The role that assessments of the value of particular speech or categories of speech should play in first amendment theory is much contested. Everyone agrees, however, that at some point judges should be barred from making assessments about the value of particular speech in deciding whether it may be regulated or prohibited. Moreover, the image of a content-neutral government, at least as a regulative ideal, is a powerful force in First Amendment law.
Commentators ordinarily describe judicial judgments about the value of speech as "exceptions." The norm is said to be that speech is protected and that judgments about the value of speech are foreign to the judiciary. Exceptions are often explained in terms of "low value" theory. Speech does not get protection or it gets less protection than other speech because it has low value.
Geoffrey R, Stone, the theory's principal exponent, argues that low-value theory justifiably plays a major role in the jurisprudence of the First Amendment. It is neccesary, he argues, because otherwise we should have to apply the same standards to private blackmail as to public debate. If we do not treat harmful, but relatively unimportant speech differently, we will dilute the expression "at the very heart of the guarentee." As Stone charecterizes the law, "the Court, applying [the low-value] approach, has held that several classes of speech have only low first amendment value, including express incitement, false statements of fact, obscenity, commercial speech, fighting words and child pornography." Once the Court has decided that speech has low value, according to Stone, it engages in "categorical balencing, through which it defines the precise circumstances in which the speech may be restricted." By contrast, in assesing high-value speech, "the court employees, not a balancing approach akin to its content-neutral balancing, but a far more speech-protective analysis." Thus low-value theory functions to preserve the autonomy of high-value speech from government regulation.
No doubt, many categories of unprotected speech are explainable in part because they are thought to be of low value. Moreover, some forms of otherwise protected speech are afforded less generous protection than is given to other forms of protected speech almost exclusively because they are seen to have less value. But no sharp line divides low-value from high-value speech, and low value theory cannot account for all of its important exceptions.
Consider the First Amendment's standard testing ground: advocacy of illegal action. Such advocacy is protected unless it is directed to inciting imminent lawless action and is likely to incite or produce imminent lawless action. Is unprotected advocacy really a form of low-value speech? One approach might be to say that any speech that can be prohibited is low-value by definition. This approach, however, substitutes tautology for analysis, and it does nothing to provide an ex ante divide between high-value and low-value speech.
In what sense, then, is incitement or unprotected advocacy a form of low-value speech? Notice that advocacy of illegal action is not in itself a form of low-value speech. Indeed, noninciting advocacy of illegal action in itself is fully protected by the First Amendment. This conclusion has been reached in light of powerful opinions by Justices oliver wendell holmes, jr. , and louis d. brandeis about the value of such speech. Thus, advocacy of illegal action appears to be high-value speech. The reason why some types of advocacy of illegal action can be prohibited seems to have less to do with their value as speech than with their potential for harm.
Alternatively, even if the Court had silently repudiated Holmes and Brandeis, the label "low-value speech" would obscure the decision-making process. The Court did not start, and need not have started, its analysis of illegal action by asking wheter the category of speech was valuable or not. Indeed, in dealing with the issues, the Court has ordinarily begun with an assesssment of state interests. What ultimately is at stake in this context is an accommodation of the values of order and freedom of speech. If the rules in the context of advocacy of illegal action are good ones, the reason is that those rules have protected order without unneccessary sacrifice of the First Amendment values. But First Amendment values have surely been sacrificed. If the rules governing advocacy of illegal action have the effect of muffling the voices of those who are most agitated against the system, we have suffered a substancial First Amendment loss. It demeans the speech and underestimates that loss to think about this as a part of low-value theory.
The same can be said for the rules attempting to regulate false statements of fact in libel law. Certainly, from one perspective, high-value speech is at risk. Many think criticism of public officials and other public figures is "at the very heart of the guarantee." To fashion a set of rules in which plaintiffs succeed in allowing juries to scrutinize that criticism risks a major chilling effect. Moreover, the fact-finding process may simply mask the unleashing of juror prejudices about what speech should be free.
Presumably the protection of reputation requires findings of truth and falsity by juries, but that protection must be accompanied by a sense of First Amendment loss. To characterize any such process as a part of low-value theory would deemphasize the major risk to high-value speech, however the latter might be defined. The conflict between reputation and free speech necessitates a difficult choice. Something important must be abandoned, and that choice deserves emphasis.
Low-value theory avoids that emphasis. It offers the soothing prospect of characterizing free-speech doctrine as generally unthreatening to speech of general importance, but low-value theory cannot deliver. Like it or not, so-called high-value speech is subject to government regulation if a strong enough showing can be made.
Shiffrin, Steven H. 1990 The First Amendment, Democracy, and Romance. Cambridge, Mass.: Harvard University Press.
Stone, Geoffrey R. 1983 Content Regulation and the First Amendment. William and Mary Law Review 25:189–252.