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Rebecca Tushnet, More than a Feeling: Emotion and the First Amendment, 127 Harv. L. Rev. 2392 (2014).

Abstract: New York Times Co. v. Sullivan remains a foundational case even as the First Amendment issues occupying the courts today have significantly changed. Modern speech regulations can take many forms; the “new school” Jack Balkin identifies has supplemented, rather than replaced, the “old school.” But the old school has also undergone some renovations. Rather than governing the New York Times, many of today’s trickiest speech regulations target speakers who aren’t traditional publishers, which makes it easier to treat these regulations as fringe cases and to overlook some deep contradictions in current doctrines. Here, I wish to examine one aspect of Sullivan, which is its requirement of a false factual statement, and the relationship of the falsity requirement to ideas about harm and emotion. Disparaging speech is usually harmful because it triggers negative emotions in the audience, causing other people to treat the victim differently. First Amendment law has generally been leery of government attempts to change the marketplace of emotions — except when it has not been. Scientific evidence indicates that emotion and rationality are not opposed, as the law often presumes, but rather inextricably linked. There is no judgment, whether moral or otherwise, without emotions to guide our choices. Judicial failure to grapple with this reality has produced some puzzles in the law. Part I of this Symposium contribution will examine the intersection of private law, the First Amendment, and attempts to manipulate and control emotions. After Sullivan, statutes and common law rules that authorize one person to control too much of another person’s speech can violate the First Amendment. Another key aspect of Sullivan is that only false factual statements can defame, not mere derogatory opinions. Yet trademark law allows exactly the kind of control over nonfactual, emotional appeals that modern defamation law precludes. These two bodies of law thus stand in contrast, one constrained by the First Amendment to cover only facts and the other allowed to reach much further into the dark heart of emotional manipulation. Part II turns to compelled speech, and again finds two contrasting regulations united by their emotional mechanisms, but divided by their constitutional fates. Courts have struck down mandatory smoking warnings in visual form, but have approved mandatory abortion disclosures and ultrasound requirements that operate in the same emotional register. Regardless of whether the regulation involves a direct government mandate or private parties claiming competing rights to influence the audience’s emotional state, then, current First Amendment law doesn’t have a consistent account of the proper role of emotion in speech regulation. Part III suggests that the contradictions of current doctrine could be ameliorated by less distrust of emotion and more acceptance that where information is being conveyed, emotion will regularly follow. Our focus then should not be on whether deployment of emotion is “manipulative,” but whether it is part of a discriminatory or factually misleading regulation. When the government regulates speech, the regulation will generally have an emotional component because human thought is emotional. Objections to emotion-based regulations should not be based on the obviousness of that component. Rather, the acceptability of the government’s aim should be the guide, especially when nongovernmental speakers are free to use emotional appeals to press their own cases. The government may be required to be neutral as between classes of private speakers, which Sullivan requires and which I will argue should be the case with respect to trademark law. It is not required to be neutered. When the government can otherwise constitutionally mandate disclosure, the fact that these disclosures have emotional resonance is not an independent constitutional barrier.