When Students Speak: Judicial Review in the Academic Marketplace
![handle is hein.journals/yalpr7 and id is 349 raw text is: When Students Speak: Judicial Review In
The Academic Marketplace
C. Thomas Dienes*
and Annemargaret Connolly**
As with most absolutes in constitutional law, the Supreme
Court's rule against regulating the content of speech is more a state-
ment of a bias than an imperative.' Among the qualifications the
Court has made to the bias against content regulation, the most po-
tentially sweeping involves government limitations on expression in
restricted environments or special contexts. In the context of the
military,2 prisons,3 government employment4 and the public
* General Counsel, U.S. News & World Report; Professor of Law (on leave),
George Washington University National Law Center; B.S. 1961, Loyola University, Chi-
cago; J.D. 1964, Northwestern University; Ph.D. 1968, Northwestern University.
** Attorney, Weil, Gotshal & Manges, Washington, D.C.; B.A. 1984, Syracuse Uni-
versity;J.D. 1988, George Washington University National Law Center.
The authors wish to express their appreciation to Professors Jerome A. Barron, Stan-
ley Ingber, Martin H. Redish and Mark V. Tushnet and to Stephen R. Verbit, Patrick
Ankuda and those attorneys at Weil, Gotshal & Manges, who read and commented on a
draft of this article. Sanford Greenburg and Elena Paoli, students at George Washing-
ton University National Law Center, provided valuable research assistance.
1. In Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972), holding unconstitu-
tional a statute proscribing picketing other than labor picketing, the Court stated:
[A]bove all else, the First Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content. How-
ever, the Court has limited this broad principle in several significant ways. For example,
the alleged rule applies only to expression which is part of the freedom of speech.
Content-based regulation of speech that is categorically excluded from the first amend-
ment is permitted. Even when the speech is within the protective confines of the free-
dom of speech, government regulation can be justified, but it is subject to the most
exacting scrutiny. Boos v. Barry, 108 S. Ct. 1157, 1164 (1988).
2. See Goldman v. Weinberger, 106 S. Ct. 1310 (1986) (application of Air Force reg-
ulation to prevent airman, who was also an ordained rabbi, from wearing his yarmulke,
held constitutional); Parker v. Levy, 417 U.S. 733 (1974) (court-martial conviction of
army physician for making statements critical of certain personnel and urging resistance
to Vietnam War upheld); Brown v. Glines, 444 U.S. 348 (1980) (upholding, against
vagueness and overbreadth challenge, an Air Force regulation prohibiting service per-
sonnel from circulating petitions or posting materials on military base without prior ap-
proval of base commander). See generally Dienes, When the First Amendment Is Not
Preferred: The Military and Other 'Special Contexts,' 56 U. Cin. L. Rev. 779 (1988).
3. See, e.g., O'Lone v. Estate of Shabazz, 107 S. Ct. 2400, 2404 (1987) (prison policy
that prevented prisoners from fulfilling Islamic religious obligation of attendance at reli-
gious services held constitutional) (To ensure that courts afford appropriate deference
to prison officials, we have determined that prison regulations alleged to infringe consti-
tutional rights are judged under a 'reasonableness' test less restrictive than that ordina-
rily applied to alleged infringements of fundamental constitutional rights); Turner v.
Safley, 107 S. Ct. 2254, 2261 (1987) (restrictions on correspondence of inmates upheld
343](ViewImageLocal?handle=hein.journals/yalpr7&div=15&collection=&method=preview&ext=.png&size=3)
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When Students Speak: Judicial Review in the Academic Marketplace
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