Mark Strasser (Capital University – Law School) has posted Rust in the First Amendment Scaffolding (19 University of Pennsylvania Journal of Constitutional Law 861-87 (2017)) on SSRN. Here is the abstract:
Members of the United States Supreme Court frequently cite Rust v. Sullivan when analyzing issues implicating government speech or funding. Yet, there is sharp disagreement about how to characterize that case, and the competing versions have very different implications. While the Court could offer an authoritative construction of Rust that would reduce if not eliminate the number of inconsistent Rust analyses, the justification for rejecting some of the competing versions might well provide the basis for undermining several cases that have used Rust as a foundation. The Court’s practice of citing Rust for very different constitutional approaches not only makes Rust difficult to understand, but also destabilizes the jurisprudential lines based on Rust. A brief examination of the contradictory accounts of Rust illustrates how the willingness of members of the Court to recharacterize cases to reach a preferred result can undermine constitutional guarantees and the rule of law. After examining Rust and the alternating interpretations of it in the subsequent case law, this article concludes that unless the Court offers more consistent and plausible analyses of the various jurisprudential lines that Rust is used to support, both those lines and the Court’s remaining credibility may be undermined beyond repair.