Managed speech : the Roberts court's First Amendment

297 Pages·2017·2.12 MB·English

by  Magarian

Managed Speech
But freedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order.
—Justice Robert Jackson1
1. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943).
Managed Speech
The Roberts Court’s First Amendment
x x
w
Gregory P. Magarian
1
1
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Library of Congress Cataloging- in- Publication Data
Names: Magarian, Gregory P., author.
Title: Managed speech : the Roberts court’s First Amendment / Gregory P. Magarian.
Description: New York : Oxford University Press, 2017. | Includes bibliographical
references and index.
Identifiers: LCCN 2016041170 | ISBN 9780190466794 ((hardback) : alk. paper)
Subjects: LCSH: United States. Supreme Court. | Judicial process—United States. |
Freedom of speech—United States. | United States. Constitution.
1st Amendment.
Classification: LCC KF8742 .M24 2017 | DDC 342.7308/53—dc23 LC record available at
https:// lccn.loc.gov/ 2016041170
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For Arnold T. Schoch and Horan Henry Magarian

CONTENTS
Acknowledgments ix
Introduction xi
PART ONE: Private Speech
1. The Marrow of Tradition: Categorical Exclusions from First Amendment
Protection 3
2. Fair and Balanced: Regulations of Political Dissent and Commercial
Profit 33
PART TWO: Speech in Government Preserves
3. My House, My Rules: Strengthening Government Managers’ Control
over Institutional Speech 69
4. Speakers, Cornered: Weakening the Public Forum 91
5. There’s Always a Catch: Speech- Restrictive Conditions on Government
Funding 119
PART THREE: Speech in the Electoral Process
6. Of Parties and Petitions: Regulations of Election Procedures 139
7. Letting Money into Elections: Citizens United and McCutcheon 157
8. Keeping Money out of Elections: Government Leveling and Labor
Speech 193
9. Managed Speech and Beyond: Confronting the Roberts Court’s First
Amendment 227
Appendix: Roberts Court Free Speech Decisions and Holdings 255
Index 261
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ACKNOWLEDGMENTS
Writing my first book has taught me that no one writes a book alone. My two
Deans at the Washington University School of Law, Kent Syverud and Nancy
Staudt, have encouraged and generously supported this project. My colleagues
Lee Epstein and Brian Tamanaha have graciously shared their experience and
wisdom while offering essential guidance and support. My colleagues John
Inazu and Neil Richards have helped me think through my ideas while also
advising me about the process. Lee and John, along with my colleagues Pauline
Kim, Russell Osgood, and Liz Sepper, read the manuscript and gave me exten-
sive and helpful comments. Ash Bhagwat, Leslie Kendrick, Heidi Kitrosser,
and Tim Zick likewise read all or parts of the manuscript and provided great
feedback. My colleague Marion Crain helped me to understand the intersec-
tion of labor law and the First Amendment.
I received valuable comments and criticism on earlier versions of various
chapters of this book in faculty workshops at Aoyama Gakuin University Law
School, Boston College Law School, and the Washington University School of
Law; the First Amendment Roundtable at the Washington University School
of Law; the Workshop in Politics, Ethics, and Society at the Washington
University Department of Political Science; the U.S. Law Study Group at
Waseda University Law School; the Symposium on the Contemporary First
Amendment at William and Mary Law School; and the Freedom of Expression
Scholars Conference at Yale Law School. I’m especially grateful to Jill Delston,
Fred Schauer, and Mark Tushnet, who served as discussants or co- panelists
at some of those events. An early version of Chapter 1 was published in the
William and Mary Law Review.
Jamie Berezin, Alex Flach, Alden Domizio, and Elinor Shields at Oxford
University Press adroitly shepherded the book through the review, editing,
and production processes. Nancy Cummings provided first-r ate administra-
tive support. Gwenn Barney, Sean Craig, Katharine Finley, Alex Joyner, Julia
Lang, Jonathan Schmalfeld, Brett Walker, and Nikki Windsor contributed out-
standing research assistance. Students in my seminar on the Roberts Court’s
First Amendment challenged and sharpened my thinking on many points. The
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