abstract. Speech is more than just an individual right—it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights—either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal statutes and ordinances adversely affect marginalized or dissenting speech. Despite their general classification as constitutionally permissible time, place, and manner restrictions, this Feature concludes that enforcement of such statutes contributes to a subordinating First Amendment landscape, disproportionately burdening some speakers and some messages more than others.

To address these concerns, this Feature makes two critical normative claims. First, scholars and courts alike have failed to prioritize access to spaces properly. This, in turn, carries a second normative claim: the current consideration of access to space as a forum of speech ignores the reality that presence, at times, is the message. To force a speaker to an alternative forum through the enforcement of criminal law is effectively to regulate the message out of existence. Finally, this Feature proposes a novel First Amendment defense when criminal charges implicate the defendant’s speech activity. This proposed defense provides a mechanism to vindicate the overlooked First Amendment consequences of such charges and empower citizen jurors to engage in community-based decision-making about the value of speech.

author. Wiggins, Childs, Quinn & Pantazis Professor of Law, University of Alabama School of Law. This Feature benefitted tremendously from the comments of Adam N. Steinman, Robert C. Post, Genevieve Lakier, RonNell Andersen Jones, Kate Klonick, Hannah Bloch-Wehba, Jack M. Balkin, Rachel López, Ronald J. Krotoszynski, Jr., Judith Resnik, Darrell A.H. Miller, Jocelyn Simonson, Jamelia Morgan, Monica C. Bell, Fiona Doherty, Amber Baylor, Anna Roberts, Russell Gold, Hadiyah Cummings, Rachel Talamo, and John F. Acevedo as well as participants at the Freedom of Expression Scholars Conference, CrimFest, Southeastern Association of Law Schools, and faculty workshops at Texas A&M University School of Law, Temple University Beasley School of Law, and the Florida International University College of Law. I appreciate the time and insight provided by social-justice organizers, including members of Black Lives Matter, Women’s March, and Southerners on New Ground. Thank you to Casey Duncan at the Bounds Law Library for patiently helping me find sources. Finally, thank you to the editors of the Yale Law Journal, especially Christopher D’Urso, Natasha Reifenberg, Arty Zapata, and Dena Shata.

Introduction

Speech is a component of democratic processes in the United States. Whatever debate may exist around the First Amendment’s history or its, at times, confounding jurisprudence, the proposition that expression matters to our democracy seems uncontested.1 Admittedly, not all communication may drive democratic engagement. The promise of whiter teeth or hastily scrawled professions of love on gas-station bathroom doors may not move the body politic toward change. Yet, other speech may serve both as a means to inform and drive accurate representation in formal democratic institutions and a mechanism of direct participation in which those who live under the law may push back on its application and enforcement in their realm.2

This democratically vital speech need not be formal or even civil. From John Peter Zenger’s closing argument in his trial for seditious libel that helped fuel a revolution,3 to marches on Washington and Selma that pushed forward civil rights4 and voting-rights legislation,5 to graffiti tags that marked gentrification’s displacement of diasporas in major cities,6 to protests for social justice and policing reform following the murders of Michael Brown, Eric Garner, George Floyd, Breonna Taylor, Ahmaud Arbery, and beyond, speech in a variety of forms has driven revolutions and change.7

Democratic significance, however, does not guarantee speech or speakers constitutional protection.8 Consider participants in the Watts Uprising of 1965 who both communicated dissatisfaction with policing policies and contributed to grassroots efforts that remain ongoing nearly sixty years later to reform criminal-legal and law-enforcement systems.9 Yet, even as they engaged in vitally democratic acts of communicating dissent and urging change, participants may have neither expected nor received First Amendment protection for their efforts even if they had tried to claim
it.10 In fact, regulation of speech and speakers is common and often accepted as necessary and appropriate to maintain social order. Criminal law is a mechanism through which much of this regulation occurs.11 Despite its commonality and acceptance, questions linger: who decides what speech deserves First Amendment protection and, if the communicative act falls outside of that protected category, when may enforcement of criminal statutes impede it?

Courts applying First Amendment doctrine and free-speech scholars alike tend to relegate this decision-making power to judicial actors alone, reserving questions of constitutional protection for pretrial litigation.12 There is a logic to this relegation. Such claims may raise questions of law that require judicial interpretation.13 Beyond this, given the complexity and ever-shifting nature of First Amendment
jurisprudence,14 professional decision makers may be better suited to parse the legal issues each case presents.15 Yet, to rely on judicial actors alone to set the boundaries of First Amendment protection is to risk the creation of First Amendment doctrines at odds with the very democratic principles they purport to embody and the very people who might rely on First Amendment protections to speak at all. It is to risk the construction of a formalistic doctrine that ignores the functional realities of its implementation—that some speech and some speakers simply lose their rights.

