Scott A. Moss (Marquette University – Law School) has posted Prisoners and Students and Workers – Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine (UCLA Law Review, Vol. 54, Summer 2007) on SSRN. Here is the abstract:
First Amendment free speech doctrine has been called “institutionally oblivious” for ignoring how different institutions present different legal questions, e.g.: Should journalist privilege law vary for bloggers and newspaper reporters? When government denies funding to speech (e.g., library or arts funding choices), is that censorship or free choice by a governmental “speaker”?
This Article analyzes a little-discussed phenomenon in the growing literature about institutional context in constitutional law: with certain institutions, the situation is not “institutional obliviousness” but the opposite, extreme institutional tailoring of doctrine. Whereas the burden of proof usually is on the government to justify speech restrictions, in three particular institutions – public schools, workplaces, and prisons – courts allow heavy speech restrictions and give deference to officials restricting speech. Certainly, compared to most government entities, these three institutions more often have reason to restrict speech to maintain discipline and “mission” focus. But why do we need different speech doctrine – institutionally tailored government-deferential standards – rather than the usual heightened scrutiny? Courts have given no meaningful answer.
This Article serves three purposes. First, it attempts a descriptive analysis of why courts might perceive a need to tailor doctrine to these three institutions. The two main arguments for applying different doctrine in these institutions are (1) waiver and (2) risk:
(1) Waiver: Individuals in certain institutions made a free ex ante choice to enter a setting with restrictive rules.
(2) Risk of erroneously allowing dangerous speech: Heightened scrutiny, by declaring speech restrictions presumptively invalid, risks erroneously allowing dangerous speech in these three institutions, in which:(a) error cost is high if a court erroneously allows disruptive speech; and
(b) error probability is high with heightened scrutiny because:
(i) information costs are high for courts analyzing complex institutions, so courts should defer to institutional judgments; and
(ii) speech restrictions are warranted more often in these institutions, so even a modest rate of error can yield a high number of errors.This “risk” analysis implicitly suggests that economics can be useful in analyzing constitutional law issues involving arguments about risk and error probability/cost.
Second, this Article undertakes a critical analysis of the above arguments for institutional tailoring, finding several of the arguments flawed or at least 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 “high error cost” point is exaggerated because even if useful speech restrictions were disallowed, government often could guard against harmful speech by spending more on monitoring (e.g., inspecting, not banning, mail). While preventing harm may justify restricting speech, avoiding administrative costs rarely does.
• The “high probability of error” argument assumes high information costs of courts evaluating these particular institutions. Yet courts regularly handle cases in more complex business and social institutions.
While the waiver and risk arguments are exaggerated, they are not wholly unfounded. Both are stronger for prisons than schools or workplaces; and the waiver argument is stronger for workplaces than schools. This Article offers a typology of the strength of the waiver and risk arguments in each of these three institutions.Third, this Article proposes that speech law, like Equal Protection law, apply heightened scrutiny in all institutions, though with modest tailoring. A primary objection is that we need tailoring to recognize how much more harmful disruptive speech is in certain institutions. But considering institutional context is good in moderation, bad in excess. By dividing speech rights so starkly by institution, courts have not merely recognized, but overstated, the uniqueness of prisons, schools, and workplaces – and therefore allow more speech restriction than is justified. This risk of exaggerating uniqueness is inherent to institutional tailoring and therefore should give courts pause before they tailor constitutional doctrines. This Article concludes with a pragmatic proposal to scale back the institutional tailoring of speech doctrine: courts should apply intermediate (not strict) scrutiny to school, workplace, and prison speech claims.