Friday, September 9, 2022
Weekend Frivolity: Our Dumb First Amendment
On Fridays, we often post about things that are funny and contract related or funny and not contract related and just contracts adjacent. Today, I am posting a link to my latest article, which I have uploaded to SSRN. Although the piece is about the First Amendment, there is a contracts argument in there, and the piece grew out of this blog post. It is, I hope, the first in a series of articles in which I argue that contractual rights and interests ought to be part of the rights mediation process that, following Jamal Greene, I think constitutional adjudication should entail.
Here's the abstract:
Fifty years ago, public school children in Iowa, including Mary Beth and John Tinker, protested the Vietnam War, signifying their political views by wearing black armbands. The Supreme Court found that the school violated the students' right to freedom of expression when it suspended them for their silent, solemn protest, which caused no substantial disruption and did not interfere with the rights of others.
In 2017, a junior varsity cheerleader, frustrated at not getting picked for the varsity squad, profanely expressed her disappointment in two Snaps that she shared with 250 followers, including other cheerleaders. Her coaches suspended her from the junior varsity team for one year. The Supreme Court, applying the same standard as applied in Tinker, found that the school's disciplinary actions violated the cheerleader's free expression rights.
This is dumb.
The Court's decision in Mahanoy Area School District v. B.L. is dumb because, even under Tinker, B.L.'s profane Snaps were disruptive in ways that the Tinkers' protests were not. It is dumb because the Court furthers no identifiable interest that the First Amendment is supposed to protect by preventing coaches from enforcing their own disciplinary rules. Finally, the Mahanoy decision is dumb because it is a product of the rights absolutism, identified by Jamal Greene in his 2021 book, How Rights Went Wrong. The Court provides near-absolute protection to certain privileged rights, broadly understood, while pretty much ignoring all other interests impacted by its decisions.
Following Greene, this Article advocates that courts engage in rights mediation, deciding only the cases before them. If the courts do so, they will, in many cases, return decision-making processes to politically accountable local officials. Our absolutized First Amendment jurisprudence is dumb, and it results in dumbed-down civil discourse. Not all expression demands the same protection as core political speech. There are other interests to be weighed, and each factual scenario brings with it its own constellation of rights and interests. The weighing of those interests is best achieved through local decision-making processes, and the courts’ role in such matters ought to be small and incremental.
I submitted this article early in the August law review sweeps. Crickets. So now it is in shop. Comments more than welcome.