This Feature pushes back against the notion that decisions about the scope of First Amendment protection in the face of criminal charges ought to rest with formal actors alone. Instead, this Feature argues that defendants, arrested and charged in the course of communicative activity, ought to have the opportunity to present a First Amendment defense—a claim that the value of their speech outweighs whatever interests enforcement of the criminal law might promote. Such a defense is distinct from current practice and scholarly treatment of First Amendment concerns that intersect with criminal law. In the courtroom, defendants raise First Amendment issues either as a defense that hinges on a factual finding that the State has failed to meet its burden of proof with regard to a particular element16 or, more commonly, in pretrial motions that contest the constitutionality of the law itself.17 These motions allow a court to decide, as a matter of law, whether a regulation is constitutional. And, unlike their defense counterparts, these facial challenges avoid or minimize factual analysis. A court may find that a law is overly broad, void for vagueness, or runs afoul of First Amendment doctrine, regardless of how or to whom it is applied.

Such First Amendment defenses are consistent with other constitutional defenses.18 Defendants can and do raise facial due-process challenges under the Fifth and Fourteenth Amendments to the overbreadth or vagueness of regulations. Defendants may also raise fact-specific or as-applied challenges that are distinct from questions of factual guilt. For example, a defendant may challenge prosecution as a violation of the Double Jeopardy Clause,19 the Equal Protection Clause,20 or the Ex Post Facto
Clause.21 They may move to suppress the evidence used to support the allegations that was obtained in violation of the defendant’s Fourth, Fifth, or Fourteenth Amendment rights. For their part, judges adjudicate each of these constitutional claims, rendering legal decisions about the constitutional validity of the law or the evidence. In the end, even as these defenses challenge the constitutionality of the State’s actions, like their First Amendment counterparts, they do not raise questions jurors decide, nor do they ask the fact finder to weigh the value of the right at stake against the State’s interest in prosecution.

In contrast, the First Amendment defense this Feature contemplates allows the accused to challenge the application of the law—even a facially constitutional one—and urges the fact finder to serve as arbitrator between the interests the State seeks to preserve through enforcement of law and the speech rights sacrificed by such enforcement. This defense promotes democratic objectives in a variety of ways by vesting decision-making power in the very body who must live under the resulting, albeit limited, construction of law: the community. First, it allows the defendant the opportunity to present a distinct counternarrative to the State’s accusation in the case-in-chief (as opposed to raising a failure-of-proof defense or a pretrial challenge) and to stake a constitutional value to their communicative efforts, even if their counternarrative is ultimately rejected. Second, it shifts the terms of the constitutional analysis. Instead of formal actors—whether executive actors prior to a charge, or a judicial actor after a charge—addressing the facial or as-applied constitutionality of a statute, this defense empowers the citizen jury to determine what application of law resonates with their own communal values and what is discordant.22 In the case of bench trials, the defense allows the judge, sitting not as arbiter of law, but as a fact finder, to make the same determination.23 In doing this, the defense not only reconstructs First Amendment doctrine on a case-by-case basis around community values, but also deconstructs the current First Amendment landscape that subordinates marginalized speakers’ rights to competing State interests in preserving private property and public order.

Admittedly, the defense will, at times, fail, as all criminal defenses do. Fact finders—whether juror or judge—may reject claims based on bias or majoritarian ideals that suppress dissenting perspectives.24 Some acts and some actors will remain so discordant with communal values that the fact finder will reject the defense. The juror or judge will balance the harm caused by the communication with the harm of suppressing the speech and ultimately vote to convict. For those who throw sticks and stones to communicate, this defense may offer little shelter and may result in conviction.

For others, the rejection will be more personal. The fact finder will reject the speaker themselves and convict based on bias.25 While this is a disturbing result, it too is not inconsistent with current systems in which individual bias may inform a myriad of discretionary decisions from arrest to prosecution to conviction to sentence.26 In the context of juries, this concern may raise questions about jury composition.27 However, it does not alone undermine the value of the defense as a mechanism to allow fact finders to render application of law consistent with community values.28 Nor would recognizing such a defense to a criminal charge eliminate the defendant’s ability to raise a failure-of-proof defense or constitutional claims pretrial or to appeal a conviction. Rather, the defense offers an opportunity for a populist construction of First Amendment rights consistent with the original role of the jury in criminal legal systems in the United States.29

Current First Amendment doctrine highlights the need for a such a defense. Free-speech jurisprudence divides relevant regulations between those that regulate speech for its content—directly targeting what is said and denying protection for low-value speech (such as obscenity and fighting words)30—and those that incidentally burden speech by regulating how, when, or where the communication occurs.31 The latter regulations, also known as time, place, and manner restrictions, are constitutional “provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest, and that they leave open ample alternative channels for communication of the information.”32

