IS LESS PROTECTED SPEECH REALLY
LESS PROTECTED?
Specific Doctrines in Supreme Court
Free Expression Decision Making

Mark J. Richards
Department of Political Science
University of Wisconsin -- Madison
1050 Bascom Mall
Madison, WI 53706

richards@polisci.wisc.edu

Paper prepared for presentation at the 1999 annual meeting of the Midwest Political Science Association, Palmer House Hilton Hotel, Chicago, Illinois, April 15-17, 1999.

INTRODUCTION

In this paper, I address a multi-faceted research puzzle: is there a role for law in systematic, empirically supportable models of Supreme Court decision making? Proponents of the attitudinal explanation suggest that "the attitudinal model is a complete and adequate model of the Supreme Court's decisions on the merits" and that there is no systematic evidence supporting legal explanations (Segal and Spaeth 1994, 11). The unabashed nature of the claims for the attitudinal model leaves many political scientists very troubled (Brenner and Stier 1996; Brisbin 1996; Knight and Epstein 1996; Lawrence 1994; Songer and Lindquist 1996). Where is law in all of this? The courts, including the Supreme Court, are supposed to be guided by the law. If the attitudinal model does offer a complete explanation, then why is it that attitudinal variables do not explain all of the variance in the Court's decisions? It is possible that legal variables must be introduced in order to achieve a more complete explanation. For example, consider the Court's free speech decision making. If the attitudinal explanation is complete, then why is it that after 1972, when Chief Justice Warren Burger had taken over the leadership of the Court from the liberal Chief Justice Earl Warren and the membership of the Court became more conservative, the Court was more likely to uphold the rights of speakers in cases where content-based government regulations of expression restricted more speech than what was necessary to achieve government interests? In order to answer this question, I argue that it is necessary to look beyond a purely attitudinal explanation and consider what I label "legal regimes and doctrines."

In a paper presented at the 1998 Southern Political Science Association annual conference, Kritzer and I presented results of models that support a doctrinal explanation of the Supreme Court's free expression decision making for cases involving content-based and content-neutral government regulations of expression (Richards and Kritzer 1998). In the models we presented, we used expression that fell into one of the Court's less protected categories of expression as the baseline doctrinal category, the category against which content-based and content-neutral regulations of expression were compared. However, the category of less protected expression is comprised of a number of distinct subcategories such as obscenity and broadcast media expression that are governed by different doctrines. In this paper, I first explore the influences of the separate less protected categories such as expression in schools and private forums. I explain whether each of less protected categories of expression are less protected by the justices relative to content-based regulations of expression, the most protected category. This first model does not offer empirical support for a legal regime or doctrinal model because I do not examine whether the influence of the variables changes before and after the doctrines are established. The second and third models I present do assess this possibility for two important less protected categories: expression in non-public forums and commercial expression. I test whether the specific doctrinal variables generated by these two doctrines influence the justices in their decision making, as well as whether the influences of the variables change after the doctrines are established.

LEGAL REGIMES

The term "regime" is most often associated with a group of leaders, and hence one might be tempted to view "legal regimes" as synonymous with particular configurations of personnel on the Supreme Court. However, I introduce the modifier "legal" to indicate that regimes can be defined by law as well as by people. More specifically, I argue that major precedents can serve to structure the way the Supreme Court justices evaluate key elements of cases in arriving at decisions and such precedents serve to define legal regimes. As with regimes generally, legal regimes change over time.

Legal regimes structure Supreme Court decision making by establishing which case facts are relevant for decision making, and/or by setting the level of scrutiny or balancing the justices are to employ in assessing case facts. A legal regime can be based on a single precedent, or a number of chronologically proximate precedents. The key to identifying legal regimes is change: only by identifying different legal regimes for a given area of law can I show empirically that such regimes exist. This demonstration is straightforward: the influences of case elements on the justices' decisions should vary across regimes. Thus, to identify legal regimes I start not with justices but with cases and doctrine. The point in time at which a legal regime is established serves as a chronological break point for such empirical analysis.

Kritzer and I have identified two different general types of legal regimes (Kritzer and Richards 1988). The first we label "doctrine" because underlying it is legal doctrine. By legal doctrine we mean a specific formulation of the analytic framework that serves to structure Court decisions in a particular area by identifying relevant case facts and indicating how those facts should be weighed. This analytic framework must be influential in practice to qualify as a doctrine-based legal regime.

The second type of legal regime we label a "standard-based" legal regime because it does not establish an influential analytic framework but simply establishes rules regarding things such as level of scrutiny, or whether one side or another in an issue is to be afforded some sort of preference.⁽¹⁾

By advancing the construct of legal regimes we do not in any way reject the argument that the justices are influenced significantly, perhaps even primarily, by attitudes. In addition, the justices, of course, create legal regimes and doctrines, which means that the justices' attitudes play some role in establishing regimes and doctrines. Thus, it is impossible to completely disentangle legal regimes from attitudes. Nor do we reject the argument that justices take into consideration institutional and strategic concerns such as the need to obtain agreement from four additional colleagues to secure a majority in favor of the justice's position (Epstein and Knight 1998). Rather, legal regimes provide a construct that can incorporate law systematically, and in a way that can be empirically tested, into the dominant social science models of Supreme Court decision making. Specifically, if legal regimes exist, and points of regime breaks can be identified, then statistical analyses should show systematic differences in the factors influencing justices' decisions before and after the regime break.

