First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech

advocacy of illegality. The Act before us does not prohibit advocacy of child pornography, but only offers to provide or requests to obtain it.” (citations omitted)). Beyond 72 INDIANA LAW JOURNAL [Vol. 86:1 The First Amendment investigation reflects the same point. A First Amendment investigation is itself a form of content-based governmental action when the triggering event for an investigation is the content of expression—such as a speaker’s advocacy of violence, albeit without a sufficient threat of imminent violence to render the advocacy unprotected. Yet, as we have seen, in cases such as Branzburg in which the Court has confronted First Amendment investigations, it has refused to impose strict scrutiny. These cases treat with investigations, not prohibitions, so the inhibitory effects on speech do not rise to the level of a prohibition, while the justification for recognizing a broad investigative power is compelling. Thus, pragmatic balancing explains why some government actions based on the content of speech, which may well disadvantage identifiable speakers or viewpoints, nevertheless do not trigger strict scrutiny. Something similar can be observed in the Court’s campaign finance jurisprudence—another type of content-based regulation. As we have seen, the Court has treated as illegitimate a governmental interest in regulating political speech as a means of equalizing influence in the political process. Although this has led the Court to impose strict scrutiny on limitations on political speech, when it comes to limitations on contributions to political candidates, the Court has taken a different view, even though such regulation is no less content-based than an absolute prohibition on certain types of political expenditures. The Court has observed that the inhibition on speech is not so great when the government merely restricts the ability to give money to others rather than the ability to articulate one’s own views and that the threat of corruption is greater for contributions than independent expenditures, and on that basis has applied a balancing test to contribution limitations that involves something less than strict scrutiny. As we also have seen, the Court has taken a similar approach to campaign-finance that, as we have seen, the Court has held that Congress may proscribe speech that offers material support to a foreign terrorist organization without requiring an imminent threat of violence or other unlawful conduct. Conversely, the requirement of an imminent threat of unlawful activity absent a properly supported finding of specific intent to produce unlawful activity reflects an effort to balance the likely chilling effects of a regime that afforded lawenforcement officials or courts substantial leeway to determine when speech is unacceptably likely to provoke violence or illegality: Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. To rule otherwise would ignore the “profound national commitment” that “debate on public issues should be uninhibited, robust, and wide-open.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1963)). For additional discussion of the potential chilling effects of criminalizing speech based on the speaker’s purpose, see Eugene Volokh, CrimeFacilitating Speech, 57 STAN. L. REV. 1095, 1179–90 (2005). 347. See supra text accompanying note 335. 348. See Randall v. Sorrell, 548 U.S. 230, 246–49 (2006) (plurality opinion); McConnell v. FEC, 540 U.S. 93, 134–42 (2003), overruled in part on other grounds by Citizens United v. FEC, 130 S. Ct. 876 (2010); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 386–89 (2000); Buckley v. Valeo, 424 U.S. 1, 23–38 (1976) (per curiam). 2011] FIRST AMENDMENT INVESTIGATIONS 73 disclosure requirements, upholding them under a balancing test that endeavors to assess the degree to which they may exert a chilling effect disproportionate to their justification. The rationale for this relatively lenient treatment is that disclosure requirements are thought to impose a less serious burden on liberty interests: “[D]isclosure requirements may burden the ability to speak, but they . . . do not prevent anyone from speaking.” This is yet another example of a challenged government restriction that creates an inhibition on speech less potent than an outright prohibition; and as a consequence the Court is more willing to engage in something approaching ad hoc balancing. In short, the structure of judicial review of content-based regulation reflects a pragmatic balance. Given the cost to the marketplace of ideas of viewpoint-based regulation of expression—whether an intentional effort at censorship or an unintended result of content regulation likely to impose differential burdens on some speakers or viewpoints—strict scrutiny tilts the balance decisively toward free speech by requiring a showing that the challenged regulation is essential to an unusually important government interest. Still, strict scrutiny reflects a balancing process—it does not ignore the government’s interests, but instead requires an especially clear showing before that interest will trump free-speech interests. When governmental action reflects a risk of censorial motive but stops short of an outright prohibition, however, even content-based governmental action does not trigger strict scrutiny. C. The Role of Ad Hoc Balancing in First Amendment Doctrine The rather well-articulated structure of balancing in First Amendment doctrine weakens the objections to balancing. As we have seen, large swaths of First Amendment doctrine sharply circumscribe judicial discretion by developing a marketplace metric within which balancing occurs in a structured fashion. To the preceding account of First Amendment doctrine as reflecting structured balancing, one might object that the structure of First Amendment doctrine is no less consistent with the pragmatic than the purposivist account. As we have seen, purposivists explain the heightened scrutiny afforded content-based regulation as reflecting the greater risk that such regulation reflects official hostility to disfavored speech or speakers. Thus, the purposivist account likely is at least as satisfactory an explanation for the tiers of scrutiny found in First Amendment doctrine as the account offered above. Yet, the orderly looking spectrum of regulation described by the purposivists cannot accommodate the totality of First Amendment doctrine. The formal standards of scrutiny found in First Amendment doctrine involve 349. See supra text accompanying note 238. The applicable “standard [of scrutiny] ‘requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest.’ To withstand this scrutiny, ‘the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.’” Doe v. Reed, 130 S. Ct. 2811, 2818 (2010) (quoting Citizens United, 130 S. Ct. at 914; Davis v. FEC, 128 S. Ct. 2759, 2774 (2008) (citations and internal quotations omitted)). 350. Doe, 130 S. Ct. at 2818 (quoting Citizens United, 130 S. Ct. at 914) (alterations in original). 351. See supra text accompanying notes 4–11. 74 INDIANA LAW JOURNAL [Vol. 86:1 governmental prohibitions or sanctions. For that reason, their inhibitory effect can be assumed to be roughly constant, and the appropriate standard of review can therefore be based on the extent to which a challenged prohibition could be thought to skew free trade in ideas. In contrast, as we have seen, when it comes to governmental conduct that does not involve a prohibition but instead presents a “chilling effect,” First Amendment doctrine seems to offer little more than ad hoc balancing that endeavors to compare the extent of the inhibition on speech to the governmental interests at stake. Ad hoc balancing is the order of the day regardless of the risk that the regulation at issue is premised on an improper governmental motive. When the government imposes something less than a prohibition on free speech—such as in a First Amendment investigation—it seems impossible to reach an acceptable conclusion without considering the degree of inhibition imposed by the challenged practice as well as its justification. The regulation at issue in Meese v. Keene, for example, may be rife with the risk of improper motive, but its inhibitory effect was limited. The initiation of grand jury investigations may be similarly prone to improper motives, but the consequences of constraining the government’s ability to investigate are unacceptable, and the inhibitory effect of an investigation, while perhaps greater than the mandated disclosures in Meese v. Keene, is limited as well. In this fashion, ad hoc First Amendment balancing seems inescapable, at least in contexts in which it is difficult to generalize about the extent to which a government practice is likely to inhibit free speech.