Research Matters: Genevieve Lakier on "The Invention of Low-Value Speech."

Research Matters is a regular feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

 

Bigelow Teaching Fellow Genevieve Lakier, who will join the faculty as an Assistant Professor of Law in July, wrote “The Invention of Low-Value Speech.” In her paper, which will be published in the Harvard Law Review, Lakier challenges the claim that there have always been categories of “low-value speech” that are largely outside the scope of the First Amendment. Drawing on her own rigorous case-by-case examination of the doctrine’s evolution, Lakier argues that these value categories are a more modern invention and that the Court’s reliance on a false historical assumption has discouraged transparent, purpose-based judgments about the constitutional status of speech. The paper was recently lauded in an online review as a "careful historical analysis" that is "an important contribution to the field."

 

Q. Why did you write this paper?
A. It is part of a larger set of articles tracing the changing judicial understanding of what counts as speech for First Amendment purposes. We live in a period — and it has been this way for a decade or two — in which there is a lot of fighting about what qualifies as protected speech. And the stakes are pretty high, given the Supreme Court’s very serious commitment to rigorously enforcing First Amendment rights. The debate tends to be very normative and very philosophical, but its connections to the doctrine are not always so clear. So I wanted to look at the doctrine and try to understand from the cases both the principles that distinguish protected speech from unprotected speech and how those principles have changed over time. There has been significant evolution, and we don’t well understand it.

 

Q. In the piece, you challenge the assumption that low-value speech is a historical category dating back to the Bill of Rights’ ratification in 1791. How, when, and why did the concept of low-value speech actually emerge?
A. It emerged in the early twentieth century, right around the time that the Court was inventing the modern First Amendment doctrine. This was in the New Deal period, when the Court was newly committed to vigorously enforcing freedom of speech. The Court wanted to protect a wide array of speech, even when it was harmful, and so it embraced the understanding that the government could almost never regulate speech for its expressive capacity. But this principle raised a lot of problems for the Court, because if applied to all kinds of speech, it threatened to significantly hamper the government’s ability to regulate in general. And so the Court tried to figure out a way to limit the First Amendment without undermining any of the goals of the new jurisprudence, such as protecting dissidents and ensuring that the government couldn’t prevent its citizens from criticizing it. And so the Court developed the idea of the low-value categories, and then proclaimed that these categories had always existed. Of course, they hadn’t always existed.

 

Q. So they created the value categories and the claim that they had always existed at the same time?
A. Yes, that’s right.

 

Q. How was free speech handled before this?
A. There was liberty of expression, but you didn’t have the right to abuse that liberty by engaging in immoral or improper speech. So although in principle everyone had freedom of speech, in practice courts could punish a tremendous amount of speech that today would be fully protected. What they couldn’t do was restrict speech in advance — no prior restraint, no ex ante regulation. But ex post, if a court deemed speech immoral or improper or disruptive of public order — this was very widely defined — it could be sanctioned. It was that regime that the New Deal Court was trying to change. It was trying to limit the ability of courts to impose on to the Constitution their own views of what was good or bad.

 

Q. Even in recent years, the Court has emphasized the false historical origins of low-value speech. Why has this assumption persisted?
A. It’s fascinating. The New Deal Court invoked this history to justify these categories but then didn’t emphasize it so much. But recently, the Roberts Court — led by Justices Antonin Scalia, Anthony Kennedy, and to some degree, Chief Justice John Roberts — has emphasized, to an unprecedented degree, what I describe in the paper as the “invented tradition” of the low-value categories. Since United States v. Stevens — a 2010 case in which the Court struck down as too broad a law banning videos depicting animal cruelty — the Court has fully committed to a very strict historical test for low-value speech, with potentially significant implications for the future of First Amendment law. The Court says that, in insisting on a historical test of First Amendment boundaries, it is simply doing what it has always done, but it isn’t. In practice, the Court has never relied upon history to distinguish low-value speech from fully protected speech.

 

Q. Why is this a problem?
A. The Court’s new test limits the ability of future Courts to recognize novel categories of low-value speech, thus making it really difficult for the government to regulate speech in new ways. To establish the existence of a novel category of low-value speech, the plaintiff or the government now has to show that this is a kind of speech that has been regulated since the eighteenth century. This is particularly difficult for kinds of speech that are the product of new technology. Consider for example personal information—medical records, etc. It’s only recently that we have had the technology to retain or disseminate personal information on a mass scale. Nevertheless, it is both really valuable — marketers and advertisers want it — and potentially really threatening to personal privacy. So there is good reason we may want the government to regulate its dissemination. Yet, if personal information is recognized as speech — which the Court recently suggested it should be — it would almost certainly have to be recognized as high-value speech. As such, regulations designed to protect individual privacy by preventing the dissemination would have to meet a very high bar, and many might as a result be struck down. Conceivably, judges might read the historical record creatively to get a result that would prevent this from happening, but that is worrying too. We don’t want judges smuggling value judgments into what are purportedly objective analyses of historical fact. The continued perception that the boundaries of the First Amendment are set by history and have never changed is thus a real problem — it’s a real problem for the Court, it’s a real problem for the doctrine, and it’s just wrong. The boundaries have never been set by history and they shouldn’t be today.

 

Q. What do you hope readers will take from the paper?
A. I really want them to understand how tremendously the Court’s understanding of the First Amendment has changed over time. I think with the rise of originalism and with the historical approach of the current Court, there is a tendency to think of constitutional doctrine as static. In practice, that’s just not how it operates. The First Amendment underwent a tremendous transformation in the early twentieth century. It’s fantastic that the Court fashioned this new doctrine, but I want readers to understand that it is a new doctrine. The First Amendment existed prior to that, but it looked very different than it does today.