The “Ample Alternative Channels” Flaw in First Amendment Doctrine

Washington and Lee Law Review, Aug 2018

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. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of 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 modern communications world expands the doctrine’s pernicious effects, since speech-facilitating technologies can always theoretically 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 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. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of 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 modern communications world expands the doctrine’s pernicious effects, since speech-facilitating technologies can always theoretically 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 alternative channels analysis was in its incipiency a misguided afterthought—born, as historical Supreme Court case files never examined before this Article show, as

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=4522&context=wlulr

The “Ample Alternative Channels” Flaw in First Amendment Doctrine

The “ Ample Alternative Channels” Flaw in First Amendment Doctrine 0 Thi s Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA 1 Enrique Armijo, Th e “Ample Alternative Channels” Flaw in First Amendment Doctrine , 73 Wash. & Lee 2 Elon University School of Law - The “Ample Alternative Channels” Flaw in First Amendment Doctrine Enrique Armijo 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. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of 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 modern communications world expands the doctrine’s pernicious effects, since speech-facilitating technologies can always theoretically 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  Associate Dean for Academic Affairs and Associate Professor, Elon University School of Law and Affiliated Fellow, Yale Law School Information Society Project. Thanks to colleagues at the Yale Information Society Project’s Freedom of Expression Scholars’ 2015 Conference and the Loyola Chicago 2015 Constitutional Law Colloquium. Individual thanks go to Jack Balkin, Joseph Blocher, David Han, Chad Golder, Randy Kozel, Kerry Monroe, Alex Tsesis, Mark Tushnet, and Tinsley Yarbrough, to the librarians at Princeton University’s Mudd Rare Manuscript Library for providing access to the John Marshall Harlan Papers Collection, and to Spenser Tatum, Elizabeth Long, and Britney Boles for research assistance. ample alternative channels analysis was in its incipiency a misguided afterthought—born, as historical Supreme Court case files 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. Table of Contents I. Introduction ...................................................................1659 I. Introduction You are a Hare Krishna. As part of your spiritual obligation, you must engage in Sankirtan, which requires, in addition to public singing and chanting of mantras, the hand-to-hand dissemination of religious literature and face-to-face solicitation of donations for the church.1 These interactions between devotees and potential recruits in public spaces are critical to the growth of your chosen faith.2 Your community’s largest public gathering of the year, and thus your best opportunity to proselytize to thousands of potential new recruits to Krishna Consciousness, is the state fair.3 But the fair’s vendor solicitation rules require you, or any other person or organization seeking to distribute materials to fairgoers, to do so only from behind a booth that is assigned to a fixed location within the fairgrounds chosen by the fair’s organizers. Note what the fair’s requirements do not bar you from doing. They do not ban you from the fairgrounds altogether, and it permits you to interact with fellow fairgoers who approach your 1. See E. Burke Rochford Jr., Recruitment Strategies, Ideology, and Organization in the Hare Krishna Movement, 29 SOCIAL PROBS. 399, 401 (1982) (noting that encounters in public places are an important way of recruiting new members to the growth of the International Society for Krishna Consciousness); see also ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 952–53 (D.C. Cir. 1995) (describing a “Krishnafest” held by the International Society for Krishna Consciousness of the Potomac). 2. See Rochford, supra note 1, at 401–02; (“Table 1 shows [that] 42 percent [of ISKCON devotees] made contact in public places.”); see also E. Burke Rochford, Jr., A Study of Recruitment and Transformation Processes in the Hare Krishna Movement 19–20 (Apr. 1, 1982) (unpublished Ph.D. dissertation, University of California, Los Angeles) (observing that, unlike other new religious movements, in which preexisting “social network ties have played a prominent role in the[ir] expansion . . . persons recruited into Krishna Consciousness most often made their initial contact with the movement in public place encounters with Krishna devotees.”) (on file with the author). 3. These facts are taken from Heffron v. Int’l Soc. for Krishna Consciousness, 452 U.S. 640, 655 (1981). assigned booth. You challenge the fair’s requirements on First Amendment grounds. Should you prevail? Now consider a second hypothetical. You own a piece of real estate that you wish to sell.4 To attract interest in the property from prospective buyers, you want to post a “For Sale” sign in the home’s front lawn. However, your town bars owners from placing sales-related signage on the lawns of their homes. Once again, note what the restriction does not bar you doing: you may list your property for sale with agents; you may place informational flyers in a dedicated box on the lawn that passersby can help themselves to (so long as the box is labeled “Free Information,” and not “For Sale”); you may place your sign in the home’s windows (though again, not the yard); craigslist, realtor.com, and the rest of the Internet are available to you; and you retain the ability to show the home to prospective buyers at times of mutual convenience. You challenge the township’s signage ban on First Amendment grounds. Should the aforementioned facts be relevant? In other words, should the ban survive your challenge because you are able communicate that the home is on the market by other means despite the township’s restriction—even though you, the restricted speaker, favor using a “For Sale” sign over any of those means? Alternatively, assume instead that the sign you wish to place in your lawn expresses your opposition to the Iraq War.5 This time, your township bars all yard signs except for “For Sale” signs.6 Is the town’s abridgement of your speech cured by your ability to express your distaste for the War through a range of other constitutionally protected manners of expression, from picketing and handing out antiwar flyers on your front lawn to placing bumper stickers all over your car (parked right outside your house)—expression that the township’s signage ban does not implicate in any way? These three hypotheticals, all based on actual cases, involve different kinds of speech—religious; commercial; political. The 4. These facts are taken from Linmark Assocs., Inc. v. Willingboro, 431 U.S. 85, 98 (1977). 5. These facts are taken from City of Ladue v. Gilleo, 512 U.S. 43, 58–59 (1994). 6. Id. at 45. government interests underlying the regulations abridging that speech vary widely as well—patron enjoyment of the state fair; preventing white flight; aesthetic choices regarding visual clutter.7 But in all three cases, in deciding whether the restriction in question abridged the speaker’s First Amendment right, the U.S. Supreme Court considered the relative effectiveness of alternative modes of expression that the speaker did not use—and, for all we or the Court know, that the speaker may in fact have chosen not to have used. Current First Amendment doctrine finds that if ample alternative channels of expression exist for a speaker to express her views, then a content-neutral regulation foreclosing the speaker’s chosen channel of expression will survive review.8 This Article’s fundamental premise is that such a finding is at odds with the First Amendment itself. Giving the availability of alternative communication channels dispositive significance in speech cases undermines speakers’ communicative choices with respect to their speech’s audience, effectiveness, and reach—choices that both self-autonomy and marketplace theory teach deserve constitutional respect.9 The doctrine calls on judges to substitute their First Amendment values for the restricted speaker’s; to engage in counterfactual, post-hoc reasoning as to the choices the speaker could have made, but did not; and to focus on such hypotheticals at the expense of the relevant inquiry: whether the state has adequately justified its 7. See Heffron, 452 U.S. at 656–57 (justifying the state fair’s rule in the interest of maintaining orderly movement of individuals at the fair); Linmark Assocs., Inc., 431 U.S. at 94 (“[T]he vital goal this ordinance serves [is] namely, promoting stable, racially integrated housing.”); Gilleo, 512 U.S. at 49 (“Ladue relies squarely on that [esthetic values] content-neutral justification for its ordinance.”). 8. See Hill v. Colorado, 530 U.S. 703, 726 (2000) (“[W]hen a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the statutory goal.”). 9. See id. at 751 (Scalia, J., dissenting) (stating that the “right to be let alone” contemplated by Justice Brandeis in Olmstead v. United States is the right of a speaker in a public forum to be free from governmental intrusion). interference with speech.10 This approach leads to speech-averse results in a range of cases.11 It is also a constitutional anomaly. In no other area of constitutional law do courts excuse government interferences with protected rights on the grounds that despite the interference at issue, the affected party could have exercised that same right as effectively in a different way. For example, when a college student is denied admission to their public university of choice on account of their race, no court asks whether the student could have been admitted to another comparable school (let alone whether the student did in fact apply and was admitted to such a school), and if so, whether that fact minimizes the harm caused by violating the student’s right to equal protection.12 A city could not successfully defend a ban on firing ranges against a Second Amendment challenge on the ground that ranges are available in a jurisdiction nearby.13 And after last term’s Obergefell v. Hodges,14 which held that the right to samesex marriage is fundamental, 15 no state could save its ban on such marriages by arguing that it permits same-sex civil unions, which 10. See Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46, 50 (1987) (“The Court does not seriously inquire into the substantiality of the governmental interest, and it does not seriously examine the alternative means by which the government could achieve its objectives. As a result, when the Court applies this standard, it invariably upholds the challenged restriction.”). 11. Infra Part II.B.1. 12. These facts may at most raise a standing question, but even that issue is far from clear. See, e.g., Fisher v. Univ. of Tex., 758 F.3d 633, 662 (5th Cir. 2014), aff’d, 136 S. Ct. 2198, 2207 (2016) (arguing that nonadmitted student lacked standing to challenge constitutionality of public university admissions decision because the student had been admitted and subsequently graduated from another school). Moreover, the Court has expressly rejected the argument that a state can cure a race-based denial of a student’s university admission by providing a substitute as an alternative. See Missouri ex. rel. Gaines v. Canada, 305 U.S. 337, 351–52 (1938) (finding that attendance at a university of any adjacent state for law school is not a valid alternative for attendance at in-state institution that will not accept black students). 13. See Ezell v. City of Chicago, 651 F.3d 684, 697, 709–10 (7th Cir. 2011) (finding that Chicago had not established a strong enough public-interest rationale for its ban on firing ranges and thus this plan likely violated the plaintiffs’ Second Amendment rights). 14. 