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Abstract:
This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims - a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the governmental employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on - and defer to - government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government to control its employees' expression while at work, characterizing such speech as the government's own for which it has paid with a salary. This trend frustrates a meaningful commitment to republican government by allowing government officials to punish, and thus deter, whistleblowing and other valuable on-the-job speech that would otherwise facilitate the public's ability to hold the government politically accountable for its choices. Courts also increasingly consider government workers to be speaking "as employees" even when away from work, deferring to government's assertion that its association with employees who engage in certain off-duty expression undermines its credibility in communicating its own contrary views. Implicit in courts' reasoning is the premise that a public entity's employment relationship with an individual who engages in certain expression communicates a substantive message to the public that the government is entitled to control. Courts' unfettered deference to such claims permits government agencies to fire workers for any unpopular or controversial off-duty speech to which the public might object, potentially enforcing an expressive orthodoxy as a condition of public employment.

To be sure, government speech is as valuable as it is inevitable. But taken together, these trends lead to the rejection of government workers' First Amendment claims in a growing number of cases that undermine workers' free speech rights as well as the public's interest in transparent government. More careful attention to what it is that government seeks to communicate - and whether that message is actually impaired by employee speech - can help us capture and accommodate government's expressive interests while providing greater protection for workers. This Article thus proposes a less deferential approach to assessing government's expressive claims, exploring both categorical and contextual frameworks for identifying with greater precision that comparatively small universe of worker speech that actually threatens government's legitimate speech.

First Amendment, government speech, public employees, civil rights

Abstract:
This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject matter jurisdiction when it expressly empowered federal courts to hear any constitutional or federal claim on behalf of Terri Schiavo, and directed the district court to determine the matter de novo, notwithstanding the Florida state courts' prior determinations and regardless of whether state remedies had been exhausted. At about the same time, the same Congress significantly increased federal courts' diversity jurisdiction over state law claims with the enactment of the Class Action Fairness Act.

Taken together, these proposals illuminate legislators' emerging views on the appropriate distribution of power between state and federal courts, and on judicial review altogether. In particular, they reveal Congress' increasingly common assessment that the courts - both federal and state - are appropriate arbiters of particular disputes only to the extent that their decisions reflect the preferences of a majority of congressional representatives. Indeed, at least in some contexts, legislative efforts to re-shape the balance of power between state and federal courts may serve a strain of popular constitutionalism - which characterizes "the people," rather than the courts, as the Constitution's only legitimate interpreters - by expressing "the people's" constitutional preferences through the jurisdictional choices made by their elected representatives.

These proposals offer a contemporary case study of popular constitutionalism as an antidote to judicial review's countermajoritarian implications, answering at least some of popular constitutionalism's critics by supplementing what has been largely a descriptive account of the theory's past practice with a concrete modern-day application. Moreover, by retaining a role for at least some court system in achieving finality and settlement when resolving important disputes, these initiatives may offer an especially attractive option for those suspicious of judges, yet reluctant to abandon judicial review altogether. On the other hand, these measures expose the weaknesses of popular constitutionalism put into practice, such as the difficulty ascertaining with confidence "the people's" constitutional preferences, the danger that Congress may be seeking to transfer power from the courts not to the people but to itself, and the potential that "the people's" Constitution will be interpreted to mean very different things in different parts of the country. While these efforts help clarify the theory's costs and benefits for contemporary America, opportunistic congressional appeals to popular constitutionalism invite skepticism about the prospects for its principled application. The Article concludes that Congress' growing interest in jurisdictional re-alignment may be fueled more by a simple interest in changing the identity of litigation's winners and losers than by a thoughtful re-evaluation of the courts' appropriate spheres of influence.

Abstract:
Many antidiscrimination statutes limit speech by employers, landlords, lenders, and other decisionmakers in one or both of two ways: (1) by prohibiting queries soliciting information about an applicant's disability, sexual orientation, marital status, or other protected characteristic; and (2) by proscribing discriminatory advertisements or other expressions of discriminatory preference for applicants based on race, sex, age, sexual orientation, or other protected characteristics.

