The right to free speech is meaningless without some place to exercise it. But constitutional scholarship generally overlooks the role that judicial doctrine plays in ensuring the availability of spaces for speech. Indeed, scholarship generally characterizes doctrines that are concerned with speech spaces, such as public forums and Internet forums, as “exceptions” to “standard”
First Amendment analysis. In response to normative arguments that the First Amendment should be concerned with ample speech spaces, many scholars simply respond with a descriptive claim about what doctrine currently is: they claim that the concern for spaces is only peripheral, “exceptional,” and at odds with “standard” First Amendment understandings. By overlooking or marginalizing decisions about speech spaces, as well as relying on this descriptive characterization of doctrine to reject normative arguments, scholarship has failed to recognize the logic underlying important doctrinal areas and has failed to explore what these doctrines reveal about the First Amendment’s core normative underpinnings.
This Article adopts a different approach. Rather than making the descriptive assumption that free speech doctrine is unconcerned with spaces, this Article identifies and interprets the Court’s role in ensuring, requiring, or permitting government to make spaces available for speech. This Article identifies five persistent judicial principles across a range of physical and virtual spaces. These principles are evident in precedent and practice that either require or permit government to ensure spaces for speech—in order to promote particular, substantive speech goals. Further, rather than quarantining these speech principles as exceptions to the “standard” analysis, this Article explores the significance of these principles for “core” speech doctrine and theory. The resulting analysis poses fundamental challenges to conventional wisdom about the First Amendment and the normative principles generally believed evident in doctrine. This Article provides timely guidance for legislators and judges, as it should inform statutory and constitutional decisions for shaping access to the technology enabled virtual spaces increasingly central to Americans’ discourse, to our liberty, and to our democracy.
The Thomas E. Fairchild Lecture, University of Wisconsin Law School, April 15, 2011
This Essay is part of an ongoing classroom study and clinical service project addressing the mindful education of law students and the civic training of lawyers. Its purpose is to build a pedagogy of community and public citizenship within an outcome-based, rotation curricular model of legal education sketched out by commonly allied scholars in prior work here in the Wisconsin Law Review and elsewhere
. The Essay seeks to advance this earlier curricular work by integrating ethics, education and psychology, and law and religion into a cohesive pedagogical approach to civic professionalism and community engagement. From the springboard of integration next follows a discussion of how normatively compatible a pedagogy of public citizenship and community is with traditional notions of the lawyering process and the adversary system. Additionally, the Essay explores the functional compatibility of public citizenship and community values with the current model of legal education. The issue of functional compatibility gains particular importance in light of recent and widening calls for institutional reform in legal education. The hope is to transform conventional notions of lawyer role and function in the adversary system and then, with those transformed notions in mind, restructure the curricular form and content of contemporary legal education to better serve communities in need through mindfulness and spirituality.
Popular constitutionalism defies easy definition. Its leading theorists fail to offer a common reading of constitutional history, a common methodology, or even a common set of remedies. Given these diverse approaches, it is little wonder that one recurring complaint among popular constitutionalism’s critics is that the theory itself is incoherent
. This criticism is overstated. Even as there are various strands of popular constitutionalism, its leading theorists do share one key attribute, a populist sensibility—a common belief that the American people (and their elected representatives) should play an ongoing role in shaping contemporary constitutional meaning. The question remains how best to achieve this shared goal, while also increasing popular constitutionalism’s normative appeal. In my view, the solution lies in committing to a broad-based agenda of both civic renewal and institutional reform—one that is as focused on the problems of legislative paralysis, incumbent entrenchment, and citizen apathy as it is on the threat posed by an aggressive judiciary. In this Essay, I outline such an agenda. In addition, I consider one reform proposal in detail—the public reconsideration of judicial decisions—or, as I shall call it, the “People’s veto.” In the end, I seek to show that one does not have to hold anti-Court views (or unrealistic expectations about the capacities of ordinary citizens) in order to accept that the American people should play a more direct, ongoing, deliberative role in constitutional decision-making.
Good-time programs have long been an important part of the American penal landscape. At least twenty-nine states and the federal government currently offer prison inmates early release, sometimes by many years, in return for good behavior. Written a generation ago, the leading law review article on good time presented a strong case against such programs
. Although good time is traditionally justified by reference to its usefulness in deterring inmate misconduct—credits can be denied or withdrawn as a penalty for violations of prison rules—the article questioned how it could possibly be just to impose additional incarceration based on mere violations of administrative regulations.
In response to this important challenge, the present Essay proposes a new way to conceptualize good-time credits, specifically, as a way to recognize atonement. Drawing on communicative theories of punishment, the Essay argues that good time can be seen as congruent with (and not, as is commonly supposed, in opposition to) the basic purposes of sentencing. The Essay then proposes reforms that would help good-time programs more fully to embody the atonement model.