November 2009 Vol. 108 No. 2 THE REVIEW

Free Speech Federalism

Adam Winkler

For decades, constitutional doctrine has held that the Constitution’s guarantee of freedom of speech applies equally to laws adopted by the federal, state, and local governments. Nevertheless, the identity of the government actor behind a law may be a significant, if unrecognized, factor in free speech cases. This Article reports the results of a comprehensive study of core free speech cases decided by the federal courts over a 14-year period. The study finds that speech-restrictive laws adopted by the federal government are far more likely to be upheld than similar laws adopted by state and local governments. Courts applying strict scrutiny in free speech cases upheld federal speech laws in 56% of cases, state speech laws in 24% of cases, and local speech laws in a remarkably low 3% of cases. It turns out that one of the best predictors of whether a law impinging on speech rights will be upheld is the identity of the governmental actor who adopts the law. The reasons for this “free speech federalism” and the implications of this phenomenon for constitutional adjudication are explored.

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