Property and Speech

Abstract

This article was part of a Symposium on The Rehnquist Court and the First Amendment, sponsored by the Washington University Journal of Law and Policy. The backdrop of the article is the strong constitutional protection afforded to freedom of expression in the American constitutional system, and the article demonstrates how this strong protection has played out in the area of property and speech. The discussion of "The First Amendment as Sword" shows that the First Amendment has been asserted effectively to interfere with a property owner's use or control of intangible property and to limit the protection of an owner's property interests. The areas discussed in this section of the article are: (1) picketing and protests; (2) boycotts; (3) governmental economic regulation; (4) home solicitation; (5) 'fair use' and copyright protection; and (6) access to public property. The discussion of "The First Amendment as Shield" shows that the First Amendment has been asserted effectively to invalidate or otherwise limit permissible governmental regulation of property ownership or use by enterprises engaged in the business of expression. The areas discussed in this section of the article are: (1) regulation of sexually-oriented entertainment; (2) licensing of the business of expression; (3) billboard and sign regulation; (4) illegal conduct and the business of expression; (5) regulation of newspapers and publishers; and (6) regulation of broadcasting, cable, and the internet.

The article concludes that during the Rehnquist era, as it has at least since the 1960s, the Court as an institution has demonstrated a strong commitment to the constitutional protection of freedom of expression, and this commitment has been evident in the Court's decisions in the area of property and speech.