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Unequal Enforcement of the Equal Time Rule: Late Night, Talk Radio, and the News Interview Exemption

Introduction

It is rare for the head of a regulatory agency like the Federal Communications Commission (“FCC”) to emerge as a central figure in popular and political discourse. But in his short time as FCC chair, Brendan Carr—through his public criticism of television shows and networks,1 1.As an FCC commissioner, two months before becoming chair, Carr falsely accused Saturday Night Live of violating the law by including a cameo appearance by Democratic presidential nominee Kamala Harris. See Emma Colton, FCC Commissioner Rips NBC Over Harris’ Last-Minute SNL Appearance: ‘Plainly Designed to Evade’ the Rules, FOX News (Nov. 3, 2024, at 13:53 ET), https://www.foxnews.com/politics/fcc-commissioner-rips‌-nbc-over-harris-last-minute-snl-appearance-plainly-designed-evade-rules [https://perma.cc/‌57D5-EM63]. NBC offered equal time to Donald Trump, so there was no violation. Stephen Battaglio, Trump Campaign Gets Equal Time from NBC After Harris SNL Appearance, L.A. Times (Nov. 4, 2024, at 13:35 PT), https://www.latimes.com/entertainment-arts/busines‌s/story/2024-11-04/trump-campaign-gets-equal-time-from-nbc-after-harris-snl-appearance [https://perma.cc/5JBS-F3DV].Show More and his threats over entertainment programming2 2.After Jimmy Kimmel joked on air about the assassination of Charlie Kirk, Carr said, “we can do this the easy way or the hard way” while discussing potential regulatory actions against ABC. Benny Johnson, Kash Patel Testifying LIVE Now on Charlie Kirk Assassin | Dark Texts with Trans Boyfriend Released . . . , at 1:30:03 (YouTube, Sep. 17, 2025), https://www.youtube.com/watch?v=4dNxPINQdcs. Following Carr’s comments, ABC suspended Kimmel. John Koblin, Michael M. Grynbaum & Brooks Barnes, ABC Pulls Jimmy Kimmel Off Air for Charlie Kirk Comments After F.C.C. Pressure, N.Y. Times (Sep. 17, 2025), https://www.nytimes.com/2025/09/17/business/media/abc-jimmy-kimmel.html.Show More and news coverage3 3.Carr threatened to revoke the licenses of broadcasters who aired false or “hoax[]” coverage of the war in Iran, echoing President Donald Trump’s call to target “[u]npatriotic” news organizations. Joseph Stepansky, Threats Over Iran War Bare Trump Efforts to Transform Free Speech: Experts, Al Jazeera (Mar. 23, 2026), https://www.aljazeera.com/ne‌ws/2026/3/23/threats-over-iran-war-bare-trump-efforts-to-transform-free-speech-experts [https://perma.cc/W44J-3FHS].Show More—has become one of the most controversial figures in government.

More consequential than Carr’s rhetoric are the policy decisions he has directed. One of those, the focus of this Essay, is the FCC’s public notice in early 20264 4.Fed. Commc’ns Comm’n, DA 26-68, FCC’s Media Bureau Provides Guidance on Political Equal Opportunities Requirement for Broadcast Television Stations (Jan. 21, 2026) [hereinafter 2026 Equal Time Notice], https://docs.fcc.gov/public/attachments/DA-26-68A1.‌pdf [https://perma.cc/KEG7-7L6L].Show More of a change to its interpretation of the Equal Opportunity Rules.5 5.47 U.S.C. § 315. Part (a) outlines what is generally referred to as the Equal Time Rule while part (b) outlines rules regarding candidate advertising.Show More Under § 315(a) of the Communications Act, generally referred to as the Equal Time Rule, when legally qualified candidates for office appear in broadcast programming, the broadcaster must offer the same amount of time to opposing candidates.6 6.Id. § 315(a).Show More But the statute exempts “bona fide news” appearances, including newscasts, news interviews, news documentaries, and news events.7 7.Id. § 315(a)(1)–(4).Show More The FCC has historically interpreted the news interview exemption broadly to include programs like The Tonight Show and the old Howard Stern radio show.8 8.See infra notes 68–72 and accompanying text.Show More

