Occupational Speech and the First Amendment

As I have tried to explain above, granting full First Amendment protection to occupational speech is the only position that is consistent with binding Supreme Court precedent. It is also the only position that is consistent, more broadly, with the general trend of the Supreme Court’s First Amendment jurisprudence over the last 20 years, which has removed political speech from a position of privilege and now recognizes that speech on a wide variety of topics is entitled to robust constitutional protection. Whether that was, as Post and Shanor argue, a “radical[]” shift when it began in the 1990s, it is now merely the long-established law.
To be sure, there are those who wish this shift had never occurred, but even its most ardent critics recognize that it has occurred. Thus, whatever merit the democratic self-governance theory of First Amendment may have in the abstract, it is little help in resolving the actual First Amendment disputes that have plagued lower courts. Those courts, unlike academic commentators, are bound by precedent.

Paul Sherman

Harvard Law Review Forum

March 2015

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