Government Speech and the War on Terror

This Article examines how the government’s speech in the War on Terror can threaten free speech, equal protection, and due process values. It focuses primarily on the constitutional harms threatened by the government’s speech itself (what some call a form of “soft law”), rather than on situations in which the government’s speech may be evidence of a constitutionally impermissible motive for its “hard law” actions

Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression

This Article identifies a key doctrinal shift in courts\u27 treatment Of public employees\u27 First Amendment claims-a shift that imperils the public\u27s interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer\u27s interest in efficiently providing public services. In contrast, courts now increasingly focus on-and defer to-government\u27s claim to control its workers\u27 expression to protect its own speech. More specifically, courts increasingly permit government to control its employees\u27 expression at work, characterizing this speech as the government\u27s own for which it has paid with a salary. This trend frustrates a meaningful commitment to republican government by allowing government officials to punish, and thus deter, whistleblowing and other valuable on-the-job speech that would otherwise facilitate the public\u27s ability to hold the government politically accountable for its choices. Courts also increasingly consider government workers to be speaking as employees even when away from work, deferring to the government\u27s assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views. Implicit in courts\u27 reasoning is the premise that a public entity\u27s employment relationship with an individual who engages in certain expression communicates a substantive message to the public that the government is entitled to control. Courts\u27 unfettered deference to such claims would permit government agencies to fire workers for any unpopular or controversial off-duty speech to which the public might object, potentially enforcing orthodox expression as a condition of public employment. To be sure, government speech is as valuable as it is inevitable. But taken together, these trends lead to the rejection of government workers\u27 First Amendment claims in a growing number of cases that undermine workers\u27 free speech rights as well as the public\u27s interest in transparent government. Because of this shift\u27s normatively troubling implications, this Article proposes a new constitutional framework for public employee speech cases that attends more carefully to what it is that government seeks to communicate and whether that message is actually impaired by employee speech. It thus proposes a less deferential approach to assessing government\u27s expressive claims to its workers\u27 speech both on and off the job, exploring both categorical and contextual frameworks for identifying more precisely the comparatively small universe of workers\u27 speech that actually threatens government\u27s own expression

The Supreme Court\u27s Post-Racial Turn Towards a Zero-Sum Understanding of Equality

The Supreme Court--along with the rest of the country--has long divided over the question whether the United States has yet achieved a \u27post-racial society in which race no longer matters in significant ways. How, if at all, this debate is resolved carries enormous implications for constitutional and statutory antidiscrimination law. Indeed, a post-racial discomfort with noticing and acting upon race supports a zero-sum approach to equality: if race no longer matters to the distribution of life opportunities, a decision maker\u27s concern for the disparities experienced by members of one racial group may be seen as inextricable from its intent to discriminate against others. In recent decades, the Court\u27s swing Justices expressly rejected claims of post-racial success even while moving towards an insistence that government remain color-blind in its actual treatment of individuals. Uncomfortable with the use of race-based classifications to further a governmental interest in addressing long-standing racial subordination, yet reluctant to dismiss the strength of that interest given its view of the continuing relevance of race to American life, a majority thus remained unwilling to treat as discriminatory government\u27s attention to racial impact when choosing among various policy options. Recent developments, however, signal the possibility that the Court has now embraced a new understanding of equality that may be triggered by an assumption of post-racial success in certain contexts. For example, the Court in Ricci v. DeStefano for the first time characterized a decision maker\u27s attention to its practices\u27 racially disparate impact as evidence of its discriminatory, and thus unlawful, intent under Title VII. Ricci\u27s redefinition of culpable mental state for antidiscrimination purposes thus destabilizes the longstanding premise that the Court does not view decision makers\u27 attention to race to address patterns of racial hierarchy as itself suspicious. Decades after holding that the Equal Protection Clause does not require government to reconsider its actions that disproportionately exclude people of color and women so long as those actions are not motivated by an intent to harm, the Court has now concluded that statutory antidiscrimination law--and perhaps the Equal Protection Clause as well--prohibits government from reconsidering these actions under certain circumstances. If applied in the constitutional setting, as concurring Justice Scalia predicted, such a zero-sum understanding of equality would treat a government decision maker\u27s attention to racial and gender hierarchies when choosing among various policy options as inherently suspicious--and thus unconstitutional unless the government\u27s action survives heightened scrutiny

