Balancing Approach to Free Speech

‘‘Balancing’’ refers to a method of adjudication used by judges to reach decisions through weighing the parties’ competing interests or rights. In the context of legal disputes over free speech rights, ‘‘balancing’’ typically means judges weighing the government’s interests in restricting speech against the speaker’s First Amendment free speech rights. For some courts, balancing also entails explicit cost-benefit comparisons.

Balancing approaches are usually contrasted with ‘‘categorical’’ approaches to free speech. Balancing requires judges to examine carefully the specific facts of each case and articulate the competing interests and rights at stake before weighing their relative strengths. In contrast, categorical approaches depend on a preestablished system of classifications or categories; judges decide which category the specific case before them belongs to, and then they apply legal rules already developed for that category. Thus, in a free speech case, the court would classify the nature of the speech as ‘‘protected’’ or ‘‘unprotected’’ by the First Amendment, categorize the setting of the speech as a ‘‘public forum’’ or ‘‘non-public forum’’ for speech, and determine whether the type of speech restriction at issue is ‘‘content based’’ or ‘‘content neutral.’’ The outcome of that sequence of categorical moves would determine yet another category, the level of scrutiny (‘‘strict’’ or ‘‘rational basis’’) that the court would apply to the government’s speech restriction.

Advocates of balancing approaches believe that they ensure more nuanced, case-specific, fact-sensitive adjudication that is also more honest and transparent about the policy questions implicit in the dispute. Advocates of balancing also assert that it is more flexible and adaptable, and therefore better suited to the complexity of free speech disputes, where restrictions may not be easily classifiable as content based or content neutral, where the nature of the forum is not readily ascertainable, and where multiple speakers compete. Such complexities are often seen in cases concerning speech rights in rapidly evolving new media like cable and the Internet. See, for example, Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission (1996) and United States v. American Library Association (2003).

Critics of balancing approaches argue that they are subjective, offer little predictability or certainty, and invite judges to usurp the role of legislatures by making policy determinations. Critics further charge that there is no real ‘‘weighing’’ because the rights and interests being compared are incommensurate. Balancing approaches have been strongly criticized in the context of free speech law for chilling speech (because speakers cannot be sure how a court would ‘‘weigh’’ their speech rights) and for unfairly favoring majoritarian government interests against the First Amendment rights of unpopular speakers. In this view, balancing approaches fail to safeguard speech because courts are likely to be swayed in their assessment of the government’s interests by the perceived exigencies and societal fears of the day.

Justification for such criticisms of balancing can be found in a series of speech-repressive cases in the communism-phobic McCarthy era, when the U.S. Supreme Court applied the balancing approach repeatedly to find that government interests in speech restrictions outweighed the speaker’s right to speak. Dennis v. United States (1951) is the prime example.

Balancing has been making a comeback as a legitimate approach to free speech jurisprudence. As Kathleen Sullivan, a leading constitutional scholar, and others have argued, neither balancing nor categorical approaches are inherently liberal or conservative, speech protective or speech restrictive; the approaches themselves are neutral, and not always even clearly distinguishable. Supreme Court justices who are strong proponents of balancing approaches include Justices Stevens, O’Connor, Breyer, and Souter. See, for example, Justice O’Connor’s concurrence in Rosenberger favoring balancing over categorical approaches. A move towards balancing is evident in the Court’s development of intermediate scrutiny levels, somewhere in between ‘‘strict’’ and ‘‘rational basis,’’ that assess government’s reasons for the speech restriction as weighed against the effects on speech. Such ‘‘heightened scrutiny’’ balancing has been used in Commercial Speech cases since Central Hudson Gas & Electric (1980), and in speech cases involving new technologies like cable broadcasting (for instance, Turner Broadcasting I [1994] and II [1997]).

The debate between advocates of balancing and advocates of categorizing parallels debates between advocates of ‘‘standards’’ and advocates of ‘‘rules.’’

IRENE SEGAL AYERS

References and Further Reading

• Barron, Jerome A., The Electronic Media and the Flight from First Amendment Doctrine: Justice Breyer’s New Balancing Approach, University of Michigan Journal of Law Reform 31 (1998): 817
• Huhn, Wilson R., Assessing the Constitutionality of Laws that Are Both Content-Based and Content-Neutral: The Emerging Constitutional Calculus, Indiana Law Journal 79 (2004): 801
• Rubenfeld, Jed, Comment: A Reply to Posner, Stanford Law Review 54 (2002): 753
• Schlag, Pierre, An Attack on Categorical Approaches to Freedom of Speech, University of California-Los Angeles Law Review 30 (1983): 671
• Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech. Vol. 1. St. Paul, Minn.: West Group, 2003
• Sullivan, Kathleen M., Post-Liberal Judging: The Roles of Categorization and Balancing, University of Colorado Law Review 63 (1992): 293

Cases and Statutes Cited

• Central Hudson Gas & Electric v. Public Service Commission, 477 U.S. 557 (1980) 
• Dennis v. United States, 341 U.S. 494 (1951) 
• Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission, 518 U.S. 727 (1996) 
• Rosenberger v. University of Virginia, 515 U.S. 819, 846–852 (1995) 
• Turner Broadcasting System v. FCC, 512 U.S. 622 (1994), and Turner II, 520 U.S. 180 (1997) 
• United States v. American Library Association, 539 U.S. 194 (2003) 

See also Absolutism and Free Speech; Categorical Approach to Free Speech; Central Hudson Gas and Electric Corp. v. Public Service Commission of New York, 477 U.S. 557 (1980); Content-Based Regulation of Speech; Content-Neutral Regulation of Speech; Dennis v. United States, 341 U.S. 494 (1951); Intermediate Scrutiny Test in Free Speech Cases; Public Forum Doctrines; Public/ Nonpublic Forums Distinction; Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995); Turner Broadcasting Sys., Inc. v. FCC (Turner I), 512 U.S. 622 (1994); 520 U.S. 180 (1997) (Turner II)