Transparency in First Amendment Doctrine

The broad tension between rule-like categorical approaches and standard-like balancing approaches to doctrinal design has been a longstanding issue within First Amendment jurisprudence. This Article focuses on one particular dimension of this broad theoretical question: the idea of doctrinal transparency. When doctrine is transparent, it encourages or forces courts to analyze cases openly, in a fashion that elicits direct discussion of foundational speech value and speech harm issues. Such transparency is particularly valuable within the First Amendment context, where difficult or novel questions of speech value and harm are often avoided or distorted by doctrinal formalities and empty sloganeering.

Through this lens of doctrinal transparency, this Article analyzes two distinct areas of First Amendment doctrine touched upon in recent Supreme Court cases: the historical test for low-value speech set forth in United States v. Stevens and its progeny, and the longstanding default rule that strict scrutiny applies to content-based speech restrictions that underlay the Court¿s decisions last Term in Williams-Yulee v. Florida Bar and Reed v. Town of Gilbert.