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January 2004


But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral.

Laws that infringe on freedom of expression, like all prohibitory laws, are enacted to prevent harm from occurring. The Supreme Court has refused to confer absolute protection upon freedom of expression, a position that would render all laws restricting expression unconstitutional. Instead, to determine the constitutionality of laws restricting expression, the Court has turned to a balancing approach, which requires the Court to balance the value of freedom of expression against the harm to be prevented. The more that a law closes off opportunities for the expression of ideas, the more evidence of harm the government must offer to justify the law. In a previous article, I proposed that the constitutionality of laws affecting freedom of expression may be determined by reference to a "constitutional calculus," which is expressed by the following formula: Expressive Value (content, character, context, nature, and scope) compared to Proof of Harm (scienter, causation, and nature and degree of harm)

The article suggested that the Supreme Court is developing a new approach in freedom of expression cases. The standard approach has been based upon the fact that expression is a function of two variables: (i) the ideas that are expressed and ( ii) the means or modes of expression that are used to communicate those ideas. Traditionally, laws that prohibit the expression of particular ideas have been characterized as "content based," while laws that close off opportunities for expression have been classified as "content neutral," and typically content based laws have been evaluated under a stricter standard of review than content neutral laws. The central problem with this framework is that in many difficult freedom of expression cases, the laws in question limit both the ideas being expressed and the modes of expression, making it impossible to characterize the laws as purely content based or purely content neutral. Where a law restricting expression has both content based and content neutral elements, the expressive value of what has been lost consists of both the value of the ideas that are being suppressed and the value of the modes of expression that are being closed off. The Court increasingly uses a multifactor standard (developed by Justice John Paul Stevens) that takes into consideration the content, character, context, scope, and nature of a regulation on speech in order to assess the degree or extent of the restriction on speech. This constitutes an estimation of the expressive value of what has been lost, and it is the left hand side of the "constitutional calculus."

The purpose of this Article is to describe the right hand side of the constitutional equation for freedom of expression. Exactly what is it that the government must prove in order to justify a regulation of speech? I suggest that the government must prove the existence of three factors: scienter, causation, and harm. As used in this Article, the term "scienter" means the state of mind that a speaker must have before he or she may be punished for expressing a certain idea or using a medium of expression. Causation is the likelihood that harm will result from the speaker's actions. The harm itself consists of two separate elements: (i) the nature and (ii) the degree of the injury that the government is seeking to prevent. In order for a law regulating expression to be found constitutional, the harm that will be prevented by enacting the restriction on expression must be greater than the expressive value that is lost. The greater the expressive value, the more the government must prove in terms of scienter, causation, and harm. The analytical framework for proof of harm arises from the confluence of two principles that undergird the doctrine of freedom of expression: the "harm principle" and the "value principle." These two principles are based on competing visions of the First Amendment. The harm principle promotes individual autonomy, and the value principle serves social purposes such as promoting democratic structures and facilitating the search for truth. The interaction between these two principles implies that the more valuable the expression that is suppressed, the more proof of harm that is needed to justify the suppression.

This Article consists of the following parts. Part I describes the "harm principle" and the "value principle" and how the interaction between these principles has shaped the law of freedom of expression. Part II suggests that "proof of harm" consists of four components: scienter, causation, the nature of the harm, and the degree of the harm. Each of these components is illustrated with examples from recent Supreme Court opinions. Part III demonstrates how constitutional doctrine calibrates proof of harm to the expressive value of speech, using the law of defamation as an example. The higher the value of the speech, the higher the level of scienter, causation, and harm that must be proven to sustain the constitutionality of a law suppressing the speech. Part IV suggests that there is an emerging trend in Supreme Court decisions towards an empirical, fact-based analysis of the harm resulting from speech. I conclude that to an ever-increasing extent, the constitutionality of laws regulating expression under the Court's decisions turns upon a careful and reasoned analysis of the nature of the harm resulting from speech, the degree of the harm, the probability that the speech will cause the harm, and in certain cases, the intent of the speaker to cause the harm.

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William & Mary Bill of Rights Journal

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