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Free Speech Federalism

36 Pages Posted: 17 Nov 2009  

Adam Winkler

University of California, Los Angeles (UCLA) - School of Law

Date Written: November 16, 2009

Abstract

For decades, constitutional doctrine has held that the Constitution’s guarantee of freedom of speech applies equally to laws adopted by the federal, state, and local governments. Nevertheless, the identity of the government actor behind a law may be a significant, if unrecognized, factor in free speech cases. This Article reports the results of a comprehensive study of core free speech cases decided by the federal courts over a 14-year period. The study finds that speech-restrictive laws adopted by the federal government are far more likely to be upheld than similar laws adopted by state and local governments. Courts applying strict scrutiny in free speech cases upheld federal speech laws in 56% of cases, state speech laws in 24% of cases, and local speech laws in a remarkably low 3% of cases. It turns out that one of the best predictors of whether a law impinging on speech rights will be upheld is the identity of the governmental actor who adopts the law. The reasons for this “free speech federalism” and the implications of this phenomenon for constitutional adjudication are explored.

Keywords: First amendment, strict scrutiny, analysis of free speech cases in federal court cases

Suggested Citation

Winkler, Adam, Free Speech Federalism (November 16, 2009). Michigan Law Review, Vol. 108, 2009; UCLA School of Law Research Paper No. 09-29. Available at SSRN: https://ssrn.com/abstract=1507273

Adam Winkler (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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