Laws of general applicability in Free Exercise Clause and Fre e Sp eech Clause context

[Volokh, Eugene]

        Tom and Larry raise excellent points re: contract law.  Let me try
to briefly sketch a possible solution, in four steps:

        1)  Despite the importance of the contract hypo, there are also
several other examples on the table -- Hustler, Claiborne Hardware, Cohen v.
California, Noerr and Pennington, and the Schenck-era cases.  All of these
involved laws that on their face applied to a wide variety of conduct; but I
take it that the proper approach is to treat the laws, when they are applied
to speech because of its communicative impact, as content-based.  (True, as
Larry pointed out, the IIED tort just bristles with potential application to
speech, but it on its face does not single out speech, and is in fact
sometimes applied to non-speech conduct; and in any event, even if one can
dismiss Hustler on these grounds, one needs to also confront the other
points.)

        2)  Cohen v. Cowles Media, it turns out, did not claim that contract
law passed Free Speech Clause muster because it was generally applicable to
a wide range of conduct.  Rather, the Court said that its application to
*the press* was constitutional because the law was generally applicable to a
wide range of speakers.  "There can be little doubt that the Minnesota
doctrine of promissory estoppel is a law of general applicability.  It does
not target or single out the press. . . .  The First Amendment does not
forbid its application to the press."  501 U.S. at 669.

        In fact, one cite that the Court gave in support of its views was
that "The press, like others interested in publishing, may not publish
copyrighted material without obeying the copyright laws.  See Zacchini v.
Scripps-Howard Broadcasting Co."   Zacchini, though, involved a law that
singled out speech -- a sort of right of publicity law -- based on its
content, rather than a general law applicable to a wide range of conduct;
and Zacchini acknowledged this, recognizing that the case posed serious Free
Speech Clause issues but ultimately in essence creating an exception to
protection for this kind of law.  (Likewise for Harper & Row, which dealt
with copyright law as such; copyright law is also a law that is almost
entirely -- with the rather novel exceptions of computer programs and
architectural works -- focused on restricting speech.)  This cite to
Zacchini is thus inconsistent with an interpretation of that section of
Cohen v. Cowles Media as "Laws that don't single out speech don't violate
the Free Speech Clause"; it is, however, consistent with an interpretation
of that section as "The press gets no special exemption from the normal Free
Speech Clause rules."

        3)  Why, then, did Cohen v. Cowles Media uphold contractual speech
restrictions?  Unfortunately, Justice White was much more elliptical on this
necessarily important question, perhaps because he saw the answer as so
obvious.  I think his clearest statement on this score appears on p. 670-71:
"Here, by contrast [to The Florida Star and Smith v. Daily Mail], Minnesota
law simply requires those making promises to keep them.  The parties
themselves, as in this case, determine the scope of their legal obligations
and any restrictions which may be placed on the publication of truthful
information are self-imposed."  Justice White's point, I think, is simply
that one may waive one's free speech rights (a point that Justice Souter's
dissent picked up on, p. 677, and argued against), and that punishment for a
breach of a speech-restrictive contract therefore doesn't violate the First
Amendment.

        This interpretation, I think, is reinforced by Justice White's point
in the next paragraph that "[t]he dissenting opinions suggest that the press
should not be subject to any law, including copyright law for example, which
in any fashion or to any degrees limits or restricts the press' right to
report truthful information.  The First Amendment does not grant the press
such limitless protection."  Again, the point here can't be that this case
involves a generally applicable law that doesn't single out speech --
copyright, after all, is not such a generally applicable law.  Rather, it's
that certain speech restrictions are permissible, because they fall within
an exception to protection, such as that recognized by Harper & Row or now
by this case.

        4)  Thus, even one calls contract law content-based, because the
contract is breached by the communicative of speech and the determination of
whether the contract is breached is triggered by examining the content of
the speech, the reason it's constitutional is the same reason that the
clearly content-based copyright law is constitutional:  For good reasons,
there's a free speech exception, judged by its own rules and not by strict
scrutiny, that justifies this sort of speech restriction.

        By the way, thanks again to everyone on this thread for their
extremely thoughtful comments -- I'm currently writing an article on this
question, in which I'll be putting forth the theories given above, and I am
delighted by the opportunity to vet them.  I'm looking forward to as much
more commentary on this issue as all of you are willing to provide!

        Eugene

Tom Grey writes:

> Supplementing Larry Tribe's point -- if making legal liability turn on an
> assessment of the communicative impact of speech triggers some heightened
> level of scrutiny (the "content-based" formulation), why doesn't every
> breach of contract action require a first amendment analysis?
>
Larry Tribe writes:

I think things are a bit more complex still. Turner Broadcasting and the
Johnson-Eichman pair seem to me quite different, for example. In Turner, the
government's real interest as well as its ostensible interest were
content-based (preserving programming diversity by protecting local
broadcast stations from going under), but other interests might have been
adduced as well and the law on its face required no inquiry into the content
of any message to see whether the law's provisions were triggered. In the
flag-burning cases, on the other hand, since the act prohibited was defined
entirely in terms of a symbolic object the only interest that enforcing the
prohibition could possibly have served, in most possible instances of
violation, was the interest in preventing a particular message -- that
conveyed by the American flag symbol -- from being muted or overriden by an
interfering or conflicting message, so that it was much more nearly true
that the law itself was content-based on its face. I am a lot more
comfortable treating the latter kind of law as content-based than I am
treating a law like the must-carry law that way, although I think the Court
erred in the end by upholding the law at stake in Turner.


When the law is plainly content-neutral, as was the promissory estoppel law
in Cowles Media, the fact that it is applied to speech because of what the
speech says and, in that basic sense, because of the communicative impact of
such speech, Eugene Volokh says the law should be seen as content-based, but
I have my doubts. Current decisional law, certainly, wouldn't support that
characterization. In Cowles Media, for instance, the law making
promise-breaking actionable was applied to the media defendant's
publication, in breach of its promise, of the identity of the source of a
certain leak. The Supreme Court held that awarding damages to the leakee
(the source) against the leaker (the news outlet) based, of course, on the
content of the message that was said to violate the promise of
confidentiality triggered no first amendment scrutiny at all because the law
was one of general applicability, rather like an antritrust provision. Even
though I think the majority might have overstated its case a bit and thought
that Justice Souter, dissenting, had a point when he blasted the fetish that
treats neutrality and generality as decisive, still I would have applied at
most mildly heightened scrutiny to the enforcement of the promissory
estoppel rule to an instance of promise-breaking that just happened to
entail a truthful publication. To subject such enforcement or application to
the strict scrutiny that would be appropriate if this were truly a
content-based law seems to me unwarranted. After all, even a prosecution of
one who runs a stop sign entails making guilt or innocence turn on the
content of a message (did the sign say "stop" or "go"?) although, to be
sure, not of a message uttered by the defendant.

Larry Tribe

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