Despite this long-established interpretation, Carr criticized ABC’s daytime talk show The View, accusing it of violating the law by platforming Democratic candidates without offering equal time to Republicans.9 9.Radhamely De Leon, FCC Head Warns It Could Be “Worthwhile” To “Look Into” Whether ‘The View’ Is Violating FCC Rules, The Decider (Sep. 19, 2025, at 10:54 ET), www.decider.com/2025/09/19/fcc-view-violating-rules [https://perma.cc/3A23-VUZX].Show More Then, on January 21, 2026, the Media Bureau released a public notice (hereinafter 2026 Equal Time Notice) asserting that it would no longer presume that late-night and daytime television talk shows qualify for the news interview exemption.10 10.2026 Equal Time Notice, supra note 4, at 3–4.Show More Shortly thereafter, Carr acknowledged that the FCC had begun to formally investigate The View.11 11.Fed. Commc’ns Comm’n, February 2026 Open Commission Meeting, at 58:20 (YouTube, Feb. 18, 2026) [hereinafter FCC, February 2026 Meeting], https://www.youtube.‌com/watch?v=UW0Tsya97-o. In May, Disney and some of its local affiliates petitioned the FCC for a declaration that The View is a bona fide news interview program, and the FCC responded by opening up a public comment period ending July 6. Fed. Commc’ns Comm’n, Comment on Petition by Disney’s ABC Asking the FCC to Declare That The View Qualifies as a Bona Fide News Interview Program, MB Docket No. 26-124, DA 26-517 (May 22, 2026), https://docs.fcc.gov/public/attachments/DA-26-517A1.pdf [https://perma.cc/978G-Q‌37U]. If the FCC takes even 90 days to respond (a timeline it is not obligated to adhere to), this could leave the matter unresolved through Election Day.Show More Conspicuously, the 2026 Equal Time Notice makes no mention of broadcast radio, where conservative talk shows dominate and Republican candidates appear routinely.12 12.See infra Part III.Show More The notice warns against the platforming of candidates for “partisan purposes”13 13.2026 Equal Time Notice, supra note 4, at 3.Show More but directs this and its other admonitions solely at broadcast television.

The controversy over the FCC’s new approach peaked after CBS lawyers told Late Show host Stephen Colbert on February 16, 2026, that he had to scrap a planned guest appearance by Democratic U.S. Senate candidate James Talarico, and that he could not mention the ban on the air.14 14.The Late Show with Stephen Colbert, Why CBS Didn’t Broadcast Stephen Colbert’s Interview with James Talarico, at 01:34 (YouTube, Feb. 16, 2026), https://www.youtube.co‌m/watch?v=oh7DPSP65JA.Show More Colbert defied them in part by revealing to his audience what had transpired behind the scenes.15 15.Id.Show More He then posted his interview with Talarico online,16 16.See generally The Late Show with Stephen Colbert, Rep. James Talarico on Confronting Christian Nationalism, and the Strange Days in the Texas Legislature (YouTube, Feb. 17, 2026), https://www.youtube.com/watch?v=oiTJ7Pz_59A.Show More where the equal opportunities laws do not apply.17 17.See 47 U.S.C. § 315(a)–(b) (imposing obligations solely on “licensee[s]” who allow candidates to appear on their “broadcasting station[s]”).Show More

Reaction to the Colbert incident was intense, with people from across the political spectrum suddenly debating about these obscure regulations that have been in force since the Radio Act of 192718 18.Radio Act of 1927, 47 U.S.C. §§ 81–119, repealed by, Communications Act of 1934, ch. 652, § 602(a), 48 Stat. 1102.Show More but have rarely captured much public attention. Public discussion about the rules has been intense but often uninformed, with some people confusing the equal opportunities provisions with the defunct Fairness Doctrine,19 19.Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249–50 (1949) (requiring broadcasters to address issues of public significance and air competing points of view on those issues). The Fairness Doctrine was abandoned by the FCC as policy in Syracuse Peace Council, 2 FCC Rcd. 5043 (1987).Show More or conflating § 315(a), the equal time provisions, with § 315(b), which requires broadcasters to provide equal access and reduced rates for political advertising.20 20.47 U.S.C. § 315(b)(1)–(2).Show More Grounded debate on this issue is urgently needed.

