Policing's Free-Speech Problem

The central claim of this Article is that a significant share of typical policing activity is wildly and egregiously unconstitutional. More precisely, police regularly, predictably, and systematically violate the hardest, most settled core of free-speech law under the First Amendment. We have grown to tolerate these violations—we have not even noticed them!—because they are difficult to litigate. But they are inescapable. Having seen them, we cannot abide these violations without entirely overturning the modern understanding of free-speech rights under the First Amendment. It is well-settled that, under the First Amendment, the government generally may not discriminate against (or in favor of) civilian expression based on the viewpoint it expresses. This constitutional bulwark is strongest with respect to political viewpoints expressed in traditional public forums, like public parks and streets. Legal challenges alleging unconstitutional viewpoint discrimination are most successful when they target formal or de jure discrimination—protocols rendered in writing, such as statutes, ordinances, and official policies. Yet the courts have long recognized that the principle of viewpoint neutrality precludes de facto favoritism as well, such as favoritism grounded in the informal choices of legal officials. This remains true even though unwritten exercises of official discretion tend to obscure discriminatory intent and thus preclude most legal challenges. Police are uniquely positioned within this First Amendment landscape. No other officials possess the same combination of means, motive, and opportunity to engage in widespread, de facto viewpoint discrimination. Most notably, police carry a distinctive blend of selfinterest, power, and presence in traditional public forums to suppress core political speech critical of (or disrespectful toward) policing. Evidence that police capitalize on these factors has been accumulating for years, though it has perhaps accelerated more recently, since the murder of George Floyd. Police disproportionately target Black Lives Matter and other police-reform protesters for violence and arrests. They engage in work slowdowns meant to influence political movements pushing for police reform. And their vengeful use of discretionary authority against civilians perceived as disrespectful of police authority is so common that we have a name for it: “contempt of cop.” There are many arguments for police reform grounded in generalized concerns about the high costs, low efficacy, shocking violence, and racial biases associated with policing. This Article develops a new, purely constitutional argument that bears directly on police reform: Contemporary policing is not only a monument to a controversial model of social control; it is also a