Iowa L. Rev. 911 (2024)



Since the Warren Court’s landmark First Amendment decisions of the 1960s, the Supreme Court has aggressively deployed the Free Speech Clause to provide broad substantive protections for expressive freedoms. These rules, in theory, should effectively safeguard the marketplace of political ideas and facilitate both speaker and audience autonomy. No matter how broadly fashioned, however, a constitutional rule is only as strong as the remedies available to enforce it—and far too often, First Amendment remedies are either woefully weak or effectively nonexistent. When a would-be First Amendment plaintiff cannot obtain a meaningful remedy for a proven constitutional violation, the substantive rule will not effectively safeguard expressive activities against government censorship.

In several important areas of First Amendment law, available remedies are inadequate. Government employees who want to blow the whistle on unlawful, or even patently unconstitutional, government conduct must risk discharge and face obstacles in securing future employment. So too, pretextual arrests of journalists engaged in newsgathering activities significantly chill such activity going forward—yet no effective remedy currently exists for this kind of targeted government effort to suppress reporting on matters of public concern. Finally, local zoning ordinances often silence disfavored would-be speakers based on the content of their message through highly selective signage bans—thereby preventing the intended audience from receiving messages they would like to see.

The Supreme Court and all courts must fashion and enforce effective First Amendment remedies. This Article argues that the Supreme Court’s entire theory of First Amendment remedies requires both reimagining and reinvigoration. Existing law only imperfectly redresses harms to a would-be speaker and often fails to remedy harms to the audience at all. The interest of We the People in hearing, seeing, or reading a message needs to be an important part of the remedial analysis—but today just isn’t. When the government censors speech, it harms not only the would-be speaker, but also the would-be audience. This Article recalibrates the relationship between harm and remedy via a theoretical framework: (1) enduring equity; (2) bounded discretion; (3) proportional relief; (4) correlative function; and (5) tangible remedies. First Amendment remedies law must redress effectively both personal and collective expressive injuries. This Article proposes pathways and equitable remedies that will safeguard First Amendment rights comprehensively and effectively—thereby facilitating the process of democratic deliberation.

Friday, March 15, 2024