The dale problem: Property and speech under the regulatory state

University of Chicago Law Review

Volumn 75, Issue 4, 2008, Pages 1541-1600

  Seidman, Louis Michael ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 59549099664     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (371)

1. For the most famous articulation of this point, see West Virginia Board of Education v Barnette, 319 US 624, 638 (1943): The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to... free speech... and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
2. For the canonical statement, see Ferguson v Skrupa, 372 US 726, 729-30 (1963): There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy.... [That] doctrine... has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. As this Court stated in a unanimous opinion in 1941, "We are not concerned... with the wisdom, need, or appropriateness of the legislation." Legislative bodies have broad scope to experiment with economic problems....
3. See, for example, Hawaii Housing Authority v Midkiff, 467 US 229, 239-41 (1984) (holding that a Hawaii law transferring property to reduce concentration of land ownership did not violate the public use requirement of the Fifth Amendment).
4. See, for example, Loretto v Teleprompter Manhattan CATV Corp, 458 US 419, 427-41 (1982) (holding that a New York law requiring a landlord to permit a tenant to install cable television facilities on the building's exterior was a taking that required compensation).
5. See, for example, Kelo v City of New London, 545 US 469, 480-84 (2005) (holding that a city's exercise of eminent domain for the purpose of redeveloping a distressed area satisfied the public use requirement).
6. See also Alison Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 S Ct Rev 63, 65-71.
7. See, for example, Palazzolo v Rhode Island, 533 US 606, 613-16 (2001) (holding that state regulations restricting a landowner from developing his land for commercial use but permitting him to build a residence on it did not establish a taking);
8. Penn Central Transportation Co v City of New York, 438 US 104, 128-38 (1978) (holding that a New York landmark preservation law restricting a landowner from constructing a building on top of Grand Central Terminal did not establish a taking).
9. See, for example, Energy Reserves Group, Inc v Kansas Power & Light Co, 459 US 400, 413-19 (1983) (holding that the state could alter price terms in a contract between a public utility and a supplier without violating the Contracts Clause);
10. General Motors Corp v Romein, 503 US 181, 183-86 (1992) (upholding a Michigan law amending a workers' compensation statute to require employers to reimburse employees for unpaid benefits).
11. See Robert A. Sedler, Property and Speech, 21 Wash U J L & Policy 123, 128 (2006) (noting that picketing and protests lose First Amendment protection if conducted on another's private property).
12. Texas v Johnson, 491 US 397, 412 n 8 (1989).
13. See Miami Herald Publishing Co v Tornillo, 418 US 241, 257-58 (1974) (holding that a newspaper that criticizes a political candidate has a First Amendment right to deny the candidate free space to respond to the criticism).
14. See Wooley v Maynard, 430 US 705, 714-17 (1977) (striking down a law making it a misdemeanor to obscure the slogan "Live Free or Die" printed on New Hampshire license plates).
15. See Hudgens v NLRB, 424 US 507, 520-21 (1976) (refusing to recognize a First Amendment right to picket inside a shopping mall without the consent of the owner).
16. 512 US 43 (1994).
17. See id at 45-48.
18. 453 US 114 (1981).
19. See id at 128-34.
20. See 512 US at 58.
21. 453 US at 128-30, 131 n 7.
22. I use the term "modern" to refer to the jurisprudential approach that emerged with the rejection of the approach taken in Lochner v New York, 198 US 45 (1905), and that prevails in some form to this day.
23. Id at 64. See also, for example, Ribnik v McBride, 277 US 350, 358-59 (1928) (invalidating price regulation);
24. Adkins v Children's Hospital, 261 US 525, 561-62 (1923) (invalidating a minimum wage statute for women);
25. Coppage v Kansas, 236 US 1, 26 (1915) (invalidating legislation forbidding contracts under which employees agreed not to join unions). It does not follow that the Lochner-era Court always constitutionalized the common law.
26. See generally David E. Bernstein, Lochner's Legacy's Legacy, 82 Tex L Rev 1 (2003) (attacking the widely held belief that the Lochner Court saw the common law as part of nature rather than a legal construct). When the Court invalidated social legislation, however, it invariably treated deviations from market baselines as requiring justification.
27. See Cass R. Sunstein, Lochner's Legacy, 87 Colum L Rev 873, 874-75 (1987).
28. See, for example, Truax v Corrigan, 257 US 312, 339-42 (1921) (invalidating a statute that prevented an injunction in a labor dispute where the right to private property was threatened).
29. 198 US 45 (1905).
30. See id at 64.
31. See, for example, Truax, 257 US at 327-30 ("[A] purely arbitrary or capricious exercise of [legislative] power whereby a wrongful and highly injurious invasion of property rights ... is practically sanctioned and the owner stripped of all real remedy, is wholly at variance with [fundamental principles of right and justice].").
32. See, for example, West Coast Hotel Co v Parrish, 300 US 379, 398-400 (1937) (upholding a law setting a minimum wage for women);
33. NLRB v Jones & Laughlin Steel Corp, 301 US 1, 49 (1937) (upholding the National Labor Relations Act);
34. Skrupa, 372 US at 730-31 ("States 'have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition.'"),
35. quoting Lincoln Federal Labor Union v Northwestern Iron & Metal Co, 335 US 525, 536(1949).
36. See, for example, Lindsey v Normet, 405 US 56, 74 (1972) (holding that the Constitution does not "guarantee [ ] access to dwellings of a particular quality");
37. Dandridge v Williams, 397 US 471, 483-87 (1970) (holding that there is no constitutional right to welfare);
38. San Antonio Independent School District v Rodriguez, 411 US 1, 33-39 (1973) (holding that there is no constitutional right to education).
39. See, for example, Board of Trustees of the University of Alabama v Garrett, 531 US 356, 366 (2001) (holding that "minimum 'rational basis' review" was applicable "to general social and economic legislation").
40. But not always. See, for example, Meyer v Nebraska, 262 US 390, 399 (1923) (holding that the liberty guaranteed by the Fourteenth Amendment included "the right of the individual to . . . acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men");
41. Pierce v Society of Sisters, 268 US 510, 534-35 (1925) (upholding the right to choose private education for one's children).
42. 163 US 537 (1896).
