Category: Symposium

The experience of writing a book and then reading what some very smart and knowledgeable people have to say about the subject matter is humbling and a little dizzying. In Managed Speech: The Roberts Court’s First Amendment, I try to make some sense of the present Supreme Court’s decisions over the past decade about the First Amendment’s protections for free expression. The book argues that those decisions, taken as a whole, excessively constrain free speech within a particular managerial framework. Rather than helping speech to flourish in all its noisy, messy glory, the Roberts Court favors First Amendment claims from powerful institutional speakers while backing the government against more socially and politically marginal speakers. Corporate political spenders and commercial data miners exemplify the Roberts Court’s First Amendment winners, while peace activists and fringe religions exemplify its losers. The Roberts Court’s First Amendment priorities constitute the managed speech of my title. The book contrasts managed speech with a free speech model I call dynamic diversity, which seeks to protect the change-making capacity of free speech by maximizing the range of perspectives and participants in public debate.

Managed Speech opens a window onto the Roberts Court’s First Amendment. This symposium affords me the privilege of looking out, from the constraints of my knowledge and imagination, to observe what some friends whose work I greatly admire see in the spaces that window reveals. The main part of this essay highlights and briefly discusses some of the insights that I have found most immediately stimulating and valuable from each contribution to the symposium. The final section indulges some soul-searching. Our society over the past two years has plunged into a state of political chaos and uncertainty that, for many of us, has brought an overwhelming sense of rapid, highly unappealing displacement. Is this really the right time for me, or any person of good will, to be loudly criticizing the Supreme Court’s penchant for stability and insisting that, instead, First Amendment law should prioritize political and social dynamism?

In his insightful new book, Managed Speech: The Roberts Court’s First Amendment (2017), Professor Greg Magarian criticizes the Roberts Court for adopting a “managed speech” approach in its First Amendment cases. According to Professor Magarian, that approach gives too much power to private and governmental actors to manage public discourse, constrain dissident speakers, and instill social and political stability. This Article argues that at least insofar as it relates to many forms of public dissent, the managed speech approach is both deeply rooted in First Amendment jurisprudence and culturally prevalent. Historically, First Amendment jurisprudence has expressed support for narrowly managed public dissent. Expressive activities that pose no threat of actual disruption, and that do not risk undermining social and political stability, have been granted a preferred position. Managed speech attitudes and principles are part of our contemporary culture and politics. Public and private actors manage dissent from statehouses, to college campuses, to National Football League stadiums. Legislatures and executive officials have sought to curb public protests, universities have acted to limit campus dissent, and the NFL has faced pressure to dismiss players who refuse to stand at attention during the playing of the national anthem. In these contexts, officials and private institutions have sought to curb, tame, and marginalize public dissent. Efforts to manage dissent cut sharply against the alternative “dynamic diversity” model that Professor Magarian advocates in his book. Achieving that ideal will take more than a few Supreme Court decisions. It will require changing political and cultural attitudes concerning the meaning and value of public dissent.

The Supreme Court under Chief Justice John Roberts has been praised in many quarters as a committed ally of free speech. Certainly, a number of Roberts Court decisions do protect speech. Putting aside the Court’s controversial campaign finance decisions—the merits of which divide even free speech advocates—the Roberts Court’s speech-protective decisions include several cases in which it refused to create new categories of “unprotected” speech, a decision striking a buffer zone around abortion clinics as too restrictive of protests, and a case in which the Court rejected a provision conditioning certain federal funds on recipients’ adopting a particular policy position.

While I am mostly very pleased with the Court’s speech-protective decisions, I count myself among those who think that the Court has not, on balance, been a champion of free speech. I take this view in light of the vast deference that the Court has accorded the government to suppress speech in several contexts. These include those in which threats to national security are invoked, those in which the government purports to act as a speaker itself, or those in which the government acts in a managerial role, such as employer, jailer, or educator.

This is not a mere matter of tallying free speech wins and losses. My concern is not simply the number of problematic cases, but the importance of the speech that they fail to protect, and the danger of the discretion that they accord the government. For example, Holder v. Humanitarian Law Project impacts core political speech—ranging from the teaching of peaceful international conflict resolution to the writing of amicus briefs to the U.S. Supreme Court—coordinated with a designated foreign terrorist organization (FTO). Despite the FTO label’s ominous ring, courts have been highly deferential toward the government’s designations, just as the HLP Court was deeply credulous in evaluating Congress’ assertions regarding the dangers of coordinated speech. In another pair of cases, the Roberts Court took an expansive view of the speech forums that the government may claim as its own, rather than belonging to the public. In so doing, the Court widened the space—both physical and virtual—in which the government may exclude speakers based on content or even viewpoint.

I am not alone, of course, in noticing the anti-speech tenor of many Roberts Court decisions. Others have observed and lamented this reality, as well as the distance between it and the Roberts Court’s reputation as a free speech stalwart. And now, in a terrific new book called Managed Speech: The Roberts Court’s First Amendment, Professor Greg Magarian of the Washington University School of Law adds important new insights to the mix. The Roberts Court, Magarian observes, is committed to “managed speech.” “Managed speech describes a mode of First Amendment jurisprudence that seeks to reconcile substantial First Amendment protection for expressive freedom with aggressive preservation of social and political stability. . . . [It] concentrates managerial power over public discussion in the government or in favored private actors.” From this perspective, it makes perfect sense for the Roberts Court to fiercely protect the government’s ability to control speech within public spaces and government operations. And the Court’s many decisions favoring private speakers for the most part can be explained either as bolstering powerful interests or as very narrowly applying, extending, or qualifying precedent. In contrast to managed speech, Magarian supports an approach that he calls “dynamic diversity,” which “seeks to maximize . . . diversity of ideas” and diversity of speakers in public discussion. We should value dynamic diversity, he explains, because it protects free speech’s role as “an engine of political and social change.” “Dissent lies at the heart of dynamic diversity.”