15. See id. at 2607 (“The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States.”). provide all of the benefits of marital status under that state’s substantive law, and thus the ban does not offend due process.16 The closest analogy is to free exercise claims. PostEmployment Division of Oregon v. Smith,17 courts apply much less searching review to laws of general applicability that incidentally burden religious exercise.18 However, even post-Smith, if a generally applicable law burdens a specific religious practice, a court does not—indeed, could not—find as a basis for supporting the law that the burdened party can exercise their religion just as avidly despite the burden, due to a different but legally available means for the same expression. In Smith itself, the majority did not conclude—and in fact expressly declined to conclude—that Native Americans could engage in their religious rituals without peyote.19. But this is what happens in every First Amendment case 16. This was true pre-Obergefell as well. See, e.g., Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 414–17 (Conn. 2008) (rejecting the argument that the state’s refusal to marry same-sex couples did not violate due process because civil unions in the state entitled “gay persons . . . to all of the rights that married couples enjoy”). 17. 18. See id. at 892 (“[T]he Court holds that where the law is a generally applicable criminal prohibition, our usual free exercise jurisprudence does not even apply. . . .). Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim . . . . It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith . . . . (quoting Hernandez v. Comm’r, 490 U.S. 680, 699 (1989))). The Court’s undue burden analysis in its abortion jurisprudence might be analogous. A law closing every abortion clinic in a given area might not violate a woman’s right (from that area) to terminate a pre-viability pregnancy if the woman can obtain an abortion in some other less convenient, though still available, locality. See, e.g., Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2313 (2015) (“We recognize that increased driving distances do not always constitute an ‘undue burden.’”). But the undue burden test is about determining whether inconvenience has crossed into impermissible interference with the right the test protects. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 920 (1992) (“A state-imposed burden on the exercise of a constitutional right is measured both by its effects and by its character: A burden may be ‘undue’ either because the burden is too severe or because it lacks a legitimate, rational justification.”). In those First Amendment cases where a choice as to mode, time, or place for speech is itself expressive, the alternative saving the regulation’s constitutionality (as discussed infra notes 26, 39–41) is involving a content-neutral law; such restrictions are upheld so long as the reviewing court deems that the speaker could have expressed the speech in question through a different mode.20 And most importantly, this is so irrespective of the speaker’s assessment of the equality of the substitute.21 This is the equivalent of arguing that a state’s blanket ban on peyote does not offend the free exercise rights of Native Americans because they remain free to use sweat lodges.22 Unlike other anomalies in constitutional law, this one has garnered near-total acceptance. In a rare display of unanimity in an area where first principles have been contested for decades,23 courts and scholars have long found that it is not a constitutionally significant intrusion upon free speech to limit a speaker’s preferred mode of expression, so long as the intrusion leaves open other available means by which the speaker may communicate.24 This is usually a materially different expressive act from the one the speaker chose. See City of Ladue v. Gilleo, 512 U.S. 43, 55–56 (1994) (stating that the alternatives proposed to respondent for displaying opposition to war efforts “carr[y] a message quite distinct” from displaying a sign from one’s residence). 20. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) [E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). 21. See id. at 789 (finding alternative avenues of expression, but not considering respondent’s input on the stated alternatives). 22. Post-Smith, the Religious Freedom Restoration Act sought to protect religious exercise from “burdens” imposed by “laws [that are] neutral toward religion,” which it deemed as offensive to religious practice “as laws intended to interfere with religious exercise.” 42 U.S.C. § 2000bb(a)(2) (2012). The U.S. Congress therefore expressly rejected any distinction between laws that could be characterized, to use Speech Clause terminology, as “religious exercise-based” and those that are “religious exercise-neutral.” Id. 23. See infra Part III.A (referring to the ongoing debate between marketplace and self-autonomy theorists as to which theory best supports the First Amendment). 24. See C. Edwin Baker, Unreasoned Reasonableness: Mandatory Parade Permits and Time, Place, and Manner Restrictions, 78 NW. U. L. REV. 937, 937 (1984) [hereinafter Baker, Unreasoned Reasonableness] (arguing that subjecting time, place, and manner restrictions interfering with expressive conduct to the equivalent of a mere reasonableness standard is “possibly the most universally so as to self-autonomy, marketplace, and instrumentalist theorists. On the self-autonomy front, Daniel Farber and John Nowak argue that, “[a]lthough some people may be unable to express themselves in the exact physical manner, location, or time they find most satisfying, this inconvenience hardly seems a radical intrusion into individual autonomy.”25 Similarly, Eugene Volokh claims that “a typical law aimed at noncommunicative effects is unlikely to excessively inhibit the communication of some viewpoint of fact, because many different media would remain available to the speakers.”26 As to marketplace theory, Geoffrey Stone has argued that the content of the message is not blocked from the speech market so long as that content can reach the market via some other legal channel accessible to the speaker and his audience.27 The restrained expression can thus still contribute to the search for truth, so the harm the restriction causes, both to the speaker and to listeners participating in the broader speech market, is minimal.28 For the instrumentalists, Judge Richard Posner compares restrictions on a speaker’s preferred mode of communication to a “tax of variable severity on ideas and opinions [that make] it more costly for the speaker to reach his audience,” analogous to a “tax on newsprint or on broadcast air time, or for that matter, an increase in second-class postal rates”29—a burden paling in comparison to the “much heavier tax” of a content-based restriction on a particular category of ideas.30 However, there are several unexamined problems with the ample alternative channels approach—problems to which the claims set out above do not respond. First, one can safely assume that by dint of the chosen channel of communication alone, the speaker herself has not found alternative channels of communication to be analogous. It seems much more than a mere “inconvenience,” to use Farber and Nowak’s term,31 to tell a speaker she can be punished for using the mode of expression that she believed to be most effective, but could have avoided punishment if she had chosen a way to communicate the same message that she likely viewed as less effective. Accordingly, the notion that the availability of substitutes for expressing a given idea minimizes the constitutional harm to a barred speaker’s freedom of choice offends the self-autonomy-related justifications for the First Amendment.32 It also seems wrong to find that the marketplace of ideas is not harmed when speakers are barred by generally applicable restrictions on the ground that speech could, in theory, reach the market in some other way.33 The deprivation of the market has already occurred, and from both the speaker’s and his intended audience’s perspective, the alternative means by which the speech could have reached the market are not true contemporaneous substitutes. And Judge Posner’s analogy to taxes on modes of speech delivery conflates the concepts of restriction and proscription: a “tax on newsprint,” even a significant one, is not the same as making newsprint illegal (as opposed to costly) and forcing newspaper printers to become broadcasters, corner speakers, or bloggers.34 30. See Posner, Free Speech in an Economic Perspective, supra note 29, at 16 (“A prohibition on all public expression of an idea is a much heavier tax.”). 31. Farber & Nowak, supra note 25, at 1237. 32. See Hurley v. Irish-Am. Gay, 515 U.S. 557, 573 (1995) (“[T]his general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid . . . .”). 33. See Stone, supra note 10, at 65 (stating that not all alternative means of expression are perfect and that, in some circumstances, certain means of expression may have specific advantages). 34. Cf. NLRB v. Fruit & Vegetable Packers & Warehousemen, 377 U.S. 58, 76–80 (1964) (Black, J., concurring) (justifying a restriction on expression on the Speaking of bloggers: with the rise of speech-facilitating technologies, there is now no limit to the damage that alternative channels analysis can do to free speech.35 Courts have already begun to find that thanks to the availability of such technologies, an alternative means of expression is always available to any user whose speech has been infringed.36 And in a world where the existence of YouTube, Blogger, Twitter, or Facebook means that an alternative channel to the one chosen is always available, even the broadest content-neutral restrictions on speech will increasingly survive judicial review. To adduce precisely why ample alternative channels analysis has won such a hold on First Amendment doctrine, it makes sense to consider its origin. And if those foundations are shaky, we might be more inclined to examine whether ample alternatives analysis serves a proper purpose in balancing the liberty of the speaker against the government’s interests in generally applicable regulations that infringe on speech. Ample alternative channels analysis arose more than fifty years ago, in Justice John Marshall Harlan’s concurrence in United States v. O’Brien.37 In that seminal case, Harlan stated the First Amendment was not offended by O’Brien’s prosecution for burning his draft card because O’Brien could have communicated his antigovernment, antiwar message by other, legal means.38 The ground that “other methods of communication are left open” and thus the restriction is “on a par with holding that governmental suppression of a newspaper in a city would not violate the First Amendment because there continue to be radio and television stations”). 35. See Interstate Outdoor Adver., L.P. v. Zoning Bd. of Mt. Laurel, 706 F.3d 527, 535 (3d Cir. 2013) (“Potential alternative channels of communication [for prohibited billboards] include on-premises signs, internet advertising, direct mail, radio, newspapers, television, sign advertising, and public transportation advertising.”); see also Gun Owners’ Action League v. Swift, 284 F.3d 198, 212 (1st Cir. 2002) (“The restriction challenged here ‘allows for reasonable alternative channels of communication.’ Whatever messages the appellants seek to express by shooting at human images on targets, those messages may be spread via writing, the Internet, word of mouth, or other communication technologies.”). 36. See Bl(a)ck Tea Soc’y v. City of Bos., 378 F.3d 8, 14 (1st Cir. 2004) (finding that the ability to communicate protest messages through mass media qualified as a “viable alternative means . . . to enable protesters to communicate their messages to the delegates”). 37. 391 U.S. 367, 388–89 ( 1968 ) (Harlan, J., concurring). 