Managing Dissent

Washington University Law Review Volume 95 Issue 6 2018 Managing Dissent Timothy Zick Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Constitutional Law Commons, First Amendment Commons, Law and Society Commons, and the Supreme Court of the United States Commons Recommended Citation Timothy Zick, Managing Dissent, 95 WASH. U. L. REV. 1423 (2018). Available at: https://openscholarship.wustl.edu/law_lawreview/vol95/iss6/10 This Symposium is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact . MANAGING DISSENT TIMOTHY ZICK In his insightful new book, Managed Speech: The Roberts Court’s First Amendment (2017), Professor Greg Magarian criticizes the Roberts Court for adopting a “managed speech” approach in its First Amendment cases. According to Professor Magarian, that approach gives too much power to private and governmental actors to manage public discourse, constrain dissident speakers, and instill social and political stability. This Article argues that at least insofar as it relates to many forms of public dissent, the managed speech approach is both deeply rooted in First Amendment jurisprudence and culturally prevalent. Historically, First Amendment jurisprudence has expressed support for narrowly managed public dissent. Expressive activities that pose no threat of actual disruption, and that do not risk undermining social and political stability, have been granted a preferred position. Managed speech attitudes and principles are part of our contemporary culture and politics. Public and private actors manage dissent from statehouses, to college campuses, to National Football League stadiums. Legislatures and executive officials have sought to curb public protests, universities have acted to limit campus dissent, and the NFL has faced pressure to dismiss players who refuse to stand at attention during the playing of the national anthem. In these contexts, officials and private institutions have sought to curb, tame, and marginalize public dissent. Efforts to manage dissent cut sharply against the alternative “dynamic diversity” model that Professor Magarian advocates in his book. Achieving that ideal will take more than a few Supreme Court decisions. It will require changing political and cultural attitudes concerning the meaning and value of public dissent. INTRODUCTION In his recently published book, Managed Speech: The Roberts Court’s First Amendment,1 Professor Greg Magarian criticizes the Roberts Court for adopting what he calls a “managed speech” approach that “seeks to reconcile substantial First Amendment protection for expressive freedom with aggressive preservation of social and political stability.” 2 Thus, in “government preserves” such as public streets and parks, the Roberts Court has generally upheld the authority of property owners to manage expressive 1. (2017). 2. GREGORY P. MAGARIAN, MANAGED SPEECH: THE ROBERTS COURT’S FIRST AMENDMENT Id. at xv. 1423 Washington University Open Scholarship 1424 WASHINGTON UNIVERSITY LAW REVIEW [VOL. 95:1423 activities.3 The same holds largely true, Professor Magarian argues, with regard to public universities.4 Private speech has been protected—one might alternatively say tolerated—mostly insofar as it has not been disruptive of social order or the political status quo. Professor Magarian concludes: “The Roberts Court, with a consistency and potency unique in the Supreme Court’s history, has authorized established, powerful institutions . . . to exercise managerial control over public discussion, with the apparent goal and typical result of pushing public discussion away from destabilizing, noisy margins and toward a stable, settled center.”5 In fact, “managed speech,” as Professor Magarian defines it, has long been a staple of First Amendment jurisprudence concerning public dissent. Although on a few occasions Professor Magarian refers to the Burger and Warren Courts, his analysis does not, for perfectly understandable reasons, generally cut across Courts. If it had, the study would have found that although the Supreme Court has at times extolled the virtues of dissent and disruption, it has generally supported public contention only insofar as the means are peaceful and non-disruptive. As Professor Magarian charges, the Roberts Court has generally empowered institutions to curb private dissent and manage government preserves in ways that maintain a certain kind of social and political stability. Although some of its decisions may have exacerbated this situation, the Roberts Court was not working on a blank slate. In most cases, it was applying deeply ingrained managerial speech attitudes, principles, and doctrines. Although we are a nation both literally and figuratively built on public dissent, restrictions on acts of dissent—public assembly, protest, and demonstrations—have been commonplace since at least the nineteenth century.6 The prevailing attitude is written into the First Amendment’s Assembly Clause, which protects not the right to assemble but the right to “peaceably” do so.7 Of course, dissenters have no First Amendment right 3. See TIMOTHY ZICK, SPEECH OUT OF DOORS: PRESERVING FIRST AMENDMENT LIBERTIES IN P UBLIC PLACES (2009). 4. Many commentators have been critical of this distinction, and in particular of the Court’s “state action” doctrine which applies constitutional limitations only to an increasingly narrow category of “state actors.” See, e.g., Martha Minow, Alternatives to the State Action Doctrine in the Era of Privatization, Mandatory Arbitration, and the Internet: Directing Law to Serve Human Needs, 52 HARV. C. R.-C. L. L. REV. 145 (2017); John Fee, The Formal State Action Doctrine and Free Speech Analysis, 83 N.C. L. REV. 569 (2005); Gregory P. Magarian, The First Amendment, the Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate, 73 GEO. WASH. L. REV. 101 (2004); Erwin Chemerinksy, Rethinking State Action, 80 NW. U. L. REV. 503 (1985). 5. MAGARIAN, supra note 1, at xv. 6. See generally Tabatha Abu El-Haj, The Neglected Right of Assembly, 56 UCLA L. REV. 543 (2009); Tabatha Abu El-Haj, Changing the People: Legal Regulation and American Democracy, 86 N.Y.U. L. REV. 1 (2011). 7. U.S. CONST. amend. I (protecting “the right of the people peaceably to assemble, and petition the Government for a redress of grievances”). https://openscholarship.wustl.edu/law_lawreview/vol95/iss6/10 2018] MANAGING DISSENT 1425 to engage in violent or criminal acts, but today’s “peaceable” assemblies and protests are managed far beyond these obvious limitations. To be sure, political dissenters and a virtual rogue’s gallery of speakers have won notable and celebrated victories at t (...truncated)