43. See id at 550-52.
44. See, for example, Schenck v United States, 249 US 47, 52-53 (1919) (upholding a conviction under the Espionage Act of 1917 for speech urging resistance to the draft);
45. Abrams v United States, 250 US 616, 623-24 (1919) (upholding a conviction for violating a 1918 amendment to the Espionage Act for conspiring to urge curtailment of war materials);
46. Debs v United States, 249 US 211, 216-17 (1919) (upholding the conviction of a leader of the Socialist Party for giving a speech criticizing the war).
47. See, for example, Skinner v Williamson, 316 US 535, 541-43 (1942) (invalidating a sterilization statute); Barnette, 319 US at 642 (invalidating a compelled flag salute);
48. Smith v Allwright, 321 US 649, 661-66 (1944) (invalidating a primary limited to white voters).
49. See Marsh v Alabama, 326 US 501, 506-10 (1946) (holding that the Constitution, of its own force, protected the right of an individual to distribute leaflets in a company-owned town);
50. Shelley v Kraemer, 334 US 1, 20-21 (1948) (holding that the Constitution prohibits racially restrictive covenants).
51. See, for example, De Jonge v Oregon, 299 US 353, 365 (1937) (invalidating a conviction under a criminal syndicalism statute for participating in peaceable political discussion);
52. Herndon v Lowry, 301 US 242, 263-64 (1937) (invalidating a conviction for attempting to incite insurrection); Barnette, 319 US at 642.
53. See, for example, Brown v Board of Education, 347 US 483, 494-95 (1954).
54. See, for example, Craig v Boren, 429 US 190, 210 (1976) (invalidating a statute that prescribed gender-based rules for the sale of alcohol).
55. See, for example, Griswold v Connecticut, 381 US 479, 484-86 (1965) (invalidating a statute prohibiting the use of contraceptives);
56. Lawrence v Texas, 539 US 558, 577-79 (2003) (invalidating a statute prohibiting sodomy).
57. See John O. McGinnis, The Once and Future Property-based Vision of the First Amendment, 63 U Chi L Rev 49, 86-92 (1996);
58. Richard A. Epstein, Property, Speech, and the Politics of Distrust, 59 U Chi L Rev 41, 42-43 (1992).
59. See generally Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Harvard 1985).
60. See also Robert G. McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 S Ct Rev 34, 46 (arguing that economic rights are as important as other personal liberties);
61. Frank H. Easterbrook, Implicit and Explicit Rights of Association, 10 Harv J L & Pub Policy 91, 98 (1987) (same).
62. See generally Margaret Radin, Property and Personhood, 34 Stan L Rev 957 (1982) (arguing that personhood requires control over resources in one's environment).
63. See Amy Gutmann, Liberal Equality 186-91 (Cambridge 1980) (arguing that minimum economic entitlements are necessary for exercise of civil liberties);
64. Cass Sunstein, Free Speech Now, 59 U Chi L Rev 255, 263-278 (1992) (arguing that the Court's First Amendment doctrine mistakenly treats market allocations as a given).
65. See Frank Michelman, Foreword: On Protecting the Poor through the Fourteenth Amendment, 83 Harv L Rev 7, 9-13 (1969);
66. Peter B. Edelman, The Next Century of Our Constitution: Rethinking Our Duty to the Poor, 39 Hastings L J 1, 2-8 (1987).
67. See Mark Tushnet, An Essay on Rights, 62 Tex L Rev 1363, 1384-1402 (1984) (arguing that rights can be socially harmful).
68. Compare generally Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago 1991) (arguing that pursuit of judicial enforcement of rights siphons off political energy).
69. 530 US 640 (2000).
70. See id at 644.
71. See id at 645.
72. See id.
73. Dale v Boy Scouts of America, 734 A2d 1196, 1230 (1999),
74. reversed Boy Scouts of America v Dale, 530 US 640 (2000).
75. Dale, 530 US at 661.
76. See id at 644.
77. See generally, for example, Andrew Koppelman, Signs of the Times: Dale v. Boy Scouts of America and the Changing Meaning of Nondiscrimination, 23 Cardozo L Rev 1819 (2002);
78. Steven Clark, Judicially Straight?: Boy Scouts v. Dale and the Missing Scalia Dissent, 76 S Cal L Rev 521 (2003).
79. For a subtle and powerful development of this point on a more general level, see Nan D. Hunter, Expressive Identity: Recuperating Dissent for Equality, 35 Harv CR-CL L Rev 1 (2000).
80. Perhaps the Court should not be faulted for failing to notice this problem since Dale himself did not advance a First Amendment claim. My argument therefore should be taken as a general exposition of the Dale problem rather than a criticism of the Court's resolution of the case.
81. 326 US 501 (1946).
82. Id at 502-04.
83. See id at 509 ("When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.").
84. See id.
85. See Part III.B.
86. See Part II.A.
87. For an analogous point, see Larry A. Alexander, Trouble on Track Two: Incidental Regulations of Speech and Free Speech Theory, 44 Hastings L J 921, 929 (1993) (arguing that "all laws affect what gets said, by whom, to whom, and with what effect") (emphasis omitted);
88. Larry Alexander, Is There a Right of Freedom of Expression? 17-19 (Cambridge 2005) (same).
89. See Lochner, 198 US at 52-54.
90. See, for example, Flagg Brothers, lne v Brooks, 436 US 149, 151-53 (1978) (holding that a statute establishing a property interest for a warehouseman in goods entrusted to him for storage did not make his sale of those goods attributable to the state);
91. San Francisco Arts & Athletics, lne v United States Olympic Committee, 483 US 522, 543-44 (1987) (holding that a statute granting the exclusive right to use the word "Olympics" to a private group did not make that group's actions attributable to the state). The statement in the text may seem counterintuitive because of a few exceptional and famous cases where liberals on the Court treated background state property rules as raising constitutional issues.
92. See, for example, Shelley v Kraemer, 334 US 1, 20-21 (1948) (holding that state enforcement of racially restrictive covenants violated the Fourteenth Amendment). But these exceptional cases were decided against the backdrop of more usual situations where liberals were prepared to acknowledge that state enforcement of property rights did not trigger constitutional protections.
93. See, for example, Bell v Maryland, 378 US 226, 327 (1964) (Black dissenting) (suggesting that the state had not acted unconstitutionally in enforcing trespass laws for a restaurant owner who discriminated on the basis of race).
94. See Buckley v Valeo, 424 US 1, 90 (1976) (declaring that "[i]t is for Congress to decide" whether expenditures for public funding of elections are in the general welfare).
