Of Speech and Sanctions: Toward a Penalty-Sensitive Approach to the First Amendment

Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise to categories of expression that the government may punish, but only to a limited extent. This Article defends penalty-sensitive free- speech adjudication and calls for its expanded use within First Amendment law. Pulling together existing strands of penalty-sensitive doctrine, the Article identifies five ways in which penalty-sensitive analysis can further important constitutional objectives: (1) by increasing fairness for similarly-situated speakers; (2) by mitigating chilling effects on protected speech; (3) by facilitating the “efficient breach” of constitutionally borderline speech restrictions; (4) by rooting out improper government motives; and (5) by promoting transparency in judicial decision-making. The Article also considers and rejects potential objections to the penalty-sensitive approach, concluding that it will often generate proper results in difficult First Amendment cases.