Last weekend, David Han had a short post at Prawfsblawg criticizing the use of “historical” tests in Free Speech jurisprudence:

A few terms back, in United States v. Stevens, the Supreme Court faced the question of whether depictions of animal cruelty constituted unprotected “low-value” speech that the government can freely regulate (like obscenity, fraud, true threats, etc.). The government argued that identifying low-value categories of speech rests on “a categorical balancing of the value of the speech against its societal costs.” The Court, however, rejected this approach as “startling and dangerous,” adopting a purely historical approach to identifying low-value speech categories. The Court later clarified that novel categories of speech can’t be deemed low-value unless there exists a “long (if heretofore unrecognized) tradition of proscription” of such speech.

As I’ve written before, I don’t like this test. Calling it a “historical” test gives it a veneer of neutrality, but in practice, it’s so manipulable that it effectively acts as cover for what are, in essence, value-driven judgments. Unless the Court wants to freeze the development of the law completely (which doesn’t seem to be the case here), historical tests necessarily work by analogy. And making analogies inherently requires value-driven judgments: what are the essential characteristics of a historically recognized category of “low-value” speech that makes it unprotected? At what level of generality will one define the historical category of unprotected speech? At what level of generality will one define the “novel” category of speech to which the historical category will be compared?

More broadly, my instinct is that — except in obvious cases — any purely historical analysis works primarily to hide the ball when courts are in fact making broad normative judgments.

I believe he is referring to passages like this one from Stevens (citations and quotation marks omitted):

The First Amendment provides that Congress shall make no law abridging the freedom of speech. As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. … From 1791 to the present, however, the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never included a freedom to disregard these traditional limitations. These historic and traditional categories long familiar to the bar — including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct — are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.

The Government argues that “depictions of animal cruelty” should be added to the list. … The Government contends that historical evidence about the reach of the First Amendment is not a necessary prerequisite for regulation today, and that categories of speech may be exempted from the First Amendment’s protection without any long-settled tradition of subjecting that speech to regulation. … The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

I don’t want to suggest that the Court’s free speech jurisprudence is perfect, but I think passages like the one quoted above have a lot going for them. It may well be true, as Han argues, that the historical categories are subject to a great deal of judgment and even manipulation. But it seems to me they are a pretty good way for Courts to think about First Amendment doctrine.

First, and most obviously, a test that looks to what the First Amendment “has permitted” “from 1791 to the present,” sounds like an attempt to at least approximate the original meaning of the constitutional provision. That has all of the usual benefits (and drawbacks) of versions of originalism. If the First Amendment struck a balance between the power to govern and the right to speak, neither Congress, nor Congress in cooperation with federal judges, should be the one to decide that the balance protects too much (creating new unprotected categories) or too little (eliminating traditional categories).

But at a broader level, it seems to me unlikely that the use of historical categories is doing nothing to restrain the Court’s ability to make broad normative judgments. I highly doubt that if asked to consider the “value” and “costs” of the speech itself — divorced from the historical rules of free speech — that most of them would vote in favor of dog-fighting videos, hateful funeral protests, or violent video games in the hands of children. That suggests that cases like Stevens actually function to express a value judgment of their own — that judges should faithfully implement constitutional law rather than making it according to their will. It seems to me our constitutional doctrine needs more of that, not less.