Here’s a draft of my latest paper for downloading. I’ve been bouncing these ideas around for a while and am glad I got the chance to think about them more deeply and systematically — and to memorialize them in a full-length article. The abstract is below.
In this article, I propose a way out of the vicious cycle of “First Amendment cynicism.” I define this term as the disingenuous application or non-application of the First Amendment to further political ends unrelated to freedom of expression. The cycle is facilitated by either accurate or inaccurate perceptions of First Amendment cynicism by one’s political opponents.
As one example, the perception by those on the political left that the right is applying the First Amendment cynically –turning the First Amendment into the “New Lochner” — leads the left to lose faith in First Amendment principles. Some on the left then engage in First Amendment cynicism, not applying the First Amendment to those that harm their agenda. This approach is then observed by the right, and the cycle continues. Further, improper accusations of First Amendment cynicism, or what I term “second-order First Amendment cynicism” render this cycle ever more vicious.
To restore both the perception and the reality of a First Amendment that serves the entire political spectrum, I first demonstrate why the increasing accusations of First Amendment cynicism are overstated and ahistorical. I then argue that the First Amendment can be both nonpartisan — treating equally speech of all political stripes — and apolitical — leading to outcomes and social arrangements that favor no political ideology. The best way to ensure that free speech doctrine remains nonpartisan and apolitical is to favor a civil libertarian approach. However, courts should ensure that the First Amendment is egalitarian in cases where the government must intervene, such as cases involving speech on government land or cases involving the heckler’s veto. Finally, I propose ways for the Supreme Court to manage its docket and refine existing First Amendment doctrine so that the First Amendment serves those who most need its protections.