COURTSIDE
BRUCE J. ENNIS
With the United States Supreme Court still out of session for the summer as we go to press,
it might be useful to talk about some recent general trends in the way that the Court is treating
First Amendment cases.
One of the recurring themes in constitutional law is the divide between "categorical" and
"balancing" approaches to applying provisions of the Bill of Rights like the First Amendment's
protections for freedom of speech and of the press.2 The debate goes back at least to the days when
Justice Black was advocating First Amendment absolutism while Justice Frankfurter staked out a
position of allowing governmental interests to "outweigh" constitutional guarantees in a wide
variety of settings. More recently, Justice Powell, among others, advocated-and was criticized
for adopting4-a jurisprudence of constitutional balancing.
The current Supreme Court appears to be moving in the direction of increased reliance on
balancing in First Amendment cases. Instead of using the traditional "categorical" form of analysis,
the Court in recent years has begun to use a weighing of relevant considerations, particularly in
cases involving the newer electronic media (cable TV and the Internet) or multiple speech interests.
It is too early to tell whether that trend will be reversed or expanded to encompass other types
of First Amendment cases. Indeed, there are several Justices who are seeking to move First
Amendment jurisprudence in the opposite direction. But the trend now seems sufficiently clear
that everyone concerned with First Amendment issues should at least think about the implications
of a balancing approach as opposed to a categorical one. Moreover, what is perhaps most
interesting about current trends is that the Justices generally considered most "liberal" seem
to be the least inclined to maintain adherence to traditional categories of analyses.
Categorical Analysis versus Balancing
Under a categorical approach to constitutional
analysis, judges first determine which of several categories provide the closest fit for the
speech restriction at issue. They then apply the First Amendment rules that have previously been
determined to be appropriate for those categories. There are many different and sometimes
overlapping categories, but examples of the major ones include content-based (versus content-neutral)
restrictions; prior restraints; time, place, or manner restraints; obscenity; fighting words;
commercial speech; compelled speech; restrictions premised on "secondary effects"; defamatory
speech; speech by government employees; speech that is likely to incite imminent lawless
activity; broadcast speech, and so forth. Each of those categories has its own set of judge-made
rules for resolving restrictions falling within those categories. For example, prior restraints
are presumptively unconstitutional, but obscene speech is not protected at all. Content-based
restrictions usually have to satisfy the demanding requirements of "strict scrutiny," but less
demanding review is applied for content-based restrictions of commercial speech or of broadcast
speech.
The balancing approach is quite different. There are no predetermined categories
with predetermined rules. In each case the judge evaluates all of the facts and competing
interests, gives each fact and interest such weight as the judge deems appropriate in the
circumstances of that case, and then weighs or balances the facts and interests supporting
the restriction against the facts and interests opposing the restriction.
To be sure, the differences between the two approaches can be exaggerated;
both "strict" and "intermediate" scrutiny, for example, amount to a structured form of balancing
be manipulated to produce the outcome supported by a judge's inclinations. But in general,
a categorical approach is thought to be more protective of highly controversial speech-for
example, "hate speech" or "indecent" speech or "violent" speech-than is a balancing approach
because the categorical rules will be applied regardless of the identity of the speaker or the
offensiveness of the speech. For example, a prior restraint on hate speech is very likely to
be struck down regardless of how unpopular the speaker may be, or how offensive the speech.
Stated differently, a prior restraint of hate speech by a Klan leader is likely to receive
virtually the same level of scrutiny and protection as a prior restraint of political speech
by a reporter for the New York Times.
Under a balancing approach, because different judges will evaluate the facts and
competing interests differently, predicting whether specific speech restrictions will be
upheld or struck down is more difficult. Because the identity of the speaker or the
offensive or controversial nature of the speech may be one of the factors that a
particular judge deems relevant and important, a balancing approach is likely to be less
protective of controversial speech and speakers.
Some Examples
Interestingly, the current Justices most prone to adopt a balancing approach are not-as would
have been the case in decades past-those identified with the "conservative" wing of the Court.
The "balancing" Justices-Stevens, Souter, and Breyer-are generally identified with the
moderate or liberal wing of the Court.
By contrast, examples of Justices who generally prefer categorical analysis are
Justices Scalia and Kennedy, who are generally identified with the more conservative wing.5
It was a categorical approach that led them, for instance, to adopt the "liberal" position
on flag burning, while Justice Stevens was willing to conclude that the importance of that
unique national symbol outweighed First Amendment rights.6 Concomitantly, the categorical
approach has led Justices Scalia and Kennedy to be aggressive in urging that the First
Amendment is not implicated at all by "generally applicable" laws regulating conduct that,
in certain applications, burden religious exercise or expression.7
The growing tension between Supreme Court Justices who favor a categorical approach and
those who favor a balancing approach burst into full public view in the Denver Area case.