95. See Lucas v South Carolina Coastal Council, 505 US 1003, 1027 (1992) ("Where the State seeks to sustain regulation that deprives land of all economically beneficial use,... it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests was not part of his title to begin with.").
96. Compare Palazzolo v Rhode Island, 533 US 606,631 (holding that although "a State may not evade the duty to compensate on the premise that the landowner is left with a token interest," a "regulation permitting a landowner to build a substantial residence on an 18-acre parcel does not leave the property 'economically idle'"),
97. quoting Lucas, 505 US at 1019.
98. See Loretto v Teleprompter Manhattan CATV Corp, 458 US 419, 426 (1982).
99. See note 64 and accompanying text.
100. The Court has eschewed a "set formula" to govern its determination of whether there has been a taking. Instead, it has emphasized that "in a wide variety of contexts, [ ] government may execute laws or programs that adversely affect recognized economic values" and has upheld "land use regulations that destroyed or adversely affected recognized real property interests" where "a state tribunal reasonably concluded that 'the health, safety, morals, or general welfare' would be promoted by prohibiting particular contemplated uses of land." Penn Central Transportation Co v New York City, 438 US 104, 125, 126 (1978),
101. quoting Nectow v City of Cambridge, 277 US 183, 188 (1928).
102. The Supreme Court has squarely held that antidiscrimination provisions governing public accommodations are not unconstitutional interferences with private property. See Heart of Atlanta Motel, Inc v United States, 379 US 241, 258 (1964). See also id at 277 (Black concurring) (explaining that a regulation prohibiting discrimination "does not even come close to being a taking in the constitutional sense").
103. Penn Central, 438 US at 124.
104. The Court has made clear that these are the touchstones for determining whether a taking has occurred. See, for example, Lingle v Chevron U.S.A., Inc, 544 US 528, 538 (2005).
105. To be sure, any such "seizure" would have to be justified by a "public use." See US Const Amend V. However, the Court has read the "public use" element broadly and found it satisfied so long as "the eminent domain power is rationally related to a conceivable public purpose." Hawaii Housing Authority v Midkiff, 467 US 229, 240 (1984).
106. See also Kelo v City of New London, 545 US 469, 482-83 (2005). There can be no doubt that the prohibition of discrimination on the basis of sexual preference is rationally related to a conceivable public purpose.
107. See Nan D. Hunter, Accommodating the Public Sphere: Beyond the Market Model, 85 Minn L Rev 1591, 1591 (2001).
108. See also David E. Bernstein, Antidiscrimination Laws and the First Amendment, 66 Mo L Rev 83, 126 (2001) (arguing that "religious associations will utilize Dale to obtain exemptions from antidiscrimination laws that they were not able to obtain under the Free Exercise Clause").
109. See Dale, 530 US at 651 (accepting BSA's assertion that it teaches that homosexual conduct "is not morally straight").
110. 418 US 241 (1974).
111. Id at 258.
112. 491 US 397 (1989).
113. See id at 399.
114. See A Bill to Grant the United States a Copyright to the Flag of the United States and to Impose Criminal Penalties for the Destruction of a Copyrighted Flag, HR 3883, 104th Cong, 2d Sess (July 23, 1996), in 142 Cong Rec H 8247.
115. See text accompanying notes 9-12. See also United States v Eichman, 496 US 310, 316 n 5 (1990).
116. In Schacht v United States, 398 US 58 (1970), the Court thought it clear that a statute prohibiting the unauthorized wearing of a military uniform was facially constitutional. See id at 61. The petitioner's conviction under the statute was invalidated only because he fit within an exception to the statute relating to theatrical productions and a qualification on the exception, limiting it to portrayals that did not discredit the armed forces, was unconstitutional. See id at 61-62. If the government can assert a property-like interest in its uniforms, even when otherwise privately owned, then presumably it can assert a similar interest in its flags.
117. 307 US 496 (1939).
118. Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 S Ct Rev 1, 13.
119. The plurality in Hague famously wrote: Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. 307 US at 515 (plurality).
120. See notes 237-46 and accompanying text.
121. This was, in fact, the law through much of the Lochner period. See Davis v Massachusetts, 167 US 43, 47 (1897) (endorsing the view of the lower court that "[f]or the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house").
122. The discussion that follows in text relies heavily upon Matthew Adler's path-breaking account. See Matthew D. Adler, Rights against Rules: The Moral Structure of American Constitutional Law, 97 Mich L Rev 1 (1998). Adler's distinction between "direct" and "derivative" accounts of the moral content of rights roughly corresponds to my distinction between "as-applied" and "formal" conceptions of constitutional law.
123. See id at 5-7.
124. See also Alexander, Freedom of Expression at 55 (cited in note 60) (arguing that regulatory purpose rather than the effect of a regulation defines the scope of freedom of expression).
125. Consider, for example, Shelley, where the Court held that judicial enforcement of a racially restrictive covenant constituted "state action," violating the Equal Protection Clause of the Fourteenth Amendment. Although the case is often treated as if the state action question was hard, there can be no doubt that the actions of a court count as government conduct. What makes the case hard is that this conduct was formally neutral as between the races (covenants restricting occupancy by any race were enforced) even though, as actually applied, it had a disproportionate impact on African-Americans.
126. See Shelley, 334 US at 20-21.
127. Where laws are formally neutral, their as-applied effect on constitutionally protected groups does not trigger strict scrutiny under current equal protection doctrine. See Personnel Administrator of Massachusetts v Feeney, 442 US 256, 272 (1979) ("[E]ven if a neutral law has a disproportionately adverse effect upon a racial minority, it is unconstitutional under the Equal Protection Clause only if that impact can be traced to a discriminatory purpose.");
128. Washington v Davis, 426 US 229, 242 (1976). Proponents of this approach argue that what equality amounts to is the absence of government malfunction.
129. See, for example, Robert W. Bennett, "Mere" Rationality in Constitutional Law: Judicial Review and Democratic Theory, 67 Cal L Rev 1049, 1076 (1977) ("If members of racial minorities stochastically obtain benefits and suffer detriments as one or another piece of legislation is passed without attention to its racial impact, they are obtaining, not being deprived of, equal protection of the laws."). Opponents of current doctrine argue that even in the absence of government malfunction as conventionally defined, disproportionate impact makes government action problematic.
130. See, for example, Mary E. Becker, Prince Charming: Abstract Equality, 1987 S Ct Rev 201, 247 (arguing that formal equality cannot, for example, "ensure that jobs are structured so that female workers and male workers are equally able to combine wage work and parenthood").
