MANAGING DISSENT.

• Author: Zick, Timothy
• Position: Symposium: The Roberts Court's First Amendment

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.

INTRODUCTION

In his recently published book, Managed Speech: The Roberts Court's First Amendment, (1) Professor Greg Magarian criticizes the Roberts Court for adopting what he calls a "managed speech" approach that "seeks to reconcile substantial First Amendment protection for expressive freedom with aggressive preservation of social and political stability." (2) Thus, in "government preserves" such as public streets and parks, the Roberts Court has generally upheld the authority of property owners to manage expressive activities. (3) The same holds largely true, Professor Magarian argues, with regard to public universities. (4) Private speech has been protected--one might alternatively say tolerated--mostly insofar as it has not been disruptive of social order or the political status quo. Professor Magarian concludes: "The Roberts Court, with a consistency and potency unique in the Supreme Court's history, has authorized established, powerful institutions ... to exercise managerial control over public discussion, with the apparent goal and typical result of pushing public discussion away from destabilizing, noisy margins and toward a stable, settled center." (5)

In fact, "managed speech," as Professor Magarian defines it, has long been a staple of First Amendment jurisprudence concerning public dissent. Although on a few occasions Professor Magarian refers to the Burger and Warren Courts, his analysis does not, for perfectly understandable reasons, generally cut across Courts. If it had, the study would have found that although the Supreme Court has at times extolled the virtues of dissent and disruption, it has generally supported public contention only insofar as the means are peaceful and non-disruptive. As Professor Magarian charges, the Roberts Court has generally empowered institutions to curb private dissent and manage government preserves in ways that maintain a certain kind of social and political stability. Although some of its decisions may have exacerbated this situation, the Roberts Court was not working on a blank slate. In most cases, it was applying deeply ingrained managerial speech attitudes, principles, and doctrines.

Although we are a nation both literally and figuratively built on public dissent, restrictions on acts of dissent--public assembly, protest, and demonstrations--have been commonplace since at least the nineteenth century. (6) The prevailing attitude is written into the First Amendment's Assembly Clause, which protects not the right to assemble but the right to "peaceably" do so. (7) Of course, dissenters have no First Amendment right to engage in violent or criminal acts, but today's "peaceable" assemblies and protests are managed far beyond these obvious limitations. To be sure, political dissenters and a virtual rogue's gallery of speakers have won notable and celebrated victories at the Supreme Court. However, as discussed below, many of those victories occurred precisely because the speaker did not disrupt social expectations or challenge the political status quo. Again, the Roberts Court has followed this pattern by continuing the Court's long tradition of upholding measures that curb and tame public dissent.

What is more disturbing, there is mounting evidence that Americans have largely internalized and accepted the strict management of dissent by public and private actors. Consider the recent spate of proposals put forward by many state legislatures that would crack down on public dissent and protest. Starting in early 2017, and in response to high-profile public protests, state legislatures across the nation proposed or enacted a bevy of measures designed to manage public dissent by making it more difficult, expensive, or even dangerous. As discussed in Part II, some of the proposals would increase penalties for obstructing traffic or engaging in other kinds of disruptive behavior. Others would apply rioting and racketeering laws to protest organizers. Some would authorize the seizure of assets belonging to protesters, in the event that a protest became violent. Further, some states have proposed measures that would make it easier for law enforcement to simply shut down events such as mass protests. Others, in response to heckling incidents, have moved to impose stiffer penalties for threatening, intimidating, or harassing public officials. Finally, a few states have considered holding harmless any driver who inadvertently strikes a protester who is blocking a roadway. (8)

Executive officials have not been immune to this anti-dissent fervor. A woman who laughed (involuntarily, she says) at the confirmation hearing of Jeff Sessions to be Attorney General of the United States was tried and convicted for disorderly conduct and "demonstrating" on the Capitol grounds. (9) For this audacious act of public dissent, she faced a hefty fine and up to a year in prison. Prosecutors finally dropped the case, but only after winning a jury verdict that was tossed out and announcing that they would retry the case. (10) On a broader scale, the Justice Department has aggressively pursued more than 200 individuals who allegedly participated in inaugural day protests. In that case, it sought digital records relating to participation in public protests and charged the group of protesters with felony conspiracy to engage in a riot. (11)

Unfortunately, these are not the only examples that suggest a strong backlash against public forms of dissent. As discussed below, at many colleges and universities, administrators have cracked down on offensive and disruptive expression by students, faculty, and outsiders. They have adopted and enforced detailed codes that model the regulatory regime applicable outside campus to places within campus gates. (12) Some universities have disinvited or refused to host controversial outside speakers. (13) Some students have likewise embraced managed speech. For example, students have physically interfered with access by outside speakers or reacted violently to their presence. Others have interrupted invited speakers whose messages they consider too controversial or hurtful. Students have also used their own free speech rights to shout down speakers. All of this activity has resulted in the effective silencing of speech, in the name of keeping students safe from certain controversial messages or speakers. In response, lawmakers and administrators are beginning to respond with a cure that may be as bad as or worse than the disease. For instance, the University of Wisconsin recently adopted student conduct rules that would result in the suspension and possible expulsion of students who engage in what is arguably a form of counter-speech. (14) This sort of administrative response could further suppress the vigorous exchange of ideas on university campuses.

Managed speech has also been manifested more broadly, in notable social and political conflicts. The recent controversy concerning NFL players' racial justice protests during pre-game ceremonies, in particular during the singing of the national anthem, are one example. Official pressure has been brought to bear on these dissenters. President Trump has opined that players should stand at attention during the national anthem and flag ceremonies, or be disciplined by team owners and managers for failing to do so. (15) A state legislator recently introduced a bill that would entitle fans to a refund in the event they had to witness such an offensive form of dissent. (16) Some fans have also sued for refunds, alleging that the anthem dissents nullify their season ticket purchases. (17) The First Amendment may not be formally implicated in this controversy, since (thus far, at least) no government official has taken any direct action against the players or coerced management to discipline or fire them. However, the fact that a silent, peaceful protest has generated such public controversy--even outrage in some quarters--is telling. Apparently, many Americans view the peaceful expression of dissent on a matter of critical public concern as an act of disrespect to the nation.

Managed dissent is rooted in our First Amendment history and jurisprudence. It is...