The First Amendment, The Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate

This article proposes a major expansion in the scope of First Amendment law and offers a fresh way of understanding the public-private distinction. It contends that the Supreme Court should invoke the First Amendment to enjoin nongovernmental behavior that substantially impedes public political debate during times of war and national emergency. As the article explains, the present campaign against international terrorism has seen employers, property owners, and media corporations restrict political discussion more frequently and aggressively than the government has. If political debate is the most important object of First Amendment protection – which the article contends it is – then all assaults on political debate offend the First Amendment. However, under the conventional limitation of constitutional law to state action, nongovernmental censors stand beyond the amendment’s reach. To solve this dilemma, the article thoroughly analyzes and critiques the public-private distinction that undergirds the state action limitation in Constitutional Law. The article argues that courts should reconceive the distinction, which makes no sense in the abstract, as differentiating between institutions and natural persons. Such a reconception would allow courts to make nongovernmental institutions honor expressive rights, although some institutions – notably media organizations – would be able to present instrumental reasons for immunity from First Amendment obligations. The last part of the article proposes concrete standards for applying the First Amendment to the types of nongovernmental censorship that have occurred over the past two years