The Disappearing First Amendment (Preface and Chapter 10)

Abstract

The standard account of the First Amendment posits that the U.S. Supreme Court consistently has expanded the scope of free speech rights over time. This account holds true in some areas, but not in others. For example, the contemporary Supreme Court rigorously enforces the rules against content and viewpoint discrimination for those who possess the wherewithal to speak. At the same time, however, the Justices have been considerably less willing than their predecessors to interpret the First Amendment to impose affirmative obligations on the government to facilitate speech when it has the ability, but not the will, to do so. For citizens who need the government’s assistance in order to speak – for example, would-be speakers who require access to public property to engage in protest activity – free speech rights have declined significantly under the Roberts and Rehnquist Courts.

The Warren Court, and to some extent the Burger Court as well, embraced open-ended balancing tests to decide First Amendment cases that implicated the government’s managerial domain. Using this approach, the Warren Court pioneered First Amendment protection for government employees, students and faculty members at the nation’s public schools, colleges, and universities, and transborder speech activity. It also greatly expanded constitutionally-mandated access to public property for protest and even recognized free speech easements to private property. In all of these areas, the Warren Court developed and deployed balancing tests that weighed the interests of would-be speakers against the government’s legitimate interests in exercising managerial control over its resources. This approach had the decided benefit of making it possible for more citizens, many possessed of average means, to participate meaningfully in the process of democratic self-government.

The Disappearing First Amendment advances an empirical claim, a doctrinal claim, and a normative claim. First, as an empirical matter, careful consideration of the relevant lines of authority shows that in many important areas, First Amendment rights have declined, rather than expanded, over time. Second, in a wide variety of areas, existing First Amendment rules could be significantly improved and strengthened to better protect would-be speakers from government efforts to distort the political marketplace of ideas. Third, and finally, open-ended balancing tests that facilitate the ability of ordinary citizens to participate meaningfully in the process of democratic deliberation should be preferred, at least in some contexts, to bright line, categorical rules that produce consistent results but a far less vibrant political marketplace of ideas. If free and open democratic deliberation is essential to making elections an effective means of securing government accountability, then the First Amendment should be interpreted and applied to protect more speech, rather than less speech.

Keywords: First Amendment, balancing tests, categorical tests, content discrimination, viewpoint discrimination, freedom of expression, marketplace of ideas, transborder speech, newsgathering, journalism, academic freedom, student speech, whistleblowing speech, unlawful assembly, breach of peace, social media