ANALYTIC STRATEGY AND STATISTICAL METHOD

The core hypothesis that I derive from the legal regime model is that the factors influencing justices' decisions should vary across legal regimes. If I can identify decisions (or possibly sets of decisions) that represent a change in the legal regime governing a specific set of cases, the results of statistical models predicting decisions before and after the regime change should differ in significant and meaningful ways. Thus, testing the model of legal regimes involves the following steps:

• Identifying areas of law for which I can hypothesize that there have been differing legal regimes governing decision making over time.
• Identifying the point (or period) of change from one regime to another for each area of law identified in step 1.
• Identifying the factors that would be expected to account for decision making in each area of law (e.g., justices' attitudes, parties, situational elements, doctrinal facts, and other factual elements).
• Estimating statistical models across, before, and after the regime changes, and comparing the statistical results to ascertain whether the statistical results do in fact differ across regimes.
• Ruling out the major alternative explanation that over time change can be explained by personnel (and hence attitudinal) change.

The key statistical test of change is a variant of the well-known Chow test (Hanushek and Jackson 1977, 127-129) for comparing whether statistical results differ across sets of data. My analysis relies upon logistic regression, and the computation of the test of change is based on features of logistic regression.⁽²⁾ If the influence of variables in the model is significantly conditioned by a particular case or closely related set of cases, and if those significant differences are not an artifact of changing Court personnel, then I have identified an influential legal regime. Tests of doctrinal explanations must meet an additional, more rigorous test. To test for the influence of doctrine, I utilize a 3-step regression test, a modified Chow test, which assesses whether the doctrinal variables vary significantly over time.⁽³⁾

In this paper, I extend our previous analysis of legal regimes by looking in greater detail at the less protected categories of expression.

One possible challenge to my analysis is that virtually any long series of Supreme Court decisions could be arbitrarily split into two time periods and the results of statistical analyses of the impact of the decision making factors would differ between those two periods. However, previous tests of search and seizure cases and free exercise cases according to splits in time periods that were not based on legal regimes or doctrines failed to produce significant results, which offers some confirmation that the method does more than find randomly significant results. In addition, the times chosen as break points must be independently justified according to the criteria for legal regimes and doctrines.

DOCTRINE AS LEGAL REGIME

Doctrine

Doctrine frames decision making in a particular area of law. Many precedents can exist in an area of law, but at times the Court establishes a doctrine: a specific formulation of the analytic standard which should structure Court decisions in a particular area by identifying relevant case facts and indicating how those facts should be weighed. A doctrine is a decisional standard established in case law that is expected to be more influential than other precedents on judicial decisions. A doctrine is established as a standard which should apply to the adjudication of all cases within a substantive area, so it is less likely to be distinguished as inapplicable to cases within its area than is ordinary precedent. A doctrine is a standard in the sense that it is the rule or test that must be met in order for an action of the state to be judged as constitutional. As an analytic standard, a doctrine identifies case facts that are relevant to how the members of the Court vote, and requires balancing or analysis of the relevant case facts. For example, the doctrine for content-based regulations asks the justices to consider whether the state's regulation is justified by a compelling government interest, and whether the regulation is narrowly tailored to achieve that interest. A doctrine also indicates support for a normative position in a substantive area of law. These analytic standards ask the justices to make normative choices, and are based on foundational normative principles.

Although I have stated that doctrines declare which facts are relevant for adjudication, the term "facts" is a misnomer. The doctrines I discuss are not focused on concrete, objective facts such as whether a speaker punched a police officer. Rather, they use abstract phrases and terms such as incitement to imminent lawless action or compelling government interest. These abstract concepts require interpretation.⁽⁴⁾ I label these interpretive aspects of cases doctrinal facts in order to keep in mind that these are not concrete facts but instead are interpretive components of cases. However, I retain the use of the word "facts" to indicate these interpretive components are the parallel of objective facts in other fact-pattern analyses of Supreme Court decision making, and to minimize the use of the clumsy phrase "interpretive components."

Consistent with our legal regime approach, I theorize that the influences of doctrinal facts on the justices' votes should change after a new doctrine is established. Doctrines inform the justices which doctrinal facts are relevant for decision making. Prior to the adoption of doctrines, justices may not even consider that such doctrinal facts should matter. In addition, doctrines suggest to the justices how to weigh doctrinal facts. After a doctrine is created, justices will have a better sense of how important particular doctrinal facts should be in their decision making.

To ensure that my model tests doctrines rather than simple precedents, I established criteria for deciding whether a particular case qualifies as establishing doctrine. Each of the following four criteria must be met for a case to be described as establishing doctrine. A failure to meet any one of them would mean that a case had not established doctrine. Taken together, all four constitute sufficient conditions for doctrine. The justification for each of the four criteria is the principle that doctrine should be more authoritative than ordinary precedent. Doctrine should be authoritative because doctrine is expected to structure the justices' decision making. Doctrines apply to particular areas of law, and they identify what the relevant doctrinal facts for adjudication are in particular areas of law. These doctrinal facts structure the justices' votes. Even if justices vote attitudinally, their attitudes must operate relative to facts (Segal and Spaeth, 1993). Facts do not exist in a vacuum; they must come from somewhere. Doctrines are a key source. This is why doctrines are expected to be authoritative.

By contrast, many precedents are so particular to unique factual situations that they offer an inadequate guide to decision making in a broad area of law. When a justice thinks that a particular precedent lacks authority, it is unlikely that the justice would be influenced in his or her decision making by that precedent unless it was consistent with his or her ideology. The authoritative character of doctrine is what makes it different from ordinary precedent. Each one of the four criteria I present is based on the principle that doctrine should be more authoritative and influential than ordinary precedent. A doctrine should establish an analytic standard for an area of cases, receive scholarly recognition for establishing a standard, be adopted by at least a five-member majority of the Court in the case in which the doctrine originates, and not be overturned or substantially limited.

