The Ubiquity of Track Two

Laurence Tribe’s Track Two branch of American First Amendment free speech cases covers regulations of expressive conduct enacted for reasons other than to affect what messages are conveyed and received.

Track Two cases have traditionally been broken into two subcategories: the public forum cases and the symbolic speech cases. The former concern access of private speakers to governmental or quasi-governmental facilities, and in some cases to private facilities that the speaker seeks to have treated like governmental facilities.^[15] Current First Amendment jurisprudence distinguishes among tradi­tional public fora, such as streets, sidewalks, and parks, public fora created by government designation, and nonpublic fora.^[16] The conventional doctrine in public forum cases is that in traditional public fora and designated public fora, the government may impose narrowly drawn regulations of the time, place, and manner of speech in order to serve significant government objectives unrelated to the speaker’s message. The government may not, however, bar speech en­tirely from such public fora and must leave adequate alternative channels of communication available.^[17] On the other hand, if a facility is a nonpublic forum, the government may bar speech entirely or selectively, so long as it does not discriminate according to viewpoint.^[18]

Public forum cases are more complicated, however, than the preceding ac­count indicates. First, alternative channels of communication are never entirely adequate.

The other subcategory of Track Two cases consists of the symbolic speech cases.^{[23] [24] Here, the government forbids certain conduct irrespective of whether those who would otherwise engage in that conduct intend their engaging in it to symbolize and communicate some idea to others. The free speech issue arises when someone in fact wishes to engage in that conduct to symbolize and communicate an idea. The accepted doctrine is that government may regulate the symbol on the same grounds and with the same restrictions as it may reg­ulate the time, place, and manner of speech in a public forum. That is, it may do so if it is advancing a significant interest unrelated to the communicative impact of the conduct (the speaker’s message), if its regulation is narrowly tailored, and if adequate alternative means exist for the speaker to convey his message.11}

I wish to establish two propositions.

An examination of both the phrasing and application of the Supreme Court’s time, place, and manner test for public forum speech and its test for regulation of symbolic speech reveals that they are essentially the same test. Both tests, as stated, require that the regulation in question be narrowly tailored but not that it be the least restrictive alternative. Moreover, in both tests the government’s objectives must be “significant” (that is, important), and the government must leave the speaker adequate alternative means to convey the message.

Regardless of the test it employs, the Court is correct, from a theoretical standpoint, in employing the same test for both areas. Whenever government is regulating conduct that is being engaged in to symbolize some message, government is regulating the “time, place, and manner” of speech. It is easy enough to see that, for example, burning a draft card or dancing in the nude is employing a particular manner of expression to symbolize a message. However, the time of a speech or demonstration or the place in which it occurs may also be employed symbolically.

Susan Williams has noted the Supreme Court’s erosion of any distinction between its time, place, and manner and symbolic speech tests.^[25] She nonethe­less urges that a distinction be maintained between regulations that affect those aspects of time, place, and manner that are merely “facilitative” of speech - that affect the speaker’s ability to convey his message to a particular audience - and regulations that affect those aspects of time, place, and manner that are them­selves “expressive” (communicative) - that are part of the message itself.^[26] She argues that there is never an adequate alternative available to the speaker when the regulation affects the communicative aspect of speech and thus what gets said.^[27] Therefore, she would require regulations of that type to meet a higher standard of validity.^[28]

Nonetheless, it is both theoretically difficult and practically impossible to separate the uniqueness of a particular message from the uniqueness of a par­ticular audience at a particular time and place.^[29] The Supreme Court has rec­ognized how the choice between words having the same denotative meaning can affect the emotive and ultimately the cognitive significance of the words to the audience,^[30] and how the choice between verbal and nonverbal symbols can do the same.^[31] Surely, the choice between audiences and times affects not only the impact of a message, but also how that message will be translated and understood.

The second proposition I want to establish is that, just as there should be no distinction between Track Two regulations affecting the facilitative aspects of speech and those affecting the expressive aspects, so too should there be no distinction between Track Two laws directly regulating speech activities and all other laws. All Track Two laws regulate speech only indirectly in this sense: In a Track Two case, government’s interest is not in what is being communicated but in the communication’s effects on values unrelated to communication, such as noise, congestion, property, aesthetics, or privacy. Track Two regulations are of freedom of expression concern because they affect what gets said, by whom, to whom, and with what effect even though the regulations are not intended to affect such matters. However, all laws affect what gets said, by whom, to whom, and with what effect. In short, all laws have what I shall call “message effects.” Therefore, all laws, the entire corpus juris, should be subject to Track Two analysis.

