THE VIEW FROM MY WINDOW.

Author:Magarian, Gregory P.
Position:Symposium: The Roberts Court's First Amendment

INTRODUCTION

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. (1) 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 (2) and commercial data miners (3) exemplify the Roberts Court's First Amendment winners, while peace activists (4) and fringe religions (5) 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. (6)

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?

  1. THE SYMPOSIUM: DYNAMIC DIVERSITY IN ACTION

    Given that Managed Speech advocates an approach to First Amendment law called "dynamic diversity," this collection of writings perfectly fits a symposium around the book. The contributions reflect a great diversity of perspectives, ranging from more theoretical to more doctrinal, more descriptive to more normative, more targeted in their concerns to more general. The contributions also show a vibrant dynamism. The authors deploy their varied expertise and talents to develop incisive thoughts and critiques about the Roberts Court's First Amendment jurisprudence and about how my book tackles that jurisprudence.

    1. Justice in the Streets

      Richard Nixon famously damaged his 1960 campaign for the U.S. presidency by visiting every state in the nation, an effort that left him depleted and his campaign unfocused. (7) The broad coverage of a book like Managed Speech creates a similar risk. Examining a decade of the Supreme Court's free speech decisions requires attention to a great range of subjects and contexts, from state primary elections (8) to high school sports, (9) vanity license plates (10) to stoner comedy. (11) Managed Speech centrally criticizes the Roberts Court's subordination of political and social dissent to managerial order, and my dynamic diversity theory prioritizes dissent. (12) That priority, however, can get obscured in the thicket of details. I wrote this kind of book because the present Supreme Court provides a useful laboratory for teasing out First Amendment doctrine's immediate pathologies and an important context for understanding them. Still, that approach leaves me looking for the thematic car keys under a very specific streetlight.

      Timothy Zick manages to ameliorate both the breadth and the narrowness of Managed Speech. (13), Professor Zick is a preeminent scholar of public protest. (14) That subject has become increasingly important in our society over the past decade, but the Roberts Court has largely ignored it. Here Professor Zick trains a critical laser on the implications of managed speech for public protests. He properly calls out the Roberts Court for protecting only public political activity that does not disrupt social order (15) and for subordinating U.S. speakers' transnational political activism to the government's assertions about national security risks. (16)

      At the same time, Professor Zick situates the central arguments of Managed Speech in both a deeper historical context and a wider socio-cultural context. The Roberts Court did not invent the pathologies at the heart of my critique, and the Supreme Court--indeed, the law--does not cabin them. Professor Zick richly details how past Supreme Courts created templates for managed speech. In a nuanced critique of the public forum doctrine, for example, he shows how the Court has long conditioned public speech rights on an expectation that public speakers will not deviate widely from established political and social norms. (17) Even more important, and more troubling, Professor Zick shows how elected officials and our society at large care even less for public protest than the Roberts Court does. While the Court diminishes protest rights through mere neglect, state legislatures plot to squelch street demonstrations and license physical attacks on protesters. (18) Universities establish their own bureaucratic and punitive mechanisms for managing the speech resources they control. (19) Most dispiriting of all, large segments of the public condemn protesters whose messages they oppose, like professional football players who take a knee during the National Anthem to protest institutional racism. (20)

      Managed Speech calls on the Supreme Court to expound a more dissent-friendly First Amendment doctrine. (21) Professor Zick correctly points out that even the highly unlikely realization of that goal would not reach the roots of our problem with public dissent. Law is only as reliable as the social reality that contains it, and speech values in particular rest on a social rather than legal foundation. Professor Zick sets out an urgent project for a wise free speech agenda: changing society, not just law, to deepen appreciation for the value of public dissent. From the sobering perspective he provides, our challenge does not simply entail making legal institutions embrace a richer version of the First Amendment. Rather, we have to convince regular, busy people to welcome and engage with challenges to received wisdom and social norms.

    2. The Anti-Cynical First Amendment

      Garcetti v. Ceballos (22) strikes me as one of the Roberts Court's most frustrating free speech decisions. Richard Ceballos, an assistant district attorney in Los Angeles, found good reasons to believe his office had misrepresented key facts in a criminal prosecution. He wrote his concerns in a memo to his supervisors. For his trouble, they downgraded his assignments and declined to promote him. The First Amendment protects public employees against job reprisals when they speak about "matters of public concern." (23) The Roberts Court, though, found that Ceballos had not spoken about a matter of public concern when he notified his superiors about possible misconduct. Instead, he had merely created work product that belonged to the District Attorney. Justice Kennedy, writing for the majority, reasoned that letting the First Amendment check government employers' absolute control over such work product would impose an unacceptable cost on government efficiency. The decision defers reflexively and thoroughly to the government employer's managerial interest. It completely ignores the societal benefits of protecting conscientious government employees who try to ensure, from inside the public workplace, the integrity of the people's business.

      Oscar Wilde's Lord Darlington defined a cynic as "[a] man who knows the price of everything, and the value of nothing." (24) Garcetti, by those lights, stands out as an exceptionally cynical piece of First Amendment adjudication. The Supreme Court only sees (and likely exaggerates) the cost of the dissident lawyer's speech while ignoring its value. In fact, First Amendment law has a persistent problem with valuing speech. Courts get understandably nervous about the prospect of ascribing different sorts of value to different sorts of speech. Courts, after all, are part of the government, and the First Amendment axiomatically bars the government from drawing content-based distinctions among different speakers and expressions. Judicial reluctance to assess the value of speech, unfortunately, leaves speech more vulnerable to the government's regulatory--or managerial--whims. In situations like Garcetti, where the government can claim special authority or urgency for restricting speech, flattening the distinctive value of the speech in question leaves the government's claim effectively unchallenged. Managed Speech maintains, as I have argued before, (25) that courts should take a frankly normative approach to balancing speech interests against government prerogatives. Making that approach work, however, presents a serious challenge.

      Heidi Kitrosser squarely confronts that challenge. (26) Professor Kitrosser's account of how government employees advance First Amendment principles by scrutinizing the government's messages provides a brilliant, clear model of how to construct an argument about the normative value of particular speech. (27) She identifies a baseline First Amendment interest: the public's access to information, particularly about matters of government policy and practice. (28) She then defines a metric: the degree to which the public understands the government's behavior free from willful government...

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