William & Mary Bill of Rights Journal


When it comes to unprotected speech categories, the Roberts Court has taken an amoral and inaccurate approach. When the Court first created unprotected speech categories-- defined categories of speech that are not protected by the First Amendment-- it was unclear what rendered a category of speech unprotected. One school of thought argued that speech was unprotected if it provided little or no value to society. The other school of thought argued that speech was unprotected if it fell into a certain category of speech that was simply categorically unprotected. Then, in 2010, the Court strongly sided with the latter approach, with the added twist that unprotected speech categories would be determined solely by reference to American history and traditions. It held that unprotected speech categories were defined solely with reference to American history, and language that appeared related to interest balancing was merely "descriptive."

This approach was wrong both descriptively and normatively. Descriptively, in the past, when the Court decided the cases in which it created the modern definitions of many of the current unprotected speech categories, the Court was consciously departing from American history and tradition for moral reasons; the moral considerations were more than descriptive. Normatively, by basing unprotected speech categories solely on history and tradition, the Court has written out mechanisms for revising ill-considered decisions of the past, which threatens to perpetuate decisions that would be considered immoral by modern standards.

Fortunately, these historical-categorical analyses are not the only analyses applied to content-based speech restrictions. When a statute would restrict speech based on the content of that speech, that statute may still withstand constitutional review if it satisfies a strict scrutiny analysis. To pass a strict scrutiny analysis, a law must be narrowly tailored to serve a compelling government interest. This analysis is flexible, and it takes into account contemporary-moral interests.

This Note argues that strict scrutiny is the superior approach-- both descriptively and normatively. It argues that the Court should abandon the historical-categorical approach, and use only strict scrutiny to analyze content-based speech restrictions.

Part I of this Note describes in detail the various approaches the Court has taken toward content-based restrictions. It describes how unprotected speech categories currently interact with a strict scrutiny analysis and details the shift in the Court's approach to unprotected speech categories. Part I argues further that unprotected speech categories are currently determined only by history.

Part II argues that the Roberts Court's view of unprotected speech categories does not comport with the actions of prior Courts, specifically the Court throughout the 1960s and 1970s. Focusing on defamation and commercial speech, Part II shows that past Courts were willing to depart from tradition for moral reasons.

Part III argues that strict scrutiny is normatively superior to any form of categorical approach. It argues that strict scrutiny ensures a values-driven normative analysis of laws, while the historical-categorical approach simply assumes that American history and tradition will render morally justifiable decisions. It further argues that as long as the Court thinks in terms of unprotected speech categories, the Court is at risk of allowing history alone to justify modern law.