Track Two includes not only restrictions on obstructing traffic while speak­ing or demonstrating, using amplifying devices in residential neighborhoods, posting signs on utility poles, burning draft cards, or sleeping in parks, but also includes tort, contract, and property law, the tax code, and the multitude of criminal and regulatory laws and administrative regulations. For example, laws determining who owns what property under what restrictions or the price and availability of various resources will also determine what gets said, by whom, to whom, and with what effect - that is, such laws will have message effects. A change in the law of any region of the corpus juris will have message effects. Laws equalizing income would surely have dramatic message effects.

The ubiquity of potential Track Two cases has been noted.^[32] Susan Williams, for example, notes that “[t]here is... no clear dividing line between facilitative aspects of speech and other activities. Instead, there is a continuum.... ”^[33] Yet she believes that a line must be drawn.

The task is required... because the alternatives are simply unacceptable. Some activities or resources that are not themselves a part of the act of speaking are, nonetheless, so closely related to speech that it would be absurd not to recognize that regulating them raises first amendment issues. Access to paper or typewriters might be a good example. On the other hand, without some limit, the free speech guarantee would be transformed into an invitation for all speakers to violate any generally applicable law if the violation contributes in any way, no matter how indirect, to their ability to speak. The constitutional solicitude for free speech demands that speakers receive special protection from regulations (even generally applicable ones) that affect either a communicative or a directly facilitative aspect of their speech activity. Nonetheless, at some point the connection to speech becomes so attenuated that the protection must disappear.^[34] Although Williams’s concern is well-founded, the “direct-indirect” imagery on which she relies misses the fundamental point that the most profound message effects are produced by laws she would place on the indirect side of the divide. Cass Sunstein, on the other hand, is quite anxious to exploit precisely this point:

[T]here may be no neutrality in use of the market status quo when the available opportu­nities are heavily dependent on wealth, on the common law framework of entitlements, and on the sorts of outlets for speech that are made available, and to whom.

At least two things follow. The first is that many content-neutral laws have content­differential effects. They do so because they operate against a backdrop that is not prepolitical or just. In light of an unjust status quo, rules that are content-neutral can have severe adverse effects on some forms of speech. Greater scrutiny of content-neutral restrictions is therefore appropriate. Above all, courts should attend to the possibility that seemingly neutral restrictions will have content-based effects.^[35]

As Williams recognizes, however, and Sunstein does not, the courts cannot apply the ordinary Track Two test to all laws, even though all laws are logically subject to Track Two analysis. For example, the setting of the marginal tax rate affects my income, which, if greater, I might devote to increased speaking. Under the current Track Two test, if the government’s interest in the present rate is not a significant interest, and the rate adversely affects my speech, the government would be required to abandon that rate in favor of another rate. But any other rate the government chooses will affect somebody’s speech - it may result in lower transfer payments, adversely affecting the communica­tion between poorer speakers and their audiences - and thus, it will have to serve a significant interest as well.^[36] Therefore, the Track Two test cannot be applied universally unless the requirement of a significant government interest is trivialized either by finding almost any interest to be significant or by being made synonymous with “the entire corpus juris is what it should be.” (The latter trivializes because it tautologizes: Track Two laws are just and constitutional if they are just and constitutional.)

This leaves the following problems. First, Track Two covers all laws because all laws have message effects - they affect what gets said, by whom, to whom, and with what effect. Second, a Track Two freedom of expression challenge to a law or group of laws is a demand that the laws be changed; but every change in the laws will have message effects, so that Track Two freedom of expression claims are always aligned against each other. Thus, testing challenged laws by the significant government interest test will entail testing all of their alternatives by that test. Finally, the universal application of TrackTwo analysis would result in the elimination of all sets of laws except those serving significant interests (as compared to all possible alternative sets). Because of this difficulty, the universal application of Track Two analysis would most likely result in com­plete abandonment of Track Two protection, with all asserted interests deemed “significant” so long as they are not a mask for message-related concerns.²⁴

