Governments' first amendment rights

Robert Sheridan rs at robertsheridan.com
Tue Feb 9 10:51:27 PST 2010


The problem as to who or what has free speech rights, is, if I may, be 
one of definition.

There's the textual definition, i.e. the FA's "Congress shall make no 
law..." and the 14th's guarantees that "No state shall...."

Then there's the looser understanding that many people have that 
regardless of text, they have a 'natural' right to think and express 
freely w/o undue government restriction. I imagine that any federal 
prosecutor might feel that s/he had a free speech right to address a 
jury or the public about a case, subject to the usual legal and ethical 
restrictions in such cases. Is this a federal government right of free 
speech? Guaranteed where, exactly?

My guess is that some things we take for granted, even though not 
spelled out in text, on the theory that few lists are ever complete.

Many people, I've read, assumed, or presumed, that the free speech 
guaranty of the first amendment somehow applied to prevent states from 
infringing on expression despite the express text "Congress shall make 
no law...," not "No shall any state...do likewise." Barron v. Baltimore 
and later, the lengthy struggle over incorporation theory, gave the lie 
to this notion, but many people seem to have adopted, or assumed, 
incorporation as to free speech, etc., long before Gitlow in 1925 when 
it was finally, authoritatively, taken for granted.

rs





Volokh, Eugene wrote:
>
> I think I must be missing something here. Why should concluding that a 
> state government has a right to speak, free of federal punishment, 
> mean that “free speech only exists as a component in a bad argument”? 
> It’s certainly sensible to speak of rights possessed by collective 
> entities; even setting aside the /Citizens United/ debates, it’s clear 
> that business corporations have some free speech and free press rights 
> (consider newspaper corporations, as in the 1936 /Grosjean/ case), 
> that nonprofit organizations such as the NAACP have such rights, that 
> churches have free exercise rights, and that corporations have Takings 
> Clause rights. Likewise, I don’t think there’s anything 
> philosophically implausible about saying that states have Takings 
> Clause rights, as in /U.S. v. 50 Acres of Land/, even if such an 
> argument might be textually weak. And unless I’m mistaken it’s 
> well-settled that municipal corporations have various constitutional 
> rights.
>
> Likewise, say that Congress tried to punish the states of Virginia and 
> Kentucky for issuing their Resolutions about the Sedition Act (perhaps 
> if there were a statute that authorized fines for such speech by 
> collectivities). Why would it be improper “transmogrify[cation]” or “a 
> convenient dodge” to conclude that this would violate the states’ 
> rights under the First Amendment?
>
> I should note that I’m not sure what the right answer is here – 
> perhaps on balance we should conclude that states don’t have 
> constitutional rights, or don’t have First Amendment rights, or have 
> somewhat different First Amendment rights than nongovernmental 
> entities do. (Current Establishment Clause law, for instance, 
> concludes that states and state subdivisions at least do not have the 
> same rights as nongovernmental entities do when it comes to religious 
> speech.) My point is simply that I’m not grasping why it’s somehow a 
> philosophical contradiction or an indictment of free speech generally 
> to say that governmental entities, like individuals and like other 
> collective entities, have free speech rights.
>
> Eugene
>
> *From:* conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Lichtman, Steven
> *Sent:* Monday, February 08, 2010 8:21 PM
> *To:* 'CONLAWPROFS professors'
> *Subject:* RE: Governments' first amendment rights
>
> I appreciate all of these excellent points (and also the reference to 
> the Fagundes piece). I suppose I see the Dworkinian semantics of 
> saying that one sphere of government has a trump over another one when 
> they come into conflict -- state vs. federal; one branch vs. another, 
> etc. But that strikes me as less a matter of "right" than an 
> allocation of power, and a set of arrangements that dictates who 
> prevails in these conflicts ... and it leads down a questionable path.
>
> Take Summum. On the surface, Pleasant Grove appeared to be doing 
