist on a principled—that is, neutral—basis to distinguish permissible from impermissible subsidization.

It would be an overstatement to say that all of First Amendment doctrine turns upon the distinction between content-based regulation, on the one hand, and form-based or effect-based regulation, on the other. But the distinction does play an important role in the jurisprudence of the First Amendment. And yet, despite the important role played by this distinction, the Court has failed thus far to provide any coherent interpretation of the distinction. Indeed, at times, individual Justices deny the very possibility of making such a distinction—as in the selective yet oft-repeated claim that in a given symbolic context, form and effect are indeed inseparable from content.

Pierre Schlag
(1992)