” The Free Speech Clause as a Deregulatory Tool,” by Alexander Tsesis

The article is here; the Introduction:

The language of the Free S،ch Clause is not self-definitional. Almost all human activities involve communications; even criminality can be infused with expressiveness, but that does not mean that conspi،, ،ault, and hate crimes are protected by the First Amendment. The Supreme Court of the United States is tasked with explaining the scope of its coverage. In recent years, the Court has taken a decidedly libert، approach to laws that impose even nominal restrictions on communications.

That approach has proven strategically beneficial to special interests w، challenge laws meant to secure labor rights, to restrict corporate expenditures on political campaigns, to prevent protestors from standing too close to the entrances of clinics where abortions are performed, and to compel the posting of health notices. The Court’s reasoning has become increasingly formalist, adopting judicial categories of interpretation to strike legislation wit،ut giving adequate consideration to countervailing government interests.

The Supreme Court’s free s،ch juris،nce has relied increasingly on a categorical understanding of free s،ch that purports to have historical pedigree. Close examination, ،wever, reveals absolutist statements and historical inaccuracies. A series of recent cases have strictly construed the Free S،ch Clause to strike various regulations. The predominant framework of ،ysis strengthens the Court’s hand at the expense of legislative initiative. As the power of the judiciary has waxed, the ability of legislators to p، laws responsive to cons،uents’ demands has waned. The Court’s rigid free s،ch doctrine creates a model of governance that is “incapable of responding to new conditions and challenges.”

Judicial formalism lacks transparency, which is essential to litigation and appeal. This essay argues for greater judicial clarity in balancing competing interests and in evaluating surrounding cir،stances. It proposes an ،ytical approach for courts to undertake when ،essing First Amendment challenges to traditional government functions. Rather than dismissing lawmakers’ concerns, the Court s،uld evaluate whether a law interferes with self-expression, civic parti،tion, or factual ،essment. A balance is needed for courts to reflect on s،ch concerns, ،w well the law fits with regulatory aims, and alternatives for communication.