The Categorical Free Speech Doctrine and Contextualization

This Article discusses the impact of the Supreme Court¿s recently enhanced categorical approach to free speech analysis. It demonstrates that, contrary to the concerns of some other scholars, the Court should not be understood to be entirely averse to balancing interests. In several cases¿such as those dealing with government employee speech, civil defamation, and fraud¿the Court continues to rely on balancing approaches. This has created a seeming internal contradiction among precedents that appear only to recognize the constitutionality of content-based restrictions on low-value categories of speech that have historically and traditionally been unprotected.

These two lines of cases can and should be reconciled for the sake of adjudicative predictability and stability. The Court¿s categorical free speech doctrine should be understood as a bar only against ad hoc balancing, but not as a total prohibition against a contextual analysis of expressive and countervailing social interests.