Doctrinal Criteria

• First, a doctrine should present a formulation of an analytic standard in an area of law. This is the analytic standard criterion. A precedent that establishes only a narrow holding that is particular to the facts of one case fails to establish an analytic standard. In some areas of law, doctrines are not established because the case law is fractured into multiple precedents rather than a broad doctrinal theory. A doctrinal standard is formulated to identify the relevant case facts that should structure decisions in an area of law. As noted above, I label these case facts doctrinal facts, and an analytic standard must identify doctrinal facts. To qualify as an analytic standard, a precedent must also establish a test for how the justices should weigh or analyze doctrinal facts.
• Secondly, a doctrine should be recognized by at least one scholar in the appropriate area of law as a case that formulates an analytic standard, not merely a precedent that sets up a rule. For this research, the appropriate area of law is free expression. If a scholar has recognized the doctrinal character of a particular precedent, this provides more evidence of its status as a standard. This is the scholarly recognition criterion. Scholarly recognition is also useful because it is a criterion that is external to the Court.
• Third, a doctrine should be adopted by at least a five-member majority of the nine-member Court. This is the five-member majority criterion. Anything adopted by less than a five-member majority would not be expected to be binding on future Court decisions. For example, if a standard was mentioned in a concurrence, but not in the main majority opinion, it would not be a doctrine. Likewise, if the Court could not establish a five-member majority but instead had a four-member plurality that agreed on an analytic standard, another member who wrote a separate concurrence that agreed with the plurality result but did not agree with the analytic standard, and four dissenters who also rejected the analytic standard, doctrine would not be established.
• Finally, any precedent, including a doctrine, can be overturned, significantly modified, or substantially limited in practice. If this happens to a doctrine, then it loses its status as authoritative doctrine. This is the not overturned criterion.

When all four criteria are met, I recognize that a case constitutes a doctrine. I next present the doctrines I have identified for free expression law.⁽⁵⁾

Free Speech and Free Press Doctrine

Before I can be certain that the various doctrines qualify as legitimate doctrines rather than mere ordinary precedents, I must apply the tests for doctrinal status elaborated above. In this section, I summarize the doctrines I have identified by applying the four doctrinal criteria to the body of free expression law.⁽⁶⁾ The key doctrines are the threshold doctrine, the two track doctrine, and the less protected categories. Although this paper focuses on the less protected categories, the other doctrines need to be clarified in order to understand why the less protected categories are less protected relative to expression that is highly protected.

Supreme Court first amendment free speech and free press doctrine can be expressed by three basic doctrines. First, cases must meet the threshold of first amendment protection. Cases in which free expression is not actually abridged or there is no government action do not invoke the protection of the first amendment.

A second fundamental doctrine applies to nearly every case that raises a free expression claim. Tribe's (1988) interpretation of general free expression doctrine, his "two track" analysis, suggests that in all such cases, the Court asks whether the regulation in question is a content-based regulation aimed at the communicative impact or viewpoint of the expression, or a content-neutral regulation. According to the Court, content-based regulations merit the most rigorous scrutiny and are unlikely to be sustained as constitutional. Content-based, or track one, regulations must be narrowly tailored to serve a compelling government interest. A challenged regulation is not narrowly tailored if there is another regulation the government could have used which would be less restrictive of expression than the challenged regulation but would still achieve the government interest. In the justices' shared vocabulary, narrowly tailored serves as a catch phrase which means that the regulation must not restrict more speech than is necessary to serve the government interest that is offered in support of the regulation.⁽⁷⁾

Expression governed by content-neutral incidental or time, place or manner regulations receives less constitutional protection than expression regulated by content-based regulations. Content-neutral, or track two, regulations must be narrowly tailored to serve significant government interests. The two track doctrine was formally established in the Chicago Police Department v. Mosley (408 U.S. 92, 1972) and Grayned v. Rockford (408 U.S. 104, 1972) companion cases, where the Court struck down an attempt to prohibit all picketing except for labor picketing outside of schools as a content-based regulation which was not narrowly tailored. However, the Court also upheld a regulation of noisy picketing outside of schools as a narrowly tailored content-neutral regulation.

Finally, certain regulations of expression receive less rigorous scrutiny because the Court has recognized that there are specific justifications for regulating these types of expression. These less protected categories include commercial speech, obscenity, broadcast media expression, expression in non-public forums, expression in schools, speech in a private forum against the will of the owner of the property, and libel against private figures. All of these doctrines meet the four criteria that I have established for a case to qualify as a doctrine.

Perry Education Association v. Perry Local Educators' Association. (460 U.S. 37, 1983) and the non-public forum cases are about the issue of whether a content-based government regulation of expression should be governed by a different doctrinal standard based on the non-public forum status of a particular forum. According to Perry, in non-public forums the government is allowed to make content-based, but not viewpoint-based, regulations of expression. In addition, ample alternative channels of expression must remain open after the government's regulation goes into effect. The regulation must be reasonable in light of the forum's purpose, and regulations of expression are not reasonable if they are viewpoint-based or if ample alternative channels of expression do not remain open.

However, I do not expect the Perry non-public forum to be an influential doctrine, mainly because non-public forum cases typically involve difficult issues such as whether the forum actually is non-public. Another difficult issue in these cases involves separating content-based regulations, which are permissible, from viewpoint-based regulations, which are not constitutional.