38. See id. at 389 (“O’Brien manifestly could have conveyed his message in many ways other than by burning his draft card.”). development of Justice Harlan’s concurrence, however, as evidenced through multiple drafts of that concurrence and the majority opinion in the case—none of which have ever been examined by scholars until this Article—shows that ample alternative channels analysis was in its incipiency a misguided afterthought.39 By dint of its being incorporated into the test for content-neutral restrictions and applied in subsequent cases, however, the concept now carries dispositive force in First Amendment doctrine.40 It is time to save the doctrine, and the interests it is intended to protect, from the tyranny of the afterthought. With the help of Justice Harlan’s case files in O’Brien, Part II of this Article discusses the birth of the ample alternative channels analysis and its role in the content-discrimination doctrine’s intermediate scrutiny standard of review.41 Part III critiques ample alternative channels analysis because in its blanket treatment of alternatives as dispositive to the First Amendment issue, it fails to differentiate those cases in which the speaker’s chosen mode of expression is as worthy of protection as the message expressed thereby.42 In terms of practical consequences, this Part also shows that ample alternative channels analysis often yields inconsistent and speech-averse results in a range of contexts—a problem that will only be compounded by the current emergence of technology-facilitated speech.43 In closing, Part III argues that the Supreme Court’s longstanding distinction between content-based and content-neutral restrictions cannot support the use of ample alternative channels analysis in the latter type of case but not the former.44 Turning to recommendations, Part IV proposes that in lieu of ample alternative channels analysis, courts reviewing contentneutral regulations should ask whether permitting the speaker’s use of her chosen channel of communication is incompatible with the government’s interest in adopting the regulation in question.45 Incompatibility is a more rigorous standard than the reasonableness approach that has come to govern content neutrality analysis.46 It will protect the speaker’s chosen mode of expression in most cases, except those in which permitting the speaker’s chosen mode of expression would frustrate a compelling governmental interest in near-totality.47 In other words, the focus is not where the current doctrine places it—on whether the speaker could have met her communicative goals by expressing the content of her message in another legal way. Rather, the inquiry is whether the government could not have achieved its legislative goals if the speaker had been able to express her message in the desired manner. An incompatibility standard would also be able to differentiate between conduct that merely facilitates speech and conduct that is itself communicative or otherwise essential to the speaker’s expressive act, which is a distinction that modern First Amendment doctrine has merged right out of the law. Finally, abandoning ample alternative channels analysis in favor of incompatibility would be consistent with the Roberts Court’s turn toward a pro-speaker view of the First Amendment—a view that rigorously reviews even content-neutral restrictions on speech, as evidenced in last Term’s McCullen v. Coakley.48 44. Infra Part III. 45. Infra Part IV. 46. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (articulating the reasonableness standard that currently governs restrictions “on the time, place, or many of protected speech”). 47. See Rosenbaum v. City of S.F., 484 F.3d 1142, 1167 (9th Cir. 2007) (stating an “incompatibility” standard that must be proved by the State to deny appellants free speech in the public forum). 48. See 134 S. Ct. 2518, 2541 (2014) (“[The Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers . . . . The Commonwealth may not do that consistent with the First Amendment.”). II. The Birth of Ample Alternative Channels Analysis: Justice Harlan’s O’Brien Opinion To better understand the role alternative channels analysis is intended to play in Free Speech doctrine, we should start with the analysis’s source. When looking for origin stories in constitutional law, one can easily find statements in cases that were afterthoughts at the time, but later serve as the foundations upon which subsequent courts build legal doctrine.49 But excavating those statements can uncover mismatches between the context and principles animating the statements at the time of their making on the one hand, and their application to modern controversies on the other—mismatches that current law, building upon itself through the common law process of decision, can be blind to.50 For present purposes, the statement being excavated first appeared in a tent-pole First Amendment case: David Paul O’Brien’s conviction under the Selective Service Act (SSA or Act) for burning his draft card on the steps of the South Boston Courthouse in protest of the Vietnam War.51 Alternative channels analysis was born not in the O’Brien majority opinion, however, but rather in Justice Harlan’s concurrence.52 And an earlier version of that latter opinion had much bigger game in its sights: what Harlan viewed as the dangerous logical fallacy of the Court’s distinguishing between speech and content in First Amendment cases.53 A. Briefing, Argument, and the First Draft Majority Opinion After being convicted in Massachusetts federal court for violating the “no willful destruction” section of the SSA by burning his draft card, O’Brien appealed to the U.S. Court of Appeals for the First Circuit.54 That court held that O’Brien’s conviction violated the First Amendment.55 In the Supreme Court, the United States challenged the First Circuit’s reversal of O’Brien’s conviction.56 On the First Amendment question, the United States’ merits brief argued that “the decisive consideration” in determining whether conduct like O’Brien’s was protected speech was whether it fit within those “limited class of activities” that are “[1.] inextricably tied to oral expression or [2.] where no reasonably effective alternative means of communication [are] available.”57 As to the first question, the United States claimed that burning a draft card was not protected symbolic speech because it was not “a natural extension of [a] verbalization,” not integral to a concomitant “oral expression[’s] meaning,” and not “the manifest equivalent of, or traditionally recognized substitute for, a verbal statement.”58 As to the second alternative showing under its proposed test, the Government argued that “other effective means for expressing” the ideas communicated by the conduct that O’Brien engaged in “plainly exist,” and that those means, unlike United States v. O’Brien at 2 (Harlan, J., concurring), in John Marshall Harlan Papers, Box 311, Seeley G. Mudd Manuscript Library, Princeton University [hereinafter Harlan Papers, Box 311] (“This double-barreled approach seems to me hopelessly to confuse two separate definitional problems presented by the language of the First Amendment.”) (on file with the Washington and Lee Law Review). 54. O’Brien v. United States, 376 F.2d 538, 539–40 (1st Cir. 1967), vacated 391 U.S. 367, 369 ( 1968 ). 55. See O’Brien, 391 U.S. at 370–71 (“On appeal, the Court of Appeals for the First Circuit held the 1965 Amendment unconstitutional as a law abridging freedom of speech”). 56. See id. at 372 (“The government petitioned for certiorari in No. 232, arguing that the Court of Appeals erred in holding the statute unconstitutional . . . .”); see also Brief for the United States at 7–8, United States v. O’Brien, 391 U.S. 367 ( 1968 ) [hereinafter O’Brien United States Brief] (setting forth the United States’ arguments for challenging reversal). 57. O’Brien United States Brief, supra note 56, at 8. 58. Id. at 15. draft-card burning, “do not interfere in any significant way with the orderly functioning of government.”59 O’Brien and like-minded protestors had such “other effective means” to convey their views, ranging from “the use of mass communication media” to “the public meeting hall” to “peaceable demonstration” to “the distribution of literature.”60 In response, O’Brien argued that the Court’s cases established “a constitutional right to deliver one’s speech at the place where, the time when, and the manner in which the speaker deems it to be most effective.”61 That right, claimed O’Brien, “include[s] the right to make the most dramatic and compelling speech possible,” subject to narrow limitations.62 After oral argument, at which the Solicitor General reiterated the Government’s argument that O’Brien was free “at all times to express dissent by speech from the courthouse steps or on the street corners, by letters to the editor, by pamphlet, by radio and television,”63 the Government’s position prevailed. Chief Justice Warren’s first draft opinion for the majority circulated on April 12, 1968.64 Consistent with only the first part of how the Government had litigated the symbolic speech question, however, Warren’s opinion turned exclusively on the speech-conduct distinction.65 Warren found that burning draft cards, even in protest of military action, was conduct and not speech—and was thus not protected by the First Amendment.66 Warren’s first analytical step was to affirm that the Act did not facially infringe upon speech.67 As a general matter, there was nothing “necessarily expressive,” Warren noted, about the conduct that the Act prevented.68 Next, and with respect to O’Brien’s asapplied claim alleging that his conduct was expressive and therefore protected, Warren’s opinion held firmly that even though the Court had “no reason to doubt” that O’Brien “intended by burning his certificate to express his disagreement with the war and the draft,” O’Brien’s “conduct of burning his certificate was not speech within the meaning of the First Amendment.”69 With the Government’s position as a starting point for his analysis, Warren rejected O’Brien’s position that the First Amendment protected symbolic speech, driving a broad wedge between words and conduct—even conduct intended to be expressive—for First Amendment purposes.70 He did so first by placing conduct as far subordinate to verbal utterances in the free speech hierarchy: The view of the First Amendment advanced by O’Brien is premised upon a definition of ‘speech’ that bears no resemblance to the meaning and usage of that word in our society. Under this view, any act done by an individual would be speech if the individual intended by the act to express any idea, and at some time made known his intent . . . . The multitude of decided cases corroborate what is in any event apparent on the face of the [Speech and Press] clauses—that their core meaning and concern is with verbal expression, the spoken and written utterance of words . . . . From its adoption through the present time, the traditional, normal, and by far most important way that people in our society have expressed their ideas is by using language.71 So the “spoken and written utterance” was at the core of the Speech Clause’s concerns, and to stray from that core was to depart 67. See id. at 8 (“[The 1965 Amendment] prohibits the knowing destruction of certificates issued by the Selective Service System, and there is nothing necessarily expressive about such conduct.”). 68. Id. at 8. 69. Id. at 16 (emphasis added). 70. See id. at 17 (stating that the cases decided on this confirm that the clauses of the First Amendment concern “verbal expression, the spoken and written utterance of words”). 71. Id. at 17–18. not only from First Amendment text, history, and tradition, but also from common conceptions regarding the sharing of ideas that have been widely held from the Founding to the present day. Warren admitted, however, that under the Court’s previous cases, one narrow category of conduct did merit First Amendment protection, noting that “the Amendment would have a rather narrow compass if it embraced only the initial utterance of words. The conception of freedom of communication embodied in the Amendment by definition draws within its ambit behavior engaged as a means of communicating, that is of disseminating or transmitting, uttered words.”72 According to Warren, examples of such verbal expression-disseminating conduct that could fall within the Speech Clause’s protection included assemblies to discuss matters of public interest,73 a speaker’s use of sound amplification devices,74 union soliciting without a permit,75 and “distributing . . . printed material.”76 Only conduct that was “a natural extension of a verbalization” was protected.77 Speechfacilitating conduct, in other words, was protectable, but conduct intended to communicate nonverbally, or what would later come to be known as symbolic speech, did not implicate the First Amendment at all. Based on his distinction between conduct that was unprotected even if intended to be expressive and conduct that was “a means for the dissemination of verbal expression” and thus protected,78 Warren concluded that “burning a document”79 fell into the former category.80 Such an act was “wholly unrelated to the employment of language, and consequently, its protection is of no moment to the core concern of the First Amendment.”81 “Preventing people from burning things,” Warren concluded, “in no 72. Id. 73. Id. (citing Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939)). 