Can the government require a person to give reasons before speaking in public? If so, what reasons must it accept?
The answers to these questions remain somewhat unclear, but their importance is difficult to overstate. Licensing requirements for public speaking — especially to large numbers of people (more than 10) — are central to the regulation of speech in public spaces, which is perhaps the most important issue in contemporary speech law and policy. As a constitutional matter, that issue is the crux of recent cases that have found or assumed a right to speak in public to persuade others. As a statutory matter, some states have expanded the right to speak anywhere in public, including parks, street corners, and even meetings of various legislative bodies.
But some jurisdictions — including populous states like California, New York, and New Jersey — require people to speak only in designated “First Amendment” areas, typically on college campuses, away from any people who might be persuaded. The government interest underlying these laws is easy enough to identify, since the costs and benefits of public speaking are very different than talking to the plants in one’s home. One can support an individual right to speak freely, and even support the extension of that right into public spaces, while still believing that the First Amendment permits public speech to be regulated more stringently than yelling at the TV set in one’s living room.
Free speech advocates have recently challenged these good cause requirements on First Amendment grounds. If successful, their challenges could effectively compel states to issue public speaking licenses to anyone who is not a felon, mentally ill, or otherwise excluded from the scope of First Amendment coverage. In speech law lingo, this would mean constitutionally mandating a “shall issue” regime for public speech licenses. It is important, therefore, to understand the arguments both for and against the constitutionality of restrictions on public speech.
The extreme position holds that any kind of good cause requirement is unconstitutional. As one district court judge put it, “[a] citizen may not be required to offer a ‘good and substantial reason’ why he should be permitted to exercise his rights. The right’s existence is all the reason he needs.” When framed this way, the point is rhetorically powerful, but substantively weak. Surely not every “cause” is “good” enough to trigger First Amendment coverage. If a person turned in a public speaking application with the explanation, “I need to speak in public so that I can urge the ouster of elected officials,” few would think that denying the license would violate his First Amendment rights. It is not clear why the result would be any different if the insufficient cause were conveyed through evidence other than an outright declaration.
It follows that some good cause requirements — or at least some “not bad” cause requirements — are constitutional. Or, to put it another way, the right to free speech does not encompass a right to speak in public for any reason whatsoever. It is equally clear, however, that some “causes” for speech are constitutionally protected, and therefore cannot be excluded by a good cause requirement. If a person (we can call him Brad) wants to speak because the government is deciding legislation that would deprive him of his home — and is not himself a felon, mentally ill, or otherwise subject to the categorical restrictions approved in Schenck v. United States — then his claim to speak in public would fall squarely within the “core” interest of speech on topics of public interest.
Separating these extreme cases, a host of harder questions remain. What if it’s just a commission-level hearing, one that can be appealed to a city council or state agency? What if he wants to opine on the merits of various American Idol finalists, a generally lawful activity whose constitutional coverage is nevertheless unclear? What if his “bad” reason for speech is not likely ever to manifest itself in illegal activity?
One partial answer to these questions is to say that free speech is always a good cause, and that licensing regimes therefore cannot deny speech to people seeking to use it publicly for that purpose. There is much to like in this approach. Citizens United v. Federal Election Commission, after all, identified the support or opposition of political candidates as the “core” of the right to keep and speak. And although the Court found the need for that right to be “most acute” during election season, it did not explicitly limit it as such. In fact, long before Citizens United, courts recognized political speech as deserving greater protection than commercial speech.
But this does not necessarily mean that the First Amendment requires that a person be able to speak in public — let alone to large groups — any time he invokes political need. After all, the right of free speech itself typically requires a person to show something like good cause — a reasonable fear of imminent harm as a result of political action, for example. In other words, the core of the right to speak is the right to speak to lobby the government; the core of the right to petition the government for redress of grievances, is free speech. And if that core right is compatible with a good cause requirement, shouldn’t the right to speak also be?
The difficulty of this question arises from the fact that the right to address the government for redress of grievances and speech for that purpose are closely related but not coextensive. When a person petitions the government, he generally does not know whether he will ever have to actually speak in public — fortunately, the vast majority of citizens never do. But in light of Citizens United, the rule cannot be that only those people who actually petition the government for a redress of grievances are validly exercising their First Amendment rights.
How should the law treat the inevitable space between purchasing a public address system and actually using that microphone to speak? Does the First Amendment require the government to recognize as “good cause” a generalized claim to free speech in the absence of a specific legislative harm? One way to frame the issue is to ask what level of risk is necessary to “trigger” the right to speak in public for purposes of petitioning the government. A person who is 100% certain to face a justified need for armed speech would surely have “good cause”; a person who is 100% certain not to have such a need would not have good cause. (The latter person could probably still talk to his plants, and his cat, and might have some kind of cognizable interest in public speaking, but it is hard to see how it would be grounded in petitioning the government.) When does the risk become constitutionally salient? Ten percent? One percent?
Of course, people often have no way of knowing with precision the chances of their facing a “real” threat. Free speech law and good cause requirements approach this uncertainty from two different angles. Free speech law is about ex post risk assessment, in the sense that the event has already happened, and the law seeks to determine whether the speech was proportional to the harm the government was inflicting. Good cause requirements do the same thing from an ex ante perspective, transposing the threat assessment before the action takes place.
To be sure, one might argue that reasonableness, proportionality, imminence and other “good cause” elements of free speech should only apply to actions of speaking, not to preparations for those actions. There is some strength to this argument as well. It is difficult to assess a risk ahead of time, which is one reason why well-tailored good cause requirements are typically more forgiving than free speech doctrine. Thus a person seeking a license in Maryland need only show that the “permit is necessary as a reasonable precaution against likely government action,” rather than demonstrate the “imminent or immediate danger of loss of freedom or property” necessary to justify an action of free speech. It is also true that mere preparations for free speech might never involve physical harm to anyone, so the state’s interest in public safety is presumably lower than when it comes to actual speech. Nonetheless, when such preparations include the public carrying of a bullhorn, the risk of misuse is undeniable. It is that risk which good cause limitations seek to minimize.
None of this means that good cause requirements are always constitutional, only that challenges to them should focus on the details of their implementation. If a public-speech licensing regime operates like a ban, it should be evaluated as such. For the most part, though, the matter is one for legislatures to decide. These days, most of them seem to be moving in the direction of loosened restrictions. The Constitution has nothing to say about that trend. But it also has very little to say to those legislatures who have chosen to maintain a “may issue” approach to public speech, including its attendant good cause restrictions. The First Amendment is busy enough these days without being deployed in fights where it does not belong.
As you can see, it isn’t very difficult to translate the kinds of restrictions gun control advocates propose for the Second Amendment to the First. And it shows just how weak their arguments are.
“Good cause” to speak to large groups of people or to petition the government for a redress of grievances requiring various fees, licenses, background checks, fingerprints and mental health screening (all of which can be required to carry a gun in California) would generate howls of outrage from almost everyone. But those same requirements—and then some—are just “common sense” when it comes to the Second Amendment.