Toni M. Massaro (University of Arizona College of Law) has posted Tread on Me! (University of Pennsylvania Journal of Constitutional Law, Vol. 17, 2014) on SSRN. Here is the abstract:
Freedom of speech doctrine is an analytical and theoretical morass. This is primarily because expression is a ubiquitous human activity that government regulates in ways that defy simple summary.
Yet despite the complexity and vast scope of the modern freedom of expression terrain, commentators and courts strain to identify unifying, formalistic analytical principles and to propose singular theoretical prisms through which to view the terrain. I argue that this is a wrong turn. A better understanding of past and present free speech practice requires thinking that is factored, not formulaic; contextual, not trans-contextual; dynamic, not static; tentative, not absolutist; plural, not singular or even dichotomous. In fact, nuance will be increasingly important in future First Amendment cases, as new science, new technologies, and socio-political developments challenge fundamental assumptions that undergird the doctrine. This is especially apparent when one confronts the free speech canard that government cannot compel private expression.
This Article proceeds in two parts.
Part I describes in broad strokes the current state of doctrinal and theoretical affairs in the free speech realm. It offers a topography of the free speech doctrinal terrain and identifies key questions that pervade it. This section focuses in particular on the significance of "above the line" treatment of speech regulations that trigger elevated scrutiny. This overview shows that the doctrine offers, at most, a set of norms and questions that inform the judicial analysis rather than a "fixed star" or even fixed principles.
Part II critiques three recent Roberts Court decisions that ignore this doctrinal reality. The Court has insisted that speaker identity distinctions always trigger elevated scrutiny, that only traditional and historical categorical exceptions are constitutional, and that government speech is beyond the freedom of speech principles. None of these formalistic statements can be squared with other free speech doctrine, significant zones of traditional government regulation, or common sense. They also weaken the Court’s ability to balance the conflicting policy concerns that arise in a host of speech-sensitive areas – such regulation of data collection, licensed professionals, or other commercial actors.
That the Court’s more rigid approach to free speech is unsustainable is especially apparent if one examines the compelled speech cases. Contrary to Justice Robert Jackson’s rhetorically arresting "no fixed star" celebration of individual freedom from compulsory pledges of allegiance, government often demands private expression, crafts it, or silences it altogether. Government can, and often does, "tread on me." Constitutionally mandated oaths of office, occupation-specific codes of conduct, public accommodations laws, audience and context-specific regulation of the content of information disclosures, many employment and civil rights statutes, student conduct codes, conditions on government benefits, anti-fraud laws, and many other forms of government speech regulation demonstrate that there is no across-the-board constitutional mandate against government compelled expression. In all of these cases, context, history and a host of relevant government interests matter.
In 2013, the Roberts Court struck down a condition on a government grant that it deemed unduly coercive of grantees’ freedom of expression. Yet the Court also recognized that contextual flexibility matters in determining when funding conditions go beyond sensible restrictions and become unlawful compulsion. I praise this recent turn away from free speech formalism, and suggest this not only is the better analytical approach in compelled speech cases, but in free speech cases more generally.