THE RISE AND REACH OF 'THE DOCTRINE OF CATEGORICAL EXCLUSION': How the Supreme Court Should More Clearly Define Speech Placed in the 'First Amendment Free Zone' from Chaplinsky to Elonis

Abstract

Chapter 1 introduces the “Doctrine of Categorical Exclusion” which to date has been loosely but persistently articulated by the Supreme Court (without use of the phrase itself). At its core, the Doctrine is a set of rules to identify and analyze certain categories of expression that fall outside the “Freedom of Speech” protected by the First Amendment. Chapters 2 and 3 trace various disjointed roots of the unarticulated doctrine from the mists of history up until the Supreme Court’s first attempt to coalesce and synthesize disparate rulings into what had the appearance of a single doctrine, the landmark 1942 case Chaplinsky v. New Hampshire. Chapters 4 through 7 trace the development of the doctrine, while still unnamed, from Chaplinsky in 1942 to the verge of the Supreme Court’s next attempt, in 2010, at synthesizing the doctrine into a coherent and comprehensive articulation. That 68-year period witnessed the evolution of the excluded categories articulated in Chaplinsky, the rise and fall of an additional category, the enduring recognition of more categories, the rejection of others, and methods developed by the Supreme Court to control the categorical boundaries. Thus, Chapters 4 through 7 travel the jurisprudential path from Chaplinsky to the verge of United States v. Stevens. Chapters 8 and 9 consider the two modern, somewhat comprehensive attempts by the Supreme Court to synthesize the various rules and holdings into a single, coherent doctrine: United States v. Stevens (2010) and United States v. Alvarez (2012). Chapter 10 features a proposal for a simplified, coherent approach to the modern Doctrine of Categorical Exclusion——determining what speech falls in the “First Amendment Free Zone” that is outside the freedom of speech protected by the Constitution. The chapter explains how a simplified approach would promote Speech Clause values and bring greater order and predictability to this aspect of the First Amendment.