74. Id. (citing Saia v. New York, 334 U.S. 558 (1948)). 75. Id. (citing Staub v. City of Baxley, 355 U.S. 313 (1958)). 76. Id. at 19 (citing Ex parte Jackson, 96 U.S. 727 (1877); Schneider v. State, 308 U.S. 147 (1939); Martin v. City of Struthers, 319 U.S. 141 (1943)). 77. Id. at 20. 78. Id. 79. Id. 80. Id. 81. Id. at 20–21. way impinges on their freedom to communicate ideas through language.”82 Accordingly, punishing O’Brien for an act that was “far-removed from what we mean by the word speech in our society” did not implicate the First Amendment.83 Concluding, Warren summarized his proposed “commonsense” holding for the Court, finding that [a]n act unrelated to the employment of language is not speech within the First Amendment if as a matter of fact the act has an immediate harmful impact completely apart from any impact arising by virtue of the claimed communication itself. And if the Government . . . has attached legal consequences to that noncommunicative impact, those consequences may be enforced against the person who committed the act.84 B. Justice Harlan’s Response: Ample Alternative Channels Is Born Upon receipt of Chief Justice Warren’s first draft for the majority, Justice Harlan set out over the latter half of April 1968 to draft a concurrence.85 Harlan’s lengthy draft would express deep concern with the Warren draft’s rejection of the idea that the First Amendment could protect symbolic conduct. The first draft of Harlan’s concurrence, circulated on May 1, 1968, stated the Justice was “in full accord with the reversal” of the First Circuit’s holding in O’Brien’s favor, yet Harlan was “unable to subscribe to the process of reasoning by which the Court concludes that O’Brien’s conviction for draft card burning . . . did not violate his right to free speech as assured by the First Amendment.”86 That reasoning, Harlan continued, employed “restrictions on the reach of the First means of communication, however, the court found that ample alternative channels existed because the petitioners could hold signs, sing, call out to individuals entering the facility (including through the use of amplification equipment), and engage in silent and vocal prayer.302 Courts reach the same result in bubble zone cases. Those cases find ample alternative means for the speaker such as “peacefully hand[ing] leaflets” to the clinic-entering individual “as they pass by” without entering the bubble zone around that person.303 In sum, reviewing courts have consistently found that ample alternative means exist for a speaker who is barred from communicating face-to-face with abortion clinic The long procedural history of the 2013–14 Term’s McCullen v. Coakley305 demonstrates this principle. In McCullen, the Court found that a Massachusetts statute establishing a thirty-five-foot buffer zone around the entrances and driveways of reproductive health service facilities was content neutral, but not narrowly tailored and thus failed intermediate scrutiny.306 At every point prior to McCullen’s reaching the Court, however, the lower courts held that ample alternative channels existed for individuals 302. Id. at 629; see also United States v. Weslin, 156 F.3d 292, 298 (2d Cir. 1998) (per curiam) (finding the federal Freedom of Access to Clinic Entrances Act constitutional because protestors are still “at liberty to hold signs, pass out handbills, speak conversationally, and so forth”); American Life League, Inc. v. Reno, 47 F.3d 642, 652 (4th Cir. 1995) (1995) (finding the Freedom of Access to Clinic Entrances Act leaves open ample alternative means for communication because the Act allows individuals to express antiabortion messages in a “nonviolent, non-obstructive manner” via “voice, signs, handbills, symbolic gestures, and other expressive means”). 303. See Madison Vigil for Life, Inc. v. City of Madison, Wis., 1 F. Supp. 3d 892, 895 (W.D. Wis. 2014) (analyzing Hill v. Colorado, 500 U.S. 703 (2000)); see also McTernan v. City of York, 564 F.3d 636, 657 (3d Cir. 2009) (analyzing Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994))). 304. See McTernan, 564 F.3d at 657 (citing Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 376 (1997); Madsen v. Women’s Health Cntr., Inc., 512 U.S. 753, 770 (1994) (holding that a thirty-six-foot buffer zone around the clinic entrances burdens no more speech than necessary to accomplish the governmental interest at stake); McGuire v. Reilly, 260 F.3d 36, 49 (1st Cir. 2001) (upholding a six-foot floating buffer zone). 306. See id. at 2523 (explaining that even though the Act is content neutral, it is not narrowly tailored because it burdens more speech than necessary to further the legitimate interests of the government). seeking to engage in face-to-face counseling of women entering those facilities.307 The Court itself purported not to reach the ample alternatives issue.308 But its tailoring analysis focused closely on the petitioners’ preferred mode of communication, how the Massachusetts statute severely hampered that mode, and how alternatives to that mode proffered by the state in support of its restriction failed to cure the alleged First Amendment violation: [At each of the] Planned Parenthood clinics where petitioners attempt to counsel patients, the zones carve out a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics’ entrances and driveways. The zones thereby compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to “sidewalk counseling.309 These cases raise important and sensitive issues regarding the conflict between the exercise of two fundamental constitutional rights.310 But ample alternative channels analysis is no way to decide them. The first question the pre-McCullen cases raise is whether we want First Amendment rights to be defined via the application of a judicial yardstick. If a one-hundred-foot buffer zone is deemed to have not foreclosed alternative means of 307. See McCullen v. Coakley, 844 F. Supp. 2d 206, 217, 224 (D. Mass. 2012), aff’d, 708 F.3d 1 (1st Cir. 2013) (analyzing the statute as applied to clinics in Boston, Worcester, and Springfield, and finding ample alternatives existed in all three cases); McCullen v. Coakley, 573 F. Supp. 2d 382, 413 (D. Mass. 2008), aff’d, 571 F.3d 167 (1st Cir. 2009) (finding the statute left ample alternative means in response to a facial challenge because most expressive activity can be seen and heard by people entering and exiting the buffer zone); McCullen v. Coakley, 571 F.3d 167, 180 (1st Cir. 2009) (finding protestors could “speak, gesticulate, wear screen-printed T-shirts, display signs, use loudspeakers, and engage in the whole gamut of lawful expressive activities,” and thus ample alternatives to the buffer zone were available). 308. See McCullen v. Coakley, 134 S. Ct. 2518, 2540 n.9 (2014) (“Because we find that the Act is not narrowly tailored, we need not consider whether the Act leaves open ample alternative channels of communication.”) 309. Id. at 2535; see also id. at 2536 (noting that because of the difficulty petitioners encounter identifying patients before the patients enter the buffer zone, petitioners “often cannot approach them in time to place literature near their hands—the most effective means of getting the patients to accept it”). 310. See, e.g., Leading Case: McCullen v. Coakley, 128 HARV. L. REV. 221, 228– 30 (2014) (arguing that the Court should analyze abortion protest restriction cases by balancing protestors’ right to free speech against women’s constitutional right to seek abortions at the place of protest). communication for the barred protestor, for example, it is certain that the fifty-foot zone in the next case will survive.311 Moreover, the Court’s disposition in McCullen recognizes that a speaker’s preferred mode of expression deserves meaningful First Amendment protections.312 While purporting not to reach ample alternative channels, the Court flatly rejected the lower courts’ consistent findings that substitutable alternatives existed for these speakers despite the restrictions in question: Respondents also emphasize that the Act does not prevent petitioners from engaging in various forms of “protest”—such as chanting slogans and displaying signs—outside the buffer zones. That misses the point. Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than an outstretched arm.313 A results-oriented view of the Court’s First Amendment jurisprudence might well conclude that McCullen is an abortion speech case, that the Court treats abortion speech differently, and that McCullen’s reach will thus be limited to those kinds of cases.314 As we saw above, most First Amendment scholars view the secondary effects doctrine as limited to its subject matter. But another reading of the case reveals skepticism of, if not hostility to, deciding First Amendment cases on ample alternative channels arguments so readily, particularly when such alternatives are, by the restricted speaker’s lights and to use the Chief Justice’s word, irrelevant to the speaker’s communicative intent.315 311. See McGuire v. Reilly, 260 F.3d 36, 39 (1st Cir. 2001) (applying Hill to find that if the one-hundred-foot buffer and eight-foot bubble zone in Hill left open ample alternative means, then an eighteen-foot buffer and six-foot bubble zone indisputably did as well). 312. See id. at 43 (discussing judicial review standards of First Amendment complaints). 313. McCullen, 134 S. Ct. at 2536. 314. See id. at 2541 (Scalia, J., concurring) (“There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”). 315. See, e.g., id. at 2524 (“The Commonwealth has not shown that it seriously undertook to address these various problems with less intrusive tools readily available to it.”). By favoring the mode of communication that the speakers themselves “view[ed] as essential” in its narrow tailoring analysis, and in giving that choice of mode significant weight in assessing whether the restriction at issue burdened the speakers’ expressive rights, the Court in McCullen took a first step toward diminishing the power of ample alternative channels analysis. 316 It should take the next step in that direction and abolish the inquiry from its review of content-neutral laws. C. Conflicts to Come: Online Speech With the emergence of technology-enabled communication, we can expect the harms associated with alternative channels analysis to increase. As new methods of communication continue to develop, alternatives to the speaker’s choice of communicative mode will continue multiplying. Their existence tips First Amendment analysis in content-neutral cases in the government’s favor.317 There is little doubt that online connectivity has expanded the communicative opportunities and audience reach of nearly every speaker.318 For present purposes, the substitute avenues for speakers that ample alternative channels analysis renders dispositive have increased exponentially.319 Following the court decisions discussed in Part III.B.1 supra that have found opportunities to communicate via television and radio were ample alternatives to face-to-face protest activity, governments are already relying on this argument in defending regulations against First Amendment challenges.320 In last Term’s Reed v. Town of 316. See id. at 2535 (noting that because of the buffer zone, one speaker claimed she had to “rais[e] her voice at patients from outside the zone—a mode of communication sharply at odds with the compassionate message she wishes to convey”). 317. See, e.g., Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8, 14 (1st Cir. 2004) (finding that the district court did not err in its First Amendment analysis because means of communication existed through the internet and television). 318. See id. (indicating that the speaker possessed an alternative for communication through the internet). 319. See id. (“At a high-profile event . . . messages have a propensity to reach delegates through television, radio, the press, the internet, and other outlets.”). 