The Central Hudson Gas & Electric Corp. v. Public Service Commission (447 U.S. 557, 1980) commercial speech doctrine established a more speech protective doctrine for commercial expression than what existed previously. After Hudson, regulations of commercial speech need to be narrowly tailored to serve significant government interests.

In a paper prepared for last fall's Southern Political Association Conference, Kritzer and I presented a doctrinal model of Supreme Court decision making (Richards and Kritzer 1998). The results indicated that two track Grayned doctrine significantly influenced the decisions of the justices. Before Grayned, content-based and content-neutral regulations that were not narrowly tailored did not influence the justices, but after Grayned, the influence of such regulations was negative and significant. This indicates that the analytic standard that regulations be narrowly tailored was taken seriously by the justices after the doctrine was adopted and the justices voted against the government when it failed to meet the standard. In addition, regulations of track one expression did not significantly influence the votes of the justices before Grayned, but after Grayned, the justices exhibited a significant tendency to vote for the rights of speakers when the government regulated such highly protected expression. Similarly, the influence of regulations of track two, or content-neutral, expression changed significantly before and after Grayned, reflecting the Grayned doctrine's speech protective character. Before Grayned, the justices significantly tended to vote for the government when the government used content-neutral regulations, but after Grayned, regulations of content-neutral expression did not significantly influence the justices. The analyses carried out in our earlier paper made it clear that the changes could not simply be attributed to changing personnel on the Court, but reflected genuine changes in factors influencing the justices' votes.⁽⁸⁾ Significant differences in the models conditioned by the Grayned doctrine were due the influence of doctrinal variables.

OTHER INDEPENDENT VARIABLES

The general form of my argument is a factor (doctrine or legal regime) which appears at a point in time causes changes (in votes) after that point. This type of argument is flawed if there are other factors that actually explain the changes over time. This is the logical fallacy post hoc, ergo propter hoc. To avoid this fallacy, three requirements must be met. First, there must be actual change over time associated with the factor (doctrine or legal regime). Second, there must be a plausible reason why the factor would actually cause change. Finally, other potential explanations must be taken into consideration. In this section, I briefly delineate the other independent variables that I consider.

The ideologies of the justices on the Supreme Court are their policy preferences for the outcomes of cases in general issue areas. The first, most general dimension of the justices' ideologies is essentially the attitudinal model as presented by Segal and Spaeth. Segal and Spaeth see the attitudes of justices as varying along the dimension of liberal and conservative. The justices possess general ideological policy goals.

The second dimension of ideology refers to the attitudes that the justices have towards particular groups of speakers and individual speakers, such as racists, racial minorities, feminists, military protesters, socialists, corporations, and members of religious groups. If the justices are biased in favor of or against the ideas presented by particular speakers, this may influence the willingness of the justices to protect their civil liberties. This theoretical point is supported by three distinct groups of scholars. First, public opinion scholars, observing that people were inconsistent in their willingness to protect the civil liberties of members of different groups, defined political tolerance as "a willingness to permit the expression of those ideas or interests that one opposes" (Sullivan, Piereson and Marcus 1979, 784). Although I do not adopt this definition for the purposes of my research, it makes the useful point that people's attitudes toward certain ideas or people who advocate those ideas may shape their willingness to protect the expression rights of the individuals and groups advocating those ideas. Although first amendment principles such as content-neutrality are supposed to make such considerations irrelevant, the justices are only human and may be influenced by such attitudes. Secondly, some Critical Legal Studies scholars have suggested that the attitudes of Supreme Court justices regarding whether to support the free expression rights of dissidents such as communists and war protesters has wavered according to historical events, shifts in societal consciousness and power relations, and has varied from justice to justice (Kairys 1990). Finally, some Critical Race Theorists have suggested that racial attitudes may also influence free expression decision making (Matsuda et. al. 1993).

In addition, the level of government involved in the case may matter. The justices may be more inclined to defer to the federal government than to other levels of government in free speech cases. For example, the presence of the solicitor general arguing for the federal government may lead to more support among the justices for the federal government.

The action the government takes against the speaker may also have an influence. The justices may be less sympathetic to criminal prosecutions of speakers, denial of opportunities for expression and disciplinary actions against lawyers than they would be to civil suits, regulations, and losses of government benefits or employment. There are not strong doctrinal justifications for why these factors would influence the justices, but they are worth evaluating in order to discount alternative explanations for doctrinal change.

For notes on the data sources and coding of variables, see appendix B. The dependent variable was coded so that positive coefficient values reflect support for the government rather than the speaker.

FREE EXPRESSION HYPOTHESES AND RESULTS

The first model that I present considers whether the justices take into account the specific less protected categories of expression in their decision making. As the results under the "doctrinal categories" heading in Table 1 indicate, all of the categories of expression are tested relative to the baseline category of content-based regulations of expression. The baseline category, track one, is the most protected category of expression. This leads me to hypothesize that the variables for all other categories should exhibit a positive sign, indicating that the justices are less likely to protect the rights of the speakers in these other categories.

The doctrinal categories set of variables is significant at the p<0.01 level. My hypotheses are confirmed for six of the nine categories, and for four of the seven less protected categories. When a case fails to meet the threshold of first amendment protection, due to a lack of state action for example, the justices are significantly more likely to vote for the government than in any other case situation, relative to the baseline category of track one expression. Expression governed by content-neutral regulations also significantly influences the justices to vote for the government and against the rights of speakers, relative to track one expression.

