Categories and the First Amendment: A Play in Three Acts

In the foregoing pages I have attempted to flesh out three different aspects of what has been broadly called categorization. Implicit in this project is the premise that it is often quite revealing to search for important differences in the face of superficial similarity. Very often, however, when we search for differences we may discover additional points of similarity that are not at first apparent. This seems to be the case here, in that one recurrent feature is what one might inelegantly call learnability. The concept of learnability is comprehensible only in the con-text of a separation of roles.\u27 Thus, if the only question that arises in the context of the advocacy of a code-whether legal,moral, or otherwise--is whether it is substantially good or bad, we need not be concerned with whether someone else can learn it.That is, however, an artificially truncated view of codes, for codes must in fact be applied to new situations by persons other than the ones who create or promulgate the code. The code must be capable of application by those who must apply it if it is to be called, in a larger sense, a satisfactory code.In the context of constitutional adjudication, the question is whether a code-that is, a system of rules, principles, exceptions,and so on-can adequately be articulated by the Supreme Court and whether the code so articulated is then learnable by those judges and prosecutors at the level of application who have the major burden of responsibility in putting the code into practice. If the code is not fully learnable, then we must look closer at the type of leakage that takes place between the formulation of the ideal code and its subsequent application