131. See generally Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 Harv L Rev 1175 (1996).
132. For example, the Court has sometimes held that "incidental limitations on First Amendment freedoms" do not violate free speech rights. See United States v O'Brien, 391 US 367, 376 (1968).
133. For a more complete discussion, see notes 248-49 and accompanying text. Similarly, under current doctrine, facially neutral laws that fail to evidence government malfunction but that nonetheless have an adverse impact on religious believers are said not to violate the Free Exercise Clause. See Employment Division, Department of Human Resources of Oregon v Smith, 494 US 872, 881-82 (1990).
134. Compare Church of the Lukumi Babalu Aye, lne v City of Hialeah, 508 US 520, 524 (1993) (invalidating a facially neutral statute when there was evidence of a malfunction). Opponents of the doctrine claim that facially neutral statutes, even if enacted for permissible purposes, can nonetheless impinge on the religious freedom of individuals.
135. See, for example, Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U Chi L Rev 1109, 1133-34 (1990) (arguing that a statute that punished refusal to be sworn violated religious freedom as applied to a Jewish witness who refused to be sworn on Saturday).
136. See Laurence H. Tribe, American Constitutional Law 789-94 (Foundation 2d ed 1988) (labeling cases reviewing regulations intended to affect the conveyance of messages as "track one" cases, and those reviewing regulations that have only unintended effects on expression as "track two" cases).
137. See also Alexander, 44 Hastings L J at 921-27 (cited in note 60).
138. See Part I.B.
139. See, for example, Johnson v California, 543 US 499, 506 (2005) (remanding for strict scrutiny review of a prison policy that facially segregated prisoners by race).
140. See, for example, Hunter v Underwood, 471 US 222, 231-33 (1985) (invalidating a statute that prohibited people convicted of crimes of moral turpitude from voting because the statute, although facially neutral, was racially motivated).
141. For good, if now somewhat dated, summaries, see Tribe, American Constitutional Law at 977-97 (cited in note 90);
142. Geoffrey R. Stone, Content Regulation and the First Amendment, 25 Wm & Mary L Rev 189 (1983);
143. Geoffrey R. Stone, Restrictions of Speech Because of Its Content: The Peculiar Case of Subject-matter Restrictions, 46 U Chi L Rev 81 (1978).
144. In Texas v Johnson, the Court invalidated Johnson's conviction for flag burning only because the state had failed to assert "an interest in support of Johnson's conviction that [was] unrelated to the suppression of expression." 491 US at 407. Similarly, in Eichman, the Court invalidated the Flag Protection Act of 1989 because even though the Act contained no explicit content-based limitation on the scope of prohibited conduct, it was nonetheless clear that the government's interest was related to the suppression of speech. See 496 US at 315-16.
145. 426 US 229 (1976).
146. Id at 242.
147. See Maker v Roe, 432 US 464, 470-71 (1977);
148. Harris v McRae, 448 US 297, 316 (1980).
149. See Oregon v Smith, 494 US at 890 (upholding a statute prohibiting the use of peyote).
150. See, for example, Arcara v Cloud Books, Inc, 478 US 697, 702-05 (1986) (upholding the closure of an adult bookstore where the bookstore facilitated prostitution);
151. O'Brien, 391 US at 376-77 (upholding a statute prohibiting the destruction of draft cards). But see Part III.B.
152. See, for example, Clark, 76 S Cal L Rev at 557 (cited in note 51).
153. See Part III.B.4.
154. See, for example, Lamb's Chapel v Center Moriches Union Free School District, 508 US 384, 394-97 (1993) (invaliding a rule that permitted after-school use of school property except for religious purposes on the ground that the restriction was viewpoint-based).
155. Compare, for example, Cass R. Sunstein, Tilting the Scales Rightward, NY Times A23 (Apr 26, 2001) (citing Dale as evidence that "[w]e are now in the midst of a remarkable period of right-wing judicial activism"), with Sunstein, 87 Colum L Rev at 875 (cited in note 20) (criticizing Davis for adopting Lochner-like understandings of government inaction and neutrality).
156. Even some conservatives, who are generally hostile to constitutional protection for positive conceptions of liberty, find this outcome constitutionally troubling. See, for example, Charles Fried, Modern Liberty and the Limits of Government 105 (Norton 2007).
157. See, for example, David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U Chi L Rev 935, 938 (1989) (arguing that "when the discriminatory intent standard is applied rigorously, it defeats itself).
158. See Part IV.B.
159. For the best-known articulation of this point, see Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 61-63 (Harper 1948).
160. See, for example, Bruce Ackerman, 2 We The People: Transformations 280 (Belknap 1998) (arguing that Lochner was repudiated because the country moved away from Reconstruction Republican values, not because the Lochner Court was out of line with those values);
161. Robert G. McCloskey, The American Supreme Court 117-26 (Chicago 4th ed 2005) (describing the Court-packing plan and the Court's 1937 change in direction that took economic policies out of the realm of review for "reasonableness").
162. See, for example, Barr v City of Columbia, 378 US 146, 149 (1964).
163. See id (reversing for insufficient evidence a sit-in demonstrator's conviction for breach of the peace); Bouie v City of Columbia, 378 US 347, 357-58 (1964) (noting the difference between civil and criminal trespass and holding that demonstrators could not be convicted of criminal trespass without an actual breach of the peace);
164. Hamm v City of Rock Hill, 379 US 306, 317 (1964) (holding that the Civil Rights Act of 1964 prohibits prosecution of sit-in demonstrators for trespassing);
165. Bell v Maryland, 378 US 226, 236 (1964).
166. See Bell, 378 US at 319 (Black dissenting).
167. Justice Black argued that "[t]he right to freedom of expression is a right to express views not a right to force other people to supply a platform or a pulpit" and that "[tjhe experience of ages points to the inexorable fact that people are frequently stirred to violence when property which the law recognizes as theirs is forcibly invaded or occupied by others." Id at 345-46.
168. See Heart of Atlanta Motel v United States, 379 US 241, 268 (1964) (Black concurring).
169. See also Bell, 378 US at 318 (Black dissenting) (emphasizing that the case "does not involve the constitutionality of any existing or proposed state or federal legislation requiring restaurant owners to serve people without regard to color").
170. 291 US 502 (1934).
171. See Bell, 378 US at 341 n 37 (Black dissenting) (citing Nebbia for the proposition that "this Court some years ago rejected the notion that a State must depend upon some rationalization such as 'affected with a public interest' in order for legislatures to regulate private businesses").
