Managed Speech But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. —Justice Robert Jackson1 1. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). Managed Speech The Roberts Court’s First Amendment x x w Gregory P. Magarian 1 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2017 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging- in- Publication Data Names: Magarian, Gregory P., author. Title: Managed speech : the Roberts court’s First Amendment / Gregory P. Magarian. Description: New York : Oxford University Press, 2017. | Includes bibliographical references and index. Identifiers: LCCN 2016041170 | ISBN 9780190466794 ((hardback) : alk. paper) Subjects: LCSH: United States. Supreme Court. | Judicial process—United States. | Freedom of speech—United States. | United States. Constitution. 1st Amendment. Classification: LCC KF8742 .M24 2017 | DDC 342.7308/53—dc23 LC record available at https:// lccn.loc.gov/ 2016041170 1 3 5 7 9 8 6 4 2 Printed by Edwards Brothers Malloy, United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com. For Arnold T. Schoch and Horan Henry Magarian CONTENTS Acknowledgments ix Introduction xi PART ONE: Private Speech 1. The Marrow of Tradition: Categorical Exclusions from First Amendment Protection 3 2. Fair and Balanced: Regulations of Political Dissent and Commercial Profit 33 PART TWO: Speech in Government Preserves 3. My House, My Rules: Strengthening Government Managers’ Control over Institutional Speech 69 4. Speakers, Cornered: Weakening the Public Forum 91 5. There’s Always a Catch: Speech- Restrictive Conditions on Government Funding 119 PART THREE: Speech in the Electoral Process 6. Of Parties and Petitions: Regulations of Election Procedures 139 7. Letting Money into Elections: Citizens United and McCutcheon 157 8. Keeping Money out of Elections: Government Leveling and Labor Speech 193 9. Managed Speech and Beyond: Confronting the Roberts Court’s First Amendment 227 Appendix: Roberts Court Free Speech Decisions and Holdings 255 Index 261 vii ACKNOWLEDGMENTS Writing my first book has taught me that no one writes a book alone. My two Deans at the Washington University School of Law, Kent Syverud and Nancy Staudt, have encouraged and generously supported this project. My colleagues Lee Epstein and Brian Tamanaha have graciously shared their experience and wisdom while offering essential guidance and support. My colleagues John Inazu and Neil Richards have helped me think through my ideas while also advising me about the process. Lee and John, along with my colleagues Pauline Kim, Russell Osgood, and Liz Sepper, read the manuscript and gave me exten- sive and helpful comments. Ash Bhagwat, Leslie Kendrick, Heidi Kitrosser, and Tim Zick likewise read all or parts of the manuscript and provided great feedback. My colleague Marion Crain helped me to understand the intersec- tion of labor law and the First Amendment. I received valuable comments and criticism on earlier versions of various chapters of this book in faculty workshops at Aoyama Gakuin University Law School, Boston College Law School, and the Washington University School of Law; the First Amendment Roundtable at the Washington University School of Law; the Workshop in Politics, Ethics, and Society at the Washington University Department of Political Science; the U.S. Law Study Group at Waseda University Law School; the Symposium on the Contemporary First Amendment at William and Mary Law School; and the Freedom of Expression Scholars Conference at Yale Law School. I’m especially grateful to Jill Delston, Fred Schauer, and Mark Tushnet, who served as discussants or co- panelists at some of those events. An early version of Chapter 1 was published in the William and Mary Law Review. Jamie Berezin, Alex Flach, Alden Domizio, and Elinor Shields at Oxford University Press adroitly shepherded the book through the review, editing, and production processes. Nancy Cummings provided first-r ate administra- tive support. Gwenn Barney, Sean Craig, Katharine Finley, Alex Joyner, Julia Lang, Jonathan Schmalfeld, Brett Walker, and Nikki Windsor contributed out- standing research assistance. Students in my seminar on the Roberts Court’s First Amendment challenged and sharpened my thinking on many points. The ix