In Part I of this Article, we set out some of the most commonly used tests and doctrines in free speech cases, and discuss how they are applied. These tests include: (1) forum analysis; (2) employee speech; (3) determination of the kind of restriction placed on speech-(a) time, place, or manner, (b) content, (c) viewpoint, or (d) secondary effects; and (4) determination of whether the speech is protected, unprotected, or somehow protected but less so than other speech.
For each doctrine and set of tests, we examine the basic determinations that must be made before application and the purposes the doctrines and tests serve. We suggest that all of these tests and doctrines are useful tools to help answer the three basic questions that we believe underlie not only virtually all of free speech jurisprudence, but also the jurisprudence relating to other constitutional rights, and even to tort law. These three basic questions boil down to the following: (1) Assuming that the government has somehow negatively impacted a person's communication," does the government have a constitutional duty to the would-be speaker with respect to its action? (2) If the government has potentially breached a constitutional duty with respect to the plaintiffs speech, has it done so intentionally? and (3) if the government has intentionally targeted the plaintiffs speech, is that restriction justified? Put even more simply, virtually all of the free speech tests and doctrines invented and applied by courts are simply devices to help them determine duty, intention, and justification.
After setting out each of the doctrines and its accompanying tests, we show how they can serve as effective shorthand for answers to one or more of these three basic questions, and, as a result, how they have become useful tools in free speech cases. We then explain how major problems arise. The doctrines become counterproductive when the doctrinal categories overwhelm their proper roles as aids to answer the above simple questions. When these doctrines are viewed as independent of and primary to the issues of duty, intention, and justification, rather than as shorthand for the answers to these questions, the doctrines and the cases appear to be incomprehensible and self-contradictory.
Finally, we suggest that often judges may fail to properly use the tests as ways to answer the other basic questions because they simply lose track of the role these tests were meant to play. Other times, though, reliance on these doctrines allows judges to present what are inherently normative judgments as nothing more than factual determinations.