The Inherent Structure of Free Speech Law: Government as Patron or Regulator in the Student Speech Cases

Abstract

Free speech law seems to consist of unrelated, technical, and incoherent rules. That appearance is misleading. This Article is the first in a series that reveals the inherent structure of free speech law as entailing three judgments: one about the role of government, another about the target of government regulation, and the third a constrained cost-benefit analysis.

This Article focuses on the first of these judgments. We identify two roles government may play: (1) as regulator interfering with private speech or (2) as patron acting on its own by speaking, sponsoring speech, or managing an internal governmental function. We claim that the constraints of free speech law generally apply when government regulates private speech, but not when government acts on its own. We develop this argument by analyzing the school speech cases, paying particular attention to the Supreme Court's recent decision in Morse v. Frederick.

The work of Robert Post provides the greatest insight to date about the importance of role of government in free speech law, explaining various free speech doctrines. The final part of this Article explores both how Post's analysis can deepen our understanding of the school speech cases and how the school speech cases can refine Post's analysis.

Keywords: free speech, first amendment, school speech, Robert Post, constitutional law