An Actual Problem in First Amendment Jurisprudence: Examining the Immediate Impact of Brown\u27s Proof-of-Causation Doctrine on Free Speech and Its Compatibility with the Marketplace Theory

Abstract

This article analyzes the immediate impact on First Amendment jurisprudence of the U.S. Supreme Court\u27s direct causal link requirement adopted in 2011 in Brown v. Entertainment Merchants Association. In embracing an empirically focused proof-of-causation doctrine, Brown marked the first time in the Court\u27s history it had used the phrase direct causal link in any free speech case. But just one year later, in a very different factual context in United States v. Alvarez, the Court struck down a federal law making it a crime to lie about earning military medals. In December 2012, a federal judge used Brown\u27s direct causal link test to enjoin a California law that prohibits healthcare providers from engaging in sexual orientation change efforts with gay minors. This article explores problems with adopting Brown\u27s quantitative and empirical causation standard in cases like Alvarez where an intangible injury (reputational harm) to an inanimate object (a medal) is the alleged compelling interest. Bridging doctrine with theory, the article also examines how the direct causal link requirement comports with the marketplace of ideas theory upon which much of First Amendment jurisprudence is premised