Upcoming UCLA Con Law Conference, & My Paper on Prisoner/Student/Employee 1st Amdmt Claims

A few days ago I finished drafting my paper for this Friday’s UCLA Law Review Symposium, Constitutional “Niches”: The Role of Institutional Context in Constitutional Law”. You can download my paper here; it’s very much a draft, and I’ll be busily working on the final version over the next two or three weeks, so I’d love any feedback!

For anyone interested in the topic and in/near L.A., the conference looks like a really tightly-packed day of Con Law bigwigs: Fred Schauer (whose work I really admire, though my paper notes an exception to one of his theses); Cynthia Estlund (the conference’s resident employment law bigwig); John Yoo, formerly of the Bush Admninistration (will he offer more “tortured” interpretations of executive power and detainees’ rights against torture?); Dawn Johnsen, formerly of the Clinton Administration (most likely to have her torture authorized by John Yoo?); and many others, but this list already is getting too long. Don’t ask how I got into this crowd — I’m just happy to be there; Paul Secunda and I feel like we’ll be the kids at the grown-ups’ table!

I haven’t written a real abstract yet, but here’s an informal one:

The paper notes Fred Schauer’s criticism that First Amendment law gives too little consideration to how speech rights should vary in different institutions (e.g., government institutions sponsoring arts or election speech; obscenity/pornography being judged similarly whether in print, on the internet, over the phone lines) — but the paper notes one area in which institutional context appears to be given too much consideration. Specifically, would-be speakers located within certain government institutions — students in public schools, employees in government workplaces, and prisoners — have far lesser speech protection; rather than apply heightened scrutiny to speech restrictions, courts substantially defer to those institutions’ speech restrictions and actually apply different legal “tests” in each of the three contexts. Courts rarely explain why different tests apply in these areas, so the article, partly based on economic analysis, (1) tries to discern, as a descriptive matter, the reasons courts apply less speech-protective tests in these contexts and (2) criticizes those reasons as exaggerations of the uniqueness of the three institutions (schools, prisons, and workplaces), or at least finding that those reasons vary in persuasiveness among the three institutions. Ultimately, the article concludes that courts should apply not institution-specific legal tests, but standard heightened scrutiny, to speech rights claims in these institutions, just as it does under the Equal Protection Clause.

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3 Responses

  1. Joe says:

    How real is the distinction between institution-specific doctrines and unified doctrines? As you note in Part V, unified doctrines are inherently institution-specific because what is compelling in one place may not be compelling in another. So what difference does it make whether the institutional aspect of the case is taken into account on the front end or the back end?

    This sounds much like the tort debate over the necessity of a duty for negligence liability. Who cares about where you put the analysis under duty, under proximate cause, or under a separate public policy factor like Wisconsin, if the result is the same?

  2. Scott Moss says:

    That’s a fair point, Joe: even “unified” doctrines (eg “strict scrutiny all around!”) considers contextual differences. My argument is that in the current “institution-specific” approach, courts are too quick to buy the argument, “prisons or schools are really special and different from other institutions in society, so we judges should defer to them when they say they need to restrict speech.” I don’t buy that any one institution is so unique, and I think a unified heightened scrutiny approach (whether strict or intermediate scru) would minimize the risk of courts getting fooled into believing any one institution is especially deserving of “deference.” As the race equal prot’n cases show, courts apply some deference to prisons and schools, but ultimately evaluate those institutions just like they evaluate all other kinds of institutions (eg private employers) in cases they adjudicate.

  3. Joe says:

    Understood, Scott, and I think your paper makes a good theoretical argument for why institution-specific doctrines MIGHT exaggerate the importance of institutional contexts. But your paper would be more persuasive, and I think ultimately more useful, if you included more examples of where this phenomenon actually occurs.