The Various Venues of Governmental Purpose
There is no difficulty in locating the governmental purpose to affect messages in laws that by their terms predicate civil or criminal liability on communicating messages with specified content.
Thus, a law forbidding “public displays of contempt for the American flag” (such as burning an American flag in public with the intent to express hostility toward America or American policy) comes squarely within principle (5). Its governmental purpose to affect messages is found on its face. It is the type of law that the next chapter addresses.Perhaps less obviously, principle (5) also unproblematically covers solitary governmental acts where the governmental body or official takes action based on the content of a communication. Thus, suppose that there is a law forbidding “burning objects on the city streets and sidewalks,” but police officers routinely allow people to burn various items as long as the fire is controlled and no people or buildings are endangered. Suppose further someone burns an American flag on a street to express contempt for American policy. Finally, suppose that a police officer arrests him under the “burning objects” statute, not because the fire was dangerous or uncontrolled, but solely because the police officer was hostile to the message being expressed. In such a case, the content-neutral Track Two law has in effect been amended in this one case to become a Track One content-based law identical to the law banning “displays of contempt.” And it is the purpose of the police officer in exercising his discretion whether to enforce the “burning objects” law that brings the arrest within the scope of freedom of expression under principle (5). American free speech jurisprudence, moreover, clearly recognizes that a message-suppressing purpose by a governmental body or official exercising discretion under a law that does not itself single out certain messages raises a free speech issue.1
There is a third type of governmental act that falls within principle (5) that is less obvious, however, and perhaps more controversial.
That type consists of those instances when government enacts a content-neutral Track Two law for a message-suppressing or message-altering purpose. Thus, suppose that there is a period of time in which the only objects being burned in public are American flags, which are burned to express contempt for American policy. The government, enraged by the contempt displayed, unconcerned about fires on city streets, but also aware that a law that by its terms forbade burning American flags would violate freedom of expression, passes the law against “burning objects.” Later, when the wave of burnings of American flags passes, the government repeals the “burning objects” law. The effect of passing and repealing the content-neutral “burning objects” law for a content-based purpose such as expressing contempt for American policy is no different in effect from enacting a content-based law against expressing contempt for American policy. “Burning objects” turns out to be a convenient content-neutral proxy for the content-based prohibition of “displaying contempt.”Indeed, there is no real difference between the content-based discretionary enforcement of a content-neutral law and the content-based enactment and repeal of a content-neutral law. As long as the government has discretion - in the one case, over how broadly to enforce the law, and in the other, over whether to enact or repeal the law - then its purpose in acting (enforcing, enacting, repealing) will be relevant and will determine whether its action falls within principle (5).2 Put differently, governmental purposes will be relevant
1 See, e.g., Wayte v. United States, 470 U.S. 598 (1985); Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977).
2 As Jed Rubenfeld puts it:
A person made liable under a prohibitory law is punished for speaking if and only if:
(1) the law makes the fact that he was communicating an element of the prohibited offense;
(2) the legislative purpose was to target speech even though the prohibition is speech-neutral on its face; or (3) the law was selectively enforced to target speech.
If none of these three conditions holds, then the person will have no free speech claim at all, no matter how expressive his words or actions were.Jed Rubenfeld, “TheFirstAmendment's Purpose,” 53 Stan. L. Rev. 767,784 (2001). Seegenerally Larry Alexander, “Constitutional Theory and Constitutionally Optional Benefits and Burdens,” to the moral permissibility of governmental actions in any case in which the government has morally permissible options - that is, the option whether to enact (or repeal) a particular law, or the option whether to enforce it. Only in cases when the government has no morally permissible option regarding enactment and enforcement is its purpose in enacting and enforcing immaterial to the moral permissibility of what it does. I shall return to this connection between the relevance of governmental purposes in enacting and repealing laws and the existence of permissible options below.3
II.