> precisely what the Establishment Clause seems to prohibit: 
> governmental endorsement of one religion's message over another. But 
> once their actions can be transmogrified into this notion of 
> "government speech," suddenly the city has a convenient dodge that 
> took the Establishment Clause off the table entirely.
>
> A suggestion that government has the right to speak (as opposed to has 
> the prerogative to speak) seems to prove Stanley Fish's point: free 
> speech only exists as a component in a bad argument about line-drawing 
> and nothing more. To paraphrase, there's no such thing as "rights"; 
> there are only winners and losers.
>
> Cheers,
>
> Steven
>
> ________________________
>
> Dr. Steven Lichtman
>
> Assistant Professor and Pre-Law Advisor
>
> Department of Political Science - 413 Grove Hall
>
> Shippensburg University
>
> 1871 Old Main Drive
>
> Shippensburg, PA 17257
>
> (717) 477-1845
>
> http://webspace.ship.edu/SBLichtman/lichtman.htm
>
> .
>
> ------------------------------------------------------------------------
>
> *From:* Martin J Sweet [msweet4 at fau.edu]
> *Sent:* Monday, February 08, 2010 9:02 PM
> *To:* 'William Funk'; Lichtman, Steven; 'CONLAWPROFS professors'
> *Subject:* RE: Governments' first amendment rights
>
> There is the line of cases on government funding which suggests that 
> governments have sorts of expressive rights (Rust, Finley, but see 
> Velazquez). And certainly one would think that governments might have 
> rights, such as against unreasonable searches and seizures, from 
> another government.
>
> ******************************
>
> Martin J. Sweet
>
> Honors College
>
> Florida Atlantic University
>
> ******************************
>
> *From:* conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *William Funk
> *Sent:* Monday, February 08, 2010 8:51 PM
> *To:* 'Lichtman, Steven'; 'CONLAWPROFS professors'
> *Subject:* RE: Governments' first amendment rights
>
> Obviously, state governments have at least some “rights” vis-à-vis the 
> federal government. See, e.g., NY v. US.
>
> It would seem to me that state and/or local governments might also 
> have first amendment rights vis-à-vis the federal government, although 
> usually there is likely to be a private person who is impacted by the 
> federal limitation on the state or local government. As Prof. Pollack 
> communicated to me, the United States v. Am. Library Assn plurality 
> assumes without deciding that public libraries have a first amendment 
> right with respect to federal legislation, although it also cites to 
> cases where courts have made general statements to the effect that 
> government does not have first amendment rights. In this case, the 
> library patrons also claimed violation of their rights.
>
> Bill Funk
>
> *From:* conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Lichtman, Steven
> *Sent:* Monday, February 08, 2010 5:07 PM
> *To:* 'CONLAWPROFS professors'
> *Subject:* RE: Governments' first amendment rights
>
> I hope I'm not being too pedantic here ... but is not the notion of 
> government having "rights" completely ridiculous? Rights are what 
> people have to control government behavior (among other things). 
> Governments can have prerogatives, powers, discretion, even to the 
> point of being unfettered. But to say that governments have "rights" 
> seems to me to completely destroy the notion of rights as an operable 
> concept.
>
> Steven Lichtman
>
> Shippensburg University
>
> ________________________
>
> Dr. Steven Lichtman
>
> Assistant Professor and Pre-Law Advisor
>
> Department of Political Science - 413 Grove Hall
>
> Shippensburg University
>
> 1871 Old Main Drive
>
> Shippensburg, PA 17257
>
> (717) 477-1845
>
> http://webspace.ship.edu/SBLichtman/lichtman.htm
>
> .
>
> ------------------------------------------------------------------------
>
> *From:* conlawprof-bounces at lists.ucla.edu 
> [conlawprof-bounces at lists.ucla.edu] On Behalf Of William Funk 
> [funk at lclark.edu]
> *Sent:* Monday, February 08, 2010 5:27 PM
> *To:* 'CONLAWPROFS professors'
> *Subject:* Governments' first amendment rights
>
> Are there any cases either finding or denying that governments may 
> have 1^st Amendment rights?
>
> Bill Funk
>
> Lewis & Clark Law School
>
> ------------------------------------------------------------------------
>
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