172. See Amalgamated Food Employees Union Local 590 v Logan Valley Plaza, Inc, 391 US 308, 317-18 (1968)
173. (finding that a shopping center was functionally equivalent to the privately owned business district in Marsh for First Amendment purposes), overruled by Hudgens v NLRB, 424 US 507, 518 (1976).
174. See Lloyd Corp v Tanner, 407 US 551, 559-61 (1972) (limiting Logan Valley);
175. Hudgens, 424 US at 518 (overruling Logan Valley).
176. See PruneYard Shopping Center v Robins, 447 US 74, 88 (1980).
177. Id at 81.
178. See, for example, Terry v Adams, 345 US 461, 469 (1953) (striking down a racially restrictive primary by a "private organization" on the ground that it was "[t]he only election that has counted in this Texas county for more than fifty years").
179. See, for example, Evans v Newton, 382 US 296, 301 (1966) (finding that the service rendered by a private park was "municipal in nature" because "[the park] is open to every white person, there being no selective element other than race").
180. 419 US 345 (1974).
181. Id at 351-52.
182. The Jackson Court explained: [As we] stated long ago ... in the course of rejecting a substantive due process attack on state legislation: It is clear that there is no closed class or category of businesses affected with a public interest -The phrase "affected with a public interest" can, in the nature of things, mean no more than that an industry, for adequate reason, is subject to control for the public good. In several of the decisions of this court wherein the expressions "affected with a public interest" and "clothed with a public use," have been brought forward as the criteria... it has been admitted that they are not susceptible of definition and form an unsatisfactory test.
183. Id at 353,
184. quoting Nebbia, 291 US at 536.
185. 436 US 149, 161 (1978).
186. Id at 160 n 10.
187. 395 US 367 (1969).
188. Id at 389.
189. 412 US 94 (1973).
190. See id at 127.
191. See 395 US at 396-401.
192. 512 US 622 (1994).
193. See id at 638-39.
194. See, for example, Lucas Powe, American Broadcasting and the First Amendment 197-209 (California 1987) (criticizing the scarcity justification for restricting broadcaster speech, and stating that "[i]t is not technological scarcity that is at work, but lack of a property mechanism to allocate the right to broadcast");
195. R.H. Coase, The Federal Communications Commission, 2 J L & Econ 1, 12-27 (1959) (arguing that scarcity is present in nearly all resources and that we generally trust prices to properly control the scarcity problem).
196. See Denver Area Educational Telecommunications Consortium, Ine v FCC, 518 US 727, 748 (1996) (noting that cable and over-the-air broadcasting differ little with regard to the problem of exposure of children to "offensive" programming).
197. 512 US at 632-34.
198. Writing for the majority, Justice Rufus Peckham distinguished Holden v Hardy, 169 US 366 (1898), which had upheld maximum hours legislation for mine workers. Jutsice Peckham wrote that "the kind of employment" was such as to make the legislation "reasonable and proper." Lochner, 198 US at 54. Justice Harlan's dissenting opinion responded by arguing that there was no meaningful distinction between baking and mining. See id at 71-72.
199. 297 US 1 (1936).
200. Id at 67-72.
201. See id at 72.
202. For criticisms of the doctrine, see Cass R. Sunstein, Why the Unconstitutional Conditions Doctrine Is an Anachronism, 70 BU L Rev 593, 601-02 (1990);
203. Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv L Rev 1413, 1416-17 (1989);
204. Richard A. Epstein, Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv L Rev 4, 11-12 (1988).
205. 500 US 173 (1991).
206. Id at 198.
207. See text accompanying notes 25-27.
208. Consider Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U Pa L Rev 1293, 1324-26 (1984) (discussing the difficulty of theoretically distinguishing action from inaction);
209. Robert Nozick, Coercion, in Sidney Morgenbesser, Patrick Suppes, and Morton White, eds, Philosophy, Science, and Method 440, 447-49 (St Martin's 1969) (arguing that whether something is classified as a "threat" or an "offer" depends on how it affects a baseline "normal course of events").
210. 515 US 819 (1995).
211. Id at 822-23.
212. Id at 833.
213. Id at 834.
214. 466 US 789 (1984).
215. 512 US 43 (1994).
216. 453 US 917 (1981).
217. See Part III.B.4.
218. See 466 US at 814-15.
219. Id at 810-12.
220. Gilleo, 512 US at 58.
221. See id at 55.
222. Id at 55 n 13, quoting Geoffrey R. Stone, Content-neutral Restrictions, 54 U Chi L Rev 46, 58 (1987).
223. On the interpenetration of property claims and nonexclusivity of property rights, see Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 Yale L J 601, 621 (1998).
224. See notes 15-18 and accompanying text.
225. 16i2 See, for example, Lamont v Postmaster General, 381 US 301, 306-07 (1965).
226. See Greenburgh Civic Associations, 453 US at 152 (Stevens dissenting).
227. Id at 129. See also id at 131 n 7 ("What we hold is . . . that property owned or controlled by the government which is not a public forum may be subject to a prohibition of speech.").
228. See Part I.B.
229. See Part II.B.
230. 483 US 522 (1987).
231. See 15 USC § 1052(d) (2006).
232. See 36 USC § 220506(a)(4) (2006), previously codified at 36 USC § 380 (1988).
233. See San Francisco Arts, 483 US at 542-48.
234. See id at 532-41.
235. Id at 532.
236. Id at 532-33,
237. quoting Zucchini v Scripps-Howard Broadcasting Co, 433 US 562, 575 (1977).
238. San Francisco Arts, 483 US at 534-35.
239. Or at least they ought to be. The case law leaves the outcome of hypothetical examples like those discussed in the text in doubt. For example, in United We Stand America, Inc v United We Stand, America New York, Inc, 128 F3d 86, 93 (2d Cir 1997), the Second Circuit upheld against a First Amendment challenge the exclusive right of the H. Ross Perot campaign to use the phrase "United We Stand" in its title where use by another group might cause confusion.
240. See also Birthright v Birthright, 827 F Supp 1114, 1135 (D NJ 1993) (ordering judgment for the plaintiff in a Lanham Act action against use of the term "birthright").
241. See generally Michelle Fowler, Note, To Protect and . . . to Profit: The Trademarking of the LAPD as an Example of Expanding Intellectual Property Rights, 74 S Cal L Rev 1623 (2001). In another well known example, Fox News tried to prevent comedian Al Franken from using the words "fair and balanced."