There, Justices Kennedy and Ginsburg openly criticized Justices Breyer, Stevens, O'Connor,
and Souter for applying a balancing test, rather than the categorical strict scrutiny test,
to a regulation of the content of noncommercial cable speech.9 Those four Justices, in turn, made
clear that they were not applying the traditional categorical rules because they were unclear
about the extent to which those rules should or should not apply to cable TV, the Internet, and
other new communications technologies.
Balancing was also important to the result in the "must carry" case,Turner II.
Even though the majority purported to apply the O'Brien intermediate scrutiny test,
in reality, balancing played a critical role in the majority's decision. Three of the
"balancing" Justices (Justices Breyer, Souter, and Stevens) joined in the narrow
five-person majority. It is clear that a careful balancing of the competing rights and
interests of broadcasters, cable operators, cable programmers, cable viewers, and
noncable viewers, was important to the majority's decision. Essentially, the First
Amendment interest of noncable viewers in having access to a multiplicity of diverse
broadcast sources was balanced against and found to be more weighty than the First
Amendment interest of cable operators in deciding which speakers to carry on their cable
systems.
The Court's decision in the Internet case12 can also best be understood as a
balancing decision. Although the majority opinion does not specify what test is
being applied, it does not recite and then apply the traditional standards of the
"strict scrutiny" test, as might have been expected. Instead, the opinion essentially
balances the government's interest in protecting minors from indecent but not obscene
speech against the rights of adult speakers and listeners to use indecent speech,
and finds the latter interest more weighty. The basic holding of the case is that
government cannot reduce the adult population to reading and viewing only what is
appropriate for children.
It is probably no accident that balancing has played a role in Denver Area, Turner II,
and the Internet case, all of which involved multiple speech interests and new
technologies. Categorical rules are relatively easy to apply in cases in which there is
only one speech interest-for example, when the police are trying to silence a solitary
pamphleteer-but are much more difficult to apply when there are multiple, competing
speech interests, as there increasingly are in the new, speech-enhancing, communications
media. In those cases, judges must first determine which of the competing speech
interests is entitled to recognition, or to the highest priority. In effect, in
cases involving multiple interests protected by the First Amendment, courts must
of necessity engage in a balancing of the interests on the First Amendment side
of the equation, and it is quite understandable that, having begun a balancing
process, courts will then balance those First Amendment interests against the
interests favoring restriction of First Amendment rights.
It is too early to tell whether the Supreme Court will continue to engage
in a balancing process in these multiple speaker cases, or will extend balancing
to a broader range of cases. But it is not too early to pay attention to this
apparent shift in First Amendment jurisprudence.
Endnotes
Many of the thoughts in this article have been developed in conversations with
my colleagues in the Washington, D.C., office of Jenner & Block, principally Paul Smith, Don
Verrilli, and Nory Miller, and have been presented in talks by the author during the 1996 and
1997 Communications Law Symposiums of the Practicing Law Institute, and in a 1998 Symposium on
the Rehnquist Court sponsored by the University of Tulsa School of Law. An excellent law review
article reaches similar conclusions. See Jerome Barron, The Electronic Media and the Flight from First Amendment Doctrine: Justice Breyer's New Balancing Approach, 31 U. MICH. J.L. REFORM. 817 (1998).
See, e.g., Kathleen Sullivan, The Supreme Court 1991 Term: Forward: The Justices of Rules and Standards,
106 HARV. L. REV. 22 (1992); T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943 (1987).
See Aleinikof, supra note 2, at 944.
See Paul W. Kahn, The Court, the Community, and the Judicial Balance: The Jurisprudence of Justice Powell 97 YALE L.J. 1 (1987).
See, e.g., Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989).
See United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S.
397 (1989). Signs of antibalancing inclinations can also be seen in Justice Kennedy's opinion for
the Court in Simon & Schuster v. New York Crime Victims' Bd., 502 U.S. 105 (1991)
(the "Son of Sam" case), where he seemed to say that content-based regulations are per se
unconstitutional. On the other hand, he wrote the opinion of the Court in Turner Broadcasting
Network v. FCC, 520 U.S. 980 (1997), which, as discussed infra, is a protypical "balancing"
ruling.
See Employment Division v. Smith, 494 U.S. 872 (1990); Cohen v. Cowles Media Co., 501 U.S. 663 (1991); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 572 (1992) (Scalia, J. concurring in the judgment).
Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission, 116 S. Ct. 2374 (1996).
Id. at 2404.
Id. at 2384-85.
Turner Broadcasting System, v. Federal Communications Commission, 520 U.S. 180 (1997). The author argued that case in the Supreme Court.
Reno v. ACLU/ALA, 521 U.S. 844 (1997). The author argued that case in the Supreme Court.
Bruce J. Ennis is a partner in the Washington, D.C., office of Jenner & Block.