This Essay seeks to contribute to the conversation in three ways. First, it presents the results of an empirical analysis of some prominent television and radio talk shows, testing some of the assumptions underlying the 2026 Equal Time Notice and Carr’s critiques. Second, it offers a critical analysis of the FCC’s equal time reversal, concluding that in addition to being bad policy built on false assumptions and imposed through flawed processes, it violates both the First Amendment and the anti-censorship provision of the Communications Act.21 21.Id. § 326 (“Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.”).Show More The final aim of the Essay is to provide some context for this debate by offering a snapshot history of the Equal Opportunity Rules and the FCC’s interpretation and application of them over time.

Although this Essay is about policy, not personality, they cannot easily be separated here. Carr takes direction from President Trump in ways that are unusual for an agency head, and Carr even scrubbed the FCC website of references to its status as an “independent agency.”22 22.David Shepardson, FCC Deletes Reference to Agency Independence During US Senate Hearing, Reuters (Dec. 17, 2025, at 17:58 ET), https://www.reuters.com/business/media-tele‌com/fcc-deletes-reference-agency-independence-during-us-senate-hearing-2025-12-17 [https‌://perma.cc/BB9U-T2AN].Show More Carr also echoes President Trump’s pointed rhetoric, railing against the “fake news media,”23 23.FCC, February 2026 Meeting, supra note 11, at 56:45.Show More insulting individuals like “sleepy-eyed Chuck Todd,”24 24.PBS NewsHour, WATCH LIVE: FCC Chair Brendan Carr Speaks at CPAC, at 02:38 (YouTube, Mar. 27, 2026), https://www.youtube.com/watch?v=uP8r6oE2Y5M.Show More and accusing mainstream media of having “Trump derangement syndrome.”25 25.FCC, February 2026 Meeting, supra note 11, at 55:55.Show More On March 27, 2026, Carr told the audience at the CPAC Convention that Trump is taking on the fake media and he “is winning,”26 26.PBS NewsHour, supra note 24, at 02:30.Show More even though “we[]”27 27.Id. at 02:55 (emphasis added).Show More have not yet finished the mission. Carr then rattled off the victories: liberal hosts and reporters like Joy Reid, Chuck Todd, and Jim Acosta are no longer on the air; Democratic-leaning shows like The Late Show with Stephen Colbert have been cancelled; and funding for public media has been zeroed out.28 28.Id.Show More Carr also extolled the Paramount takeover of CBS and promised the crowd, “CNN is gonna have new ownership as well.”29 29.Id.Show More Carr’s public statements mirror his policy moves and the FCC’s enforcement actions, which have largely targeted liberal media while protecting conservative ones.30 30.For example, after outgoing FCC chair Jessica Rosenworcel dismissed several complaints against broadcast stations because they threatened the stations’ First Amendment rights, Carr reinstated the complaints, but only the ones targeting ABC, CBS, and NBC stations, not the ones targeting FOX affiliates. See Katie Kwasneski, FCC Investigations Under Trump Could Hurt Broadcasters, Gateway Journalism Rev. (Feb. 27, 2025), https://ga‌tewayjr.org/fcc-investigations-under-trump-could-hurt-broadcasters/ [https://perma.cc/3ZL4-‌2SKT].Show More To be clear, the new 2026 Equal Time Notice is defective, independent of Carr’s proclivities, but his comments and actions raise questions about his motives that are relevant to assessments of the policy’s legitimacy and constitutionality.31 31.See infra notes 132–33 and accompanying text. It is also important to note that the FCC only has three sitting commissioners: Carr, fellow Republican Olivia Trusty, and Democrat Anna Gomez. The other two slots are vacant. See Leadership, Fed. Commc’ns Comm’n, https://www.fcc.gov/about/leadership [https://perma.cc/6BZF-DWGU] (last visited July 16, 2026). This gives Carr even more unchecked discretion, and he also personally directs the Media Bureau, which is driving much of this activity. Brendan Carr, Fed. Commc’ns Comm’n, https://www.fcc.gov/about/leadership/brendan-carr/staff [https://p‌erma.cc/7YBE-42SW] (last visited July 19, 2026).Show More

