TRANSPORTING FIRST-AMENDMENT NORMS TO THE PRIVATE-SECTOR - WITH EVERYWISH THERE COMES A CURSE

Providing legal protection against free speech restrictions adopted by private groups, schools, employers, property owners, and other source s of private power has seemed to many a natural and appealing extensio n of this nation's powerful attachment to First Amendment limits on go vernmental restraint of speech-in part because of the sheer value of t he free speech norm, and in part due to impatience with the instabilit y and insufficient grounding of the public/private distinction reflect ed in state action doctrine. This Article identifies, and traces the d evelopment of, three alternate routes driven by this desire to restric t private power over private speech-judicial interpretation expansivel y applying the First Amendment itself to some seemingly private actors , similarly expansive judicial interpretation of free speech provision s in state constitutions, and legislative imposition of free speech no rms on private parties. The often overlooked or insufficiently appreci ated speech-redistributive effects of these approaches are highlighted and explored, as are the institutional and substantive drawbacks acco mpanying either their implementation or efforts to tame their inherent implications. In addition to advocating greater sensitivity to, and w ariness about, the pitfalls encountered along these ''transporting'' r outes-particularly the legislative route-this Article, using statutory imposed free speech obligations on private universities as a primary example, first examines a variety of extant constitutional doctrines p otentially available to private speech regulators to resist compelled adherence to First Amendment norms, and then suggests more fundamental ly that categorical governmental imposition of First Amendment obligat ions on private parties presumptively conflicts with the First Amendme nt's core protection against government-compelled orthodoxy-including a government-compelled orthodoxy of the First Amendment itself.