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

93 Pages Posted: 28 Feb 2009 Last revised: 27 May 2009

Joshua P. Davis

University of San Francisco - School of Law

Joshua D. Rosenberg

University of San Francisco School of Law

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

Suggested Citation

Davis, Joshua P. and Rosenberg, Joshua D., The Inherent Structure of Free Speech Law: Government as Patron or Regulator in the Student Speech Cases. Univ. of San Francisco Law Research Paper No. 2009-13. Available at SSRN: https://ssrn.com/abstract=1350625 or http://dx.doi.org/10.2139/ssrn.1350625

Josh Paul Davis (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

Joshua D. Rosenberg

University of San Francisco School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

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