Turning to the less protected categories, I observe no significant influence for obscenity, expression in private forums, and commercial expression. This indicates that some types of less protected expression are not actually significantly less protected by the justices, as compared to track one expression. However, four of the less protected categories are significantly less protected. Expression that is challenged as libeling a private figure is significantly less protected relative to track one expression. Expression in schools, in non-public forums, and broadcast media expression fare even worse than private libel; the justices exhibit a significant tendency to vote against the rights of speakers when the regulated expression fits one of these categories.

The identity set of variables, representing the types of parties commonly involved in free expression cases, is significant at the p<0.01 level. Compared to the baseline category of business, the justices exhibit a significant tendency to vote for members of racial minority groups, members of religious groups, print media and broadcast media. The justices tend to vote against speakers who have protested the military, however.

The government set of variables is significant at the p<0.01 level. The justices tend to vote for the federal government compared to the baseline category of state government.

The type of action the government takes against the speaker also matters. The action variables are significant at the p<0.01 level. The justices significantly tend to vote for the rights of speakers in cases involving criminal prosecutions of speakers, denials of opportunity for expression, and disciplinary actions, compared to the civil action baseline category. However, the justices significantly tend to vote for the government when the government denies a speaker government benefits or dismisses a speaker from a government job.

The model that is reported in Table 1 does not provide empirical support for a legal regime or doctrinal explanation for several related reasons. I do not use a Chow test to examine whether there is significant variation in before and after conditional models, so it is impossible to say whether less protected doctrines condition the results. The various less protected categories were created at different points in time, so a single break point that demarcates the beginning of a general less protected category doctrine can not be identified. To find support for the argument that legal regimes or doctrines influence the justices' decisions about expression in less protected categories, I must assess specific less protected doctrines, one at a time.

Of the seven less protected categories, three cannot be tested for doctrinal explanations because they do not establish analytic doctrinal requirements that must be met by the government. These categories are expression in school, expression in private forums, and libel of private figures not for presumed or punitive damages. The Court has established doctrine for these categories in the sense that it has declared that these types of expression are less protected than expression governed by content-based regulations. However, there are no analytic tests for these three areas. The law for libel of private figures is determined by the states. The Court has never adopted a particular analytic formula for expression in schools.⁽⁹⁾ Expression in private forums against the will of the owner of the forum is not protected, but lacks an analytic standard.

Broadcast media expression can not be tested for a doctrinal explanation because the analytic doctrine is not established until the last case in the sequence, although the Court has always treated broadcast media expression as less protected, to some degree or another.

The Miller obscenity doctrine also proves quite difficult to test empirically. Two of the three Miller factors, whether the work is patently offensive and has a prurient appeal, are jury questions. Of course, before Miller, juries in obscenity cases did not decide the Miller factors, so I cannot examine the doctrinal influence of Miller factors before and after Miller due to this missing data problem. The third factor, the value of the work taken as a whole, is impossible to assess without an examination of the material.

Fortunately, McGuire (1990) has presented an effective factual model of the Court's obscenity decisions. Our previous analysis of McGuire's obscenity data supports the argument that Miller constitutes a legal regime, but not a doctrine, that significantly conditions the Court's obscenity decisions (Richards and Kritzer 1998). The overall test of significance for differences in the impact of variables before and after Miller yields a highly significant chi square, even after controlling for changes in Court personnel.

The doctrines governing expression in non-public forums and commercial expression are viable candidates for the testing of a doctrinal explanation. Both doctrines establish analytic doctrinal requirements. However, I do not expect the Perry non-public forum doctrine to be an influential doctrine. I expect to see significant changes in doctrinal variables before and after the Hudson commercial speech doctrine is established. Hudson created a more speech protective analytic standard for commercial speech, so I expect that government regulations of expression that restrict more speech than necessary will influence the justices to vote against the government after Hudson. Prior to Hudson, this doctrinal fact should not significantly influence the votes of the justices. For a specific list of variables and hypotheses, see appendix C.

The results presented in Table 2 indicate that the Perry non-public forum doctrine is not influential as a legal regime. Although the Chow test reported in Table 2 is significant at the p<0.05 level, the significant differences in the influences of the variables that appear to be conditioned by Perry disappear when I control for changes in Court personnel. Change in the membership of the Court has been proffered as another explanation for change in voting patterns (Baum 1992). To evaluate whether these results are an artifact of changing Court personnel, I test only the votes of the justice who sat on the Court at the time of Perry. These justices are Blackmun, Brennan, Burger, Marshall, O'Connor, Powell, Rehnquist, Stevens and White. The Chow test for this model produces a chi square that is not significant (8.56, 5 d.f.).

Perry is not an influential doctrine either. The Perry doctrinal variables are insignificant as sets and as individual variables.⁽¹⁰⁾ The influence of the doctrinal variables remains insignificant both before and after Perry, as well as in the before and after model. The 3-step test described in footnote 3 indicates that the doctrinal variables do not vary significantly in the before and after models.

The justices have decided the non-public forum cases based primarily on their policy goals, as the attitude variable indicates in all of the Perry models. The action and government variables, individually and as sets, are insignificant. In the before Perry model, the justices significantly tend to vote for the rights of religious speakers, and the identity set of variables is significant at the p<0.10 level. In the before and after Perry model, the religious speakers variable is also significant and negative, but the identity set of variables is not significant.

Turning to the Hudson commercial speech doctrine, the results reported in Table 3 indicate that Hudson is influential as a legal regime. Hudson does not condition the influence of the doctrinal variables, but it does condition the model as a whole. The justices decide cases in a different manner after Hudson is established. The results of the Chow test indicate there are significant differences in the influence of the variables that are conditioned by whether a case was decided before or after Hudson. The Chow test produces a highly significant chi square (29.19, 5 d.f., p<0.01).

