Mae Kuykendall (Michigan State University College of Law) has posted Evaluating the Sociology of First Amendment Silence (Hastings Constitutional Law Quarterly, Vol. 42, No. 4, 2015) on SSRN. Here is the abstract:
The First Amendment expressive associational freedom analysis of the 2000 mid-culture-wars case of Boy Scouts v. Dale adopts an understanding of conventions permitting, or mandating, silence and frames them as a basis for constitutional supervision of customs of silence and speech. The holding in Dale allowed the Scouts to exclude openly gay scout masters, despite a New Jersey statute barring such discrimination from a “public accommodation.” The Court explained that organizational rights to exclude an openly gay Scout, whose presence speaks where silence is preferred, would enrich discourse by enabling organizations to claim a shield of silence with which to strengthen the freedom of speech and association that flourishes in voluntary associations. The silence principle, embraced at the time by legal commentators as a win for free speech and the construction of identity, had the dichotomous effect of engendering more elite speech, as among academics, but silencing non-elite speech, that is, among young men excluded from a group that their peer group could join without identity-based barriers. The effect of the teaching by the Court was to affirm a preference for speech and identity silos, in which customs of silencing enjoyed immunity from unwanted messages and in which certain persons could be deemed inherently unwelcome embodiments of a breach of silence. This Article revisits Dale to explore the implications of Dale for civic engagement — for maintaining open civic space for contact and speech as a First Amendment value. Awarding a shield against contact with contrary views and identities disables policy-makers from supporting principles that, on empirical examination, may enrich discourse and enhance overall civic space. The failure of the Court to engage with a sociology of civic space will be examined for its import for the meeting point between social customs of control and the aspiration of the First Amendment to an engaged, expressive citizenry and to the dissemination of knowledge.