Freedom of Speech and Generally Applicable Statutes

Today’s Holder v. Humanitarian Law Project says something that’s important for speech restrictions generally. Some laws ban a wide range of conduct that causes a certain kind of harm, and include speech that tends to causes the harm — and thus triggers the law — because of what the speech communicates. Thus, for instance,

1. A ban on aiding and abetting crime might be applied to books or Web sites that describe how a crime can be easily committed.
2. A ban on “willfully obstruct[ing] the recruiting or enlistment service of the United States, to the injury of the service or the United States” might be applied to speech that opposes the war and expressly or implicitly urges draft resistance (as it was in the World War I-era cases Debs v. United States, Frohwerk v. United States, and Schenck v. United States, cases that are generally thought to have been implicitly overruled by later decisions, such as Brandenburg v. Ohio).
3. A ban on offensive behavior that “disturbs the peace” (which may include excessive noise and the like) might be applied to speech that disturbs the peace by its content (as it was in Cohen v. California and many similar cases).
4. A ban on “assisting interference with the provision of abortion services” could be applied to speech that praises or defends anti-abortion blockaders or vandals, and not just actual blockading or vandalism.
5. A ban on “conduct that knowingly or recklessly aids the enemy in time of war” could, among other things, ban speech that helps the election of an anti-war candidate. Such speech could even be banned by the existing law of treason — which bars intentionally aiding the enemy during wartime — if a prosecutor could persuade the jury that the speaker was motivated by a desire to help the other side.
6. A ban on “conduct that interferes with the enforcement of judicial decrees” may be applied to speech that criticizes judges or judicial actions, on the theory that such criticism may lead people to lose respect for courts and thus to disobey court orders.
7. Tort law that makes actionable conduct that interferes with business relations could be applied to speech that urges a politically motivated boycott (see NAACP v. Claiborne Hardware Co.).
8. Tort law that makes actionable outrageous conduct that recklessly or intentionally inflicts serious emotional distress could be applied to speech that distresses people because of its content (see Hustler v. Falwell).
9. Hostile environment harassment law could be applied to speech that allegedly creates a hostile environment because of its content.
10. Legal rules that decide custody cases based on the best interests of the child could be applied to speech that supposedly interferes with the child’s best interest by teaching the child bad ideas.

(I discuss all these examples and more in Part I of my Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, “Situation-Altering Utterances,” and the Uncharted Zones, 90 Cornell Law Review 1277 (2005).) In all these cases, defenders of the applicability of the laws could — and often do — argue that there should be no First Amendment scrutiny, or only the very deferential O’Brien scrutiny applicable to content-neutral conduct restrictions, because the law is a generally applicable law that applies to a wide range of conduct that happens to include speech.

The Supreme Court in Humanitarian Law Project rejected this argument, and in my view quite rightly so:

The Government argues that §2339B should nonetheless receive intermediate scrutiny because it generally functions as a regulation of conduct. That argument runs headlong into a number of our precedents, most prominently Cohen v. California, 403 U. S. 15 (1971). Cohen also involved a generally applicable regulation of conduct, barring breaches of the peace. But when Cohen was convicted for wearing a jacket bearing an epithet, we did not apply O’Brien. Instead, we recognized that the generally applicable law was directed at Cohen because of what his speech communicated — he violated the breach of the peace statute because of the offensive content of his particular message. We accordingly applied more rigorous scrutiny and reversed his conviction.

This suit falls into the same category. The law here may be described as directed at conduct, as the law in Cohen was directed at breaches of the peace, but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message. As we explained in Texas v. Johnson: “If the [Government’s] regulation is not related to expression, then the less stringent standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls. If it is, then we are outside of O’Brien’s test, and we must [apply] a more demanding standard.”

For more on why this analysis is correct, see PDF pp. 10-18 & 25-34 of the article cited above.