Friday, May 29, 2009
Inazu (recent Ph.D.) Publishes "Making Sense of Schaumberg: Seeking Coherence in First Amendement Charitable Solicitation Law"
John D. Inazu (Duke, recent PhD) recently published "Making Sense of Schaumberg: Seeking Coherence in First Amendment Charitable Solicitation Law," 92 Marquette L.R. 551 (2009). The article is available on the Marquette University Law Review webpage. Here is the introduction:
The Supreme Court shaped its approach to charitable solicitation in a trilogy of cases in the 1980s: Village of Schaumburg v. Citizens for a Better Environment, Secretary of State of Maryland v. Joseph H. Munson Co., and Riley v. National Federation of the Blind of North Carolina. Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left lower courts unable to judge “the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price.” The Eighth and Tenth Circuits interpret Schaumburg as an intermediate scrutiny test, the Third and Eleventh Circuits view it as a strict scrutiny test, and the Fourth Circuit has simply noted that the Court has been “unclear” about the appropriate standard. The lack of doctrinal coherence has also left an important form of speech without adequate First Amendment protections.
My objective in this Article is to articulate a framework for reviewing charitable solicitation regulation that better accounts for the important democratic values of this kind of speech. This requires understanding the relationship between charitable solicitation and related First Amendment concepts. I begin by reviewing the state of three of these concepts—content analysis, tiered scrutiny, and commercial speech—when the Court decided Schaumburg in 1980. In Part III, I review the Court’s charitable solicitation decisions. Part IV proposes an alternative test to that constructed under the Schaumburg-Munson-Riley trilogy. My normative approach accounts for the speaker-based interests related to charitable solicitation and builds upon a “civic conception of free speech” that better ensures “broad communication about matters of public concern” advanced both directly and indirectly through charitable solicitation.5 I contend that a balancing of interests rooted in a concern for democratic discourse offers a more principled and more cogent review of charitable solicitation regulation than the cumbersome formulations applied today.
For the entire article, go to this website: http://law.marquette.edu/lawreview/spring2009/Inazu.pdf