This Article explores how we might think about these laws for First Amendment purposes. Part I outlines the range of civil rights restrictions on decisionmaker speech, while Part II identifies the antidiscrimination and privacy concerns that drive their enactment. Part III explores in some detail whether - and, if so, how - these civil rights laws fit within the Supreme Court's current commercial speech jurisprudence.

I conclude that the restricted speech is most appropriately characterized as unprotected commercial expression because it skews, rather than educates, listeners' choices by facilitating illegal discrimination and deterring applicants from pursuing important opportunities. By sorting these communications according to their ability to contribute to listeners' paramount interest in informed decisionmaking, the Court's modern commercial speech doctrine most directly explains why these laws (like consumer protection statutes prohibiting deceptive and misleading representations) do not run afoul of free speech values.

Because commercial speech doctrine is currently the subject of controversy and thus may be subject to change, Part IV goes on to assess other potential First Amendment approaches to this problem. I pose a series of queries at various points along the continuum of First Amendment protections: Is decisionmaker speech unprotected because it is more like discriminatory conduct than expression? If it is speech, is its value nevertheless sufficiently low to warrant something less than full protection? If it is fully protected expression, does the government's regulation of it nonetheless survive strict scrutiny? These approaches offer different ways to describe the same phenomenon: a specific context where speech is so closely tied to discriminatory action as to justify its regulation.

civil rights, First Amendment, commercial speech jurisprudence

Abstract:
Public entities increasingly invoke the government speech defense to First Amendment challenges by private parties who seek to alter or join what the government contends is its own expression. These disputes involve competing claims to the same speech: a private party maintains that a certain means of expression reflects (or should be allowed to reflect) her own views, while a governmental body claims that same speech as its own, along with the ability to control its content.

This Article proposes a framework for resolving these disputes. It starts by examining the theoretical and practical justifications for insulating government speech from First Amendment scrutiny. In particular, it addresses the benefits of government speech in facilitating self-governance so long as such speech remains subject to political accountability checks like petitioning and voting, It also explores the body of social science research that describes how a message's source shapes its effectiveness, with special attention to the government's role as the source - or perceived source - of a particular view. Because misattributing private views to the government can skew public debate and frustrate First Amendment values by misleading onlookers into evaluating ideas differently than they would if those views were accurately assigned to a private party, government has a legitimate interest in shielding its own expression from private speakers' efforts to join, alter, or misappropriate it.

Emphasizing that government speech is most valuable and least dangerous when its governmental source is apparent, the Article then proposes that a public entity seeking to claim the government speech defense must establish that the contested expression is governmental in origin both formally (i.e., that the government expressly claimed the speech as its own when it authorized the communication) and functionally (i.e., that onlookers understand the speech to be the government's at the time of its delivery). This dual requirement maximizes prospects for meaningful credibility assessment and political accountability by identifying two junctures at which government must expose its expressive choices to the public: when it decides to express a certain idea and when it actually communicates that idea.

The Article then draws from relevant experience in other areas to examine a variety of characteristics - or "source cues" - that may signal a message's genesis as governmental or private. These include not only express indications of a message's origin, but also less direct signals like a message's physical location or onlookers' expectations based on past practice. The Article goes on to apply this framework to several recurring challenges, exploring specific features in a range of contexts that may obscure or reveal a message's governmental source. It concludes by urging that this inquiry remain focused on whether we have enough information about a message's source to identify it as the government's in a way that enables meaningful credibility and accountability checks.

first amendment, government speech

Abstract:
In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.

The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning whether a focus on forward-looking rationales signals a retreat from a commitment to articulating the moral justification for affirmative action. This Article suggests that forward-looking justifications may open the door to revisit the moral roots of affirmative action by showing that diversity can be instrumentally valuable precisely because it is morally justifiable.

More specifically, this Article tests Grutter's observation that [c]ontext matters when reviewing race-based government action under the Equal Protection Clause. Part I examines a decisionmaking context very similar to that presented in the University of Michigan cases: race-conscious financial aid decisions by public institutions of higher education. This is a question of real contemporary significance, as schools struggle to determine how to proceed with virtually no judicial precedent as guidance.

