77 Pages Posted: 6 Aug 2008 Last revised: 23 Oct 2008
Date Written: August 5, 2008
Free speech doctrine seems to consist of a morass of unrelated, technical, and generally incoherent rules. But that appearance is misleading. This Article is the first in a series that seeks to uncover the immanent structure of free speech doctrine. That structure requires courts to make three basic judgments in free speech cases, the first about the role of government, the second about the purpose of government action, and the third a constrained cost-benefit analysis. Taken together, courts in free speech cases generally determine: (1) whether government action regulates private conduct; (2) if it does, whether government regulation targets expression; and (3) if it does, whether certain harms from the expression outweigh the adverse consequences of its suppression. If government action does not regulate private conduct, or if it does not target expression, then it generally does not run afoul of the Free Speech Clause. On the other hand, if government action regulates expression, then a court will undertake a kind of cost-benefit analysis to assess its constitutionality (an analysis that cannot count as a harm that the ideas expressed are offensive or may change citizens' beliefs for the worse).
The focus of this Article is on the first of the three judgments that constitute the immanent structure of free speech doctrine, the role of government. In particular, we identify two general roles government may play when it restricts speech, regulator and patron. Government as regulator discourages behavior by private citizens. In contrast, government as patron acts in a sense on its own, speaking, sponsoring speech, or serving as a proprietor of an internal governmental function. Our claim is that the constraints of free speech law generally do not apply when government acts as patron. This claim can make sense of application of the Free Speech Clause in various settings, including to public schools, public fora, government employees, prisons, the military, and unconstitutional conditions. The Article develops its argument by focusing in general on the school speech cases and in particular on the recent decision of Morse v. Frederick, in which the Supreme Court held that a school principal did not violate the Constitution by punishing a student for unfurling a banner reading, "BONG HiTS 4 JESUS." Morse, the Article contends, involved a judgment about the constitutional limitations on government in its role as proprietor of a school. The Article further claims that attention to the significance of role of government can help not only to explain the outcome in Morse, but also to make sense of precedents that Morse interpreted and that otherwise appear to be unprincipled or incoherent.
Keywords: Constitutional law, First Amendment, Free speech doctrine, Morse v. Frederick, government action
Suggested Citation: Suggested Citation
Davis, Joshua P. and Rosenberg, Joshua D., The Immanent Structure of Free Speech Doctrine: Bong Hits, Jesus, and the Role of the Public Schools in Controlling Student Speech (August 5, 2008). Univ. of San Francisco Law Research Paper No. 2008-02. Available at SSRN: https://ssrn.com/abstract=1206314 or http://dx.doi.org/10.2139/ssrn.1206314