As I discussed earlier, First Amendment precedents generally makes conveying facts and opinions into a constitutionally immunized activity. Normally, the government may punish people for causing various harms, directly or indirectly. But it generally may not punish speakers when the harms are caused by what the speaker said -- by the persuasive, informative, or offensive force of the facts or opinions expressed (unless, of course, the speech falls within one of the First Amendment exceptions, such as incitement, false statements of fact, threats, and the like).

This is, of course, quite compatible with the Court's general jurisprudence of content-based restrictions; it just equally covers laws that are content-based as applied and laws that are content-based on their face. And this principle makes sense, because a law that's content-based as applied can restrict speech as much as a law that's content-based on its face. Moreover, such a law is indeed punishing the "speech element" of the communication rather than some "nonspeech element," see U.S. v. O'Brien.

This principle is in some tension, however, with claims (such as those made by Dean Elena Kagan and Professor Jed Rubenfeld) that the First Amendment is chiefly aimed at preventing government actions that are motivated by a desire to suppress speech. In the examples I've given, the lawmakers may have genuinely wanted to prevent a certain kind of harm, and may have been quite indifferent to whether that harm is caused by speech or by conduct. The drafters of the Espionage Act, for instance, might have sincerely wanted to punish all interference with military recruitment. But whether the Act was well-motivated or not, it should have generally been unconstitutional when applied to interference by persuasion.

In some of the examples, one can argue that the law is open to improper government motivations in its enforcement. For instance, the "outrageousness" test in the emotional distress tort, the "offensive conduct" test in breach of the peace laws, and the "offensive work environment" test in workplace harassment law are quite vague. Prosecutors, judges, and juries might well interpret them narrowly when they agree with the speech, and broadly when they disagree with the speech.

But in other situations, the law is pretty clear. Public speech that advocates draft resistance does seem likely to obstruct recruitment. A journal article that explains how fingerprint recognition systems can be evaded does seem likely to facilitate certain crimes by some readers. If applying the law to such speech would violate the First Amendment, the reason must flow from something other than the government's motive, which may well be quite pure.

Prosecutors may still have discretion in deciding whom to charge under those laws, and they may exercise that discretion out of a desire to suppress certain viewpoints, rather than to evenhandedly prevent the harm that the law is aimed at preventing. But that risk is equally present for any law that may be applied to speech, including generally applicable laws that are both speech-neutral on their face and content-neutral as applied.

So, if the cases I've discussed are right, then the constitutional problem lies in the law's being content-based as applied -- in its punishing speech because of the persuasive effect of the speech -- and not in the government's being motivated by a desire to suppress speech rather than to prevent harm. Though the Supreme Court has at times said that "[i]n determining whether a regulation is content based or content neutral, we look to the purpose behind the regulation," it has also acknowledged that "while a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary to such a showing in all cases." The better formulation is the one the Court has often used: A content-neutral law is one that is "justified without reference to the content of the regulated speech" -- and a law that is content-based as applied is indeed justified, in that application, with reference to what the speech communicates.

Tomorrow: More on why content-based speech restrictions are indeed generally more troublesome than content-neutral restrictions.