In recent years, a large number of disputes have arisen in which parties invoke the First Amendment, but the government action they challenge does not directly regulate “speech,” as in communication. Instead, the government is restricting the creation of communicative materials that are intended to be disseminated in the future—in other words, they restrict producing speech. Examples of such disputes include bans on recording public officials in public places, Los Angeles County’s ban on bareback (condom-less) pornography, restrictions on tattoo parlors, so-called “Ag-Gag” laws forbidding making records of agricultural operations, as well as many others. The question this Article addresses is whether such laws pose serious First Amendment problems.
I conclude that they do. Two distinct reasons justify First Amendment protection for conduct associated with producing speech: first, because such protection is necessary to make protection for communication meaningful; and second, because the Press Clause provides a textual and historical basis for such protection. However, because speech production involves conduct that can have substantial, negative social consequences, First Amendment protection of speech production must be limited, and is probably less extensive than protection of actual communication.
In the balance of this Article, I propose a doctrinal framework for how restrictions on speech production might be analyzed. The framework draws on broader free speech principles such as the content-based/content-neutral dichotomy, and the Supreme Court’s repeated statements that the First Amendment accords special importance to speech relevant to the democratic process. However, the framework is distinct from general free speech analysis, and for the reasons discussed above, is generally more tolerant of regulation. I close by applying my proposed doctrinal rules to a number of recent disputes.