Alexander Tsesis (Loyola University Chicago School of Law) has posted Balancing Free Speech (Boston University Law Review, Vol. 96, No. 2, 2015) on SSRN. Here is the abstract:
This article develops a theory for balancing free speech against other express and implied constitutional values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases, involving competing rights, judges should examine 1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; 2) whether the restricted expression has been historically or traditionally protected; 3) whether a government policy designed to benefit the common good weighs in favor of the regulation; 4) the fit between the disputed speech regulation and the public end, and 5) whether some less restrictive alternative exists for achieving it.
Recent Roberts Court’s free speech jurisprudence has gone in the opposite direction, becoming increasingly formalistic. Cases dealing with violent video games, cruelty to animals, aggregation of campaign financing, and lies about military achievements have applied a categorical approach that is inadequately contextual. The recently developed categorical test undervalues important normative considerations and a variety of free speech doctrines.
On the normative side, free speech is not a separate value but one that fits within a sophisticated structure of constitutional law. After developing an ethical theory about the value of speech to a representative democracy and discussing it in the context of several balancing doctrines, this Article applies the framework to campaign financing legislation and copyright doctrine.