Legal Commentary

Mary-Rose Papandrea has organized and is moderating an AALS panel for the Section on Mass Communication Law entitled The First Amendment Politics of the Roberts Court.  I will be speaking on the panel along with Erwin Chemerinsky  and Eugene Volokh.   We will be discussing, among other things, whether there is unifying theme among the First Amendment decisions of the Roberts Court and what the Court's decisions signify for the future of First Amendment jurisprudence.  The panel will focus predominantly on free speech and press issues in the Roberts Court.  I know I'm not ruining the suspense by saying there will be discussion of the Citizens United decision, but Garcetti v. Ceballos, Humanitarian Law Project v. Holder, CLS v. Martinez, US v. Stevens, US v. Skilling, Doe v. Reed, Morse v. Frederick, and the pending cases Snyder v. Phelps and Schwarzenegger v. Entertainment Merchants Ass'n are also likely to merit discussion.  The panel is on Saturday at 10:30 at the Parc 55 Wyhdham (Sutro, 2nd Floor).  (A brief preview of some of the remarks I expect to make is below.)

I have not finalized my remarks, but one contention I expect to make is that the Roberts Court appears to take seriously the notion that speakers are entitled to all the free speech they can afford.   I've been thinking of the theory underlying many of the free speech decisions as a kind of highly formalistic libertarianism.  The Court appears to believe strongly that the First Amendment forbids government interference with the marketplace of ideas produced by private ordering.  Absent personnel changes, this is not a Court that is going to favor structural intervention in the marketplace of ideas to fix market failures.  All speakers, whether individuals or organizations, are treated equallly to the extent they are free from government regulation of their speech; however, speakers who lack resources are not entitled to any government assistance in speaking, and the government does not need to show much solicitude for speakers on its payroll or attending its schools.  Another interesting facet is that the government itself is entitled to participate as a speaker in the marketplace, with little or no concern for whether its voice might drown out that of other speakers.  The theory is formalistic in the sense that the Court seems to treal all "inputs" into the marketplace of ideas equally, regardless of real inequalities or imbalances of power among them.

I plan to explore what implications the Court's formalistic libertarianism has for the future of broadcast regulation and the treatment of new media speakers.  I also want to address US v. Stevens (the dog fighting video case) and the Court's seeming unwillingness to reopen the categories of speech "unprotected by the First Amendment," though I'm still struggling to fit the case into the broader themes of the Court's jurisprudence.  And I doubt if I'll be able to resist discussing Snyder v. Phelps (the Westboro Baptist Church funeral protest case), which deals with my favorite legal intersection (of tort law and the First Amendment).