242. See Susan Saulny, To Fox, "Fair and Balanced" Doesn't Describe Al Franken, NY Times B1 (Aug 12, 2003). The effort was unsuccessful.
243. See Susan Saulny, In Courtroom, Laughter at Fox and a Victory for Al Franken, NY Times B5 (Aug 23, 2003).
244. See also Caterpillar lne v Walt Disney Co, 287 F Supp 2d 913, 922 (CD Ill 2003) (rejecting an attempt to enjoin arguably unfavorable portrayal of Caterpillar tractors in movie);
245. Wham-O lne v Paramount Pictures Corp, 286 F Supp 2d 1254, 1264-65 (ND Cal 2003) (rejecting an attempt to enjoin arguably unfavorable portrayal of "slip-n-slide" in movie).
246. For examples of the scholarly literature, see David McGowan, Why the First Amendment Cannot Dictate Copyright Policy, 65 U Pitt L Rev 281, 291-94 (2004) (rejecting the argument that the First Amendment can limit the length and scope of copyright protection);
247. Lawrence Lessig, Copyright's First Amendment, 48 UCLA L Rev 1057, 1070 (2001) (discussing changes in the conception of the values free speech is supposed to promote to include personal expression and noting the paradox of tightening copyright laws);
248. Rebecca Tushnet, Copyright as a Model for Free Speech Law: What Copyright Has in Common with Anti-pornography Laws, Campaign Finance Reform, and Telecommunications Regulation, 42 BC L Rev 1, 4-67 (2000) (surveying the First Amendment arguments both for and against copyright);
249. Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on the Enclosure of the Public Domain, 74 NYU L Rev 354, 358 (1999) (arguing that the First Amendment requires a robust public domain that exists outside of copyright protection);
250. Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L Rev 1180, 1185 (1970) (explaining that analysis of First Amendment interests in the copyright context necessitates "definitional balancing").
251. Eldred v Ashcroft, 537 US 186, 221 (2003).
252. Compare Harper & Row Publishers, lne v Nation Enterprises, 471 US 539,556 (1985) (implying that a copyright law that protected ideas or facts would violate the First Amendment);
253. International News Service v Associated Press, 248 US 215, 234 (1918) (treating information regarding current events as not the creation of the writer).
254. Eldred, 537 US at 221.
255. Id at 219. See also Harper & Row, 471 US at 560.
256. Eldred, 537 US at 220,
257. quoting Harper & Row, 471 US at 560.
258. See, for example, Harper & Row, 471 US at 546 (noting that copyright law guarantees authors "a fair return for their labors"). For the best scholarly work in this tradition,
259. see Wendy J. Gordon, A Property Right in Self-expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L J 1533 (1993) (arguing that a Lockean theory of natural property rights in the intellectual property context would provide broad protections for free expression);
260. Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory, 41 Stan L Rev 1343 (1989) (analyzing several frameworks for evaluating copyright law).
261. Harper & Row, 471 US at 558.
262. Id.
263. See Eldred, 537 US at 219. For a creative and convincing effort to develop general First Amendment principles from the example of copyright's speech-promoting qualities,
264. see Tushnet, 42 BC L Rev at 35-37 (cited in note 177).
265. See US Const Art I, § 8, cl 8. Consider Eldred, 537 US at 219 (noting that "[t]he Copyright Clause and First Amendment were adopted close in time"). 187 433 US 562 (1977).
266. See id at 573.
267. See id at 576.
268. 502 US 105 (1991).
269. See id at 123.
270. Id at 115.
271. Id at 116.
272. Simon & Schuster, 502 US at 122 n *.
273. Eldred, 537 US at 221.
274. See id at 219-20 ("[T]his 'idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.'"),
275. quoting Harper & Row, 471 US at 556.
276. 376 US 254 (1964) (holding that libel recovery against a public figure violated the First Amendment unless the speaker proceeded with actual malice).
277. 420 US 469 (1975) (holding that recovery for invasion of privacy violated the First Amendment where the name of a deceased rape victim had been publicly revealed).
278. 771 F2d 323 (7th Cir 1985) (invalidating an ordinance that made the seller of pornographic literature liable for sexual harassment), affirmed, 475 US 1001 (1986).
279. See Sullivan, 376 US at 267-82.
280. Cox Broadcasting, 420 US at 496-97.
281. See also The Florida Star v BJF, 491 US 524, 536-39 (1989) (holding that an award of damages against a newspaper that published lawfully obtained information about a rape victim violated the First Amendment).
282. See Smith v Daily Mail Publishing Co, 443 US 97, 104-05 (1979) (holding that barring publication of the name of a juvenile defendant does not further a "state interest of the highest order");
283. Oklahoma Publishing Co v District Court, 430 US 308, 310 (1977) (holding that a newspaper cannot be punished for reporting on public court proceedings, even in the case of a juvenile defendant).
284. See also Bartnicki v Vopper, 532 US 514, 534 (2001) (holding that a newspaper could not be punished for publishing the transcript of an unlawfully intercepted telephone call where subject of the call was a matter of public concern).
285. Hudnut, 771 F2d at 332-34, affirmed, 475 US 1001.
286. See, for example, Piggee v Carl Sandberg College, 464 F3d 667, 672 (7th Cir 2006) (holding that a community college had a right to insist that an instructor refrain from distributing antihomosexuality religious literature to a homosexual student);
287. Munro v Tristan, 116 Fed Appx 820, 821 (9th Cir 2004) (holding that a corrections department regulation banning materials containing nudity did not violate a prisoner's First Amendment rights);
288. Baty v Willamette Industries, 172 F3d 1232, 1246-47 (10th Cir 1999) (declining to hold that a Title VII judgment against an employer violated the First Amendment);
289. Robinson v Jacksonville Shipyards, Inc, 760 F Supp 1486, 1534-38 (MD Fla 1991) (noting that an employer's interest in maintaining a professional work environment may override an employee's interest in free expression).
290. See generally Richard Fallon, Sexual Harassment, Content Neutrality, and the First Amendment Dog That Didn't Bark, 1994 S Ct Rev 1 (arguing that restrictions on sexually harassing speech may be more properly categorized as content-based rather than content-neutral, but nevertheless permissible).
