Government Property and Government Speech

The relationship between property and speech is close but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of “property” do speakers need to have – physical things, bundles of rights, or something else entirely? In the context of government property and government speech, the ill-defined relationship between property and speech creates a massive but under appreciated theoretical and doctrinal problem, that threatens the very existence of the public forum. The arc of First Amendment jurisprudence, particularly as manifested in public forum doctrine, has been towards limiting the government’s right to exclude unwanted private speakers. Government speech doctrine, however, effectively reinvigorates the government’s right to exclude unwanted speakers by transforming speech regulations into governmental expressive conduct, which under current government speech doctrine is entirely exempt from constitutional review. The government can therefore invoke not only its property rights, but the expressive nature of their exercise. Something has to give. Either not all property is expressive, or else not all expressive uses of government property are government “speech” exempt from constitutional scrutiny. Part I of this Article explores the first of these propositions, arguing that the relationship between speech and property requires a more nuanced treatment than it has heretofore received, and that property – whether conceived of as a thing, a legal entitlement, or a social relationship – both enables and is expression. But, as Part II of the Article shows, that conclusion cannot easily be extended into the context of government property and government speech. In government property/government speech cases such as Town of Pleasant Grove v. Summum, the question should be whether the government has the right to exclude unwanted speakers, not whether the exercise of such a right (assuming the government has it) is expressive. And the best way to answer the correct question is by looking not to formal property rights, but to social understandings of property

New Approaches to Old Questions in Gun Scholarship

Reviewing Philip J. Cook and Kristin A. Gross, The Gun Debate: What Everyone Needs to Know; Saul Cornell and Nathan Kozuskanich, The Second Amendment on Trial: Critical Essays on District of Columbia v. Heller; Nicholas Johnson, Negroes and the Gun: The Black Tradition of Arms; Akinyele Omowale Umoja, We Will Shoot Back: Armed Resistance in the Mississippi Freedom Movement; and Craig Whitney, Living with Guns: A Liberal’s Case for the Second Amendment

Popular Constitutionalism and the State Attorneys General

In her article Dead or Alive: Originalism as Popular Constitutionalism in Heller, Professor Reva Siegel argued that the Supreme Court’s opinion in District of Columbia v. Heller relied on originalism to enforce understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism. In this Response, Professor Joseph Blocher argues that those understandings reappeared in McDonald v. City of Chicago, in part through the efforts of thirty-eight state attorneys general (SAGs) who filed an amicus brief urging the Court to incorporate the Second Amendment against the states. The SAGs invoked federalism, but their arguments owed more to popular constitutionalism than to the interests of the states qua states. Thus although the SAGs helped solve popular constitutionalism’s problem of institutional design, they raised new questions about their own responsibilities as representatives of the states

Rights To and Not To

When and why should a “right to” include a “right not to”? If a person has a right to engage in an activity or to receive a particular form of procedural protection, under what circumstances should he also have a right not to engage in that activity or to refuse that process? The basic project of this Article is to show why these questions are important in American constitutional law, to explore how doctrine and scholarship have implicitly and sometimes awkwardly dealt with them, and to suggest normative frameworks with which they can be answered

Building on Custom: Land Tenure Policy and Economic Development in Ghana

This Note addresses the intersection of customary and statutory land law in the land tenure policy of Ghana. It argues that improving the current land tenure policy demands integration of customary land law and customary authorities into the statutory system. After describing why and how customary property practices are central to the economic viability of any property system, the Note gives a brief overview of Ghana’s customary and statutory land law. The Note concludes with specific policy suggestions about how Ghana could better draw on the strength of its customary land sector

New Problems for Subsidized Speech

The constitutionality of conditional offers from the government is a transsubstantive issue with broad and growing practical implications, but it has always been a particular problem for free speech. Recent developments suggest at least three new approaches to the problem, but no easy solutions to it. The first approach would permit conditions that define the limits of the government spending program, while forbidding conditions that leverage funding so as to regulate speech outside the contours of the program. This is an appealing distinction, but runs into some of the same challenges as public forum analysis. The second approach would treat conditional offers to purchase speech like other proposed economic transactions, invalidating them when they are coercive. This principle helps explain many recent cases, including the healthcare decision. And yet the Court’s willingness to find coercion in cases involving conditional offers from the government is hard to square with its approach to campaign finance law and its apparent faith in markets more generally. The third and final approach would treat limits on conditional offers not as individual rights, but as structural limitations on the scope of government. This approach, too, points in the direction of possible solutions—and also further problems—for analyzing the constitutionality of subsidized speech

Selling State Borders

Sovereign territory was bought and sold throughout much of American history, and there are good reasons to think that an interstate market for borders could help solve many contemporary economic and political problems. But no such market currently exists. Why not? And could an interstate market for sovereign territory help simplify border disputes, resolve state budget crises, respond to exogenous shocks like river accretion, and improve democratic responsiveness? Focusing on the sale of borders among American states, this Article offers constitutional, political, and ethical answers to the first question, and a qualified yes to the second

What We Fret About When We Fret About Bootstrapping

Den som färdas i staden har rätt att få svar på frågan: När kommer jag fram? Inställda turer, förseningar, trafikstockningar och brist på lediga parkeringsplatser försinkar oftast utan förvarning. Det är hög tid att förbättra tjänstens kvalité. Med nytänkande och en nyordning inom stadstrafiken är detta möjligt. Alla former av stadstrafik skulle kunna betraktas som tjänster och samordnas i ett informations- och betalsystem, vilket öppnar möjligheter för en rad omvälvande förändringar.Ingår i "Stockholm on the move", en utställningskatalog.QC 20130514</p

Free Speech and Justified True Belief

Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons. And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally focused on truth alone, as if all true beliefs must be treated equally. This thin account leaves the epistemic theory vulnerable to withering criticism, especially in a “post-truth” era. This Article suggests that the epistemic theory of the First Amendment might be reframed around a different value: not truth alone, but knowledge. Beginning with the tripartite definition of knowledge as justified true belief, philosophers from Plato until the present day have tried to account for what makes knowledge distinct and distinctly valuable. And in many ways law, too, already accounts for the existence and value of justifications, not just true beliefs. Identifying and exploring those threads of constitutional theory and doctrine can help provide a richer account of the cognitive First Amendment at a time when it is sorely needed. Doing so can also help resolve thorny doctrinal problems like those involving professional speech and institutional deference