Part I of this Essay addresses the original rationale for the equal opportunities law and shows that—in part because of the broad scope of the bona fide news exceptions—enforcement has focused almost exclusively on appearances by candidates in entertainment programming under § 315(a), and on advertising access under § 315(b). Part II addresses the bona fide news exceptions, their origins, and how they have been applied over time. Part III outlines the results of the empirical analysis of candidate appearances on several daytime and late-night TV talk shows, and on some nationally syndicated and local talk radio shows. This research shows how common candidate appearances are on both broadcast TV and radio, and how stark the differences are, with Republicans getting significantly less attention than Democrats on TV talk shows, but with Democrats entirely absent from leading talk radio shows. Secondary analysis also shows that candidate interviews in all these formats are generally substantive, and there is no reason to remove any of these shows from the news interview exemption. Part IV critiques the FCC’s new enforcement notice, arguing that it is an arbitrary and capricious change that also violates the First Amendment.

  1.  As an FCC commissioner, two months before becoming chair, Carr falsely accused Saturday Night Live of violating the law by including a cameo appearance by Democratic presidential nominee Kamala Harris. See Emma Colton, FCC Commissioner Rips NBC Over Harris’ Last-Minute SNL Appearance: ‘Plainly Designed to Evade’ the Rules, FOX News (Nov. 3, 2024, at 13:53 ET), https://www.foxnews.com/politics/fcc-commissioner-rips‌-nbc-over-harris-last-minute-snl-appearance-plainly-designed-evade-rules [https://perma.cc/‌57D5-EM63]. NBC offered equal time to Donald Trump, so there was no violation. Stephen Battaglio, Trump Campaign Gets Equal Time from NBC After Harris SNL Appearance, L.A. Times (Nov. 4, 2024, at 13:35 PT), https://www.latimes.com/entertainment-arts/busines‌s/story/2024-11-04/trump-campaign-gets-equal-time-from-nbc-after-harris-snl-appearance [https://perma.cc/5JBS-F3DV]. ↑
  2.  After Jimmy Kimmel joked on air about the assassination of Charlie Kirk, Carr said, “we can do this the easy way or the hard way” while discussing potential regulatory actions against ABC. Benny Johnson, Kash Patel Testifying LIVE Now on Charlie Kirk Assassin | Dark Texts with Trans Boyfriend Released . . . , at 1:30:03 (YouTube, Sep. 17, 2025), https://www.youtube.com/watch?v=4dNxPINQdcs. Following Carr’s comments, ABC suspended Kimmel. John Koblin, Michael M. Grynbaum & Brooks Barnes, ABC Pulls Jimmy Kimmel Off Air for Charlie Kirk Comments After F.C.C. Pressure, N.Y. Times (Sep. 17, 2025), https://www.nytimes.com/2025/09/17/business/media/abc-jimmy-kimmel.html. ↑
  3.  Carr threatened to revoke the licenses of broadcasters who aired false or “hoax[]” coverage of the war in Iran, echoing President Donald Trump’s call to target “[u]npatriotic” news organizations. Joseph Stepansky, Threats Over Iran War Bare Trump Efforts to Transform Free Speech: Experts, Al Jazeera (Mar. 23, 2026), https://www.aljazeera.com/ne‌ws/2026/3/23/threats-over-iran-war-bare-trump-efforts-to-transform-free-speech-experts [https://perma.cc/W44J-3FHS]. ↑
  4.  Fed. Commc’ns Comm’n, DA 26-68, FCC’s Media Bureau Provides Guidance on Political Equal Opportunities Requirement for Broadcast Television Stations (Jan. 21, 2026) [hereinafter 2026 Equal Time Notice], https://docs.fcc.gov/public/attachments/DA-26-68A1.‌pdf [https://perma.cc/KEG7-7L6L]. ↑
  5.  47 U.S.C. § 315. Part (a) outlines what is generally referred to as the Equal Time Rule while part (b) outlines rules regarding candidate advertising. ↑
