Freedom of Speech and Generally Applicable Laws

[Volokh, Eugene]

        Hmm; I had not thought of it this way.  I had seen Mitchell as
involving a restriction on conduct (in that case, a beating); and the law
was triggered by the conduct and its motivation, not by the communicative
impact of the conduct.  (I know that hate crimes laws are sometimes
justified by a concern about the communicative impact of hate crimes, but
the communicative impact is not itself what triggers the application of the
law, as is the case in the aiding and abetting and hostile environment cases
I describe.)

        Mitchell does raise some interesting 1st Am issues dealing with the
possible chilling effect of allowing speech to be used as evidence of
motive, and with the possibility that having the punishment focus on motive,
especially when the motive seems to have an ideological component, violates
some 1st Am norm even when speech is not being punished.  I think Mitchell
was right in rejecting these claims, but in any event it doesn't seem to fit
within the mold I described.  But I may well be mistaken -- is there
something about the case that I'm missing?

> -----Original Message-----
> From: Leslie Goldstein [SMTP:lesl at UDEL.EDU]
> Sent: Saturday, April 08, 2000 5:11 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Freedom of Speech and Generally Applicable Laws
>
> wouldn't the hate crime case (Mitchell) fit the bill?
> LFG
>
> "Volokh, Eugene" wrote:
>
>
>
>               In at least two contexts -- aiding and abetting cases such
> as Rice v. Paladin and hostile environment harassment cases -- I've seen
> the argument that when speech is restricted pursuant to a generally
> applicable law regulating conduct, the restriction should be subject to no
> 1st Am scrutiny or at most to O'Brien scrutiny.  I believe that this is a
> mistake, where (as in the aiding and abetting cases and the hostile
> environment harassment cases) the law applies to the speech because of the
> communicative impact of the speech, and I'm writing an article that will
> try to make this point.
>
>               My question for the list is:  Have you seen this argument
> made as to other kinds of laws, too?  I'd love to analyze as many examples
> of this argument as possible; I'm already doing research on my own to try
> to find other examples, but I thought I'd also call on the list's
> membership for any help you might be kind enough to offer.
>
>               Again, I'm looking for arguments of the form "There's no
> serious constitutional problem applying this generally applicable law to
> this speech, precisely because the law is generally applicable," and I'm
> looking for these arguments made in a situation where the law applies to
> the speech because of its communicative impact (and not, for instance,
> because the speech is loud or blocks traffic or otherwise causes the harm
> through its noncommunicative impact).
>
>               Thanks in advance,
>
>               Eugene
>
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