To ensure that the changes in the before and after models are not an artifact of personnel change, I restricted the analysis reported in Table 3 to only those justices sitting on the Court at the time of the Hudson decision. These justices are Blackmun, Brennan, Burger, Marshall, Powell, Rehnquist, Stewart, Stevens and White. The Chow test again produces a highly significant chi square (26.724, 5 d.f., p<0.01), which indicates that the results are not caused by personnel change.

Skeptics may argue that these results are not surprising. Of course the legal regime influences the votes of the justices who created it, the skeptics may say. Although this skeptical view is based on the untenable assumption that every legal regime created by the justices is purely attitudinal, it is still worthwhile to empirically evaluate this position. To do so, I test only the votes of the justices who did not sit on the Court at the time of Hudson. The Chow test produces a highly significant Chi square statistic (9.37, 2 d.f., p<0.01), which supports the argument that the Hudson legal regime matters even for the justices who did not create it. Hudson is a standard-based legal regime.

However, the tests for doctrinal influence fail to confirm the hypothesis that Hudson is an influential doctrine. The doctrinal variables are not significant in the before or after Hudson models. In the before and after model, regulations of commercial expression that are not narrowly tailored tend to influence the justices to vote for the rights of speakers. However, this is not evidence of doctrinal change. The 3-step test for doctrinal change described in footnote 3 indicates that the Hudson doctrinal variables are not significantly different in the before and after models.

Turning to the other variables in Table 3, I observe that the variable representing the attitudes of the justices is the best predictor of how the justices vote in commercial expression cases, and the magnitude and significance of the variable increase after Hudson is adopted.

The government variables, individually and as a set, are insignificant in the before model and after model. In the before and after model, educational institutions fare well, compared to state governments, and the government set of variables is significant at the 0.10 level.

In the before and after model, the action set of variables is significant at the 0.01 level. In cases involving criminal prosecutions of speakers, denials of opportunities for expression, and disciplinary actions, the justices significantly tended to vote for the rights of speakers, as compared to the baseline category of civil actions. In the before model, denials of opportunity for expression influenced the justices to vote for the rights of speakers, and the identity set of variables is significant at the p<0.01 level. After Hudson, denials of opportunity again significantly influence the justices to vote for the speakers, but the identity set of variables is not significant. Due to a lack of variation, the identity set of variables is excluded from this model.

CONCLUSION

At a minimum, doctrines matter because they establish the interpretive components of cases (doctrinal facts) that are relevant for decision making. The justices' attitudes must operate in relation to facts, and many of the relevant facts are identified by doctrine. My presentation of the influence of the Court's less protected categories of expression such as broadcast media expression and expression in schools indicates that the justices are less willing to vote for the rights of speakers in these areas. However, this model is entirely consistent with either an attitudinal or a legal explanation, because it does not assess whether the influence of doctrinal categories changes after doctrines are established.

The importance of the justices' attitudes in decision making should not be understated, but I contend that a more complete explanation must consider whether legal regimes structure the decisions of Supreme Court justices. Both legal regimes, and the doctrines that define many such regimes, are based on key precedents. To find evidence of the influence of legal regimes and doctrines, I consider how the influence of explanatory variables changes after key legal regimes and doctrines are established. Some of the resulting patterns show that law can systematically influence how the justices' evaluate the key elements of cases. Previous analyses indicate that doctrines have influenced the Court's treatment of content-based and content-neutral regulations of expression. This paper evaluates whether legal regimes or doctrines are influential for the types of expression that are less protected. I identify an influential legal regime in the area of commercial speech, even after controlling for change in Court personnel, but note that a doctrinal explanation does not hold in this area of law. In addition, the key precedent governing expression in non-public forums is not influential as either a legal regime or doctrine.

The analysis presented here is only a starting point in explaining Supreme Court decision making. More analysis of doctrines and legal regimes is warranted, including the Supreme Court's fourteenth amendment equal protection doctrine, which indicates that the strictest constitutional standards apply when the government regulates a fundamental liberty or a protected class such as a racial minority. These regulations must be necessary to achieve a compelling government interest. When government regulations are based on gender, an intermediate level of scrutiny applies: regulations must be substantially related to an important government interest. Rationality review applies to all other regulations, which must be rationally related to a legitimate government objective.

At this point, students of Supreme Court decision making know that the attitudinal model provides a solid understanding of how the justices vote in civil liberties cases, and to a lesser extent, economic cases. By extending our model which considers both legal regimes and attitudes to other areas of law and gaining knowledge of where it does and does not explain the votes of the justices, scholars can continue to build on the foundation which the attitudinal model has established.

APPENDIX A:

JURISPRUDENIAL IDENTIFICATION OF FREE EXPRESSION DOCTRINE

In this appendix, I present the analysis that identifies the free expression doctrines that I used to code and analyze the free expression cases. My approach was to apply the four doctrinal criteria to free expression law in order to identify which precedents constitute doctrines.

The first question that must be addressed in any case which presents a free expression claim under the first amendment is whether the amendment applies to the speech. The first amendment states in part, "Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" (U.S. Constitution). The free expression threshold doctrine asks whether the first amendment (sans religion clauses) applies to the claim in a particular case. If there is no "abridgment" of expression, or if there is no state action, the first amendment (or the first amendment as applied to the states through the fourteenth amendment) does not apply and the free expression inquiry ends there. For example, the first amendment does not forbid non-public unions (acting not under statutory authority but rather independently) from limiting a union candidate's receipt of outside money for a union election, because there is no government action.

