In this Essay, Professor Alexander examines the First Amendment status of laws regulating the noncommunicative impact of speech, what Lawrence Tribe calls "track two" laws. Professor Alexander argues that there is and should be no First Amendment distinction between time, place, and manner analysis and symbolic speech analysis. He argues, moreover, that all laws have information effects, not just laws aimed at communicative impact or the narrow categories of time, place, and manner regulations and regulations violated to effect symbolic speech. Notwithstanding their information effects, laws not aimed at communicative impact cannot be handled in any principled manner under the First Amendment for two reasons: The information effects cannot be known; or, if they are known, they cannot be evaluated and weighed against other values and other information because the First Amendment itself precludes such an evaluation. In short, the First Amendment bars its own application to track two laws.
Professor Alexander then turns his attention to track one First Amendment analysis and to the problems of government using resources to promote ideas, what Alexander calls "track three" problems. He argues that the analysis regarding track two has major implications for these other two tracks of First Amendment cases.
Larry A. Alexander,
Trouble on Track Two: Incidental Regulations of Speech and Free Speech Theory,
44 Hastings L.J. 921
Available at: https://repository.uchastings.edu/hastings_law_journal/vol44/iss4/8