Speaker Discrimination: The Next Frontier of Free Speech
55 Pages Posted: 23 Oct 2014 Last revised: 3 Nov 2015
Date Written: 2015
Citizens United v. FEC articulated a new pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. This new doctrine has the potential to reshape free speech law far beyond the corporate speech and campaign finance contexts. This article explores the basis of the speaker discrimination doctrine and points to potential implications. It shows that while the speaker discrimination principle had not been previously articulated clearly, it is a convincing explanation for much earlier First Amendment cases and thus should not be understood as an entirely new development. The speaker discrimination principle holds considerable potential to clarify otherwise confused areas of free speech jurisprudence. In particular, the bar against identity discrimination should operate as a limiting principle on forum-based speech restrictions. To illustrate this potential, this article examines the potential application of speaker discrimination to school speech cases, especially those involving off-campus speech. At the same time, the Court’s embrace of speaker discrimination raises important questions in critical legal theory about why the identity of a speaker might matter in addition to the substance of what a person chooses to say.
Keywords: freedom of speech, First Amendment, corporate speech, campaign finance, speaker discrimination
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