This doctrine formulates the analytic standard that the first amendment does not protect free expression claims if there is no state action and if there is no abridgment of speech. Schauer (1982) recognizes it as a basic free expression doctrine. It originates from the U.S. Constitution, so the five-member majority criterion is not applicable. Of course, the first amendment has not been overturned.

According to the Supreme Court's fundamental doctrine for evaluating free expression cases, when the government actions in question focus on the communicative aspect of expression, they fall within track one and are subject to strict scrutiny (Tribe 1988). Regulations must be narrowly tailored to achieve a compelling state interest in order to be sustained as constitutional. Such regulations are known as "content-based" regulations: they aim to restrict the communicative content of the expression. Track two concerns content-neutral regulations that do not explicitly aim at communicative impact such as time, place or manner regulations or regulations which have an incidental effect on speech. Track two regulations of speech must be "content-neutral" regulations. An incidental or time, place or manner regulation that is content-based would fall within track one. For example, an ordinance which banned pro- and anti-abortion rights activists from using amplification devices to express their message would be content-based, but an ordinance which prohibited noises louder than 120 decibels after midnight in residential neighborhoods would be a content-neutral time, place and manner regulation.

The track one doctrine of strict scrutiny, which indicates that in order to be held constitutional, content-based regulations must be narrowly tailored to serve compelling government interests, emerges from several cases. The idea that regulations on speech can only be justified by clear and present dangers or "paramount" state interests comes from the Court's opinion in Thomas v. Collins (323 U.S. 516, 530, 1945). This opinion also establishes that even when paramount state interests justify regulations of speech, the Court will only allow the narrowest range for restriction of free expression rights. This is similar to the necessary or narrowly tailored component of the strict scrutiny doctrine.

However, the contemporary track one doctrine was not developed until 1963, in NAACP v. Button (371 U.S. 415, 438, 445, 1963). This opinion established that a key first amendment principle is that government regulations of speech should be content-neutral. The government should not regulate expression because it disagrees with the content of the expression. An essential aspect of this doctrine, viewpoint neutrality, is that specific individuals and groups should not be targeted for regulation because the government disagrees with the viewpoints expressed in their speech. In addition, the Button decision solidified the track one doctrine by establishing that government regulations of speech must be justified by compelling government interests and the government must use precise regulations to achieve those interests. The Button decision meets the five-member majority and analytic standard criteria. This doctrine also meets the scholarly recognition criteria, as it is recognized by Tribe and Smolla, among others. Finally, Button has not been overturned.

To this point, I have only presented the authoritative case for track one. It was not until 1972 when, in a pair of closely related decisions announced on the same day, the Court clearly distinguished content-based from content-neutral regulations, reaffirmed the track one standard, and clarified the track two standard. In Chicago Police Department v. Mosley (408 U.S. 92, 1972), the Court struck down an ordinance which banned all picketing within 150 feet of a school building during school hours, except for labor picketing. Although the regulation is a time and place regulation, it was not content-neutral because it discriminated on the basis of content. Mosley, a black man, was arrested under the ordinance for protesting racial discrimination outside a high school, but a labor protest would have been permitted by the statute. This regulation was not narrowly tailored. In a companion case, Grayned v. Rockford (408 U.S. 104, 1972), the Court struck down a nearly identical ordinance of the City of Rockford, but also upheld an ordinance which prohibited noisy picketing outside of schools during school. The anti-noise ordinance was constitutional because it was a content-neutral time, place and manner regulation that was narrowly tailored to serve the compelling government interest of providing a quiet atmosphere for students' learning.

These cases nicely illustrate the difference that the content-neutral versus content-based analytic standard makes. They announce the key doctrinal facts: content-based regulations, content-neutral regulations, government interests and narrowly tailored policies. These cases also explain how these doctrinal facts should be weighed. They meet the scholarly recognition criterion. Karst (1975) contends, "Mosley is a landmark first amendment decision" and also recognizes that Grayned provides an important means of achieving significant or substantial government interests in a narrowly tailored content-neutral manner (20, 28, 37-38). These cases meet the five member majority criteria and have not been overturned.

Track two is comprised of two types of content-neutral regulations of speech: incidental regulations, and time, place or manner regulations. Grayned does not consider content-neutral incidental regulations. This doctrine comes from U.S. v. O'Brien (391 U.S. 367, 1968), and closely parallels the content-neutral time, place and manner doctrine. The question presented in O'Brien was whether a government law that prohibited knowing destruction, mutilation or alteration of a Selective Service Registration Certificate violated the first amendment. O'Brien was convicted after burning his certificate in a public demonstration. The language of the law gave no indication that it was either focused on the content of speech or was a time, place or manner regulation. (However, the decision was widely criticized because it failed to take into account statements by the framers of the law that indicated it was targeted at quieting dissent. Consideration of such information would have placed the regulation on track one.) Yet, it was clear that the regulation had implications for speech, so the Court devised a new category: content-neutral regulations that have incidental effects on speech. The Court also established the analytic standards for such regulations.

A government regulation is justified if it furthers an important or substantial government interest; if the government interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest (U.S. v. O'Brien 391 U.S. 367, 1968).

This is the parallel of the standard for content-neutral time, place or manner regulations (Smolla, 1994). The second clause of the test indicates that the incidental regulation must be content-neutral. The first and third clauses require that the regulation must be narrowly tailored to serve a substantial (or significant) government interest. This case meets the five-member majority and not overturned criteria, and is recognized by constitutional scholars Shiffrin and Choper (1996) and Smolla (1994) as formulating a key doctrine.

