Showing papers by "Joseph Blocher published in 2011"

Viewpoint Neutrality and Government Speech

Abstract: INTRODUCTIONIt is a bedrock principle of the First Amendment that "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."1 And yet, "the Government's own speech . . . is exempt from First Amendment scrutiny," even when it has the effect of limiting private speech.2 The upshot of these apparently conflicting principles is that, pursuant to government speech doctrine, the government may be able to restrict private expression "because of its message, its ideas, its subject matter, or its content," so long as in so doing it is expressing its own viewpoint.3 Why is viewpoint discrimination flatly forbidden in one area of First Amendment law and entirely exempt from scrutiny in another?4 Has government speech doctrine undermined the First Amendment's seemingly inviolable viewpoint neutrality requirement?5Government speech doctrine is young, and its youthful exuberance and ambition-not to mention its adolescent awkwardness-has become cause for some parental concern. In 2009, in Pleasant Grove City, Utah v. Summum, the U.S. Supreme Court's most recent government speech case, Justice Souter warned, "it would do well for us to go slow in setting its bounds, which will affect existing doctrine in ways not yet explored."6 As the doctrine grows, the constitutional exemption it receives is increasingly bumping into another apparently absolute First Amendment principle-the requirement that the government be viewpoint neutral when it restricts private speech.7 The prevention of viewpoint discrimination has long been considered the central concern of the First Amendment,8 and yet in some cases government speech doctrine seems to allow-if not outright encourage-viewpoint discrimination in the extreme. Indeed, one way for the government to prevail in a government speech case is to show that a private speaker's message is contrary to, and interfering with, its own.9This does not (yet) mean that government speech doctrine has swallowed the rest of the First Amendment by permitting unchecked viewpoint discrimination against private speakers.10 Many incidents of government speech arguably can be viewpoint neutral, at least from the government's point of view. Although the government speech doctrine does not permit total bans on the expression of a private viewpoint, it does allow what had previously been thought forbidden: the burdening, even if not silencing, of private viewpoints because the government disagrees with them.Summum provides a perfect example. In that case, a religious order called the Summum sought to erect a monument in a public park that already contained other privately donated monuments.11 Pleasant Grove City rejected the monument on the grounds that it was not consistent with the city's purported message of celebrating local history and community.12 The city argued that the placement of monuments in a public park was not susceptible to public forum analysis, but was instead an incident of government speech and therefore exempt from scrutiny under the Free Speech Clause.13 The Court agreed, holding that "the City's decision to accept certain privately donated monuments while rejecting respondent's is best viewed as a form of government speech. As a result, the City's decision is not subject to the Free Speech Clause . . . ."14Although some have described Summum as an "easy" case,15 others are made uneasy by the fact that it blessed a government action that was for all intents and purposes indistinguishable from viewpoint discrimination in a public park-the prototypical example of impermissible speech regulation.16 What this discrepancy illustrates is that some criticisms of government speech-and there have been many trenchant criticisms17-have failed to grasp fully the nature of the beast. It is generally supposed that government speech is dangerous because it threatens to drown out or distort private discourse due to the government's limitless resources and powerful platforms for communication. …

What State Constitutional Law Can Tell Us About the Federal Constitution

Abstract: Courts and scholars have long sought to illuminate the relationship between state and federal constitutional law. Yet their attention, like the relationship itself, has largely been one-sided: State courts have consistently adopted federal constitutional law as their own, and scholars have attempted to illuminate why this is, and why it should or should not be so. By contrast, federal courts tend not to look to state constitutional law, even for persuasive authority. Nor have scholars argued at any length that federal courts can or should look to state constitutional law for guidance in answering the many constitutional questions common to the federal and state systems. This short Article attempts to turn the focus around, by asking what state constitutional law can tell us about the federal constitution. The thesis explored here is that federal constitutional doctrine can and sometimes should do more to draw on state constitutional law, particularly when that law addresses—as it often does—analogous language or problems with which the federal courts have little experience. The Article calls this idea “reverse incorporation” for lack of a better phrase, but “federal constitutional borrowing of state constitutional law” would probably be more accurate, if a bit clunkier. In any event, the phrase is not meant to invoke the “reverse” incorporation

Popular Constitutionalism and the State Attorneys General

Abstract: Popular constitutionalism is a bit like the dark matter of the constitutional universe - it seems to exert a powerful force on constitutional theory and doctrine, but even those who believe in it are not always entirely sure how it works. Do "the people" influence constitutional interpretation through elections? Impeachments? Mob rule? This Response considers another possible answer: the people act through the state attorneys general (SAGs), who have played a prominent role in the Court’s recent Second Amendment cases and the ongoing challenges to the constitutionality of health care reform.In Dead or Alive: Originalism as Popular Constitutionalism in Heller, her trenchant analysis of popular constitutionalism in District of Columbia v. Heller, Professor Reva Siegel persuasively argued that "Heller’s originalism enforces understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism." Those understandings resurfaced in McDonald v. City of Chicago, thanks in part to SAGs, thirty-eight of whom argued that the Amendment should be incorporated against the states. Although the SAGs invoked federalism, their arguments owe more to popular constitutionalism than to the interests of the states qua states. And by effectively recasting themselves as “the people’s attorneys general,” the SAGs helped solve popular constitutionalism’s problem of institutional design even as they raised new questions about their own responsibilities as representatives of the states themselves.

Popular Constitutionalism and the State Attorneys General

Abstract: Popular constitutionalism is a bit like the dark matter of the constitutional universe - it seems to exert a powerful force on constitutional theory and doctrine, but even those who believe in it are not always entirely sure how it works. Do "the people" influence constitutional interpretation through elections? Impeachments? Mob rule? This Response considers another possible answer: the people act through the state attorneys general (SAGs), who have played a prominent role in the Court’s recent Second Amendment cases and the ongoing challenges to the constitutionality of health care reform.In Dead or Alive: Originalism as Popular Constitutionalism in Heller, her trenchant analysis of popular constitutionalism in District of Columbia v. Heller, Professor Reva Siegel persuasively argued that "Heller’s originalism enforces understandings of the Second Amendment that were forged in the late twentieth century through popular constitutionalism." Those understandings resurfaced in McDonald v. City of Chicago, thanks in part to SAGs, thirty-eight of whom argued that the Amendment should be incorporated against the states. Although the SAGs invoked federalism, their arguments owe more to popular constitutionalism than to the interests of the states qua states. And by effectively recasting themselves as “the people’s attorneys general,” the SAGs helped solve popular constitutionalism’s problem of institutional design even as they raised new questions about their own responsibilities as representatives of the states themselves.

Rights To and Not To

Abstract: 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.

Transforming Property Into Speech

Abstract: One of the most important relationships in constitutional law is that between two concepts at the heart of the American legal system: property and speech. Yet despite increased scholarly attention, the relationship remains largely mysterious. Does property simply enable speech acts, or can it have its own expressive content? And what kind of “property” is important to speech—places and things, formal legal entitlements, or social norms? This short Article and the longer piece on which it is based attempt to explain why those questions matter, and to offer some tentative answers.