Publication Date

Fall 2016


This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the breadth of issues surrounding disputes with communicative components is meant to identify competing legal factors without rendering the First Amendment all-inclusive nor, on the flip side, irrelevant to broader ranges of activities. Coupling theoretical and practical considerations about a case best balances judicial deliberation. Rather than ad hoc balancing, judges should apply a rigorous multifactoral test that evaluates whether any relevant communications are likely to result in constitutional, statutory, or common law injuries; whether historical or traditional considerations indicate the speech is protected by the First Amendment; whether there are countervailing government interests; whether the regulation is tailored sufficiently for the government to achieve its stated aims; and whether there are any less restrictive means for achieving underlying policies.