The United States Supreme Court’s 2010 opinion in the crush-video case of United States v. Stevens made it extremely difficult to declare new varieties of low-value speech unprotected by the First Amendment. Five years later, the Court’s sign-ordinance ruling in Reed v. Town of Gilbert made it exceedingly tough for facially content-based regulations imposed on presumptively protected speech to be analyzed by any standard of judicial review less rigorous than the demanding strict scrutiny test. This Article examines how some courts today, despite being hemmed in by the strictures of both Stevens and Reed, are creatively unearthing novel ways to apply more lenient levels of review to content-based laws targeting varieties of speech—in particular, revenge pornography and conversion therapy—that seemingly carry trifling value for furthering traditional First Amendment ideals. Those time-honored goals addressed in this Article include promoting democratic self-governance and facilitating truth discovery in the metaphorical marketplace of ideas. The Article asserts that rather than resorting to artful efforts to dodge both Reed and a rigid categorical approach to First Amendment analysis, lower courts should boldly embrace Justice Breyer’s values-and-interests methodology for proportionate scrutiny in these cases. This, in turn, would tee up for possible Supreme Court reconsideration Reed and, conceivably, even Stevens. Significantly, as the Article explains, Justice Breyer advocated in 2019 for this approach in the low value speech case of Iancu v. Brunetti involving the trademark “FUCT.” This bolsters the argument for its applicability when it comes to analyzing laws barring the low-value expression of revenge pornography and conversion therapy.
Clay Calvert, Escaping Doctrinal Lockboxes in First Amendment Jurisprudence: Workarounds for Strict Scrutiny for Low-Value Speech in the Face of Stevens and Reed, 73 SMU L. Rev. 727 (2020)