The 'Ample Alternative Channels' Flaw in First Amendment Doctrine

Abstract

In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open “ample alternative channels of communication” for the restricted speaker’s expression. The underlying rationale is substitutability. If the ample alternative channels requirement is met, the message could have been expressed in some other legal way. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. Free speech scholars have ignored this principle. It has set First Amendment jurisprudence on the wrong course. Permitting a speech restriction because the speaker could have communicated the same message another way distorts the First Amendment. Ample alternative channels analysis instructs courts to engage in counterfactual, post-hoc reasoning as to the expressive choices the speaker could have made, but didn’t — i.e., to substitute the court’s own value judgments for those of the speaker’s. The doctrine’s pernicious effects are expanding in the modern communications world, where speech-facilitating technologies grant an alternative means of expression to any infringed speaker. And the origin of the doctrine, from Justice Harlan’s concurrence in United States v. O’Brien, shows that ample alternatives analysis was in its incipiency a misguided afterthought — born, as historical documents never examined before this Article show, as literally a margin note to an unpublished draft. In the place of ample alternative channels analysis, courts should ask whether a speaker’s chosen mode is incompatible with the government’s interest in the restriction in question. An incompatibility rule would be more consistent with the Roberts Court’s turn toward reviewing content-neutral speech restrictions rigorously, as evidenced in 2014’s McCullen v. Coakley.