Courting Censorship

Abstract

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship—in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it. Of greatest concern is judicial doctrine in five areas: the structural protections for speech, state action, the First Amendment, government speech, and qualified immunity. This Article focuses on how these doctrines have courted censorship.

Along the way, this Article more broadly must question some fundamentals of twentieth-century constitutional jurisprudence. The Article challenges the need for any state action doctrine—at least when considered as a generic doctrine independent of the particular rights at stake. It also contests the coercion model—the prototypical measure of forbidden government severity—that runs through Supreme Court doctrine on state action, constitutional rights, and even governmental structure. Under the influence of these misguided meta-doctrines on state action and coercion, judges and scholars have done much of the doctrinal damage. Most centrally, in embracing overarching generalities about state action and coercion, judicial doctrine has failed to recognize the First Amendment’s distinction between abridging and prohibiting. In such ways, doctrine has endangered freedom of speech and all that depends on it.

Keywords: free speech, censorship, first amendment, state action, coercion, qualified immunity, government speech, commerce clause