The two track doctrine is based on two foundational normative principles. First, the type of government interest required to justify the regulation of speech varies depending on whether or not the government is targeting the communicative impact of an act of speech. The normative principle is that if the government targets the content of speech itself, the threat to liberty is greatest. The justices should be highly skeptical of the constitutionality of such a regulation and will require a compelling interest. However, for content-neutral regulations, the level of justification drops to a substantial or significant government interest, because the threat to freedom of expression is lessened. Although the justificatory standard is lower, track two remains a fairly speech protective doctrine because the threat to free expression certainly remains present. The intermediate scrutiny track two requires is much harder for government to meet than the mere rationality standard (regulation must be reasonably related to a legitimate government interest) that is employed for economic regulations in the fourteenth amendment equal protection context. Secondly, both track one and track two, because they are concerned with the fundamentally important liberty of expression, require that the government regulation be narrowly tailored to meet the government interest. A great deal of expression would be curtailed if the only requirement was that a substantial or compelling government interest be offered. The narrowly tailored standard requires a close logical nexus between the policy and the interest in order to minimize the degree to which liberty of expression is restricted.

The final doctrine that must be considered to complete the basic architecture of free expression jurisprudence is the less protected category doctrine. This doctrine acknowledges that there are some regulations that could not pass the two track standards but may nonetheless be justified. I will explain which types of regulations are less protected.

There are seven less protected categories of regulations: obscene speech, commercial speech, broadcast media speech, speech in a private forum against the will of the owner of the private property, viewpoint-neutral regulation of speech in nonpublic forums, expression in schools, and libel suits by private figures that are not for presumed or punitive damages. In each of these categories, the Court submits content-based regulations of speech to standards that are less speech protective than track one.

The notion that some types of regulations can be justified because the expression falls into unprotected categories originally came from Justice Murphy's opinion in the Chaplinsky v. New Hampshire (315 U.S. 568, 1942) fighting words case. In Beauharnais v. Illinois (343 U.S. 250, 1952) Justice Frankfurter wrote into law the analytic principle that unprotected categories of speech such as libel, obscenity, and fighting words, existed. According to this case, for example, regulations that focus on obscene expression are not subject to strict scrutiny because this category of speech is unprotected.

Although Beauharnais mentions obscenity, fighting words, libel and speech that incites an immediate breach of the peace as unprotected categories, obscenity and libel of private figures are the only less protected categories mentioned in Beauharnais which remain so today. There are now specific heightened scrutiny tests, equivalent to track one strict scrutiny, for libel (New York Times Co. v. Sullivan, 376 U.S. 254, 1964, and progeny), fighting words (Cohen v. California, 403 U.S. 15, 1971), and speech which advocates illegal action (Brandenburg v. Ohio, 395 U.S. 444, 1969). In these areas, Beauharnais has been substantially modified and it does not constitute doctrine for these areas of law.

However, Beauharnais remains good law for the proposition that obscene speech is an unprotected category. Miller v. California (413 U.S. 15, 1973), the precedent which established the contemporary obscenity doctrine, acknowledges that obscenity is an unprotected category. However, unprotected is something of a misnomer. Less protected is a more accurate term, as there are now specific doctrines for regulations of obscene speech and other less protected categories; these are discussed below.

Miller meets the necessary and sufficient conditions for doctrine. First, in Miller, the Court adopted a less protective analytic standard which served the purpose of reducing the number of obscenity cases on the docket by establishing a three-factor test which would provide guidance for lower courts. The majority reaffirmed the Beauharnais holding that obscenity is a less protected category of expression. A five-justice majority of the Court announced a test that established the three factors that had to be met before a work could be banned as obscene, so the "five member majority" criterion is satisfied. In Miller the Court sought to change the direction of obscenity jurisprudence by first modifying the definition of what was not protected by the first amendment (a definition that still holds today), and by reducing the Court's role in determining what was obscene by dictating that local community standards rather than national community standards should govern the determination of whether the work "appeals to the prurient interest." Miller refined the Roth v. U.S. (354 U.S. 476, 1957) "contemporary community standards" requirement to mean local, not national, standards. After Miller, the standard is whether the average person, applying contemporary local community standards, would find that the work, taken as a whole, appeals to the prurient interest. The second element of the Miller test that must be met before a work can be considered obscene is that it must depict or describe in a patently offensive way sexual conduct specifically defined by state law. The third element of the Miller definition of obscenity involves the question of whether the work in question "as a whole, lacks serious literary, artistic, political or scientific value." Miller is actually less speech protective than Memoirs v. Massachusetts (383 U.S. 413, 1966) because it changes the Memoirs case's requirement that in order for the work to be constitutionally curtailed the work be "utterly without redeeming social value" to an easier standard for the state to meet. Under Miller, the work need only be "lacking serious literary, artistic, political, or scientific value" in order for the state to be able to constitutionally curtail it. The Miller regime remains as the dominant approach to obscenity. The Miller decision has not been overruled and constitutes "a revised standard" according to first amendment scholars Shiffrin and Choper (1996).

As early as 1942, in Valentine v. Chrestensen (316 U.S. 52), the Court held that commercial speech was entirely unprotected. However, the doctrine which elevated commercial speech to less protected status was established in Central Hudson Gas & Electric Corp. v. Public Service Commission (447 U.S. 557, 1980). In Hudson, the Court first established the