In this Essay, I want to unearth some subordinated strands in the Rehnquist Court's free speech jurisprudence. For example, the Rehnquist Court allowed Congress to regulate campaign finance in ways subject to credible First Amendment objections, and to impose obligations on cable television systems that would almost certainly be unconstitutional were they imposed on newspapers. These decisions, I suggest, do not rest simply on the kind of deference to legislative judgment that fits comfortably into a system of strong-form review. Rather, they represent what I call a managerial model of the First Amendment, which accords legislatures a large role in setting rules that, in the judges' eyes, aim to maximize either the amount or the diversity of views disseminated through society. The managerial model exemplifies what I call weak-form judicial review, a form of judicial review in which judges' rulings on constitutional questions are expressly open to legislative revision in the short run.
41 Harv. C.R.-C.L. L. Rev. 1-22 (2006)
Scholarly Commons Citation
Tushnet, Mark V., "Weak-Form Judicial Review and "Core" Civil Liberties" (2006). Georgetown Law Faculty Publications and Other Works. Paper 240.