The Variety of Track Three Laws
Consider the following ways that government might attempt to affect people’s beliefs about the desirability of, say, abortion, drugs, prostitution, and free trade.
(1) The government passes laws forbidding abortions, drugs, and prostitution and promoting free trade.
In addition to passing these laws, the government publicizes the fact that it has done so and the reasons it thought such laws were desirable.(2) The government conducts a television ad campaign warning people not to have abortions, not to take drugs, and not to patronize or become prostitutes, and extolling the virtues of free trade.
(3) The government teaches in its schools that abortion, drugs, and prostitution are bad and that free trade is good. It excludes from its school libraries (and its regular libraries) books that take the contrary positions.
(4) The government gives tax subsidies (tax exemptions or deductions) to private groups and individuals who advocate against abortion, drugs, and prostitution and in favor of free trade.
(5) The government gives money to such groups and individuals to subsidize directly that advocacy. In addition, the government commissions works of art, plays, and so forth that portray the evils of abortion, drugs, and prostitution and the glories of free trade.
(6) The government exempts from otherwise valid content-neutral (Track Two) regulations groups and individuals engaged in speech against abortion, drugs, and prostitution and in favor of free trade.
(7) The government subjects only those advocating abortions, drug use, prostitution, and trade barriers to restrictions that would be valid if applied to everyone. For example, government forbids only such groups and individuals from using loudspeakers to convey their messages in residential neighborhoods.
Finally,
(8) The government forbids the advocacy of abortion, drug use, prostitution, and trade barriers.
Now (8) is an example of Track One laws. And if there is a right to freedom of expression, the laws in (8) are presumably paradigmatic violations of it. In the previous chapter I raised doubts about the ability to distinguish those Track One laws that violate the putative right to freedom of expression from those Track One laws that most regard as permissible. Here I shall assume that Track One laws such as those in (8) are violations of freedom of expression. My questions in this chapter are: (1) If the laws in (8) do violate freedom of expression, can they be distinguished from the laws in (7) through (1) on any grounds relevant to freedom of expression? (2) Can the laws in (7) through (1) themselves be distinguished from each other on any grounds relevant to freedom of expression?
II.