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54 Harv. C.R.-C.L. L. Rev. 365 (2019)
City Speech

handle is hein.journals/hcrcl54 and id is 377 raw text is: City Speech Yishai Blank* Cities speak. A rich array of expressive activities, city speech, surrounds us. Cities topple confederate monuments, fly LGBT pride flags on City Hall, erect monuments commemorating victims of sexual violence, and issue statements that oppose the policies of state and federal governments. They disseminate informa- tion concerning climate change, hydraulic fracking, and the impact of minimum wage on poorer populations. They participate in statewide ballot initiatives, and they hire lobbyists to advocate for litigation. But cities have to obtain permission from states to do these things, and increasingly, they are being silenced. In our era of political polarization, states have become hostile to local policymaking, and thus have begun to employ measures to prohibit a variety of expressive activities by cities. City speech embodies the values of localism, of the First Amendment, and of federalism. It promotes democratic self-government, policy experimentation and innovation, representation of minority views, and economic efficiency and redistribution. It also promotes the ongoing search for truth and the flourishing of an open marketplace of ideas. Cities are structured, legally and politically, to excel at speech. They are separately and democratically elected institutions that function as frontline posts for policymaking, regularly facing economic, social, environmental, and political challenges. As relatively small, nimble, and respon- sive entities, cities are thus well placed to stir democratic civic engagement in politics. Cities are diverse in their social, economic, religious, ethnic, racial, and political composition, hence their plural expressions reflect the diverse na- ture of our nation better than other levels of government. These values are threatened by the silencing measures recently adopted by many states. This Article proposes that city speech should enjoy the constitutional pro- tection of the First Amendment. Such protection is necessary for the values of city speech to withstand state-led threats. In contrast to one traditional view of cities as creatures of the state, this Article argues that there is a doctrinal path for the recognition of city speech as a constitutional and organizational right. Cities are hybrid creatures of government and corporation. Legal doctrine has long viewed them as constitutional property right-bearers but has denied them a variety of government privileges. Simultaneously, corporations have gained a far-reaching recognition of their right to speak And while the government speech doctrine protects various municipal expressions against private dissent- ers, it leaves cities unarmed against silencing measures by their own states. Giving our cities free speech rights is not only doctrinally consistent and norma- tively justified; it has become necessary in order to protect the democratic vital- ity our cities symbolize. *Professor, Tel Aviv University Law School. I wish to thank Jessica Bulman-Pozen, Michael Birnack, Nestor Davidson, Jerry Frug, Roy Kreitner, David Schleicher, Rich Schrag- ger, Don Spivak, and Issi Rosen-Zvi as well as the participants of faculty workshop at the Tel Aviv University Buchmann Faculty of Law, and the 7th Annual State & Local Government Law Works-in-Progress Conference at Fordha Law School for extremely helpful ideas, sug- gestions, and critiques. I benefited greatly from insightful conversations on the ideas presented in this Article with David Barron, Yocha Benkler, Molly Brady, Richard Fallon, Noah Feld- man, Jake Gersen, Koby Kastiel, Roy Kreitner, Tim Meyer, Frank Michelman, Ben Sachs, Kevin Stack, Matthew Stephenson, Sabeel Rahman, and Daphna Renan. I also thank David Kimball, Justin Mann, Anat Ovadia-Rosner, Mlon Jasper, Dina Wecker, Jonathan Hasdai, and Anat Vaidergom for wonderful research assistance. Special thanks go to my superb editors at the Harvard C.R-C.L. Law Review, whose invaluable work and suggestions helped me im- prove this Article. This Article has benefited from the generous support of the Israel Science Foundation (1SF Grant No. 1464/16). Errors are mine alone.

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