•  
  •  
 

Abstract

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 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.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.