The Unnecessary Complexity of Free Speech Law and the Central Importance of Alternative Speech Channels

Abstract

This Article documents the unnecessary complexity of the judicial formulations most frequently used in resolving the most common kinds of free speech cases. It is suggested that free speech cases are often dubiously decided because of the sheer distraction of considerations that are really tangential to justify- ing restrictions on speech. Therefore, this Article recommends a more concentrated judicial focus on free speech cases. The better analysis measures the gains and losses in the fulfillment of the purposes underlying the free speech clause, both from the subjective standpoint of the speaker and from the standpoint of other affected parties. These gains or losses due to governmental regulation of speech should be the central judicial concern. They should be measured in light of the purposes underlying the free speech clause, focusing particularly on the value of the options or choices available to speakers and their audiences before and after implementation of the governmental regulation in question.