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Courts typically apply their own, skeptical judgment to review free speech claims. But when the government is understood to be managing its own institutions (like schools, prisons, or the military) or its own programs (such as those providing abortion counseling or distributing arts grants), courts regularly abandon ordinary principles of First Amendment jurisprudence and defer to the judgments of other government decisionmakers. As they did recently in Morse v. Frederick and Garcetti v. Ceballos, courts frequently review challenged speech restrictions only for their reasonableness, or hold that restricted speech falls outside the scope of First Amendment protection. This Article begins by exploring the basis for the courts’ minimal review. Clarifying current case law and commentary, the Article identifies two distinct accounts: a weak norms theory positing that free speech principles have very limited significance within government institutions and programs, and a judicial underenforcement theory contending that the principles are important in those contexts, but that courts are declining to assume primary responsibility for interpreting or enforcing them. Maintaining that the weak norms theory is exaggerated and thus alone provides insufficient justification for the courts’ minimal review, this Article argues that the underenforcement theory, in combination with elements of the weak norms theory, provides a persuasive normative account for why courts ought sometimes to resist applying traditional heightened review of speech restrictions within government institutions and programs.
Though the combined theories provide a forceful account against traditional heightened review, they do not validate the courts’ practice of applying no more than reasonableness review. Because First Amendment principles remain important inside government institutions and programs, this Article contends that the courts’ current approach is flawed, and proposes an alternative model for courts to follow. In other contexts when the judiciary has declined primary interpretive and enforcement authority of legal or constitutional norms, courts have generally either refrained from influencing or directing other government decisionmakers’ judgments on those norms, or conditioned their deference to those judgments on the nature of the others’ decisionmaking processes. The former approach makes sense, the Article maintains, when courts have some confidence that other parties or processes will implement or protect the legal or constitutional norm at stake. When the interest to be protected involves individual rights, and in particular the rights of expressive minorities, as the First Amendment serves in significant part to protect, there is less reason for such confidence, and conditioning deference on the decisionmaking process is more appropriate. Advocating a “free speech conditional deference model,” the Article maintains that courts ought not to apply only reasonableness review or hold speech to be unprotected unless the restriction adheres to a formal speech policy. Because formal speech policies serve as an alternative means to judicial review for encouraging fidelity to First Amendment principles—policies encourage public deliberation on free speech concerns, promote equal treatment of speech by eliminating ad hoc decisionmaking, and help to check governmental abuses by facilitating accountability for speech restrictions— the Article argues that a policy requirement is an appropriate precondition for judicial deference.