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Students often compare their schools unfavorably to prisons, most often in a tone of rueful irony. By contrast, judicial opinions about freedom of speech within government-run institutions compare schools and prisons without irony or even hesitation. This Article considers whether the analogy between school and prison in free speech cases is evidence that the two institutions share a joint mission. At a macro level, there is an undeniable structural similarity between the constitutional speech rules for schools and prisons. At a micro level, however, there are subtle but significant differences between the two. These arise primarily from the judiciary's belief that differences exist between the purposes of schools and prisons—although, somewhat ominously, the differences appear even more subtle when comparing schools to jails. Just as judicial beliefs about social reality affect constitutional outcomes, the constitutional rules in turn affect social reality. Courts should be wary of language that equates schools with penal institutions, lest the analogy become a self-fulfilling prophecy.

This article explores the ramifications of stretching the Equal Access Act ("EAA" or "the Act") beyond equal access to school premises for meetings during noninstructional time. Part I provides background on the Equal Access Act, from its legislative origins through its interpretations by federal courts. This part includes a careful look at the statute's often confusing language. Part II describes and criticizes Prince v. Jacoby. I argue that the decision is plagued with legal errors large and small, but that the main error is its failure to consider a central question: equal access to what? Both the EAA and the First Amendment public forum doctrine indicate that student groups should have access to forums for assembly and expression, but Prince mandated access to much more. Part III explores a parallel development in which the First Amendment public forum doctrine has been stretched beyond forums for assembly and expression. This part first describes the doctrine in its standard form and then considers how well it translates to other settings. The process reveals some of the tensions within the public forum doctrine even when applied to its usual locations. Part IV concludes the article with practical suggestions for living with Prince if it is not overturned by later court decision.

A panel, at the National Lawyers Convention, discussed procedure as it relates to First Amendment rights. The panel set forth how First Amendment procedures have historically protected First Amendment substance and discussed modern applications of the issue. For example, the prior restraint doctrine, overbreadth doctrine, the allocation of the burden of proof and relaxation of ripeness rules have important implications for challenging restrictions on speech and defending against libel and defamation. The interaction of free speech and due process is often seen in litigation involving civil harassment orders, or civil protection orders. In many jurisidictions the definition of harassment permits the finding that harassment can be based solely on speech, meaning speech itself can provide a basis for liabilty. In addition, speech may be restricted as a remedy in litigation addressing harassment. Investigations of wrongdoing in the realm of campaign finance law and political speech cases can also have serious implications for speech, both reputational and legal. Further cases involving political speech and campaign finance once exclusively litigated in the civil arena, are now the subject of criminal investigations and prosecutions. This is particularly problematic where many issues in this area remain unsettled. Good lawyering is particularly important in First Amendment cases. Ineffective assistance of counsel can be considered as great an evil in First Amendment cases as in criminal cases. Unfortunately, practicing lawyers often do not understand the process by which constitutional facts are pleaded and proved in First Amendment cases and this problem begins with the way Constitutional Law 101 is taught in law schools. In proving facts in First Amendment litigation the question becomes how does the government prove its justification of a restriction on speech or how does one opposing the government's restriction on speech respond when the government asserts certain interests as being their justification. In First Amendment litigation the government often relies on legislative facts – newspaper reports, television stories, and criminal cases discussed in the media, arguably the government should be obligated to present more than rumors and speculation.