291. Compare Hishon v King & Spalding, 467 US 69, 78 (1984) (holding that private discrimination is not protected by the First Amendment right of association);
292. Norwood v Harrison, 413 US 455 (1973) (same),
293. with LaShaonda D. v Monroe County Board of Education, 526 US 629, 667 (1999) (Kennedy dissenting) ("A university's power to discipline its students for speech that may constitute sexual harassment is [ ] circumscribed by the First Amendment);
294. A vis Rent A Car System, lne v Aguilar, 529 US 1138, 1138-44 (2000) (Thomas dissenting from denial of certiorari) (arguing that prior restraint of sexually harassing speech violates the First Amendment);
295. Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L Rev 1791, 1843-58 (1992) (arguing that harassing speech not directed at a particular workplace member should be protected by the First Amendment).
296. Consider generally Lillian R. Be Vier, The Invisible Hand of the Marketplace of Ideas, in Lee C. Bollinger and Geoffrey R. Stone, eds, Eternally Vigilant: Free Speech in the Modern Era 232 (Chicago 2002).
297. Consider Alexander, Freedom of Expression at 18 (cited in note 60) (arguing that the setting of marginal tax rates affects the amount of speech and, therefore, might be constitutionally compelled if the government were prohibited from enacting measures that limited speech).
298. Consider Gary Peller and Mark Tushnet, State Action and a New Birth of Freedom, 92 Georgetown L J 779, 793 (2004) (arguing that the "positive" conception of First Amendment rights leads to constitutionally mandated economic redistribution).
299. See notes 195-96 and accompanying text.
300. See notes 201-04 and accompanying text.
301. See, for example, Catharine A. MacKinnon, Reflections on Sex Equality under Law, 100 Yale L J 1281, 1325 (1991) (arguing that state protection of pornography is gendered action by the government).
302. See, for example, David Skover, et al, Corporations and Political Speech: Should Speech Equal Money?, 30 Seattle U L Rev 931, 936 (2007);
303. J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L J 1001, 1010 (1976).
304. See, for example, Sunstein, 59 U Chi L Rev at 291-93 (cited in note 41) (arguing that Buckley v Valeo, 424 US 1 (1976), like Lochner, treats nonspeech entitlements as fixed).
305. McConnell v Federal Election Commission, 540 US 93, 250-52 (2003) (Scalia concurring in part and dissenting in part).
306. Bipartisan Campaign Reform Act of 2002, Pub L No 107-155, 116 Stat 81, codified at 2 USC § 431 et seq (2006).
307. See Federal Election Commission v Wisconsin Right to Life, Inc, 127 S Ct 2652, 2671-73 (2007) (holding that a ban on corporate-sponsored "issue ads" before an election violated the First Amendment);
308. Randall v Sorrell, 548 US 230 (2006) (refusing to overrule Buckley's holding that expenditure limits violate the First Amendment).
309. See Buckley, 424 US at 45 (holding that expenditure limits violated the First Amendment although contribution limits may be permissible).
310. See Wisconsin Right to Life, 127 S Ct at 2670.
311. 127 S Ct 2372 (2007).
312. Id at 2376-77.
313. See Abood v Detroit Board of Education, 431 US 209, 232-37 (1977).
314. Davenport, 127 S Ct at 2383.
315. Id at 2380.
316. Id.
317. 127 S Ct 2652 (2007).
318. Id at 2659.
319. Id at 2663-64.
320. Compare, for example, Pickering v Board of Education of Township High School District 205, 391 US 563, 568 (1968) (providing some First Amendment protection for government employees),
321. with Snepp v United States, 444 US 507, 510 (1980) (holding that a former CIA agent could be constitutionally bound to an agreement, signed as condition of employment, not to publish material without the prior approval of the agency).
322. See Davenport, 127 S Ct at 2382 ("Since private-sector unions collect agency fees through contractually required action taken by private employers, rather than by government agencies, Washington's regulation of those private agreements presents a somewhat different constitutional question.").
323. See Abood, 431 US at 226-37. The case establishing the right of employees not to contribute to union-supported ideological causes arose in the context of a government employer. Earlier, the Court had established a similar right in the case of a private employer, but it had done so as a matter of statutory construction.
324. See Machinists v Street, 367 US 740,759-61 (1961).
325. See notes 143-44 and accompanying text.
326. See Board of Regents of the University of Wisconsin System v Southworth, 529 US 217, 221 (2000) (holding that a mandatory student activities fee did not violate the First Amendment as long as funds were distributed in a viewpoint-neutral way).
327. See Tennessee Secondary School Athletic Association v Brentwood Academy, 127 S Ct 2489, 2495-96 (2007).
328. Consider Susan H. Williams, Content Discrimination and the First Amendment, 139 U Pa L Rev 615, 724 (1991) (arguing that regulation of access to paper and typewriters raises First Amendment issues, but that "without some limit, the free speech guarantee would be transformed into an invitation for all speakers to violate any generally applicable law if the violation contributes in any way, no matter how indirect, to their ability to speak").
329. See, for example, J.M. Balkin, Some Realism about Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L J 375, 411 ("It becomes problematic to claim that the state has not exercised a substantive choice when a William Loeb or Ruppert [sic] Murdoch can reach a large number of people, and persons with opposite but equally extreme views can reach very few."). Some commentators argue that campaign contribution and expenditure regulation should be suspect because government actors will sometimes use their power to retard, rather than promote, free speech. See, for example,
330. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U Chi L Rev 415, 467-75 (1996) (arguing that the principle enunciated in Buckley helps uncover illicit congressional motives);
331. Lillian R. BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 Cal L Rev 1045, 1071-76 (1985) (arguing that proponents of campaign finance reform face problems justifying those reforms with respect to the First Amendment and noting that those reforms may be self-interested and suspect). This concern is no doubt legitimate, but those who voice it have not explained why the failure to redistribute from a market baseline is immune from their skepticism about the motives of government actors.
332. See Sunstein, 59 U Chi L Rev at 263-92 (cited in note 41).
333. See Peller and Tushnet, 92 Georgetown L J at 793-95 (cited in note 207).
334. For an introduction, see generally Kalven, 1965 S Ct Rev 1 (cited in note 82). See also generally Ronald A. Cass, First Amendment Access to Government Facilities, 65 Va L Rev 1287 (1979) (examining the public forum doctrine and suggesting changes to it);
335. Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 S Ct Rev 233 (tracing the history of the public forum doctrine).
