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Sunday, March 23, 2014

Purely Historical Tests

A few terms back, in United States v. Stevens, the Supreme Court faced the question of whether depictions of animal cruelty constituted unprotected “low-value” speech that the government can freely regulate (like obscenity, fraud, true threats, etc.).  The government argued that identifying low-value categories of speech rests on “a categorical balancing of the value of the speech against its societal costs.”  The Court, however, rejected this approach as “startling and dangerous,” adopting a purely historical approach to identifying low-value speech categories.  The Court later clarified that novel categories of speech can't be deemed low-value unless there exists a “long (if heretofore unrecognized) tradition of proscription” of such speech.

As I’ve written before, I don’t like this test.  Calling it a “historical” test gives it a veneer of neutrality, but in practice, it’s so manipulable that it effectively acts as cover for what are, in essence, value-driven judgments.  Unless the Court wants to freeze the development of the law completely (which doesn’t seem to be the case here), historical tests necessarily work by analogy.  And making analogies inherently requires value-driven judgments: what are the essential characteristics of a historically recognized category of “low-value” speech that makes it unprotected?  At what level of generality will one define the historical category of unprotected speech?  At what level of generality will one define the “novel” category of speech to which the historical category will be compared?

More broadly, my instinct is that--except in obvious cases--any purely historical analysis works primarily to hide the ball when courts are in fact making broad normative judgments.  This is, I think, obviously true within the Court’s substantive due process jurisprudence, where fundamental rights must be “deeply rooted in this Nation’s history and tradition,” but the game is effectively won or lost based on how broadly or narrowly the court decides to define the right in question.

But this is just an instinct, and I’m interested in getting more data points on this.  Are there other discrete doctrinal contexts where courts purport to resolve issues based solely on history or tradition?  (Off the top of my head, the only other one I can think of is Seventh Amendment civil jury trial analysis.).  And am I simply being too reductive and cynical here?  Are there good reasons to adopt these sorts of purely historical tests?

Posted by David Han on March 23, 2014 at 01:30 PM | Permalink


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Good post, David. In my view the most charitable reading is not so much that it's a historical test as it is a way of saying "no more low-value speech exceptions to our general speech approach," using history as a dividing line without having to either overrule or rationalize at the level of principle its prior exceptions.

Posted by: Paul Horwitz | Mar 24, 2014 8:34:28 AM

Thanks for the comment, Paul--and I think that if this is indeed what the Court is doing (categorizing things very narrowly and thereby freezing things the way they are), I wouldn't have a problem with it. But I doubt that the Court is in fact doing this. Since the Court refers to the possibility of a "heretofore unrecognized" tradition of proscription underlying a novel speech regulation, it provides for some leeway for new low-value categories to be created.

In any case, even if the Court simply wanted to limit the set of low-value speech categories, it would still have to define the outer boundaries of any existing categories. The recent Stolen Valor Act case I think illustrates how open-ended things can get; the plurality and dissenting opinions used the same set of historical data points (for example, that fraud and defamation are both traditionally unprotected speech) to arrive at opposite conclusions.

Posted by: David Han | Mar 24, 2014 4:30:10 PM

I'm not sure I agree with you entirely on the first paragraph. It seems to me consistent with the general intention to freeze things to also provide a potential escape hatch. But I agree with you pretty wholeheartedly on the second paragraph.

Posted by: Paul Horwitz | Mar 24, 2014 4:37:40 PM

Thanks for the interesting post. I have a short response up on Volokh: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/28/should-free-speech-doctrine-use-purely-historical-tests/

Posted by: Will Baude | Mar 28, 2014 11:39:45 AM

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