The Court’s adoption of this bifurcated speech jurisprudence, between regulation of speech content and regulation of speech methodology, renders access to forums of speech especially critical to constitutional protection. This regime entwines the ability to control the spaces in which speech occurs with the ability to engage in communication. Access to forums of speech may afford refuge to even low-value speech while lack of such access may consign ordinarily protected speech to locations that render it all but silent. The resulting First Amendment landscape is decidedly uneven.33 Well-resourced speech enjoys ever-expanding protections as the Court moves toward a construction of free speech that eschews substantively equalizing principles.34 For less well-resourced speakers, access to speech forums may be limited at best and illusory at worst, as criminal statutes and ordinances regulate that access on purportedly content-neutral grounds. The result is that, for some speakers, the distinction between direct content regulation of speech and time, place, and manner restrictions is a false one. For these marginalized speakers, both categories of regulation serve a common purpose—to exclude some speakers and, as a result, some messages.

In urging a First Amendment defense to criminal charges stemming from communicative acts, this Feature also urges reconsideration of this distinction. Criminal laws’ regulation of access to spaces is, for some speakers, more than a mere incidental burden. It is entwined with individual speech rights, and it carries implications for speech content. To borrow Timothy Zick’s phrase, for some speakers, the “expressive topography”35 does more than create access to audiences. It serves to contextualize communication, to force dialogue, and to demonstrate the pervasiveness or depth of commitment to a viewpoint. At times, the space is the message. It is not just the quality of Zenger’s defense that changes without a public trial and its accompanying audience. It is the message itself that a citizen jury, sitting in judgment, is the last resort for the rights of citizenship and those rights ought to include the opportunity to criticize a governor.36 Crossing a bridge in Selma in defiance of criminal law matters as marchers elsewhere may not sway a nation that the denial of voting rights in Alabama or across the South requires federal legislative action.37 Graffiti in a former Dominican neighborhood carries significance to mark the location of a community broken apart in the name of urban renewal in ways that the same tag in another neighborhood does not.38 In the same way, a “stop killing us” tag on a confederate monument in Virginia scrawled in protest in the summer of 2020 carries a message absent in another context.39 And Black Lives Matter protests that fill streets across the nation signal a broad-based call for change in ways that Instagram posts and yard signs cannot.40 Sometimes, even just the presence of a marginalized actor in a majority-dominated location can serve as a catalyst for conversation about how notions of belonging and danger are constructed and what role policing plays in enforcing and/or creating those notions.41

In these instances and for these speakers, location is more than a mere place that speech occurs. It is the speech. And jurisprudential distinctions that seek to split or cabin that speech from those locations ignore the implications of forums to the content of speech. To relegate Zenger’s trial to a closed courtroom, to confine civil rights activists to their own churches across the midcentury South, to keep demonstrations for social justice in city parks and on sidewalks, or to regulate presence itself is not just to change the time, place, and manner of the speech. It is to create an unequal speech landscape that silences some speech and some speakers. Just as some speech matters for democracy, access to location matters for speech.

To recognize the centrality of forums of speech, in turn, requires an acknowledgment that regulating spaces is a means to regulate speech and to create a hierarchy of rights and interests.42 Criminal law is a central mechanism of this regulation and serves as a tool to reinforce this hierarchy. Speech is increasingly suppressed not through statutes that directly target it, but through the enforcement of criminal statutes that curtail access to spaces in which speech occurs or might occur. Yet enforcement of property and orderly conduct regulations typically evades constitutional scrutiny. Either the speech in question is deemed outside the realm of First Amendment protection altogether, or the regulation itself is viewed as an acceptable time, place, and manner restriction that imposes only incidental burdens on speech. This compartmentalization trivializes the significance of these burdens—particularly on dissenting and marginalized speech. Indeed, those burdens are major contributors to what Professor Genevieve Lakier has termed a subordinating First Amendment landscape. Lakier argues that this uneven landscape relies on the Court’s modern allegiance to formalistic speech equality.43 I do not disagree with that assessment, but here, I argue, more is at stake. The modern First Amendment doctrine that Lakier critiques endorses a hierarchy of rights that devalues marginalized speech and overvalues protection of property and majoritarian order. Simply put, the incidental burdens of criminal law’s regulation of spaces drive a speech landscape that determines who can speak. These burdens also serve as a sort of content curator, dictating which messages can reach audiences and which are confined to backrooms or are “incidentally” regulated out of existence.

