Toward a Better Understanding of Ripeness and Free Speech Claims

At first glance, ripeness is a simple concept. Yet, in its nuances, the doctrine is complex and uncertain. One aspect of the doctrine that has gained a consensus among courts and scholars is that, in free speech cases, the standard ripeness test is relaxed. This relaxed standard is justified on the grounds that free speech is critical to a democratic society and that courts cannot permit any potential chilling effect on free speech to stand.

Yet this lower ripeness standard for free speech cases is not as sound as courts and scholars believe, and this Article rejects the validity of this lower standard as undeserved, unnecessary, and unclear. First, free speech cases do not deserve a lower ripeness standard because such a standard suggests that other equally important rights—including the right to be free from unreasonable searches, the right to just compensation when the government takes one’s property, and the right to vote—are not as critical as the right to free speech. Second, free speech cases do not need a lower ripeness standard because the normal test for ripeness, which looks to the fitness of the issue for judicial review and the hardship to the parties of withholding review, provides adequate protection for anyone seeking to challenge a law under the Free Speech Clause of the First Amendment. And third, even assuming that free speech cases deserve and need a lower ripeness standard, the current doctrine lacks precision regarding how the standard should be lowered. These three reasons lead to the conclusion that the consensus on the lower ripeness standard for First Amendment cases is not justified, and this Article calls for courts to apply the standard ripeness test to free speech cases.