Defamatory Non-Media Speech and First Amendment Methodology

In the course of his eloquent commentary upon New York Times Co. v. Sullivan, the late Professor Kalven enthused that the Court had written an opinion that may prove to be the best and most important it has ever produced in the realm of freedom of speech. This excitement was generated not by the Court\u27s rather narrow holding but rather by the hope that Sullivan would serve as the opening wedge to dislodge the clear and present danger test, to dismantle the two-level approach to first amendment analysis (reflected in cases such as Chaplinsky, Beauharnais, and Roth), and instead to rest free speech theory on the idea that the first amendment is centrally concerned with the protection of speech relating to self-government. From that premise, Kalven thought the inclination to protect all speech in the public domain would prove to be overwhelming. Professor Kalven\u27s hopes have not been realized. It is now clear that a variant of the clear and present danger test is solidly entrenched in a portion of the Court\u27s first amendment theory and that the two-level approach to first amendment analysis is alive and well. Moreover, recent commentary by Justice Stewart and the Court\u27s opinion in Gertz v. Robert Welch, Inc. suggest that Sullivan may be regarded as having nothing to do with free speech theory. Rather it may be described as a free press case and its principles are to be applied (at least insofar as the scope of first amendment protection is concerned) whether or not the communication is considered to be of public interest or relevant to self-government. Such developments make it appropriate to consider whether media communications should be accorded a greater level of protection than non-media communications, whether defamatory speech unrelated to public issues ( non-public or private speech) is or should be protected under the first amendment, and whether there is a central meaning of the first amendment under prevailing Supreme Court doctrine. These comments should suffice to introduce the three major themes of this paper: First, media communications should be afforded no greater protection than non-media communications; second, defamatory non-public speech has been undervalued in first amendment theory; and third, the attempt to identify a category of speech deemed to be centrally protected under the first amendment is ill advised. Thus, first amendment methodology is explainable not in terms of self-government or absolutism (nor in terms of definitional or ad hoc balancing); instead first amendment methodology is rooted in general balancing principles which sometimes counsel ad hoc approaches and other times dictate rules of general application. Before addressing these contentions directly, it is necessary to discuss Professor Kalven\u27s hopes, Justice Stewart\u27s perspective, and some of the Court\u27s observations with respect to these issues