One of Professor Magarian’s more impressive achievements in Managed Speech is paying the Roberts Court the compliment of providing a theory that runs through its various First Amendment cases. The book shows us surprising and hidden connections between disparate opinions by the Justices of the Court, and between different areas of First Amendment law. Importantly, the “managed speech” theory goes beyond just name-calling: “managed speech” is a coherent and even possibly defensible theory, not a label, like calling the Court “right-wing” or “pro-Business.” But there are some problems with Magarian’s approach. The first is that it works better for some areas of First Amendment law (government speech, campaign finance) than others—as Magarian himself might admit. A second problem is that Magarian’s alternative, “dynamic diversity,” is not as fully fleshed out as “managed speech,” so his book, in the end, operates more in the mode of diagnosis and critique rather than a positive blueprint for change. I will have something more to say about this in what follows.

But it is a third problem I mostly want to focus on in my short essay in this Symposium. Dynamic diversity, like managed speech, operates at the level of theory, not at the level of constitutional doctrine. So while it may be clear what results in cases dynamic diversity would like, it is less clear what doctrinal route we should take to get to those results. In trying to figure out what route dynamic diversity could take, I make a partial—and somewhat half-hearted—defense of the Court’s so-called categorical approach, developed in Stevens, Brown, and Alvarez, and about which Magarian seems ambivalent. I think there is a lot to be said for the categorical approach, and even its reliance on the perhaps malleable and certainly vague idea of “tradition.” Maybe the categorical approach is not our first choice or the choice for understanding the First Amendment. But it might just work as a second-best compromise in a lot of ways, and it may be the best way doctrinally to realize some of the goals of “dynamic diversity.”

My paper has three parts. In the first, I describe the appeal of the categorical approach, giving my own impressionistic view of where and why some people tend towards favoring First Amendment speech protections (including myself). In the second part, I try to list some of the problems with dynamic diversity. It is not only underdeveloped as a doctrinal matter—an objection I pursue more in the third part—but it is also strangely undermotivated as a theory. Stability has its appeal; less obvious is why disruption or social and political change as such are valuable. I also question whether dynamic diversity can support the results in Brown, Stevens, and Alvarez—which Magarian says he favors. In the third part, I turn more explicitly to doctrine and defend the categorical approach against some of Magarian’s brickbats.

At the dawn of the Internet’s emergence, the Supreme Court rhapsodized about its potential as a tool for free expression and political liberation. In ACLU v. Reno (1997), the Supreme Court adopted a bold vision of Internet expression to strike down a federal law – the Communications Decency Act – that restricted digital expression to forms that were merely “decent.” Far more than the printing press, the Court explained, the mid-90s Internet enabled anyone to become a town crier. Communication no longer required the permission of powerful entities. With a network connection, the powerless had as much luck reaching a mass audience as the powerful. The “special justifications or regulation of the broadcast media” had no application to the “vast democratic forums of the Internet.”

Twenty years later, the Roberts Court had an opportunity to explain how the First Amendment should operate in the mature Internet of 2017. Despite the interval of time, the Roberts Court of 2017 took a remarkably similar approach to the Rehnquist Court of 1997. In Packingham v. North Carolina, Justice Kennedy announced the start of the “Cyber Age.” The Internet was the virtual public square, much like streets and parks. Because the “Internet” was still in its infancy, its impact on expression was not fully understood. The expressive potential of the “Internet” would be imperiled in the absence of a hands-off approach. Justice Kennedy noted that someday, the Internet might be used for anti-social ends. Until then, extreme caution was in order so the Internet’s democratic potential could be realized.

Contrary to the Court’s thinking, the Internet is no longer in its infancy. It has matured at a breathtaking pace. Virtually all aspects of our public and private lives – politics, child-rearing, work, health, shopping, and sex – involve the Internet. If online discourse ever accorded with the Court’s vision, it does not now. Rather than just the virtual town square, the “Internet” is bound up in everything and everywhere-whether the workplace, library, coffee shop, gym, park, public street, town square, or bedroom.

This article debunks the Court’s magical thinking about the Internet. The Internet’s expressive opportunities are not available to all on equal terms, thanks to the wide availability of personal data. Online platforms highlight favored content while burying disfavored ones. Search engines produce different, and less advantageous, results to people of color and women than to men. Cyber mobs shove people offline with doxxing, swatting, and other privacy-invasive forms of abuse. Online platforms fuel polarization and filter bubbles, ensuring an electorate without access to a full range of ideas and information. Fake news spreads like wildfire on social media platforms that are often people’s main source of information.

We need clear principles to guide and secure meaningful digital free expression. This article charts a path to provide just that. Part I exposes crucial myths surrounding the digital speech and privacy in our networked age. Part II offers a conception of free speech based on a distrust of power, both public and private. Even if doctrinal analysis does not account for private barriers to free expression, the project of free expression should. Part III lays out four essential preconditions for a theory and a system of free expression in the digital age. These preconditions are substantive and procedural. They require legal intervention and extra-legal efforts. They draw some inspiration from due process guarantees and some from commitments to equality. Underlying these principles is a unifying normative commitment: If we want to ensure that our commitment to long-standing democratic theories of free expression survives its translation to the digital environment, we need to take a long, hard look at the digital public sphere we actually have, rather than one that we might want or one that has been advertised to us by Silicon Valley.