320. See id. (“[W]e think that the appellant’s argument greatly Gilbert,321 discussed in more detail infra, the town of Gilbert adopted a complicated and comprehensive regime regulating the size and duration of signs that could be displayed within the city limits.322 In defending its ordinance under intermediate scrutiny, the Town argued that the church whose speech was abridged could have, and indeed did, express its views in an unfettered fashion in a range of other ways not implicated by the ordinance’s restrictions, arguing that the petitioners “have utilized a whole host of avenues to spread the word about their mission and location, including the internet, print advertising, personal solicitations, pamphlets, telephone calls, and emails.”323 The Ninth Circuit accepted this reasoning before the case reached the Supreme Court.324 The problems raised by this convergence of doctrine and technological change are obvious and sobering. In 2016, it is difficult to conceive of a case where a content-neutral restriction on speech could not be defended on the ground the restricted speaker could “spread the word” through “the internet . . . and emails.”325 Digital connectivity has removed spatial and temporal limitations on communication, but in a First Amendment world where the availability of alternative channels is dispositive, it has also expanded the government’s ability to restrict speech through the use of content-neutral restrictions, because that connectivity provides every speaker with alternative modes of communication to those the speaker chose. The advent of online speech spaces has compounded the alternative ways by which practically any speech could be shared and accessed, and has correspondingly compounded the problem underestimates the nature of modern communication.”). 321. 135 S. Ct. 2218 (2015) (overruling Reed v. Town of Gilbert, 707 F.3d 1057 (9th Cir. 2013)). 322. See id. at 2224 (“The Sign Code identifies various categories of signs based on the type of information they convey then subjects each category to different restrictions.”). 323. Brief for Respondents at 52–53, Reed v. Town of Gilbert, 135 S. Ct. 2218 (2014) (No. 13-502) [hereinafter Brief for Respondents]. 324. See Reed v. Town of Gilbert, 707 F.3d 1057, 1075–76 (9th Cir. 2013), overruled by Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (noting that the ordinance “does not regulate any of the many other ways in which” the church could engage in its intended speech). 325. Brief for Respondents, supra note 323, at 52. that ample alternative channels analysis presents. It is now literally impossible for a ban on one venue for speech to operate as a complete ban on the speech in which that venue was to be expressed. Accordingly, in the context of content-neutral restrictions, the emergence of the Internet, ironically enough, will result in the systematic underproduction of speech. D. The Content Based vs. Content-Neutral Fallacy Let’s back up for a moment. In its First Amendment cases, the Supreme Court has long adhered to a distinction between “restrictions that turn on the content of expression,” which “are subjected to a strict form of judicial review,” and restrictions that are “concerned with matters other than content,” which “receive more limited examination.”326 As this Article details, this “more limited examination” considers the availability of alternative channels of communication for the abridged speech in question.327 This Section considers why First Amendment doctrine has tied these two inquiries so closely together. Ample alternative channels analysis and the justifications for a lesser standard of review for content-neutral restrictions work hand-in-hand. The very existence of alternative channels of communication supports the conclusion that the content restricting law in question is content-neutral.328 As noted above, because a content-neutral regulation’s effects are deemed by a reviewing court to infringe upon, at most, a means or locus of expression and not the expression’s content, the speaker restricted by such a regulation is free to shift to another means or locus to express the same message.329 Accordingly, the alternatives demonstrate that the law is not aimed at the content of the speaker’s message and that content remains able to reach its 326. Redish, The Content Distinction, supra note 157, at 113. 327. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). 328. See id. at 144 n.186 (“[T]he more alternative avenues of expression that are available, the less justification the state must provide for restricting expression.”). 329. See id. at 116 (“The reason that [content-neutral restrictions] are generally unobjectionable is that they presume the existence of alternative avenues of expression, alternatives that are by definition unavailable in the case of absolute regulation.”). intended listeners and contribute to public debate.330 Ample alternative means analysis can thus be justified as an additional way to smoke out whether the restriction in question is truly content-neutral—if other ways to communicate the same message are available, then the reviewing court can comfortably conclude that the facially neutral restriction is not intended to restrict the message, but rather its mode.331 Or so the theory goes, anyway. But even if it makes sense, why is this inquiry irrelevant to the analysis of content-based restrictions? Most content-based restrictions (as opposed to apocryphal ones spoken of only in law school classes and law review articles, such as “speech about politics is banned”332) do not bar alternative channels of communication either. As then-Professor Elena Kagan noted, even a content-based restriction might make “the danger of distortion insignificant” if it affects a “small quantity of speech” and leaves “alternative means to communicate the ‘handicapped’ idea” readily available to speakers.333 Yet under current law, the availability of those alternative channels is irrelevant to a reviewing court once a particular regulation is deemed content-based.334 Scrutiny here is strict.335 Accordingly, the government’s burden is to justify the 330. See Quadres, Content-Neutral Public Forum Regulations, supra note 40, at 480 (“[I]f one could argue that, despite the questioned regulation, a speaker still has numerous alternative means by which to disseminate his message, the degree of first amendment injury may seem insubstantial . . . . [because] [t]he speaker can always make use of his alternative access.”). 331. This interpretation may support the conclusion that ample alternative channels is simply a gloss on narrow tailoring analysis. But the two concepts are distinct: tailoring analysis involves the government’s alternatives, while alternative channels analysis focuses on the speaker’s alternatives. See Williams, supra note 149, at 642 (stating that the requirement of alternatives “exists because the Court believes that if adequate alternative channels of communication remain, then a regulation restricting a particular alternative will have no more than a minimal effect on speech.”). 332. See, e.g., Rubenfeld, supra note 133, at 793 (describing the hypothetical arrest of an author for criticizing the President pursuant to a statute that criminalizes such critiques). 333. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 446 (1996). 334. See id. at 446–47 (commenting that despite the fact that some contentbased restrictions have very minimal effect on skewing public discourse, First Amendment doctrine does not distinguish “between content based laws of this kind and [those] that wholly excise ideas from public discourse”). 335. See id. at 443–44 (“Content-based restrictions on speech-restrictions that by their terms limit expression on the basis of what is said usually are subject to level to which its interest in the restriction is compelling.336 Government arguments that a speaker’s message is not limited to the mode of expression that the regulation bars, and that the regulation’s harm to speech is thus minimal, are not a part of the decision-making calculus for content-based laws.337 According to the relevant scholarship, the reason this is so is that a law’s content-based nature is sufficient indicia standing alone of improper governmental motivation.338 In other words, content-based restrictions are suspect enough on their face that there is no need for any further smoking out of government intent.339 But even in the content-based context, the availability of different modes to express the same content remains relevant, particularly when a content-based law is aimed at a particular mode of expression.340 A law that says “no draft card burning in protest of the Vietnam War” says nothing about burning President Johnson in effigy for the same reason. Can such a law safely be deemed as aimed at protesting the Vietnam War and not at draft card burning, merely by dint of its reference to content? The law’s singling out of a particular mode of expression might lead one to conclude that the law is not aimed at, or primarily concerned with, restricting public debate, and thus a lesser standard of review might be appropriate.341 But once the law makes reference to content, the level of scrutiny is decided.342 far more rigorous scrutiny.”). 336. See id. at 444 (“Formulations of the standard used to review contentbased action vary, but the Court most often requires the government to show a compelling interest that could not be attained through less restrictive means.”). 337. Id. at 445. 338. See id. at 414 (“First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives. The doctrine comprises a series of tools to flush out illicit motives and to invalidate actions infected with them.”). 339. See id. at 452 n.104 (“[T]he face of a law indicates more reliably than the effects of the law what purposes underlie it.”). 340. See id. at 418 (concluding that a content-based ordinance, “while not restricting a great deal of speech, thus restricted speech in a way that skewed public debate on an issue by limiting the expressive opportunities of one side only.”). 341. See id. at 455 n.110 (stating that, “as the effect of a law on expressive opportunities increases, so too should the government's burden of justification” and thus, the standard of review used). 342. See id. at 499 n.237 (“To merit a stricter standard of review, a law would If there is a place for alternative means analysis in First Amendment doctrine at all, it should, as a matter of logic, apply to both content-based and content-neutral restrictions. Nothing in the distinction between content-based and content-neutral restrictions calls for application of alternative channels analysis in the latter set of cases but not the former.343 Martin Redish offers one path, which he proposes should be applied in any case involving regulations that adversely affect expression.344 In such a case, a reviewing court should “balance the compellingness of the state interest served by the law against the availability of alternative means of expression to the speaker.”345 The less likely it is “that the speaker will be able to find acceptable alternative methods of expression,” Redish continues, “the more compelling must be the government’s asserted justification.”346 As argued above, a primary flaw of ample alternative channels analysis is that it favors judge-made alternative modes of communication to those the speaker herself chose.347 One could critique Redish’s proposal for significantly expanding the role these alternatives would play by extending them to content-based cases.348 But ample alternative channels analysis’s selective application should trigger a critical reexamination of the doctrine, the work it is intended to perform, and its effects. Redish’s proposed test at least acknowledges the logical fact that need to have a justification relating not to the restriction of speech generally (which all content-neutral laws have), but to the restriction of speech of a certain content.”). 343. See Redish, The Content Distinction, supra note 157, at 129 (“[R]egulations that limit expression on content-neutral grounds should logically be as suspect as content-based regulations, since they may also undermine this value.”). 344. See id. at 143 (suggesting that, like content-based inquiries by the court, content-neutral inquiries also consider whether the government interests served by the restriction are “compelling” enough to “justify significant invasions of free speech interests.”). 