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Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman

William & Mary Bill of Rights Journal

Modern First Amendment jurisprudence almost exclusively prohibits laws restricting freedom of speech based on the content of the speech. In this Article, Professor Steven Heyman takes exception to the content neutrality doctrine, arguing that its strict application both minimizes other interests competing with speech and fails to elevate the premises on which the First Amendment stands.

The Idea Of Public Reason Resuscitated, James P. Madigan

William & Mary Bill of Rights Journal

In this Article, James Madigan examines the role of public reason in a democratic government, including what views should play a role in determining public reason. Madigan criticizes John Rawls for including comprehensive views in constitutional debates, and argues that only reasons grounded in political values should be used when debating constitutional issues and fundamental rights.

Terrorism And The Bill Of Rights, Rodney A. Smolla

William & Mary Bill of Rights Journal

This year is the Tenth Anniversary of the William & Mary Bill of Rights Journal, and the Journal is very fortunate and honored to have Professor Rodney Smolla publish an article in this year's volume. Professor Smolla played an integral role in the founding and organizing of not only the Journal, but also the Institute of Bill of Rights Law at William & Mary Law School. The Journal extends its most appreciative thanks to Professor Smolla for all his help.

In this Article, Professor Smolla examines the right to free speech in the context of Black v. Commonwealth, a case …

Antebellum Perspectives On Free Speech, Mark A. Graber

William & Mary Bill of Rights Journal

In his book, Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History, Professor Michael Kent Curtis documents the political struggles over free speech rights that took place between the ratification of the Bill of Rights in 1791 and the adoption of the Fourteenth Amendment in 1868. Professor Curtis looks to these early free speech fights to help define the contours of contemporary speech rights. In this review, Professor Mark A. Graber discusses Professor Curtis's contribution to constitutional history, and the implications of The People's Darling Privilege for constitutional theorists

The Rhetoric Of Judicial Critique: From Judicial Restraint To The Virtual Bill Of Rights, Michael J. Gerhardt

William & Mary Bill of Rights Journal

Professor Michael Gerhardt traces the rhetoric employed by national leaders and commentators over the past century to describe popular conceptions of the judicial function. In particular, Professor Gerhardt examines the evolution of the terminology used in popular and political rhetoric, revealing their inconsistent application to political ideologies through time. Professor Gerhardt argues that such shifts in usage correspond with transfers of power between the political authorities controlling the central interests at stake in constitutional adjudication. Professor Gerhardt applies the shortcomings of traditional political rhetoric to the issues surrounding technological advancements, concluding that the proper treatment of technology by the Supreme …

Speech, Press, And Democracy, Paul Finkelman

William & Mary Bill of Rights Journal

Professor Michael Kent Curtis's latest book, Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History, chronicles the efforts of ordinary Americans to protect their right to freedom of expression from 1791-1865. Professor Paul Finkelman reviews this book, focusing primarily on Curtis's discussions of suppression of speech prior to and during the Civil War period and additionally providing some thoughts concerning the appropriateness of revoking free speech rights during times of war.

The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken

William & Mary Bill of Rights Journal

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …

The Constitution And The Other Constitution, Michael Kent Curtis

William & Mary Bill of Rights Journal

In this article, Professor Michael Kent Curtis examines how laws that shape the distribution of wealth intersect with and affect popular sovereignty and free speech and press. He presents this discussion in the context of the effect of the Other Constitution on The Constitution. Professor Curtis begins by taking a close-up look at the current campaign finance system and the concentration of media ownership in a few corporate bodies and argues that both affect the way in which various political issues are presented to the public, if at all. Professor Curtis continues by talking about the origins of our constitutional …

Assessing The Legitimacy Of Governmental Regulation Of Modern Speech Aimed At Social Reform: The Importance Of Hindsight And Causation, Kenneth J. Brown

William & Mary Bill of Rights Journal

When governmental regulation or punishment of speech occurs subsequent to the speech itself, such regulation is conducted with the benefit of hindsight. This is important because hindsight enables us to discern whether the expression in question has caused any legally cognizable harm. When speech is responsible for such a harm, its punishment is justfied by this causal connection. Yet conversely, when we know that speech is consequence-free, its ex post punishment is conceptually indefensible. In the first part of this article, Mr. Brown criticizes the imminent lawless action standard articulated in Brandenburg v. Ohio for failing to embrace fully this …