Free speech case law permits the government to impose a wide range of restrictions on a similarly wide variety of forms of speech. The judicial tests employed to control or legitimize such restrictions have become increasingly complex. Even if we were all to agree on the precise purposes of the free speech clause, as well as on what constitutes speech in the first place, many cases involving government restriction of speech would still be unavoidably difficult. This is because no plausible approach to defining the limits on governmental power to restrict speech can avoid controversial valuations or controversial predictions of the future consequences of deciding a case in a particular way. But the unavoidable difficulty of some free speech cases does not, by itself, explain why the legal tests or doctrines applied should be as complex and multifaceted as the courts have made them. There is no reason in principle why admittedly difficult problems are necessarily better adjudicated by relatively complex tests.

Free speech doctrine tends toward excessive, unjustified complexity for several reasons. The first is the fallacy that difficult problems are necessarily best resolved judicially through complex formulas. Second, our legal culture often places such a high value on freedom of speech that a judicial standard requiring a government seeking to restrict speech to meet a series of conjunctive requirements may be adopted so as to drive additional nails into the coffin of improper government regulation of private speech. As well, the decision making dynamics of multimember courts, in which voting coalitions must be patched together in a potentially unstable fashion, may encourage a process in which the particular concerns of various individual justices are more or less mechanically aggregated, rather than critically distilled, into a compound formula commanding the agreement of a majority. Thus, a judge will join a coalition if her own concerns are incorporated, however awkwardly, into the ultimate formulation of the legal test, rather than leave the coalition on the ground that the new formulation is now unnecessarily complex, poorly focused, or unwieldy. This will result in unnecessarily complex tests with overlapping elements and no single unifying theme or rationale. Finally, there is the inescapable sense that part of the unnecessary complexity flows from judicial inattention to the reasons for constitutionally valuing speech in the first place. To the extent that clarity as to the purposes of free speech has received insufficient attention by the courts, we might anticipate diminished clarity in the case law itself.

Over the past forty years or so, free speech jurisprudence has spawned concepts and categories of varying scope and dimension. Thus, it has become common for the courts to distinguish between time, place, and manner restrictions on speech and absolute bans; between content-based and content-neutral restrictions; between viewpoint-based and viewpoint-neutral restrictions; and between direct and incidental burdens on speech. The courts have also developed tests for governmental restrictions on commercial speech, for symbolic conduct or mixed speech and conduct cases, as well as for regulating speech in various kinds of government forums. Central to many of the judicial tests for the legitimacy of speech regulations are concerns for the furtherance of some governmental interest of some degree of weight and legitimacy as well as for whether the governmental interest is being pursued by only narrowly tailored means or by the available means least restrictive of freedom of speech. Often, but hardly invariably, the test formulation incorporates a concern for the alternative speech channels, or the remaining means of communicating, left to the speaker burdened by the regulation. This concern, however, is considered to be at most only one of several relevant inquiries.

To begin to illustrate these effects, we may consider one of the most frequently encountered and logically inclusive categories, that of governmental restrictions on the time, place, or manner of speech. A governmental restriction on speech is a time, place, or manner restriction if it does not absolutely ban the restricted speech activity in question. Of course, time, place, and manner restrictions will sometimes verge upon, if not be practically tantamount to, an absolute ban. At some point along the continuum, the time, place, and manner regulations undeniably become severe enough to be equivalent in effect to a well-enforced prohibition on the speech activity in question. Therefore, it is hardly clear why much should turn on the distinction between time, place, and manner restrictions and absolute prohibitions, or why different legal tests should be applied to these two categories. From a practical standpoint, the more crucial distinction would be between relatively modest time, place, and manner restrictions on the one hand, and relatively severe or burdensome time, place, and manner restrictions as well as absolute bans on the other.

Of course, we may care about factors other than the degree of severity of the restriction. Under the rubric of freedom of speech, we may also be concerned with the distribution of the burden, or the differential impact, of a speech restriction. Time, place, and manner restrictions as well as absolute bans both may be based on or motivated by a desire to suppress or disadvantage one side in an ongoing debate. Put somewhat differently, the distinction between content-neutral and content-based restrictions cuts across the distinction between time, place, and manner restrictions and absolute bans. Our initial feeling may be that absolute bans are generally more suspicious than time, place, and manner restrictions. Still, it is far from clear why even an absolute ban on a particular form of expression that is plainly motivated or justified by considerations irrelevant to the content or viewpoint of the speech should be given more exacting judicial scrutiny than a time, place, and manner restriction that is evidently intended solely to muzzle opposition to a government policy. . .

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