To imagine a modern free-speech doctrine that recognizes and preserves the vital role speech plays in our democracy requires imagining a universe that takes into account the burden some criminal laws place on spaces of communication and so on communication itself. This Feature sparks this imagination by proposing a novel First Amendment defense to criminal statutes that create burdens on speech through their regulation of access to spaces where speech might occur. In this, my proposal follows a legal-realist tradition that acknowledges the significance of such burdens on speech and pushes toward an antisubordinating First Amendment doctrine.44

There are three component parts to this argument. Part I begins with a discussion of illustrative criminal statutes that create burdens on speech through their regulation of access to spaces or locations and their place in the First Amendment canon. Such criminal regulations run the gamut of criminal codes (federal and state) and municipal ordinances that reside at the intersection of criminal law, property interests, and speech rights. Importantly, such criminal provisions enjoy a typical elemental simplicity that carries hidden implications. With fewer elements to meet, enforcement discretion is extremely broad. Yet such regulations and their enforcement avoid constitutional rebuke because they are deemed to impose incidental, as opposed to direct, burdens on First Amendment speech rights. In addition, they often present in the criminal law canon as low-level felonies, misdemeanors, and infractions. Although their place on the bottommost rungs of the criminal or culpability ladder creates the temptation to dismiss them as less significant, such simplistic, low-level offenses often serve as a first point of contact within criminal legal systems, allowing police to stop, arrest, and search; prosecutors to charge; and judges to convict and ultimately sentence. Their lowly position may also place them outside of the federal and most state constitutional promises of a right to counsel45 or jury trial,46 stripping marginalized defendants of procedural protections. Even when not charged, these laws carry implications. They may serve to justify searching a suspect for evidence of other, often more serious crimes. Or prosecutors may threaten to add them to a defendant’s existing charge or charges with an eye toward coercing guilty pleas and thereby avoiding the procedural protections of criminal trials. Or they may serve to simply suppress speech by discouraging further action by individuals arrested or threatened with arrest.47 Rigorous enforcement and even the threat of enforcement of such laws, coupled with no opportunity to claim a First Amendment shelter as a defense, have had a corroding effect on diverse, underresourced, and otherwise marginalized speakers.48

With this general overview of criminal regulations that impact speech in place, Part II engages with the work of First Amendment scholars who have sought to map what is admittedly an inconsistent jurisprudence around speech while describing the impact of this doctrine on marginalized speakers and messages. This work only incidentally explores the implications of the criminal regulations described in Part I. Nonetheless, it provides vital context to the resulting speech landscape, helping to describe a jurisprudence of speech equality that is at odds with the lived experience of those affected by the regulation of speech. This Part makes a critical descriptive claim that current doctrine around time, place, and manner restrictions creates an unequal or subordinating First Amendment landscape that underestimates the impact of criminal law on speech, particularly among marginalized speakers. In doing so, this Part challenges the treatment of incidental burdens that flow from criminal law’s regulation of spaces and argues that scholars and courts alike have overlooked the vital role presence plays in free speech—a neglect this Feature corrects by asserting the novel normative claim that there are times when presence is the message.

Finally, Part III argues that, as the nation grows increasingly polarized and as speech, specifically protest, enjoys a resurgence as a critical force to drive democratic change, burdens on speech, even incidental ones, require attention. Here, this Feature takes a prescriptive turn, urging a First Amendment defense to criminal prosecutions that impose incidental burdens on speech. This Part considers the parameters of such a defense, including how it differs from existing First Amendment and necessity defenses or pretrial challenges to the constitutionality of regulations and how it would be actualized. Part III asserts that the proposed defense offers an opportunity to present a counternarrative to the State’s accusation—rendering evidence of the defendant’s intent to communicate and the value of that communication relevant to the assessment of culpability that is a verdict.

While this democratic function is, in part, reliant on a trial, the proposed defense matters even in criminal legal systems in which defendants are more likely to plead guilty than go to trial and may not enjoy a right to a jury even if they go to trial. In a jury trial, this defense would offer an opportunity for community-based decision makers to draw more nuanced boundaries around protected communicative conduct that they value, even in the face of competing interests. In the absence of a jury or a trial, the proposed defense would still allow underresourced people an ironic (and admittedly imperfect) access to courts, opening avenues of negotiation around charges or potential charges and pushing formal actors, including judges, to consider discordance between current application of the law and communal expectations. With sufficient prevalence, the defense would potentially shape policing, prosecutorial, and even judicial decision-making.

In all these ways, the availability of this defense would serve a legitimating and democratic function for resulting legal doctrine. Written law may create the scaffolding of doctrine, but on-the-ground enforcement ultimately lends meaning and nuance to such scaffolding. Discretionary decision-making from formal governmental actors often dominates this arena. The defense proposed here opens the possibility that community-based actors, such as defendants or jurors, may exercise their own discretionary power, a power that is uniquely transparent as it literally occurs in public spaces and may be approved or rejected by the same public that the law claims to serve. A defense thus opens its own space for an alternative rights hierarchy that creates an equalizing speech landscape—one that depends less on access to resources to realize its democratic principles.