Categorical Approach to Free Speech

The ‘‘categorical approach’’ is a method of judging where decisions are reached through use of a preestablished system of classifications or categories. Judges compare the case before them to cases in the past to determine the category to which the new case belongs. Judges then apply legal rules already developed for that category to resolve the dispute.

In free speech cases, the categorical approach has been the dominant analytical method for many years. Multiple classification schemes have evolved that help courts systematically dissect and compare the complexities of First Amendment free speech disputes. Classification systems are applied to evaluate the nature of the speech being restricted by government, the setting where the speech would occur, and the nature of the speech restriction. Thus, in resolving a free speech case, a judge would determine first whether the speech at issue is ‘‘protected’’ or ‘‘unprotected’’ by the First Amendment. Categories of ‘‘unprotected’’ speech include obscenity, defamation, incitement, and child pornography produced with real children. If the speech were in the ‘‘protected’’ category, the judge would classify the setting of the speech as either some type of ‘‘public forum’’ or else a ‘‘non-public forum.’’ The judge would also classify the type of governmental speech restriction as either ‘‘content based’’ or ‘‘content neutral.’’ Depending on the outcome of that sequence of categorical moves, the judge would choose which category of ‘‘scrutiny’’ levels to apply to the speech restriction, whether ‘‘strict’’ or ‘‘rational basis’’ or a possible intermediate category.

In First Amendment jurisprudence, the ‘‘categorical approach’’ is usually contrasted with ‘‘balancing approaches’’ and ‘‘absolutist approaches.’’ Balancing approaches involve weighing the competing interests and rights at stake and assessing their relative strengths to decide whether the speaker or the government speech-restriction will prevail. Absolutist approaches take literally the First Amendment’s command that ‘‘Congress shall make no law abridging the freedomof speech,’’ and only ask whether the restricted speech at issue is genuinely speech rather than conduct.

The categorical approach has been viewed as more speech-protective than balancing approaches, particularly since the U.S. Supreme Court’s use of a balancing method to decide a series of McCarthy-era speech cases in favor of government restrictions on speech (Dennis v. United States is the prime example). In addition to being seen as more protective generally of free speech rights, the categorical approach is praised by its proponents for being protective of those speech rights most in danger: the rights of unpopular or distasteful speakers. The categorical approach is commended for providing principled, objective guidance to courts, for helping judges take a pro-speech stand against the popular will, and for providing speakers with notice and fair warning about when governments can restrict speech. The categorical approach is also praised for bolstering the images of courts as dispensers of fair and equal treatment and for making judges less vulnerable to charges of legislating from the bench.

Opponents of categorical approaches, however, question the claimed objectivity of free-speech categories. What seem to be fixed, consistent categories can often be manipulated to produce the desired outcome in the case. Thus, liberal judges are more likely to classify as ‘‘content-based’’ laws regulating sexual expression, whereas conservative judges will often classify the same laws as ‘‘content-neutral;’’ conversely, liberal judges are more likely to categorize laws regulating abortion protesters as ‘‘content-neutral,’’ whereas conservatives assign them to the ‘‘contentbased’’ category of speech restrictions. Critics of the categorical approach charge that it is mere labeling, that it is mechanical and formulaic, and that it is not adaptable to a changing world and new technologies. Critics further complain that categories mask the real but unarticulated assessments of facts and policies that occur whenever judges decide speech cases. To the extent such ‘‘silent’’ covert judging happens, the development of constitutional jurisprudence suffers.

Although balancing approaches have been making a comeback in free-speech cases since the days when they were discredited as too pro-government, the multiple classification schemes that comprise the categorical approach remain the primary means of adjudication of free speech cases for the U.S. Supreme Court and the lower courts. Recent Supreme Court justices who are strong proponents of the categorical approach include Justices Scalia and Kennedy. See Justice Kennedy’s defenses of categorical approaches in Denver Area Educational Telecommunications Consortium and in Simon & Schuster. An example of the Supreme Court using the categorical approach can be seen in Justice Kennedy’s opinion for the Court in Free Speech Coalition.

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

IRENE SEGAL AYERS

References and Further Reading

• Aleinikoff, T. Alexander, Constitutional Law in the Age of Balancing, Yale L. J. 943 (1987): 96
• Barron, Jerome A., The Electronic Media and the Flight from First Amendment Doctrine: Justice Breyer’s New Balancing Approach, U. Mich. J. L. Reform 817 (1998): 31
• Huhn, Wilson R., Assessing the Constitutionality of Laws that are Both Content-Based and Content-Neutral: The Emerging Constitutional Calculus, Ind. L. J. 801 (2004): 79
• Scalia, Antonin, The Rule of Law as a Law of Rules, U. Chi. L. Rev. 1175 (1989): 56
• Smolla, Rodney A.Smolla and Nimmer on Freedomof Speech, vol. 1, 2:55–73. St. Paul, MN: West Group, 2003
• Sullivan, Kathleen M., Post-Liberal Judging: The Roles of Categorization and Balancing, U. Colo. L. Rev. 293 (1992): 63

Cases and Statutes Cited

• Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) 
• Dennis v. United States, 341 U.S. 494 (1951) 
• Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission, 518 U.S. 727, 780–812 (1996) 
• Simon & Schuster v. Members of the New York State Crime Victims Board, 502 U.S. 105 (1991) 

See also Absolutism and Free Speech; Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); Balancing Approach to Free Speech; 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