  6.  Id. § 315(a). ↑
  7.  Id. § 315(a)(1)–(4). ↑
  8.  See infra notes 68–72 and accompanying text. ↑
  9.  Radhamely De Leon, FCC Head Warns It Could Be “Worthwhile” To “Look Into” Whether ‘The View’ Is Violating FCC Rules, The Decider (Sep. 19, 2025, at 10:54 ET), www.decider.com/2025/09/19/fcc-view-violating-rules [https://perma.cc/3A23-VUZX]. ↑
  10.  2026 Equal Time Notice, supra note 4, at 3–4. ↑
  11.  Fed. Commc’ns Comm’n, February 2026 Open Commission Meeting, at 58:20 (YouTube, Feb. 18, 2026) [hereinafter FCC, February 2026 Meeting], https://www.youtube.‌com/watch?v=UW0Tsya97-o. In May, Disney and some of its local affiliates petitioned the FCC for a declaration that The View is a bona fide news interview program, and the FCC responded by opening up a public comment period ending July 6. Fed. Commc’ns Comm’n, Comment on Petition by Disney’s ABC Asking the FCC to Declare That The View Qualifies as a Bona Fide News Interview Program, MB Docket No. 26-124, DA 26-517 (May 22, 2026), https://docs.fcc.gov/public/attachments/DA-26-517A1.pdf [https://perma.cc/978G-Q‌37U]. If the FCC takes even 90 days to respond (a timeline it is not obligated to adhere to), this could leave the matter unresolved through Election Day. ↑
  12.  See infra Part III. ↑
  13.  2026 Equal Time Notice, supra note 4, at 3. ↑
  14.  The Late Show with Stephen Colbert, Why CBS Didn’t Broadcast Stephen Colbert’s Interview with James Talarico, at 01:34 (YouTube, Feb. 16, 2026), https://www.youtube.co‌m/watch?v=oh7DPSP65JA. ↑
  15.  Id. ↑
  16.  See generally The Late Show with Stephen Colbert, Rep. James Talarico on Confronting Christian Nationalism, and the Strange Days in the Texas Legislature (YouTube, Feb. 17, 2026), https://www.youtube.com/watch?v=oiTJ7Pz_59A. ↑
  17.  See 47 U.S.C. § 315(a)–(b) (imposing obligations solely on “licensee[s]” who allow candidates to appear on their “broadcasting station[s]”). ↑
  18.  Radio Act of 1927, 47 U.S.C. §§ 81–119, repealed by, Communications Act of 1934, ch. 652, § 602(a), 48 Stat. 1102. ↑
  19.  Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249–50 (1949) (requiring broadcasters to address issues of public significance and air competing points of view on those issues). The Fairness Doctrine was abandoned by the FCC as policy in Syracuse Peace Council, 2 FCC Rcd. 5043 (1987). ↑
  20.  47 U.S.C. § 315(b)(1)–(2). ↑
  21.  Id. § 326 (“Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.”). ↑
  22.  David Shepardson, FCC Deletes Reference to Agency Independence During US Senate Hearing, Reuters (Dec. 17, 2025, at 17:58 ET), https://www.reuters.com/business/media-tele‌com/fcc-deletes-reference-agency-independence-during-us-senate-hearing-2025-12-17 [https‌://perma.cc/BB9U-T2AN]. ↑
  23.  FCC, February 2026 Meeting, supra note 11, at 56:45. ↑
  24.  PBS NewsHour, WATCH LIVE: FCC Chair Brendan Carr Speaks at CPAC, at 02:38 (YouTube, Mar. 27, 2026), https://www.youtube.com/watch?v=uP8r6oE2Y5M. ↑
  25.  FCC, February 2026 Meeting, supra note 11, at 55:55. ↑
  26.  PBS NewsHour, supra note 24, at 02:30. ↑
  27.  Id. at 02:55 (emphasis added). ↑
  28.  Id. ↑
  29.  Id. ↑
  30.  For example, after outgoing FCC chair Jessica Rosenworcel dismissed several complaints against broadcast stations because they threatened the stations’ First Amendment rights, Carr reinstated the complaints, but only the ones targeting ABC, CBS, and NBC stations, not the ones targeting FOX affiliates. See Katie Kwasneski, FCC Investigations Under Trump Could Hurt Broadcasters, Gateway Journalism Rev. (Feb. 27, 2025), https://ga‌tewayjr.org/fcc-investigations-under-trump-could-hurt-broadcasters/ [https://perma.cc/3ZL4-‌2SKT]. ↑

