Emphasizing Substance: Making the Case for a Shift in Political Speech Jurisprudence

Political speech is vital to a functioning democracy and is highly protected. That much is hardly disputed. What courts, legal scholars, and those seeking to convey a political message do dispute is how political speech should be identified and protected, and who should decide what constitutes political speech. This Note looks at the history of political speech doctrine and critiques two intent-based approaches that have been proposed by First Amendment scholars to define political speech. This Note proposes a solution to many problems inherent in defining, identifying, and protecting political speech within intent-based frameworks, arguing that focusing on intent creates a distinction without a difference and leads to uneven results in similar situations. The proposed solution, which I term the “Substance-based Political Contribution” Approach, focuses on the substance of the speech and the objective contribution it makes to political discourse, rather than focusing solely on the intent of the speaker or actor. This approach finds support in history and precedent, and is based on the Supreme Court’s recent decision in FEC v. Wisconsin Right to Life. An objective approach emphasizing substance rather than intent, such as the Substance-based Political Contribution Approach, will more effectively consider and evaluate free speech rights and First Amendment concerns, providing greater determinacy, preventing unequal results in similar instances of speech or action, and protecting a greater proportion of expressive conduct, to the benefit of all.