Justice Souter's oft-repeated quote aptly summarizes the function of strict standards of review in constitutional jurisprudence to protect unpopular speech from restrictions based on content-laden value judgments. While strict standards have their advantages, commentators have found fault with their rigidity and have questioned whether any decision-making process can, or should, be free of pragmatic considerations. This doctrinal discussion has been reinvigorated by two recent United States Supreme Court opinions. At the root of both cases was the Court's reliance on the distinction between coordinated and independent speech. This Article examines the validity of this divide and challenges the foundation upon which the coordinated and independent dichotomy rests. This Article argues that the Court has introduced a new standard, used in both cases-a coordination standard-that conflates the government's interest in restricting speech with the nature of the speech at issue. This leads to a largely outcome-determinative standard that is not content neutral, and is a cardinal departure from settled First Amendment law. This Article tests its hypothesis by applying the contradicting uses of coordination found in the two cases to a hypothetical test case restrictions on private aid to impoverished foreign nations in furtherance of a new development model-and proposes a framework for future analysis of First Amendment issues which avoids the pitfalls revealed by the coordination divide.
Catherine A. Hardee, Coordination Conundrum, 49 Willamette L.Rev. 189 (2012).