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93 N.Y.U. L. Rev. 318 (2018)
First Amendment Coverage

handle is hein.journals/nylr93 and id is 326 raw text is: FIRST AMENDMENT COVERAGE AMANDA SHANOR* Neither courts nor scholars have articulated a coherent theory of the scope of the First Amendment's freedom of speech. Most First Amendment jurisprudence and scholarship has focused on the justification for the freedom of speech or questions of constitutional protection-essentially, how much scrutiny should apply in various contexts. Largely ignored is the often-dispositive threshold question of whether activities are covered by the First Amendment at all. Many activities that are colloquially considered speech are not traditionally subject to constitutional review. For instance, the regulation of contracts, commercial fraud, perjury, con- spiracy, workplace harassment, the compelled speech of tax returns, and large swaths of regulation by the administrative state have all historically been treated as beyond the ambit of the First Amendment. Today, however, the boundaries of the First Amendment are in a period of trans- formation. Plaintiffs across the country contend that the regulation of areas of social and economic life that never before were thought relevant to the Constitution is in violation of it. Courts are increasingly confronted with cases that raise the question: Does the First Amendment apply? This makes the need for a theory of the scope of the right of free speech-of the First Amendment's boundaries-ever more pressing. This Article develops, first, a descriptive and sociologically-based theory of First Amendment coverage. By analyzing differences between free speech sub-doctrines, I argue that the animatinlg difference between what falls within the First Amend- ment's reach and what is excluded from it does not rest on the distinction between speech and conduct, as is often thought. Instead, coverage depends on whether or not social norms about a given practice are (or courts believe should be) suffi- ciently strong to make the anticipated consequences of the speech-how it works and what it does-clear. Coverage depends, in short, on whether or not the audi- ence of the activity is pluralistic. Second, this Article develops a prescriptive theory of how courts should analyze questions of the boundaries of free speech. I argue that, at the borders of the First Amendment, courts must analyze the social context of the activity in question as well as the normative and institutional implications of charting First Amendment coverage. I conclude by exploring the issues at stake in current and emerging First Amend- ment coverage questions. I argue that the scope of the First Amendment reflects and defines the areas of social life in which we need or want cohesive, non-pluralistic, social norms and relationships. In short, the boundaries of the First Amendment track not only the space of pluralistic contestation, but also the expectation of and desire for social cohesion. * Copyright © 2018 by Amanda Shanor, Ph.D. Candidate in Law, Yale University, Adjunct Professor of Law, Georgetown University Law Center; J.D., Yale Law School; B.A., Yale College. My many thanks to Floyd Abrams, Jack Balkin, Emily Chapuis, David Cole, William Eskridge, Jr., Leslie Kendrick, Robert Post, David Pozen, Rebecca Tushnet, and the participants of the Freedom of Expression Scholars Conference at Yale Law School for their input and insights. All errors are my own. 318 Imaged with Permission of N.Y.U. Law Review

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