The Article concludes that Grutter opens some doors for race-based government decisionmaking in this context, while closing others. On one hand, newly available forward-looking rationales may enable governments to rely on more generalized factual predicates to justify instrumentally motivated race-conscious decisionmaking. They may also help re-shape our understanding of undue burden to include an assessment of diversity's countervailing benefits to nonminorities, again increasing the possibility that certain affirmative action programs will survive scrutiny. The Article predicts, however, that many race-exclusive scholarships face substantial - but not necessarily insurmountable - barriers to a finding of narrow tailoring.

Part II pushes further afield to examine a very different set of decisions by a different set of government decisionmakers: public entities' employment decisions. Here, too, Grutter opens new doors to race-based decisionmaking, some more promising than others. This Part predicts that forward-looking rationales may well extend to the employment context, although their application may be limited and - in at least one case - dangerous. For example, instrumental justifications that rely on race or national origin as proxies for other attributes - e.g., skill in managing a diverse workforce or anticipating the needs of a diverse consumer base - are themselves steeped in the sort of discriminatory stereotypes that remedial rationales seek to challenge.

Constitutional law, affirmative action, diversity, equal protection, employment, financial aid

Abstract:
Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers' views are not mistakenly attributed to the government. Consider, for example, Virginia's efforts to ban the Sons of Confederate Veterans' display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of "hate" or "heritage," Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier "VIRGINIA." The Fourth Circuit was unpersuaded, holding that the logo's exclusion violated the First Amendment.

Such clashes between public and private entities' expressive claims raise a series of interesting questions. Do governmental entities have a legitimate interest in ensuring that they are not mistakenly understood as endorsing or delivering what are actually the views of private speakers? If so, what actions does the First Amendment permit them to take to protect that interest? As disputes involving these questions rise in number, courts increasingly search for guidance.

Cases that appear to involve elements of both government and private speech are especially challenging given current constitutional doctrine that appears to demand a choice between one or the other. Too often, courts fail or refuse to acknowledge that government itself is speaking in a particular context, and thus has an interest in protecting the integrity of its own expression. Even those courts that acknowledge the legitimacy of government's interest in protecting its own expressive integrity too often muddy the waters by claiming to apply some sort of forum doctrine.

The better framework is to understand these not as forum cases, but situations in which government itself is speaking - either on its own or jointly with a private speaker - and is thus free to protect the integrity of its own expression by protecting what is truly its own speech from being appropriated by others. For these reasons, we should think more carefully about the circumstances under which private speech may be mistakenly understood as that of the government.

I suggest that government can persuade us that its efforts are not a pretext for squelching unpopular or inconvenient private speech by demonstrating that it is itself speaking and that it reasonably fears that, absent preventive action, its speech will be mistakenly perceived to endorse others' expression. Particularly helpful factors in assessing competing private and governmental claims to the same expression include the identity of the literal speaker, the reasons for governmental and private participation in the program at issue, the availability of alternative avenues for ventilating the private expression, and the effectiveness of government disclaimers or rebuttals.

First Amendment, government speech, expressive integrity

Abstract:
This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." The Court thus created a bright-line rule that essentially defines public employees' speech delivered pursuant to their official duties as the government's own speech for which it paid with a salary - i.e., speech that the government may control free from First Amendment scrutiny regardless of the strength of the public's interest in it or its impact, if any, on the government's efficiency.

But in suggesting that any speech pursuant to a public employee's official duties constitutes government speech, the Court ignored the fact that government speech merits insulation from First Amendment scrutiny only because of its instrumental value in enabling the public to identify and evaluate its government's priorities - and to hold the government politically accountable for those choices. Indeed, the government's political accountability to the electorate for its effectiveness is undercut by the carte blanche Garcetti now gives government to discipline workers who truthfully report irregularities and improprieties pursuant to their official duties. Rather than identifying a theoretically principled approach for capturing the value of empowering government to control its own speech, the Garcetti Court instead formalistically imposed a bright-line rule to avoid the often challenging but entirely commonplace task of balancing constitutional interests.

First Amendment, public employees, government speech, civil rights