The First Amendment and Political Risk

Abstract

Speech can directly inflict harm, and can increase the risk that harm will occur. irst Amendment doctrine is at its core about the correct response to the fact that speech can increase the risk of social harm. Like all risks, First Amendment risk varies along several dimensions. This Essay focuses on three: distribution of risk, magnitude of risk, and magnitude of social benefit.Consideration of the institutional relationship between courts and legislatures is more central to analyzing judicially developed free speech doctrine than is a direct assessment of risk, its magnitude and distribution, and the social benefits of speech. Courts cannot completely avoid such direct assessments, but after they make a rough judgment about these matters, they must consider the institutional question of whether, and more important how, they should respond when their assessments differ from the legislature’s. Vince Blasi’s classic article, The Pathological Perspective and the First Amendment, argued that First Amendment doctrine rested on the accurate view that courts could reliably identify certain pathologies in the legislative process that predictably generated systematically excessive legislative assessments of the degree to which speech increased the risk of harm. This Essay addresses a different pathology, located in the judicial branch rather than the legislative one. I motivate the argument by describing several cases in which the courts’ assessment of the risk that speech causes harm seems mistaken, either because the courts seem to be mistaken in thinking that the legislature’s estimates of the risk of harm are excessive or because the courts are insensitive to questions about the distribution of harm. In conjunction with that description I offer a diagnosis of the judicial pathology, which, following Duncan Kennedy, I call the rule-ification of doctrine, that is, the tendency over time for courts to replace doctrine articulated in the form of standards with doctrine articulated in the form of rules with exceptions. I explain why that tendency occurs and can be normatively justified, but that it can produce pathologies when the courts resist, for a variety of reasons, the proliferation of exceptions to the rules. I conclude with a discussion of the obvious treatment, given that diagnosis – the injection of standards into the rule-ified system. I observe, though, that such an injection might not occur for the reasons that lead courts to rule-ify, and that in any event the tendency to rule-ification will assert itself even after an injection of standards.