David S. Han (Pepperdine University School of Law) has posted The Mechanics of First Amendment Audience Analysis (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:
When the government seeks to regulate speech based on its content, it generally does so on an assumption that listeners will process the speech in a manner that produces social harm. Because the chain of causation for such speech-based harm runs through the filter of an audience, courts must constantly make judgments regarding the audience’s reception of such speech. How will the speech be interpreted by the audience? To what extent will the speech cause the audience either to suffer direct emotional harm or to react physically to the speech in a harmful manner? Although this sort of inquiry — which I refer to as “audience analysis” — is integral in resolving a broad range of First Amendment issues, there has been little, if any, holistic examination of its general position and role within First Amendment jurisprudence.
In this Article, I first seek to introduce a degree of theoretical and doctrinal clarity to this aspect of speech causation. After tracing the primary causal paths by which speech may give rise to social harm on account of its content, I observe that each of these paths requires courts to make judgments regarding the audience’s comprehension of, or sensitivity to, the speech in question. I then outline how such analysis currently fits within First Amendment doctrine. Depending on the case, audience analysis can take place either at the front end, in the process of categorizing “borderline” speech, or at the back end, in the application of more generalized scrutiny analysis. These sorts of analyses often look very different from each other, and I delineate the different ways in which courts have approached them.
I then propose that audience analysis should generally be governed by a simple principle: courts should seek to determine, as accurately as possible, the extent to which the targeted audience would foreseeably process the regulated speech in a manner that produces social harm. In other words, courts should strive to conduct audience analysis based on a predictive view of how the targeted audience will likely process the speech, rather than on a strong normative view of how an idealized “rational audience” should process the speech. I argue that this basic principle should shape the tests that courts adopt to define low-value speech, promote greater solicitude for analyzing empirical data in scrutiny-stage audience analyses, and ultimately produce a more transparent jurisprudence that will provide courts with a clearer picture of the actual costs of speech in a wide range of circumstances.