336. See Adderley v Florida, 385 US 39, 47 (1966): Nothing in the Constitution of the United States prevents Florida from even-handed enforcement of its general trespass statute against those refusing to obey the sheriffs order to remove themselves from what amounted to the curtilage of the jailhouse. The State, no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated.
337. See, for example, United States v Grace, 461 US 171, 183-84 (1983) (invalidating a statute that prevented the display of signs on the sidewalks around the Supreme Court building on the ground that sidewalks are traditional public fora);
338. Southeastern Promotions Ltd v Conrad, 420 US 546, 556-57 (1976) (holding that when a municipality operated a public theater, the denial of a petition to produce a musical constituted an unlawful prior restraint when there were no ascertainable standards for selection of presented materials);
339. Schneider v New Jersey, 308 US 147, 151-52 (1939) (reversing convictions for distributing handbills on public streets). For the seminal academic treatment of the issue,
340. see Kalven, 1965 S Ct Rev at 22-25 (cited in note 82).
341. See Perry Education Association v Perry Local Educators' Association, 460 US 37, 45-46 (1983) (holding that it was reasonable for a school district to exclude a rival union's communications once one union was certified as the district representative).
342. Grace, 461 US at 176.
343. Id at 177.
344. Kovacs v Cooper, 336 US 77, 102 (1949) (Black dissenting).
345. See, for example, Cornelius v NAACP Legal Defense and Education Fund, 473 US 788, 802-06 (1985) (holding that a charity fundraising drive for federal employees was not a public forum);
346. Taxpayers for Vincent, 466 US at 813-14 (holding that a publicly owned utility pole was not a public forum);
347. Heffron v International Society for Krishna Consciousness, 452 US 640, 650-52 (1981) (distinguishing fairgrounds from public streets).
348. See, for example, Cox v New Hampshsire, 312 US 569, 575-76 (1941) (upholding a permit regime requiring a license before holding a "parade" or "procession" on public street);
349. Clark v Community for Creative Non-violence, 468 US 288, 292-94 (1983) (upholding ban on sleeping in a public park as means of protest);
350. Ward v Rock against Racism, 491 US 781, 792-93 (1989) (upholding noise control measures in a public park).
351. See Cornelius, 473 US at 813-14 (Blackmun dissenting) (criticizing the Court for circular reasoning in holding that a charity drive was "not a limited public forum because the Government intended to limit the forum to a particular class of speakers").
352. See also Tribe, Constitutional Law at 996 (cited in note 90): This effectively turned the public forum doctrine on its head: carried to its logical conclusion, it would make nearly all restrictions on speech self-justifying, since the very fact that the government had denied the plaintiff access could be invoked to prove that the government never intended to create a public forum.
353. See, for example, note 239.
354. As Professor Tribe has written: [A]t least since 1939, it has been established that even a wholly neutral government regulation or policy, aimed entirely at harms unconnected with the content of any communication, may be invalid if it leaves too little breathing space for communicative activity, or leaves people with too little access to channels of communication, whether as would-be speakers or as would-be listeners. Tribe, Constitutional Law at 978 (cited in note 90). The canonical test for "neutral" government actions that incidentally impact speech was stated in United States v O'Brien, where the Court emphasized that the government interest must be "important or substantial" and "the incidental restriction on alleged First Amendment freedoms [must be] no greater than is essential to the furtherance of that interest."
355. See 391 US 367, 371 (1968). Despite the seeming stringency of this requirement, in practice the Court has often imposed only relaxed scrutiny in these situations, leading to validation of the questioned policy. See, for example, City of Erie v Pap's A.M., 529 US 277, 278-80 (2000) (upholding as contentneutral a public indecency statute against a First Amendment challenge from the operator of a nude dancing establishment);
356. Grayned v Rockford, 408 US 104, 113-14 (1972) (upholding an antinoise ordinance that prohibited disturbing the peace near schools while the schools were in session). The most dramatic instances where the Court has employed more restrictive scrutiny of such measures involve speech using "quintessential" public fora. See, for example, note 239. On occasion, however, the Court has invalidated such measures even when they do not involve use of public fora.
357. See, for example, Gilleo, 512 US at 55 (holding a measure that prevented posting of signs on one's own property unconstitutional despite the measure's content neutrality);
358. Simon & Schuster, 502 US at 118 (invalidating a measure that deprived criminals of proceeds derived from literary works despite the measure's content neutrality).
359. See also Alexander, Freedom of Expression 16 (cited in note 60) (arguing that the Court employs the same test in public forum and symbolic speech cases).
360. 518 US 727 (1996).
361. See id at 732-33.
362. See id at 737, 740-53 (Breyer plurality with Stevens, O'Connor, and Souter) (recognizing that "the First Amendment, the terms of which apply to governmental action, ordinarily does not itself throw into constitutional doubt the decisions of private citizens to permit, or to restrict, speech" but nonetheless resolving the free speech question with regard to the leased channel provisions on the merits); id at 760 (Breyer plurality with Stevens and Souter) (invalidating a public access provision despite its permissive nature); id at 782 (Kennedy concurring in part and dissenting in part) (arguing that both provisions are unconstitutional state action despite their permissive nature because "[s]tate action lies in the enactment of a statute altering legal relations between persons, including the selective withdrawal from one group of legal protections against private acts").
363. See Part II.B.1.
364. See Denver, 518 US at 737, 740-53 (Breyer plurality, with Stevens, O'Connor, and Souter).
365. See id at 782 (Kennedy, joined by Ginsburg, concurring in part, concurring in the judgment in part, and dissenting in part).
366. See text accompanying notes 194-95.
367. See generally Tabatha Abu El-Haj, The Neglected Right of Assembly, 56 UCLA L Rev (forthcoming 2009).
368. See Bruce A. Ackerman, Private Property and the Constitution 12 (Yale 1977) (discussing the concept of a "Comprehensive View," in which the content of laws will be judged by the extent to which they conform to the observer's views of how the legal system should function).
369. Id at 11.
370. See Robert Post, Recuperating First Amendment Doctrine, 47 Stan L Rev 1249, 1272 (1995) (arguing against ascribing one particular value, like "self-governance," that free speech is supposed to protect).
371. See Brief of Amicus Curiae, American Federation of Labor and Congress of Industrial Organizations, supporting Appellee, Federal Election Commission v Wisconsin Right to Life, Nos 06-969, 06-970, * 23-26 (filed Mar 23, 2007), available online at 2007 WL 894819 (arguing that there is no legitimate government interest in prohibiting labor unions from running "issue ads" referencing a particular candidate).