Robotic Speakers and Human Listeners

In their new book, Robotica, Ron Collins and David Skover assert that we protect speech not so much because of its value to speakers but instead because of its affirmative value to listeners. If we assume that the First Amendment is largely, if not entirely, about serving listeners’ interests—in other words, that it’s listeners all the way down—what would a listener-centered approach to robotic speech require? This short symposium essay briefly discusses the complicated and sometimes even dark side of robotic speech from a listener-centered perspective

What Twenty-First-Century Free Speech Law Means for Securities Regulation

Securities law has long regulated securities-related speech—and until recently, it did so with little, if any, First Amendment controversy. Yet the antiregulatory turn in the Supreme Court’s twenty-first-century Free Speech Clause doctrine has inspired corporate speakers’ increasingly successful efforts to resist regulation in a variety of settings, settings that now include securities law. This doctrinal turn empowers courts, if they so choose, to dismantle the securities regulation framework in place since the Great Depression. At stake are not only recent governmental proposals to require companies to disclose accurate information about their vulnerabilities to climate change and other emerging risks, but also longstanding governmental efforts to inform and protect investors while serving broader public interests. This Article takes seriously this threat to the securities law framework, and de-fends that framework’s constitutionality. It describes why and how securities law regulates speech to inform and protect investors—functions that also achieve public-regarding goals by facilitating stable and efficient markets, encouraging corporate ac-countability, and ameliorating the systemic economic risks of market collapse. As we’ll see, key differences between securities and other goods and services leave the securities market especially vulnerable to asymmetries of information, thus intensifying the im-portance of accurate securities-related information to investors as listeners. The Article then maps this securities law framework onto First Amendment law, demonstrating why and how this regulatory framework aligns with Free Speech Clause theory and doctrine. Key to this alignment are securities law’s listener-centered functions. More specifically, this Article makes the case for identifying securities-related speech as a category of speech unprotected by the First Amendment. The Court has long considered the regulation of certain categories of speech as exempt from First Amendment review, and it has more recently announced a backwards-facing methodology for determining these categories that turns on identifying a longstanding regulatory tradition of restricting speech within a category without triggering traditional First Amendment scrutiny. We can trace a lengthy regulatory tradition of responding to the informational asymmetries endemic to securities markets by prohibiting companies from making false and misleading statements and by requiring them to make certain accurate disclosures. Securities law remains faithful to this tradition when it regulates securities-re-lated speech to serve these listener-centered functions. For this reason, securities law stays consistent with this regulatory tradition (and thus regulates within a category of unprotected speech) when it responds to the realities that the risks to investors change over time, and that investors evaluate those risks through a variety of methodologies. Think, for instance, of disclosures that inform investors about risks and methodologies that were unknown to, or unrecognized by, past generations—think of asbestos and fentanyl, and also of climate change and cybersecurity. That new risks to investors will arise (as well as new investor approaches to evaluating those risks) is foreseeable, even if the specific content of those risks and methodologies is not. In other words, today’s securities laws address problems of informational asymmetries that are far from new. So too do they deploy a set of solutions, like mandatory disclosures, to those problems that are also far from new. This Article asserts that the securities market is sufficiently distinct from other markets in its susceptibility to information asymmetries to justify recognizing securities-related speech as its own category of unprotected speech. Nevertheless, it also considers the possibility that the Court will instead turn to an entirely separate doctrine for con-sidering the constitutionality of securities law: the very different rules that apply to the government’s regulation of commercial speech. Here too securities regulation’s listener-centered functions do important First Amendment work, as much of the securities law framework satisfies review under commercial speech doctrine so long as we continue to tether commercial expression’s constitutional protection to that expression’s capacity to inform listeners’ decisionmaking