Free Speech, Strict Scrutiny, and Self-Help: How Technology Upgrades Constitutional Jurisprudence

Abstract

Self-help plays a nearly unnoticed but increasingly important role in free speech jurisprudence. Under both the compelling interest and least restrictive means prongs of strict scrutiny, courts have determined the constitutionality of content-based restrictions on speech by comparing the efficacy of state action to that of alternative, self-help remedies. Courts and commentators, however, have yet to explore and justify how self-help does and should influence First Amendment law. Thanks largely to the obscuring effect of the captive audience doctrine, courts have invoked self-help in compelling interest inquiries in a consistent, but only implicit, manner. In contrast, although the Supreme Court has encouraged lower courts to consider self-help remedies as part of that inquiry, the Court itself has given similar consideration only very recently. The present paper thus analyzes the extant case law to reveal how self-help has powerfully affected free speech strict scrutiny jurisprudence. The paper moreover justifies self-help's role as consistent with a fundamental principle of governance: political entities should undertake only those projects that they can accomplish more effectively than can private ones. Evaluations of the relative efficacy of political and private means will change with the relevant facts, of course. As a general matter, however, technological advances giving private parties increasingly refined means of manipulating information should lead courts to reduce the permissible scope of state action. Just as we upgrade computer software to benefit from progressively better hardware, in other words, we should upgrade First Amendment jurisprudence to benefit from progressively better self-help.