345. Id. at 143; cf. Volokh, supra note 26, at 1307 (rejecting the application of ample alternative means to content-based restrictions because of inconsistencies in its application in content-neutral cases). 346. Redish, The Content Distinction, supra note 157, at 143. 347. Supra Part III.A. 348. See Volokh, supra note 26, at 1309–10 (criticizing the dangers of applying the “vague ample alternative channels” analysis to content-based speech restrictions). alternative channels are relevant to either both kinds of cases or neither kind.349 The latter course is the better one. The availability of alternative channels of communication may indeed be as relevant to content-based restrictions as to content-neutral ones.350 But the better conclusion is that considering such channels in the context of reviewing any restriction on speech, especially facially neutral ones, undermines longstanding rationales for the First Amendment.351 Courts should thus no longer consider them. But what should courts consider in their place? IV. The Solution: Incompatibility The foregoing has argued that First Amendment doctrine should focus solely on the speaker’s preferred mode of speech and the government restriction’s abridgement upon it, to the exclusion of other hypothetical speech modes that the speaker has not used. One way to achieve this goal is to apply an incompatibility test: when a speaker’s expression is infringed by a law or regulation, a reviewing court should ask whether the infringed speech act—in the form the speaker intended to express it—is incompatible with the law and its purpose. The law will survive as applied to the speaker only if the speaker’s mode is incompatible with the governmental interests asserted in the law’s support. 349. See Redish, The Content Distinction, supra note 157, at 83 (“Whatever rationale one adopts for the constitutional protection of speech, the goals behind that rationale are undermined by any limitation on expression, content-based or not.”). 350. See id. (noting that the proposed framework for evaluating the constitutionality of “impaired speech” should include “whether ‘feasible’ less restrictive alternatives are inadequate to accomplish that end; and whether the speaker will have available adequate means to express the same views to roughly the same audience.”). 351. But see id. (“Since the Court uses [this test] in reviewing content-based regulations, it should have no greater difficulty in applying them to all regulations of expression.”). A. The Test The concept of incompatibility is no stranger to First Amendment doctrine. The Court’s initial foray into reviewing time, place, and manner restrictions, 1972’s Grayned v. City of Rockford,352 proposed an incompatibility test as the standard to be applied to content-neutral laws that adversely affected speech.353 In Grayned, the speaker was convicted for protesting outside of a high school regarding the school’s differential treatment of Black students and prospective teachers.354 The school claimed that the speaker and his fellow protestors’ activities disrupted classes and caused other students to be tardy.355 The anti-noise ordinance that the speaker was arrested for violating made it unlawful to “make any noise or diversion” adjacent to a school in session “which disturbs or tends to disturb the peace or good order” of that school.356 In reviewing the ordinance, the Court held that “the nature of a place, the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.”357 “The crucial question,” the Court concluded, “is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.”358 Further, even if the restriction in question is content-neutral on its face, a reviewing court should “weigh heavily the fact that communication is involved,” and the speech-suppressing regulation “must be narrowly tailored to further the state’s legitimate interest.”359 352. 408 U.S. 104 (1972). 353. See id. at 120 (determining that the plaintiff’s noisy demonstrations were disruptive and “incompatible with normal school activities” and thus, “may be prohibited next to a school when classes are in session.”). 354. Id. at 105. 355. See id. (reporting that “the demonstrators repeatedly cheered, chanted, baited policemen, and made other noise that was audible in the school; that hundreds of students were distracted from their school activities”). 356. Id. at 107–08. 357. Id. at 116 (internal quotation marks omitted). 358. Id. 359. Id. at 116–17. The Court in Grayned held that the ordinance survived incompatibility analysis because it “punishe[d] only conduct which disrupts or is about to disrupt normal school activities,” as determined based on “an individual basis, given the particular fact situation.” Id. at 119. First Amendment law is also familiar with incompatibility because of the concept’s use in forum doctrine. Forum doctrine is often interpreted to allow governments to bar speech-related uses of public property that are incompatible with the property’s intended use.360 Incompatibility analysis in forum doctrine cases focuses on whether there is physical incompatibility between the intended mode of expression and the government’s intended use of the property. For instance, in International Society for Krishna Consciousness, Inc. v. Lee,361 the Supreme Court framed the issue as whether in-person solicitation of travelers was incompatible with the purpose of an airport terminal, which is to ensure those travelers can timely reach their flight gates.362 What is called for here is more searching. Prima facie incompatibility of the type discussed in public forum cases—what, in application in Lee, amounted to mere inconsistency, which sounds in rationality review363—should be insufficient for the speech-restricting regulation to survive. Rather, the burden should be on the government to show that its interests cannot be met if the expression infringed by the restriction were permitted.364 Inconvenience to the government or its purposes in passing a law should never be sufficient in such a case. And a prior use of the same government property or other resource for expressive purposes that occurred without incident, as was the case in 360. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985) (“Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.”); see also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 698 (1992) (Kennedy, J., concurring) (“If the objective, physical characteristics of the property at issue and the actual public access and uses which have been permitted by the government indicate that expressive activity would be appropriate and compatible with those uses, the property is a public forum.”). 361. 505 U.S. 672, 698 (1992). 362. See id. at 682–83 (describing the traditional use and expectations of airport terminals). 363. See id. at 682 (stating that the appellants’ expressions in the airport were inconsistent with the forum’s purpose because “terminals have never been dedicated to expression in the form sought to be exercised here: i.e., the solicitation of contributions and the distribution of literature”). 364. See id. at 679 (stating that “the government has a high burden in justifying speech restrictions relating to traditional public fora”). Clark,365 would cut the incompatibility analysis in the speaker’s favor. In sum, a default rule of the type incompatibility analysis would impose would return a speaker-favoring presumption to the Court’s First Amendment cases—a presumption to which the Court’s historical First Amendment cases express sympathy for.366 There is no denying that content-neutrality doctrine serves an important overarching purpose: to ensure that there is no freestanding speech-related defense to laws of general applicability. But incompatibility analysis would not stand in the way of most generally applicable laws aimed at criminal conduct. It would not, for example, undermine the longstanding rule that the First Amendment does not protect speech facilitating illegal activity.367 A piece of false advertising is incompatible with the government’s compelling interest in protecting consumers.368 Similarly, a Craigslist ad that solicits prostitution or offers to sell illegal drugs is incompatible with the interest in criminalizing the conduct that the barred speech proposes. It would be incompatible with the government’s purpose in criminalizing homicide, property damage, or the like to permit those crimes on the claim the conduct underlying the violation was expressive. Where a law is clearly aimed at an important governmental interest unrelated to expression and any claimed harm to the speaker punished under the law’s expressive interest is truly de minimis, an incompatibility test would not stand in the state’s way every time a defendant proffers a First Amendment defense. 365. See supra notes 158–161 and accompanying text (noting that the National Mall had been previously used for “expressive sleeping” purposes prior to the Petitioner’s request). 366. See, e.g., Thomas v. Collins, 323 U.S. 516, 529–30 (1945) (suspending usual presumption of constitutionality and placing burden of persuasion on government where economic legislation adversely affected the “freedoms secured by the First Amendment”). 367. See Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949) (“[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”). 368. See, e.g., Va. State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 781 (1976) (“[T]he elimination of false and deceptive claims serves to promote the one facet of commercial price and product advertising that warrants First Amendment protection its contribution to the flow of accurate and reliable information relevant to public and private decision-making.”). An incompatibility analysis of content-neutral restrictions would also prove flexible enough to accommodate the parade of horribles that many claim would follow if those restrictions were to receive greater scrutiny because of their effects on speech.369 Facially neutral government considerations such as traffic flow and safety could justify denials of parade permits, for example, so long as the chosen mode of expression and its chosen time and place were truly incompatible with the government’s interest in denying such requests for uses of public space.370 As Justice Marshall wrote when expounding on the incompatibility principle in Grayned: [T]wo parades cannot march on the same street simultaneously, and government may allow only one. A demonstration or parade on a large street during rush hour might put an intolerable burden on the essential flow of traffic, and for that reason could be prohibited. If overamplified loudspeakers assault the citizenry, government may turn them down. . . . Although a silent vigil may not unduly interfere with a public library, making a speech in the reading room almost certainly would.371 Under the current “substantial government interest” prong of the content-neutral intermediate scrutiny standard, courts barely scrutinize the substantiality of the government’s asserted interest at all.372 Justice Marshall’s Grayned opinion also suggests another potential feature of an incompatibility test: the validity of a particular law under the test will place sharper focus upon the government interest asserted in defense of that law.373 Where a 371. omitted). 