  31.  See infra notes 132–33 and accompanying text. It is also important to note that the FCC only has three sitting commissioners: Carr, fellow Republican Olivia Trusty, and Democrat Anna Gomez. The other two slots are vacant. See Leadership, Fed. Commc’ns Comm’n, https://www.fcc.gov/about/leadership [https://perma.cc/6BZF-DWGU] (last visited July 16, 2026). This gives Carr even more unchecked discretion, and he also personally directs the Media Bureau, which is driving much of this activity. Brendan Carr, Fed. Commc’ns Comm’n, https://www.fcc.gov/about/leadership/brendan-carr/staff [https://p‌erma.cc/7YBE-42SW] (last visited July 19, 2026). ↑

Schauer’s Free Speech Comparativism

Introduction

It is a great honour to make this contribution about Frederick Schauer. I am especially pleased that I can give voice to the many Australian scholars who had the pleasure of meeting and working with him and those who were influenced by his work.

Fred was a frequent visitor to Australia, where he was well known and widely admired. I first came across him at the Australian National University in the late 1990s at the beginning of my career. It will surprise no one to know that he was memorably generous and straightforward. He had a way of being kind to junior scholars that consisted simply in taking them seriously. Years later, I invited him to co-teach a freedom of speech seminar with me at Melbourne Law School, and after to join me as an editor of Oxford Handbook of Freedom of Speech (2021) together. Both experiences were career highlights.

For the purposes of this tribute, I want to offer a reflection on two of the most important essays he wrote on freedom of speech for a comparative audience: The Exceptional First Amendment1 1.Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29(Michael Ignatieff ed., 2005).Show More and Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture.2 2.Frederick Schauer, Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in European and US Constitutionalism 49(Georg Nolte ed., 2005).Show More Both were published in 2005 and offer a prediction on the development of freedom of expression in the United States and elsewhere that is worth revisiting after twenty years.

In the first piece, Schauer revisited the well-known claim that First Amendment law is exceptional for the strong protection it provides to freedom of speech. Even in this well-travelled field, Schauer offered an insightfully detailed account, swiftly moving through a range of ideas, well beyond the conventional account. But perhaps the most important idea in the essay lies in introduction of a second dimension: “methodological exceptionalism.”3 3.Schauer, supra note 1, at 53.Show More American free speech adjudication is characterised by “a formal and sharply demarcated two-step process” and other rule-like doctrines.4 4.Id.Show More By contrast, in most other constitutional democracies the inquiry is a “less formal and more open-ended question of whether a restriction is reasonable, necessary in a democratic society, or, most commonly, proportional in light of the importance of the restriction and the extent of the free expression interest that is restricted.”5 5.Id. at 53–54.Show More

The second essay developed the argument advanced in the first, but it went further to draw firm links between American substantive and methodological exceptionalism. The argument in this essay goes somewhat against the grain of the first, concluding that the “rulified” nature of First Amendment law, because of its deep roots in American constitutional culture, was unlikely to change.6 6.See Schauer, supra note 2, at 63–67.Show More

Before going on to consider their arguments in more detail, let me pause to reflect on how they illustrate some of the distinctive virtues of Fred Schauer’s scholarship. They combine an eye for doctrinal detail, powerful jurisprudential insights about the relationship between doctrinal structures and their underlying reasons, and a deep appreciation of the significance of legal and political culture.

