Citizens United, Stevens and Humanitarian Law Project: First Amendment Rules and Standards in Three Acts

Abstract

This essay, written for a symposium on the Roberts Court's five-term anniversary, considers three First Amendment cases from the most recent Supreme Court term: Citizens United v. Federal Election Commission, United States v. Stevens, and Holder v. Humanitarian Law Project (HLP). In these cases the Court first applied and then (in HLP) retreated from strict doctrinal rules and refusals to defer to congressional and executive determinations relevant to the First Amendment issue. This essay uses the occasion of the Roberts Court's anniversary and Justice Stevens' retirement to take a fresh look to the old question of whether rigid doctrinal rules or context-rich principles are most appropriate in constitutional jurisprudence. In particular, it considers whether rigid rules truly succeed in cabining judicial temptation to uphold speech restrictions when those restrictions respond to serious, legitimate concerns or popular calls for restricting speech.

Keywords: New Governance, Judicial Review, Administrative Law, Standing