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Labor and Employment Law

First Amendment

2007

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Full-Text Articles in Law

Students And Workers And Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine, Scott A. Moss Jan 2007

Students And Workers And Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine, Scott A. Moss

Articles

First Amendment free speech doctrine has been called "institutionally oblivious" for ignoring how different institutions present different legal questions. This Article analyzes a little-discussed phenomenon in the growing literature about institutional context in constitutional law. With certain institutions, the situation is not institutional obliviousness but the opposite: extreme institutional tailoring of speech doctrine. The burden of proof ordinarily is on the government to justify speech restrictions, but in three institutions--public schools, workplaces, and prisons--courts allow heavy speech restrictions and defer to government officials. Even if these institutions need to restrict speech unusually often, why do we need different doctrine--institutionally tailored ...