90 Pages Posted: 10 Nov 2018 Last revised: 7 Jul 2019
Date Written: September 17, 2018
Cities speak. A rich array of expressive activities, city speech, surrounds us. Cities topple confederate monuments, fly LGBT flags on City Hall, erect monuments commemorating victims of sexual violence, and issue statements that oppose the policies of state and federal governments. They disseminate information concerning climate change, hydraulic fracking, and the impact of minimum wage on poorer populations. They participate in statewide ballot initiatives, and they hire lobbyists to advocate for litigation. But cities have to obtain permission from states to do these things, and increasingly, they are being silenced. In our era of political polarization, states have become hostile to local policymaking, and thus have begun to employ silencing measures to prohibit a variety of expressive activities by cities.
City speech embodies the values of localism, of the First Amendment, and of federalism. It promotes democratic self-government, policy experimentation and innovation, representation of minority views, and economic efficiency and redistribution. It also promotes the ongoing search for truth and the flourishing of an open marketplace of ideas. Cities are structured, legally and politically, to excel at speech. They are separately and democratically elected institutions that function as frontline posts for policymaking, regularly facing economic, social, environmental and political challenges. They are relatively small, nimble and responsive and thus well placed to stir democratic civic engagement in politics. Cities are diverse in their social, economic, religious, ethnic, racial and political composition, hence their plural expressions reflect the diverse nature of our nation better than other levels of government. These values are threatened by the silencing measures lately adopted by many states.
This Article proposes that city speech should enjoy the constitutional protection of the First Amendment. Such protection is necessary to withstand the state-led threat to the values of city speech. In contrast to one traditional view of cities as creatures of the state, the Article argues that there is a doctrinal path for the recognition of city speech as a constitutional and organizational right. Cities are hybrid creatures of government and of corporation, and legal doctrine has long viewed them as constitutional property right bearers but denied them a variety of government privileges. All the while, corporations have gained a far-reaching recognition for their right to speak. And while the government speech doctrine protects various municipal expressions against private dissenters, it leaves cities unarmed against silencing measures by their own states. Giving our cities Free Speech rights is not only doctrinally consistent and normatively justified; it has become necessary in order to protect the democratic vitality which our cities symbolize.
Keywords: Local Government Law, Cities, Localism, Municipal Corporations, Constitutional Law, First Amendment, Political Speech, Free Speech, Government Speech, Federalism, Separation of Powers, Political Polarization
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