²⁴ How should we classify government’s decision to ban conduct because it is message-bearing, but not because of concern with the messages borne? Government concerns with paper-as-litter, book-as-merchandise, or newspaper-as-high-revenue-business are clearly Track Two concerns when government bans dispensing paper on the street, bans sales of merchandise in airports, or imposes sales taxes. What if, however, government bans, not dispensing paper, but dispensing “pamphlets,” or bans, not the sale of merchandise, but the sale of “books,” or taxes, not sales, but sales of “newspapers”? Theoretically, I believe these should also be regarded as Track Two regulations. If government can build a park exclusively for softball, basketball, and tennis, and not for political rallies, then it can disfavor the activity of communication relative to other ac­tivities. Nonetheless, because speech-specific regulations can mask concerns withthe messages being conveyed - after all, why would government favor all other potentially littering paper over “pamphlets” (paper bearing a message) if not out of a desire to suppress certain messages? - they are perhaps justifiably treated as content-related regulations rather than Track Two regu­lations. See Frank I. Michelman, Property and the Politics of Distrust: Liberties, Fair Values, and ConstitutionalMethod, 59 U. Chi. L. Rev. 91, 108 n.56 (1992) (discussing discrimination against speech as an activity and citing Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983)). See also Jed Rubenfeld, “The First Amendment’s Purpose,” 53 Stan. L. Rev. 767, 831 (2001). This also suggests that when government regulates a medium that has no use other than as a medium of expression - such as the broadcast frequencies - and in doing so it restricts speech more than is necessary to serve any conceivable legitimate gov­ernmental interest - as, for example, when it leaves some broadcast frequencies unavailable for use - a freedom of expression issue is raised. See Stuart Minor Benjamin, The Logic of Scarcity: Idle Spectrum as a FirstAmendment Violation, 52 Duke L. J. 1 (2002). Of course, a restriction on liberty that serves no legitimate governmental purpose should be deemed invalid on that ground alone. That the medium restricted is one that is usable only for communication merely goes to the weight of the liberty arbitrarily restricted. The courts of both the United States and Canada go both ways on this issue. Sometimes they treat laws that single out message-bearing media as content-based rather than as content-neutral. See, e.g., K Mart Canada Ltd. v. U.F.C.W., Local 1518, 24 C.L.R.B.R. (2d) 1 (1994), affd, [1999] 2 S.C.R. 1083 (striking down a ban on leaflet­ting as content-based violation of freedom of expression); Committee for Commonwealth of Canada v. Canada, supra note 3 (striking down a ban on pamphleteering in an airport on the same rationale). Cf. Schneider v. State, 308 U.S. 147 (1939) (striking down ban on leafletting enacted to reduce litter, but not on the ground that message-bearing litter was underinclusive relative to litter generally). At other times the courts treat such laws as content-neutral and uphold them. See, e.g., Coles Book Stores Ltd. v. Ontario, 6 O.R.3d 673 (1991) (upholding Sunday closing law’s exception for small book stores); City of Montreal v. Buczynsky, 59C.C.C.(3d)302(1990) (upholding ban on postering); Vancouver v. Jaminer, [2001] 198 D.L.R. (4^th) 333 (upholding ban on rooftop signs); Regina v. Richards, 88 B.C.L.R.2d. 334 (1994) (upholding permit require­ment for satellite dishes); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (upholding ban on postering). Sometimes the courts treat laws that are message-based as if they were content-neutral, such as when they uphold restrictions on abortion protesters near abortion clinics, or restrictions on protests near embassies or private residences. See, e.g., Regina v. Lewis, 139 D.L.R. (4^th) 480 (1996) (upholding restrictions on abortion protesters); Ontario Attorney General v. Dieleman, 20 O.R.3d. 229 (1994) (same); Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994) (same); Hill v. Colorado, 530 U.S. 703 (2000) (same); Frisby v. Schultz, 487 U.S. 474 (1988) (upholding restriction on picketers of private residence); Minister for Foreign Affairs v. Magno, (1992) 27 F.C.R. 298 (upholding restrictions on protests near foreign embassy). But see Boos v. Barry, 485 U.S. 312 (1988) (striking down an ordinance regulating the content of messages on signs near foreign embassies).

II.