369. See Redish, The Content Distinction, supra note 157, at 142 (“Proponents of the content distinction [between content-based and content-neural restrictions] may be concerned that increasing the level of judicial scrutiny for content-neutral restrictions may result in a generally reduced skepticism for all content-based classification.”). Supra note 353 and accompanying text. Grayned v. City of Rockford, 408 U.S. 104, 117 (1972) (internal citations 372. See William E. Lee, Lonely Pamphleteers, Little People, and the Supreme Court: The Doctrine of Time, Place, and Manner Regulations of Expression, 54 GEO. WASH. L. REV. 757, 782–84 (1986) [hereinafter Lee, Lonely Pamphleteers] (“[M]easuring the substantiality of the government’s interest is not a critical part of the Court’s time, place and manner methodology. The Court rarely tells legislatures or Congress that their concerns are insubstantial; therefore the balance usually will be struck in favor of governmental interests.”). Grayned, 408 U.S. at 117. speaker’s First Amendment rights are implicated, courts should not assume government interests are substantial simply because the laws purportedly supporting those interests were products of the legislative process. Speech interests cannot be put to majority An incompatibility test can also solve one of the First Amendment’s most bedeviling doctrinal problems. Since the mid1980s, the Supreme Court has collapsed the review of time, place, and manner regulations, and of regulations infringing symbolic speech into a single strand of intermediate scrutiny that includes ample alternatives analysis.375 Much harm to speech has followed.376 Incompatibility analysis might untie these two lines of doctrine. Specifically, when characterizing the barred speaker’s chosen communicative mode for incompatibility analysis purposes, the court might first categorize the mode according to a distinction that Susan Williams has drawn as “communicative” versus “facilitative.”377 In a symbolic speech case such as United States v. 374. See Lee, Lonely Pamphleteers, supra note 372, at 784 (illustrating that scholars have criticized “the minimal scrutiny the Court applies to the substantiality of the government's interest,” stating courts have given substantial weight to government interests merely because they were “not imaginary” and, thus, have failed to honestly “weigh the interest against the impact on freedom of expression”). 375. R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992) (“[T]he O’Brien test differs little from the standard applied to time, place, or manner restrictions”); see also Williams, supra note 149, at 619–20 (“The Court, arguing that the two standards were always functionally identical, has melded them into one test.” (citing Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989))); Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 298 (1984) (noting that “the four-factor standard of United States v. O'Brien, 391 U.S. 367 ( 1968 ), for validating a regulation of expressive conduct” is “little, if any, different from the standard applied to time, place, or manner restrictions”). 376. See Williams, supra note 149, at 620 (“Although the two separate lines of doctrine were far from robust even when they were independent, the new unified doctrine provides even less protection for speech.”). 377. See id. at 660–61 (defining the “communicative” mode as conveying a message “through symbols that represent [the] message” and the “facilitative” mode as “part of the speech activity which the speaker uses to aid in the transmission . . . of the message, but which does not itself play a role in the O’Brien or Clark v. CCNV,378 the mode of expression—burning a draft card, sleeping in Lafayette Park, or burning an American flag379—the conduct at issue is communicative, as it plays “a role in the representation of the message.”380 In many cases, the speaker’s choice of mode is itself expressive; upholding the restriction in such a case on ample alternatives grounds forces the speaker to change her message to something different altogether.381 It is in these symbolic speech cases where ample alternative channels analysis does the most harm to speech.382 Alternatively, in a case traditionally characterized as involving the time, place, or manner of expression, the choice of mode is facilitative of the underlying expression.383 The mode aids in the message’s transmission and is intended to expand the potential audience for the speech—the use of loudspeakers on a sound truck384 or of one’s own PA system rather than the one a host provides385—but it is not itself communicative. Here, finding the representation of the message”). 378. 379. 468 U.S. 288 (1984) Texas v. Johnson, 491 U.S. 397, 406 (1989). Williams, supra note 149, at 661–63. 381. See id. at 644 (“In a true symbolic speech case . . . [where] the communication takes place through symbolic action––the regulation would have to be aimed at . . . non-speech activities, rather than . . . content categories of speech, and the government’s purpose would have to be to prevent some noncommunicative harm caused by such activities.”). 382. See id. at 654 (“[T]he range of doctrinal tools available to deal with complex first amendment problems has been reduced, and real first amendment protections have been lost.”). 383. See id. at 706 n.330 (“If the physical activity about which the government is concerned is expressive, we have a symbolic speech case; if it is facilitative, we have a [time, place, or manner] case.”). 384. See, e.g., Kovacs v. Cooper, 336 U.S. 77, 78 (1949) (examining the constitutionality of an ordinance that made it unlawful to use a sound truck for “advertising purposes, or for any other purpose whatsoever, on or upon the public streets, alleys or thoroughfares”). See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 784 (1989) This case arises from the city’s attempt to regulate the volume of amplified music at [an amphitheater] so the performances are satisfactory to the audience without intruding upon those who [reside] in its vicinity. The city’s regulation requires [amphitheater] performers to use sound-amplification equipment and a sound technician provided by the city. speaker could have used an alternative mode may do less harm to the speaker’s expressive right. And a third kind of case, not delineated by Williams but highly relevant, involves government infringements of the speaker’s choices of how, when, and where to speak that do not constitute symbolic speech, but nevertheless go to the core of the expressive act to a much greater degree than in the run-of-the-mill time, place, or manner restriction on facilitative conduct. Here, recall the kinds of cases discussed in Parts III.B.1. and B.4. supra: public protests at specific events intended for specific audiences, of the type discussed in the Menotti386 and Bl(a)ck Tea Society387 cases, or on-site abortion counseling of the type discussed in McCullen.388 We might call these cases “associative conduct” cases, because though they do not involve symbolic speech, the relevant speech’s intended message and effects, along with its particular audience, are inextricably associated with the message’s mode, time, and place—so much so that communicative content can be ascribed to the speech-accompanying conduct. Incompatibility analysis could take into account these three categories by granting greater or less deference to the speaker’s choice of expressive mode depending on where along the communicative-associative-facilitative continuum the mode falls. In other words, a presumption in favor of the speaker could be applied where the conduct in question is communicative or associative prior to determining whether permitting the mode would be incompatible with the government interest at issue. The more communicative a speaker’s choice of mode, the more likely the content-neutral restriction that has infringed upon that mode will be found to have violated the speaker’s First Amendment right. Adopting incompatibility analysis can encourage courts to closely analyze the role that speech-accompanying conduct plays in a speaker’s expressive act. Under current doctrine, it is a court’s characterization of a particular law as content-based or content386. Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005). 387. Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8 (1st Cir. 2004). 388. McCullen v. Coakley, 844 F. Supp. 2d 206 (D. Mass. 2012). neutral, not the speaker’s intent, which decides the answer to that question.389 C. Incompatibility and Underinclusivity in the Review of Content Neutral Laws Another important doctrinal advance that incompatibility analysis would accomplish is to place underinclusivity in the foreground when analyzing content-neutral speech restrictions. Despite the fact that scrutiny of such restrictions is nominally rigorous, courts have failed to take underinclusivity seriously in analyzing content-neutral laws.390 First Amendment review of sign regulations offer a good example. Municipalities justify signage restrictions based on government interests in traffic safety and aesthetics.391 The local ordinance at issue in the abovementioned Reed facially distinguished between signs based on the message that those signs conveyed and was thus, as the Supreme Court eventually found, clearly content-based; in effect, the size of a sign or the length of time a sign could be shown depended on what that sign said.392 As noted above, the Town of Gilbert had argued to the Supreme Court, consistent with the Ninth Circuit’s holding in its favor, that its ordinance was content-neutral; in offering the government interests supporting the ordinance, the Town claimed that it 389. See Redish, The Content Distinction, supra note 157, at 121–27 (discussing the development of the content-based and content-neutral distinction within the Supreme Court). 390. See Harnish v. Manatee County, 783 F.2d 1535, 1539 (11th Cir. 1986) (finding that bans on portable signs that were justified for aesthetic reasons were not fatally underinclusive, even though such signs “represent[ed] a small fraction of the total number of sign advertisements” in those cities); Mark Cordes, Sign Regulation After Ladue: Examining the Evolving Limits of First Amendment Protection, 74 NEB. L. REV. 36, 67 (1995) (“Potential problems arise, however, with regard to content-neutral restrictions which prohibit or more severely restrict particular types of signs within the same area, thus posing underinclusiveness concerns.”). 391. See Cordes, supra note 390, at 1 (recognizing one primary concern of municipal efforts to regulate signs and billboards to be “supporting regulation, most notably traffic safety and aesthetics”). 392. See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) (finding the town ordinance “content based on its face”). “serve[d] to minimize visual clutter and confusion for people traveling to an event that has already concluded.”393 The Town’s arguments as to the relationship between these two asserted state interests and the means taken to further them, while claiming to apply intermediate scrutiny to its own ordinance, sound more in rationality review. As discussed supra, contentneutral intermediate scrutiny is, in effect, rational basis review, and those arguments thus would likely have been sufficient to uphold the Town’s restrictions if the Ninth Circuit had deemed the ordinance content-neutral.394 However, the interests in preserving such “visual clutter” or in protecting “confuse[d] travelers”395 would not survive incompatibility analysis. As to the “visual clutter”related interest, the permissibility of a range of other signs— political signs (the display of which had to be allowed under state law), or signs that the Town called “Ideological Signs,” whose use was much less restricted under its ordinance—shows that the ordinance’s limits on a particular subset of signs is drastically underinclusive.396 And as to the “confused traveler”-related interest,397 travelers can be confused for a range of reasons, the overwhelming majority of which have nothing to do with a local church sign promoting an event in that community that has already passed. In both cases, the underinclusivity of the ordinance demonstrates that the restricted speech at issue is not 393. Brief for Respondents, supra note 323, at 4. The Court’s cases have expressed sympathy for such arguments. See, e.g., Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974) (plurality opinion) (explaining that “[w]here a city consciously has limited access to its transit system advertising space in order to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience, these are reasonable” restrictions and there is no constitutional violation); id. at 307 (Douglas, J., concurring) (“In my view the right of the commuters to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience.”). 394. See supra Part III.A (discussing self-autonomy theory and the marketplace). 395. Brief for Respondents, supra note 323, at 48. 396. See Reed v. Town of Gilbert, 707 F.3d 057, 1061 (9th Cir. 2013) (“Section 4.402(D) lists nineteen different types of signs that are allowed without a permit. Three of the types of exempted signs are of particular relevance: ‘Temporary Directional Signs Relating to Qualifying Event,’ ‘Political Signs,’ and ‘Ideological Signs.’”). 