68 STANFORD LAW REVIEW [Vol. 66:57
Granted, the Supreme Court’s choice to distinguish not only between
speech and conduct (which, while difficult, is necessary), but also between pro-
tected and unprotected speech, breeds some uncertainty about whether classify-
ing something as “speech” automatically means that it receives judicial protec-
tion.
37
Since courts are inconsistent in defining the boundary between protected
and unprotected speech, Schauer and Richards are justified in casting doubt on
whether First Amendment scrutiny applies by default.
However, many of the examples Schauer cites as evidence that First
Amendment protection is exceptional, even for traditional forms of expression
like utterances, fail to support his theory.
38
For example, Schauer makes much
of the fact that antitrust claims may be brought against firms based on the
speech used to reach price-fixing agreements,
39
but these laws target and pro-
hibit the business agreement to collude on pricing. Enforcement uses the actual
words uttered by the firms’ directors or agents only as evidence of an agree-
ROBERT C. POST, DEMOCRACY, EXPERTISE, AND ACADEMIC FREEDOM: A FIRST AMENDMENT
JURISPRUDENCE FOR THE MODERN STATE 11 (2012). However, to make sense of cases that
unambiguously protect speech that is not political, or of “public concern” (which itself
eludes definition), Post is forced to identify other First Amendment doctrines, such as a First
Amendment interest in “competence.” Id. at 25, 35, 85. These epicycles could be avoided if
Post abandoned his commitment to the centrality of the “public concern” distinction.
37. Defamatory speech is an apt example. In some cases, the Court insists that there is
no constitutional value in false, defamatory statements, and that such statements receive pro-
tection only incidentally to protect other speech. See, e.g., Gertz v. Robert Welch, Inc., 418
U.S. 323, 340-41 (1974); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 268 (1964) (citing and
accepting earlier precedent). At other times, the Supreme Court suggests that defamatory
speech does receive direct protection, albeit relaxed protection in light of the low value of
the speech. N.Y. Times, 376 U.S. at 273 (“If neither factual error nor defamatory content suf-
fices to remove the constitutional shield from criticism of official conduct, the combination
of the two elements is no less inadequate.”). In Dun & Bradstreet, Inc. v. Greenmoss Build-
ers, Inc., 472 U.S. 749 (1985), the members of a divided Court endorsed both interpretations
in their fractured opinions. Compare id. at 769-70 (White, J., concurring in the judgment)
(suggesting that defamatory speech receives only derivative protection), with id. at 775-76
(Brennan, J., dissenting) (suggesting that defamatory speech receives direct protection).
38. Robert Post makes a similar argument that speech protection does not usually ap-
ply to regulations of speech. He supports the claim using the example of an American Dental
Association rule that prohibits dentists from telling their patients their opinions about the
dangers of dental amalgams and from persuading their patients to have their amalgam fill-
ings removed. P
OST, supra note 36, at 12. Post does not reflect on the fact that the rule is
promulgated by a licensing board whose functional purpose is to regulate the practice of den-
tistry. A dentist’s ability to practice dentistry is tied to certain acts or omissions that are re-
quired to comply with licensing privileges. See, e.g., Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833, 884 (1992) (upholding speech restrictions on abortion providers on the basis
of reasonable licensing requirements). The other way to look at this, of course, is that Post
labors to make sense of a speech restriction that doesn’t deserve to be saved. This may be an
inappropriate and unconstitutional condition on a government licensing benefit.
39. Schauer, supra note 34, at 1781, 1805-06.