Students and Workers and Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring of First Amendment Doctrine

46 Pages Posted: 13 Mar 2007

See all articles by Scott A. Moss

Scott A. Moss

University of Colorado Law School


First Amendment free speech doctrine has been called institutionally oblivious for ignoring how different institutions present different legal questions. But with certain institutions, the situation is the opposite: extreme institutional tailoring of speech doctrine. The burden of proof ordinarily is on government to justify speech restrictions, but in three institutions - public schools, workplaces, and prisons - courts allow heavy speech restrictions and defer to government officials. Even if these institutions need to restrict speech unusually often, why do we need different, unusually government-deferential doctrine to so recognize?

This Article serves three purposes. First, it attempts a descriptive analysis of why courts might perceive a need to tailor doctrine to these institutions; the two main arguments are (1) waiver and (2) risk.

(1) Waiver: Individuals in certain institutions chose ex ante to enter settings with restrictive rules.

(2) Risk of erroneously allowing dangerous speech: Heightened scrutiny, by declaring speech restrictions presumptively invalid, risks erroneously allowing dangerous speech in institutions where:

(a) error cost is high if a court erroneously allows disruptive speech; and

(b) error probability is high because in complex institutions:

(i) information costs are high for courts, justifying deference to institutional judgments; and

(ii) speech restrictions are warranted more often, so even a modest rate of error can yield a high number of errors.

Second, this Article undertakes a critical analysis of the above arguments for tailoring, finding several flawed or overstated.

• The waiver argument contravenes precedent (and so cannot be courts' actual reason) and is based on exaggerated premises of free choice and foreseeable consequences.

• The error cost point is exaggerated because government often can guard against harmful speech with monitoring rather than a ban (e.g., inspecting, not banning, mail).

• The error probability argument assumes high information costs of evaluating these institutions, but courts regularly analyze more complex institutions.

While the waiver and risk arguments are exaggerated, both are stronger for prisons; and the waiver argument is stronger for workplaces than schools. This Article offers a typology of the strength of these arguments in each institution. Third, this Article proposes a modest tailoring reform. Considering institutional context is good in moderation, bad in excess. By tailoring speech rights so starkly, courts have not recognized, but overstated, institutions' uniqueness - a risk that should give courts pause before tailoring constitutional law. Courts should scale back this tailoring by applying intermediate scrutiny to speech claims in these institutions.

Keywords: first amendment

Suggested Citation

Moss, Scott A., Students and Workers and Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring of First Amendment Doctrine. UCLA Law Review, Vol. 54, Summer 2007, Marquette Law School Legal Studies Paper No. 06-44, Available at SSRN:

Scott A. Moss (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States
303-735-5374 (Phone)


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