Precedent and Speech

Randy J. Kozel*

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years, the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its positions on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways large and small. The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the context of expressive freedom, there has been no such presumption. When the Court concludes that a precedent reflects a cramped vision of expressive liberty, adherence to the past gives way. Unfettered speech, not legal continuity, is the touchstone.

This practice is understandable. After all, free expression is crucial to political and social life. Yet departures from precedent can compromise the notion of constitutional law as enduring and impersonal.

Responding to the tension between legal continuity and the undiluted protection of speech, this Article defends precedent as a tool for separating the content of constitutional law from contested matters of interpretive philosophy. The key premise is that a precedent’s perceived harmfulness should generally be irrelevant to whether it is retained or overruled. Perspectives on harmfulness track underlying interpretive commitments that vary from judge to judge, creating a conceptual gulf that the doctrine of precedent is meant to bridge rather than widen.

As an alternative, the Article contends that even within the Court’s existing framework, a renewed emphasis on principles of concreteness and content sensitivity would facilitate a more nuanced approach to precedent. Such a development would embrace the reality that not all speech is created equal—and not all limitations on speech are equally bad.

*Professor of Law, Notre Dame Law School. Thanks to Laura Myers for excellent research and editorial assistance. For helpful comments and conversations, thanks to Amy Barrett, Will Baude, Joseph Blocher, Sam Bray, Nathan Chapman, Alan Chen, Erin Delaney, Chad Flanders, Nicole Garnett, Richard Garnett, John Inazu, Leslie Kendrick, Jeffrey Pojanowski, Alex Tsesis, and Eugene Volokh. I am also grateful for comments by participants at the 2014 Yale Law School Freedom of Expression Scholars Conference, where I presented the article under its earlier title, Second Thoughts About the First Amendment.

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