397. Brief for Respondents, supra note 323, at 48. incompatible with the relevant state interests, and the ordinance should fail. By focusing on the potential underinclusivity of government action suppressing speech, incompatibility analysis will force the government to act much more narrowly when burdening speech through content-neutral restrictions. For instance, while a generalized interest in aesthetics and visual clutter will often be insufficient to demonstrate sufficient incompatibility for a law to survive First Amendment scrutiny, preservation of a particular area’s historic or aesthetic character might be.398 While this kind of incompatibility-based tailoring may or may not be as demanding as the least restrictive means requirement that is applied to contentbased restrictions—a test whose applicability to the content-neutral context the Court has rejected399—it will hold the government to its obligation to limit as little speech as possible when acting. Incompatibility will ensure that the burden of persuasion remains on the state to justify even an incidental restriction.400 V. Conclusion In 1939’s Schneider v. State of New Jersey,401 the Supreme Court was faced with four challenges to municipal ordinances passed by cities in California, Massachusetts, New Jersey, and Wisconsin.402 These laws prohibited or restricted distributing 398. See, e.g., Messer v. City of Douglasville, 975 F.2d 1505, 1511 (11th Cir. 1992) (finding a restriction on signs within 300 feet of historic site to be permissible). 399. See Volokh, supra note 26, at 64 (“While this principle [that the speaker chooses his means of communication] generally applies when the law restricts the content of speech . . . and thus interferes with the speaker's choice of content, it generally doesn't apply when a content-neutral law restricts the manner of speech, [interfering] with the speaker's choice of manner.”). 400. Cf. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 79–80 (1981) (Stevens, J., concurring in judgment) (“[I]f one starts . . . from the premise that appellant’s claims are rooted in the First Amendment, it would seem reasonable for the Borough to overcome a presumption of invalidity.”). 401. 308 U.S. 147 (1939). 402. See id. at 153–54 (1939) (“Four cases are here, each of which presents the question whether regulations embodied in a municipal ordinance abridge the freedom of speech and of the press secured against state invasion by the Fourteenth Amendment of the Constitution.”). handbills or other preprinted material, regardless of the distributor’s identity or the handbill’s content.403 In all four cases, the convictions for violating the ordinances were affirmed by the courts below, which found that the laws struck the proper balance between “the right of free expression” and the cities’ power to pass “reasonable” regulations supported by the governmental interests in preventing “littering of the streets” and “protecting the occupants” of homes “from disturbance and annoyance.”404 Two of those courts, foreshadowing the dispositive role that alternative channels analysis would come to play in First Amendment doctrine, upheld the ordinances in question on the ground they excluded only “the public streets” from handbill distribution, and “leave[] open for such distribution all other places in the city, public and private.”405 The Supreme Court invalidated all four ordinances.406 After noting that all of the ordinances were content-neutral but nevertheless burdened free expression,407 the Court took particular exception to the claim that the ordinances permitted handbillers to distribute their messages in other ways, and that this fact saved the laws’ constitutionality.408 The Court proclaimed that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”409 In the fifty years since United States v. O’Brien, the Court has abandoned this pronouncement. In its place, the Court has 403. See id. at 156 (“An ordinance of the City of Worcester, Massachusetts, provides: ‘No person shall distribute in, or place upon any street or way, any placard, handbill, flyer, poster, advertisement or paper of any description.’”). 404. Id. at 165. 405. See id. at 157 (quoting the Massachusetts court’s decision upholding the Worcester ordinance); see also id. at 163 (referring to the Los Angeles ordinance). 406. See id. at 160 (“Although a municipality may enact regulations in the interest of the public safety, health, welfare or convenience, these may not abridge the individual liberties secured by the Constitution to those who wish to speak, write, print or circulate information or opinion.”). 407. See id. at 163 (noting that one of the ordinances “bans unlicensed communication of any views or the advocacy of any cause”). 408. See id. (stating that the streets are an appropriate place to distribute printed manner to the public and just because one could theoretically distribute those materials elsewhere does not mean that the ordinance is constitutionally sound). 409. Id.; see also Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 556 (1975) (citing Schneider for the very same proposition); Spence v. Washington, 418 U.S. 405, 411 n.4 (1974) (per curiam) (same). entrenched an approach that permits an entire category of burdens on speech-related conduct on the ground that those burdens are instrumental rather than substantive. And, in support of this approach, it has ratified an inquiry that permits judicially created speech norms to override speaker communicative choice—the very kind of governmental imposition on expression that the First Amendment was designed to protect speakers from. A return to Justice Roberts’ Schneider First Amendment baseline will likely result in more protestors sleeping in public parks to raise awareness about homelessness; more Hare Krishnas attempting to hand us leaflets as we stroll along the fairgrounds or rush to our airport gates; and more political signs in our public rightof-ways. These are minor prices, and they are well worth paying for a society that is committed to free expression. It also likely means that women seeking to exercise their right to choose will be confronted by anti-abortion activists who believe that those women may be about to make a tremendous mistake,410 or that a candidate or her supporter seeking to persuade a voter need not stand back one-hundred feet from the entrance of the voter’s polling place.411 Perhaps some of us might be more equivocal about those prices. But again, they are worth paying in a society that is committed not only to the individual’s liberty to decide what to say, but also of how one may say it. It is indeed so that the First Amendment feeds “[h]umanity’s innate desire for truth.”412 But the Speech Clause also leaves to each of us to choose how to fulfill that desire, and to find that truth. In analyzing content-based restrictions on speech, the Supreme Court insists that “the First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and how to say it.”413 By abandoning ample alternative channels analysis, the Court can respect that same principle in its review of content-neutral laws. II. The Birth of Ample Alternative Channels Analysis: Justice Harlan's O'Brien Opinion..................1670 A. Briefing , Argument, and the First Draft Majority Opinion ..................................................... 1671 B. Justice Harlan's Response: Ample Alternative Channels is Born..................................1675 C. Chief Justice Warren's Revised Majority Opinion and Justice Harlan's Withdrawal of His Draft Concurrence ...................................................1685 III. The Conflict....................................................................1689 A. Conflict with Theory................................................ 1689 1 . Self-Autonomy Theory ....................................... 1689 2 . Marketplace Theory........................................... 1695 B. Conflict Within Case Law ....................................... 1705 1. The “Free Speech Zone” Cases........................... 1706 2. The Adult Entertainment Cases ....................... 1711 3 . The “Prohibited Means” Cases .......................... 1714 4 . The Abortion Clinic Protest Cases ....................1717 C . Conflicts to Come: Online Speech ........................... 1722 D. The Content Based vs . Content-Neutral Fallacy....1724 IV. The Solution: Incompatibility........................................1728 A. The Test ................................................................... 1729 B. Untying Doctrinal Knots .........................................1733 C. Incompatibility and Underinclusivity in the accepted tenet of first amendment doctrine”) . 25. Daniel A. Farber & John E. Nowak , The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication , 70 VA. L. REV . 1219 , 1237 ( 1984 ). 26 . Eugene Volokh , Speech as Conduct: Generally Applicable Laws , Illegal Courses of Conduct, “ Situation-Altering Utterances ,” and the Uncharted Zones, 90 CORNELL L. REV . 1277 , 1305 ( 2005 ). 27 . See Stone, supra note 10 , at 67 ( “In some cases, these 'time, place , and impact on free expression.”) . 28 . See id. at 68 ( “In light of the availability of alternative means of the total quantity of public debate . ”) . 29. Richard A. Posner, Free Speech in an Economic Perspective , 20 SUFFOLK U.L. REV . 1 , 16 - 17 ( 1986 ) [hereinafter Posner, Free Speech in an Economic Perspective]; see also RICHARD A . POSNER, FRONTIERS OF LEGAL THEORY 76 ( 2001 ) (explaining the impact of modern thinking on free speech). 39. See id. (concurring with majority's determination of when a government alternative ways for O'Brien to communicate his message ). 40 . See Ashutosh Bhagwat , The Test that Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence , 2007 U. ILL. L. REV . 783 , 790 ( 2007 ) Interest , the Fall of Judicial Scrutiny , 37 HASTINGS L.J. 439 , 490 ( 1986 ) process” in assessing content-neutral regulations ). 41. Infra Part II. 42. Infra Part III. 43. Infra Part III. 49. See , e.g., Geoffrey P. Miller , The True Story of Carolene Products , 198 SUP. CT. REV . 397 , 398 - 99 ( 1987 ) (discussing a footnote about strict scrutiny of Act”); David A. Strauss , Is Carolene Products Obsolete?, 2010 U. ILL. L. REV . 1251 , 1263- 65 ( 2010 ) (discussing the doctrinal implications of Justice Stone's footnote in Carolene Products) . 50 . See Miller , supra note 49 , at 398 ( listing numerous legal doctrinal not the stuff of great decisions”) . 51 . See United States v. O'Brien , 391 U.S. 367 , 369 ( 1968 ) (“David Paul for the District of Massachusetts.”) . 52 . See id. at 389 (Harlan, J., concurring) ( “O'Brien manifestly could have conveyed his message in many ways other than by burning his draft card . ”) . 53 . See Justice Harlan, Concurring Draft Opinion Circulated Apr . 1968 : 59 . Id . at 19 . 60. Id. at 19- 20 . 61 . Brief for O 'Brien at 11, United States v. O'Brien , 391 U.S. 367 ( 1968 ), (Nos. 232, 233) [hereinafter O'Brien Brief]. 62. Id. at 40 . 63. Transcript of Oral Argument at 10, United States v. O'Brien , 391 U.S. 367 ( 1968 ) (Nos . 232 , 233); see also id. at 11 (stating the SSA is “not fairly to be (emphasis added)) . 64 . Chief Justice Warren, Majority Draft Opinion Circulated Apr . 12 , 1968 : United States v. O'Brien at 1 in Harlan Papers, Box 311 [hereinafter Majority First Draft ] (on file with the Washington and Lee Law Review) . 65 . See id. at 18 (“[T] he core concern of the [First] Amendment is . . . verbal expression . . . .”). 66 . See id. at 7-8 (“The 1965 Amendment [subjecting to criminal liability no connection with speech . ”). 82. Id. at 21. 83. Id. at 22. 84. Id. at 23 . 85. See Justice John M. Harlan , First Draft Concurring Opinion Dated May 1968: United States v. O'Brien and Justice John M. Harlan , First Draft Concurring Opinion Circulated May 1 , 1968 : United States v. O'Brien [hereinafter First Draft Concurrence] in Harlan Papers, Box 311 ( “I find myself O'Brien 's conviction for draft card burning , pursuant to 50 U.S.C. App. § 462 (b)(3), did not violate his right of free speech assured by the First Amendment .”). The quotations cited here are from the draft opinion dated “ May 1968 ,” but the two drafts cited in this section are materially similar . 86. Id .


This is a preview of a remote PDF: https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=4522&context=wlulr

Enrique Armijo. The “Ample Alternative Channels” Flaw in First Amendment Doctrine, Washington and Lee Law Review, 2018,