Brooklyn Law Review


This article, written for a symposium on Ronald Collins’s and Professor David Hudson’s catalogue of the Roberts Court’s First Amendment free speech jurisprudence, reconsiders the longstanding tension between rigid free speech rules and more contextual standards. It examines that debate by considering a set of relatively recent free speech cases in which the Court ostensibly adopted rigid rules, but in doing so arguably cloaked its reliance on more contextual factors by manipulating those rules. In cases dealing with national security and judicial electoral speech, the Court manipulated the strict scrutiny the Court insists applies to nearly every content-based speech restriction by, respectively, hiding the formal statement of the standard it was applying and applying strict scrutiny in a decidedly non-strict way. In deciding a compelled speech case involving a state requirement that anti-abortion pregnancy clinics post notices about the state’s provision of low-cost abortion services, the Court flirted with extending the content-neutrality rule to nearly all compelled speech situations, but provided a vague and unexplained carve-out to that all-but announced rule. Finally, in deciding a case involving a state specialty license plate program, the Court adopted a rigid government speech/private speech binary rather than recognizing that the program featured elements of both government and private speech. This critique is not intended to deny the appropriateness of rigid First Amendment rules. However, the Roberts Court’s expansion of those rules’ domain threatens to erase any recognition of the context -specificity that plays a necessary role in any coherent, transparent, and truly principled system of First Amendment adjudication. Justice White, writing the majority opinion in a 1981 First Amendment case involving restrictions on billboards, pithily observed, “we deal here with the law of billboards.” So too, it may behoove the Court to develop a law of specialty license plates—and many other context-specific doctrines as well.