For the remainder of this Essay, I will turn to consider how Schauer developed his claims about method and substance in free speech cases and examine his claims with a comparative analysis of two jurisdictions which allow some testing of Schauer’s claims and predictions.

  1.  Frederick Schauer, The Exceptional First Amendment, in American Exceptionalism and Human Rights 29

    (Michael Ignatieff ed., 2005). ↑

  2.  Frederick Schauer, Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture, in European and US Constitutionalism 49 (Georg Nolte ed., 2005). ↑
  3.  Schauer, supra note 1, at 53. ↑
  4.  Id. ↑
  5.  Id. at 53–54. ↑

  6.  See Schauer, supra note 2, at 63–67. ↑

Constitutional Acceptance in a Polarized Era

Introduction

Frederick Schauer left an indelible mark on my thinking and my life. One of the most special aspects of his work, to my mind, was his exploration of the nonconstitutional grounds of constitutional law. The idea of Fred’s that has captivated me more than any other is his concept of constitutional salience: “the often mysterious political, social, cultural, historical, psychological, rhetorical, and economic forces that influence which policy questions surface as constitutional issues and which do not.”1 1.Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004) [hereinafter Schauer, Boundaries of the First Amendment].Show More

Fred began his study of constitutional salience analyzing what he termed “First Amendment coverage.” He traced the boundaries of the First Amendment—that is, the line demarcating the social acts that constitute “speech” for constitutional purposes and those that do not. He observed that while the Constitution forbids abridgement of the “freedom of speech,” in practice, much, if not most, of what we might describe colloquially as “speech” is not covered by the First Amendment.2 2.Id. at 1769 (“The acts, behaviors, and restrictions not encompassed by the First Amendment at all—the events that remain wholly untouched by the First Amendment—are the ones that are simply not covered by the First Amendment.”).Show More From contracts to perjury and workplace harassment to the rules of evidence, governments at all levels regularly and pervasively regulate speech in ways that no one, lawyers and nonlawyers alike, identifies as a constitutional concern.3 3.Id. at 1783–84; Amanda Shanor, First Amendment Coverage, 93 N.Y.U. L. Rev. 318, 320–21, 325 (2018).Show More The Constitution simply does not appear. It is not salient, Fred brilliantly pointed out. Fred later extended this idea of constitutional salience to explore the nonlegal and nonconstitutional bases of constitutionalism more broadly, including what makes a constitution valid and how constitutions change.

These inquiries are extremely relevant today. We are now in a tumultuous moment in U.S. constitutionalism where polarization and the rise of populist authoritarianism have made many once-well-settled constitutional principles seem up for grabs, including core ideas of both the freedom of speech and the separation of powers—if not the persistence of U.S. constitutionalism itself.

People often ask me what it is like to teach constitutional law now, when American constitutional law, culture, and norms seem to be rapidly changing. Teaching constitutional law, I have found, feels ever more important and pressing, including to students who in other times might have little interest. Trying to theorize both the fast shift in U.S. constitutional culture towards populist authoritarianism and what it means for U.S. constitutional law—let alone what, if anything, can or should be done about any of that—has proven far more vexing. These questions prompted me to turn, as I often do, to Fred’s work for insight.

This Essay offers a first sketch of how Fred’s theories on constitutional salience, validity, and change illuminate recent shifts in U.S. constitutional law and culture. In so doing, I tie together elements of Fred’s thinking that, to my knowledge, Fred had not, and I both elaborate on and challenge aspects of his thoughts. Fred’s ideas—re-situated and extended here—help shed light on some of the most vexing questions of our current moment and, as Fred’s work so often does, reveal new paths of inquiry.

  1.  Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1768 (2004) [hereinafter Schauer, Boundaries of the First Amendment]. ↑
  2.  Id. at 1769 (“The acts, behaviors, and restrictions not encompassed by the First Amendment at all—the events that remain wholly untouched by the First Amendment—are the ones that are simply not covered by the First Amendment.”). ↑

  3.  Id. at 1783–84; Amanda Shanor, First Amendment Coverage, 93 N.Y.U. L. Rev. 318, 320–21, 325 (2018). ↑

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