The Download of the Week is Free Speech Federalism by Adam Winkler. Here is the abstract:
How does federalism impact free speech law? For half a century, formal First Amendment doctrine has pretended that there is no difference between free speech restrictions adopted by the federal government and those adopted by state and local governments. Federalism – the differences between the levels of government – may nonetheless have a profound effect on free speech controversies. This article reports the results of a study of free speech decisions in the federal courts and finds that federal speech restrictions are far more likely to be upheld than state and, especially, local restrictions. Two competing hypotheses are then analyzed: first, that these results are a function of courts strategically deferring to the federal government, and second, that the results are a function of qualitative differences in lawmaking at the various levels of government. I find that the case law provides only weak support for the first hypothesis but stronger support for the second. Implications of these findings for two recent jurisprudential trends – devolution and rights tailoring – are also explored.
Highly recommended. Download it while its hot!