Alvarez Brief, Part II.B: Recognizing Many First Amendment Exceptions for Various Kinds of Knowing Falsehoods

Another approach would be to hold that, though knowingly false statements of fact are generally constitutionally protected, there are many narrow exceptions to this rule: one for defamation, one for perjury, one for fraudulent solicitation of money, one for the false light tort, one for intentional infliction of emotional distress through knowing falsehoods, one for the knowing use of deceptive party names in campaigns, and so on.

This, though, would make it impossible for this Court to say, at it has before, that the exceptions to the general ban on content-based restrictions apply only to “a few limited areas,” R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992); Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2733 (2011) (indirectly quoting R.A.V.); United States v. Stevens, 130 S. Ct. 1577, 1584 (2010) (quoting R.A.V.); Virginia v. Black, 538 U.S. 343, 358-59 (2003) (quoting R.A.V.); Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J., concurring in the judgment) (describing the exceptions as “a few legal categories”). The list of recognized First Amendment exceptions would grow from a handful — incitement, obscenity, threats, speech closely linked to conduct, fighting words, and false statements of fact — to more than fifteen (the first five of these, plus the dozen or so needed to accommodate the restrictions discussed above).

And this growth in the number of exceptions will likely stimulate calls for more exceptions, including ones not limited to false statements of fact. If more than fifteen categories of speech are excluded from First Amendment protection, why not more — perhaps “hate speech” or speech depicting violence or the like? Arguments such as this would gain more traction:

[O]ver the past century the courts have carved out or tolerated dozens of “exceptions” to free speech. These exceptions include: speech used to form a criminal conspiracy or an ordinary contract; speech that disseminates an official secret; speech that defames or libels someone; speech that is obscene; speech that creates a hostile workplace; speech that violates a trademark or plagiarizes another’s words; speech that creates an immediately harmful impact or is tantamount to shouting fire in a crowded theatre; “patently offensive” speech directed at captive audiences or broadcast on the airwaves; speech that constitutes “fighting words”; speech that disrespects a judge, teacher, military officer, or other authority figure; speech used to defraud a consumer; words used to fix prices; words (“stick ’em up — hand over the money”) used to communicate a criminal threat; and untruthful or irrelevant speech given under oath or during a trial.

Much speech, then, is unprotected. The issues are whether the social interest in reining in racially offensive speech is as great as that which gives rise to these “exceptional” categories, and whether the use of racially offensive language has speech value.

Richard Delgado, Campus Antiracism Rules: Constitutional Narratives in Collision, 85 Nw. U. L. Rev. 343, 377 (1991); see also Kim Chandler Johnson & John Terrence Eck, Eliminating Indian Stereotypes from American Society: Causes and Legal and Societal Solutions, 20 Am. Ind. L. Rev. 65 (1995-96) (supporting a proposed exception for “racially offensive speech” by arguing that “there are dozens of ‘exceptions’ to free speech,” and repeating largely the same list as that given in the Delgado article); Richard Delgado & David H. Yun, Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate Speech Regulation, 82 Cal. L. Rev. 871, 892 (1994) (“Perhaps * * * in twenty or fifty years we will look upon hate speech rules with the same equanimity with which we now view defamation, forgery, obscenity, copyright, and dozens of other exceptions to the free speech principle, and wonder why in the late twentieth century we resisted them so strongly.”).

Today one could respond to such arguments by saying that permissible content-based speech restrictions actually fit within a few narrow categories — for instance, combining “speech that defames or libels someone,” “speech that violates a trademark or plagiarizes another’s words,” “speech used to defraud a consumer,” and “untruthful * * * speech given under oath or during a trial” in an exception for knowing falsehoods — or involve the government acting in a special capacity, such as employer or educator. But if the list of First Amendment exceptions grows longer, such arguments for new exceptions would become more appealing to many. Indeed, people who might today accept the protection of speech that they find offensive and harmful might be more inclined to call for new restrictions. “If proponents of all those many other exceptions got theirs,” they might argue, “why can’t I get mine?”

More broadly, this Court’s decisions have powerful and long-term effects on the public’s understanding of how our legal system should behave. Just as “[o]ur Government is the potent, the omnipresent teacher,” Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting), so in particular the Judicial Branch of the Government is a powerful teacher with regard to the Constitution. So long as the rule is “no content-based speech restrictions, subject to only a few exceptions,” citizens are likely to absorb the rule, even in cases where they do not like the result to which this rule leads.

But as the exceptions become more plentiful, they may begin to seem like they swallow the rule. As Justice Scalia noted in the Fourth Amendment context, once a rule (there, the warrant requirement) “become[s] so riddled with exceptions that it [is] basically unrecognizable,” it is easy to see new exceptions not “as some momentous departure, but rather as merely the continuation of an inconsistent jurisprudence that has been with us for years,” and to conclude that the rule needs to be jettisoned altogether. California v. Acevedo, 500 U.S. 565, 582-83 (1991) (Scalia, J., concurring in the judgment). We recognize that there is disagreement about whether indeed the warrant requirement should be retained, despite its exceptions; our point is simply that the multiplication of exceptions (from “only * * * a few specifically established and well-delineated exceptions,” Katz v. United States, 389 U.S. 347, 357 (1967), to a vast array of such exceptions) undermines the normative force of the rule.

For this reason, the creation of a large array of free speech exceptions ought to be avoided. Having a dozen exceptions for subcategories of knowingly false statements may seem more speech-protective than having a general exception for all knowingly false statements. But such a proliferation of exceptions may ultimately prove to be less speech-protective, because it may open the door to more exceptions that will not be limited to knowing falsehoods.