Our Shrinking First Amendment: On the Growing Problem of Reduced Access to Public Property for Speech Activity and Some Suggestions for a Better Way Forward

The Article posits that the scope of certain First Amendment protections has contracted rather than expanded over time and uses access to public property for speech activity as an exemplar of this troubling phenomenon The Roberts and Rehnquist Courts have issued decisions that significantly restrict access to public property for speech activity Under the rubric of the public forum doctrine less public property is available today for speech activity than was the case under the precedents of the Warren and Burger Courts Moreover even with respect to government property that constitutes a traditional or designated public forum the federal courts have permitted government to burden or even banish speech activity through the adoption and enforcement of time place and manner TPM regulations By way of contrast during the Warren and Burger Court eras the federal courts generally presumed that government property must be available for speech activity the burden fell squarely on the government to justify denying access to public property for First Amendment activities Our Shrinking First Amendment posits that the contemporary public forum doctrine in conjunction with the TPM doctrine vests too much discretionary power with government to squelch speech activity on public property Instead of using a rigid categorical approach to decide whether government must make public property available for speech activity the federal courts should instead use a functional approach to decide what constitutes a public forum “ essentially the approach used by the Warren and Burger Courts Simply put public spaces compatible with First Amendment activity should be available for such activity Second federal courts should be less ready to sustain TPM regulations “ particularly when the context of their adoption suggests a censorial motive It is probably unrealistic to propose a complete return to the open balancing test that prevailed under the Warren and Burger Courts Even if this is so however the public forum and TPM doctrines could be reformed to create literally more breathing space for First Amendment activities essential to sustaining the project of democratic selfgovernmen

A Republic If [We] Can Keep It: A Prolegomenon on Righting the Ship of State in the Wake of the Trumpian Tempest Book Review

This review essay provides an overview and critique of Sandy Levinson\u27s and Jack Balkin\u27s excellent book Democracy and Dysfunction University of Chicago Press 2019 The piece argues that Levinson and Balkin are correct to posit that the governing structures of the federal government are in serious need of reform and reinvigoration At the same time however embracing structural changes alone will not be enough if a great many voters continue to cast ballots based on empirical falsehoods Accordingly institutional reforms are a necessary but not sufficient condition for making the federal government more functionalbrbrIn Democracy and Dysfunction Balkin and Levinson debate over a series of essays in the form of letters whether correcting the problems afflicting our governing national institutions will require fundamental changes or more interstitial changes Levinson posits that the Constitution itself enshrines structural flaws that have led us to a crisis point he argues that only the strongest sorts of reforms “ constitutional amendments “ can successfully restore our national governing institutions Balkin by way of contrast claims that the federal government currently suffers from œconstitutional rot and argues that a series of statutory and judicial interventions could arrest this trend Both posit that institutional reforms whether of a constitutional or statutory stripe could successfully address the federal government\u27s contemporary dysfunctionbr br œA Republic If We Can Keep It argues that implementing structural reforms alone will not be sufficient if US voters lack even the most basic knowledge of our government and routinely cast ballots based on the misinformation circulated the growing number of internet echo chambers Simply put any successful effort at either statutory or constitutional reform will require a general consensus within the body politic that the federal government is broken and needs fixing this will require voters to obtain and deploy accurate information about their government and its institutions At present the prospects for such a consensus appear quite bleak Civic education in the United States may charitably be described as œmoribund Once commonplace over 30 states currently do not require high school students to take even a single class in civics or government As Justice Sandra Day O\u27Connor has observed this banishment of civics and government from the nation\u27s K12 curriculum œhas coincided with stunningly low student achievement on civics achievement tests She laments that the nation\u27s schools œare failing to impart even basic civic knowledge to our students Yet the successful adoption of the widereaching institutional reforms that Levinson and Balkin propose will require an enlightened and highly engaged electorate “ which political thinkers from Aristotle to Jefferson to Dewey to Meiklejohn all posit constitutes an essential condition for creating and maintaining a wellfunctioning democratic polity In sum we must to renew our political community in tandem with our political institutions to secure effective and meaningful reform

Dissent, Free Speech, and the Continuing Search for the Central Meaning of the First Amendment

Since the Warren Court\u27s expansive construction of the Free Speech Clause of the First Amendment, there has been no shortage of legal scholarship aimed at justifying the remarkably broad protections afforded the freedom of speech under landmark cases such as Brandenburg v. Ohio, New York Times Co. v. Sullivan, and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. At the same time, in recent years, a growing chorus of free speech skeptics have made their voices heard.5 These legal scholars have questioned why a commitment to freedom of expression should displace other (constitutional) values such as equality, community, or citizenship. This spirited challenge to the Warren Court\u27s free speech orthodoxy has given rise to a kind of free speech counter-Reformation. Defenders of the free speech tradition have joined the fray, challenging those who question the value of racist, sexist, or homophobic expression

The Polysemy of Privacy

“The Polysemy of Privacy” considers the highly protean nature of the concept of “privacy,” which extends to myriad disparate legal interests, including nondisclosure, generalized autonomy interests, and even human dignity. For a concept of such central importance to many systems of protecting fundamental rights, its precise contours are surprisingly ill defined. This lack of determinate meaning is not limited to the concept of privacy in the United States; virtually all legal systems that utilize privacy (or its first cousin, “dignity”) have difficulty reducing the concept into specific, carefully delineated legal interests. In some respects, privacy means everything—and nothing—at the same time. Moreover, even in those contexts where one can identify privacy at a relatively choate, rather than highly abstract, level of jurisprudential analysis, the right of privacy often comes into direct conflict with other fundamental rights. For example, commitments to freedom of speech and to a free press often conflict with privacy interests; these conflicts, in turn, force courts to secure one interest only at the price of undermining another. In the United States, unlike in the wider world, protecting privacy interests through tort law generally will give way to advancing concerns associated with securing expressive freedoms. This Article considers some of the causes and effects of the privileging of expressive freedom over privacy/dignity in U.S. constitutional law and suggests that comparative legal analysis of the concept of privacy might help us to better understand both what privacy does mean and also what it should mean