About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

73 Wash. & Lee L. Rev. 1657 (2016)
The Ample Alternative Channels Flaw in First Amendment Doctrine

handle is hein.journals/waslee73 and id is 1698 raw text is: The Ample Alternative Channels Flaw in First Amendment Doctrine Enrique Armijo* Abstract In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open ample alternative channels of communication for the restricted speaker's expression. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction's harm to the speaker's expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of this principle. It has set First Amendment jurisprudence on the wrong course. Permitting a speech restriction because the speaker could have communicated the same message another way distorts the First Amendment. Ample alternative channels analysis instructs courts to engage in counterfactual, post-hoc reasoning as to the expressive choices the speaker could have made, but didn't-i.e., to substitute the court's own value judgments for those of the speaker's. The modern communications world expands the doctrine's pernicious effects, since speech-facilitating technologies can always theoretically grant an alternative means of expression to any infringed speaker. And the origin of the doctrine, from Justice Harlan's concurrence in United States v. O'Brien, shows that * Associate Dean for Academic Affairs and Associate Professor, Elon University School of Law and Affiliated Fellow, Yale Law School Information Society Project. Thanks to colleagues at the Yale Information Society Project's Freedom of Expression Scholars' 2015 Conference and the Loyola Chicago 2015 Constitutional Law Colloquium. Individual thanks go to Jack Balkin, Joseph Blocher, David Han, Chad Golder, Randy Kozel, Kerry Monroe, Alex Tsesis, Mark Tushnet, and Tinsley Yarbrough, to the librarians at Princeton University's Mudd Rare Manuscript Library for providing access to the John Marshall Harlan Papers Collection, and to Spenser Tatum, Elizabeth Long, and Britney Boles for research assistance. 1657

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most