ARTICLE
Students and Workers and Prisoners – Oh My! A Cautionary Note About Excessive Institutional Tailoring of First Amendment Doctrine
Scott A. Moss* 
54 UCLA L. Rev. 1635

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Abstract

irst Amendment free speech doctrine has been called “institutionally oblivious” for ignoring how different institutions present different legal questions. 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 speech doctrine. The burden of proof ordinarily is on the government to justify speech restrictions, but in three institutions—public schools, workplaces, and prisons—courts allow heavy speech restrictions and defer to government officials. Even if these institutions need to restrict speech unusually often, why do we need different doctrine— institutionally tailored government-deferential standards—rather than standard heightened scrutiny? Courts have given no real answer. This Article serves three purposes. First, it attempts a descriptive analysis of why courts might perceive a need to tailor doctrine to these institutions. The two main arguments are waiver and risk. The waiver argument is straightforward. Individuals in certain institutions made a free, ex ante choice to enter a setting with restrictive rules. The risk argument is somewhat more involved. Heightened scrutiny, by declaring speech restrictions presumptively invalid, risks erroneously allowing dangerous speech in institutions in which there is both high error cost and high error probability. Error cost is high if a court erroneously allows disrup¬tive speech in, for example, a prison prone to riots. Error probability is high because in these complex institutions, information costs are high for courts (so courts should defer to institutional judgments) and speech restrictions are warranted more often (so even a modest rate of error can yield a high number of errors). This risk analysis suggests that economics can help analyze constitu¬tional issues involving risk and error cost and probability. Second, this Article undertakes a critical analysis of the above arguments for institutional tailoring, finding several flawed or 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 error cost point is exaggerated because the government can often guard against harmful speech with monitoring rather than a ban. The error probability argument assumes high information costs of courts evaluating these institutions, yet courts regularly handle cases in more complex institutions. The waiver and risk arguments are exaggerated but not wholly unfounded. Both are stronger for prisons; 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 institution. Third, this Article proposes that speech law, like equal protection law, apply heightened scrutiny in all institutions, though with modest tailoring. Considering institutional context is good in moderation, bad in excess. By dividing speech rights so starkly by institution, courts have not recognized, but rather overstated, the uniqueness of schools, workplaces, and prisons—and allowed more speech restriction than is justified. This risk of exaggerating uniqueness is inherent to tailoring and should give courts pause before tailoring constitutional law. This Article concludes with a pragmatic proposal to scale back the tailoring of speech doctrine: Courts should apply intermediate scrutiny to speech claims in these institutions.


* Associate Professor of Law, University of Colorado Law School. J.D., Harvard Law School; M.A., B.A., Stanford University.

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