On June 1, 2015, the Supreme Court decided Elonis v. United States on statutory rather than constitutional grounds. In doing so, it turned away an important opportunity to provide needed clarification of true threats, a category of expression relegated to a lower level of protection by the Court almost a half-century ago. The categorical approach to free speech made its first explicit appearance in Supreme Court case law in 1942. Since that time, the Court has relied heavily on this method of constitutional interpretation, carving out discrete exceptions from the seemingly absolutist mandate of the First Amendment that Congress make no law abridging the freedom of speech. Although the categorical approach – frequently front and center in First Amendment adjudication – has been with us for almost seventy-five years, it rests on a surprisingly unsettled theoretical foundation. It is an indispensable doctrinal tool with a puzzling and sometimes contradictory array of justifications and operating instructions. In this piece, I attempt to clear up the confusion. I examine the evolution of this approach to the First Amendment. I critically assess the famous dictum from Chaplinsky v. New Hampshire that is responsible for establishing this system of classification. I scrutinize a number of possible interpretations of Chaplinsky and explore the disparate scholarly and judicial perspectives on this mode of constitutional interpretation. Finally, I move from the foundations and justifications of the categorical approach to the way this system works in practice. I argue that if the Court is to maintain its fidelity to an effectual categorical system of First Amendment adjudication – one that is properly respectful of the high stakes for free expression and democratic self-governance – it is vitally important that Court adequately define and operationalize respective categories. The final third of this article delves into one such category: true threats. I closely examine the Court’s true threats jurisprudence and look critically at the recent Elonis decision, contrasting the Court’s protracted failure to define and delimit true threats with the comparatively robust guidance it has offered with other discrete categories.
Recommended CitationWayne Batchis, On the Categorical Approach to Free Speech – And the Protracted Failure to Delimit the True Threats Exception to the First Amendment, 37 Pace L. Rev. 1 (2017)
Available at: https://digitalcommons.pace.edu/plr/vol37/iss1/1