Laurence Tribe labeled the judicial treatment of laws that restrict liberty in order to affect messages - the content-based regulations that were the subject of the previous chapter - Track One free speech jurisprudence.1
And he labeled the judicial treatment of laws that restrict liberty for reasons other than to affect messages - the content-neutral regulations that were the subject of Chapter Two - Track Two free speech jurisprudence.[147] [148] Tribe did not describe any other “Tracks.” There is, however, at least one more. Track Three consists of all the governmental acts that provide aid to a particular viewpoint but that in themselves do not appear to restrict anyone’s liberty. In this chapter I shall examine Track Three laws and governmental acts. (Hereinafter I shall refer to all Track Three governmental acts as “laws” purely for convenience.) My conclusions are these: Track Three laws turn out to be ubiquitous and potentially quite extensive in scope. Their judicial treatment when challenged on free expression grounds has been a muddle, with courts sometimes striking down and sometimes upholding laws that seem indistinguishable on freedom of expression grounds. And, most importantly, the generally accepted distinction between Track Three laws and Track One laws, namely, that the latter but not the former represent restrictions on liberty, turns out to be wrong. Track Three laws do restrict liberty, and in some circumstances they may do so as much as Track One laws. I.