Digital Commons Network^™

Courting Censorship, Philip A. Hamburger

Faculty Scholarship

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship — in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.

This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion …

Rights Skepticism And Majority Rule At The Birth Of The Modern First Amendment, Vincent A. Blasi

Faculty Scholarship

Learned Hand, Oliver Wendell Holmes, and Louis Brandeis all had the same problem. They were troubled — Holmes less than the others and later, but eventually — by the widespread and mean-spirited persecution of dissenters they observed as the United States entered World War I and then reacted to the Bolshevik Revolution. Today, most persons so troubled would think that constitutional rights, and particularly the freedom of speech, exist for the very purpose of countermanding zealous political majorities that deny or neglect the claims of dissenters. But Hand, Holmes, and Brandeis, each by his own distinctive path, came to the …

Neoliberal Constitutionalism: Lochnerism For A New Economy, Jedediah S. Purdy

Faculty Scholarship

Neoliberalism has a constitutional face. It figures in judicial and popular interpretations of free speech, due process, equal protection, and federalism, as surely as it does in intellectual property, family law, health policy, and the other areas that our contributors address. In this article, I make the case that there is something special about the constitutional expression of neoliberalism, which arises from three features of constitutional law: its basicness, its breadth, and its integrating tendency.

The First Amendment's Original Sin, Lee C. Bollinger

Faculty Scholarship

Times of war place considerable stress on civil liberties, especially ones protected by the First Amendment. When the nation must gather itself to fight an enemy who is intent on killing us, it is perhaps only natural that our tolerance for the usual disorder of dissent will decline. When everyone has to sacrifice for the common good, when fellow citizens are dying in that cause, the costs of speech are visible and serious. Dissent may dissuade or discourage soldiers from fighting; sowing doubt may weaken resolve just when it's needed most; falsehoods and misinformation may lead to catastrophic shifts of …

Establishing Religious Ideas: Evolution, Creationism, And Intelligent Design, Kent Greenawalt

Faculty Scholarship

In this article, I first sketch the basic conflict between evolutionary theory and creationism and describe the opposition of creationists to the teaching of standard evolutionary theory. I then state the basic educational and constitutional questions

about evolution, standard creationism, and "intelligent design." After exploring of five fundamental premises that, in combination, generate the most troubling questions about science, religion, and the public schools, I turn to claims of miracles. Like assertions that God has intervened in natural processes of development, these claims suppose that God transcends or violates scientific principles; their investigation suggests that scientific principles; their investigation suggests …

The Constitutionality Of Copyright Term Extension: How Long Is Too Long, Jane C. Ginsburg, Wendy J. Gordon, Arthur R. Miller, William F. Patry

Faculty Scholarship

I am Professor William Patry of the Benjamin N. Cardozo School of Law. I will be the moderator of this star-studded debate on the Sonny Bono Copyright Term Extension Act.

This panel will try to determine, on the great continuum of limited times that the Constitution prescribes for copyright in Article I, Section 8, Clause 8, the term of protection that Congress has actually fixed. In other words: How long is too long? Sonny's bill establishes a term of protection of life plus seventy years for individual authors for works created on or after January 1, 1978. The bill retroactively …

Public Institutions Of Culture And The First Amendment: The New Frontier, Lee C. Bollinger

Faculty Scholarship

The general subject of my lecture today is the relationship between the First Amendment and public institutions of culture, which I take to be those sponsored and supported by the state with the clear purpose of preserving and promoting high culture in the United States. These include universities, museums, theaters, libraries, public broadcasting networks, programs for art in public places, and the national endowments for the arts and the humanities. All of these institutions or programs are vested with the responsibility of insuring the preservation of high human achievement in the areas to which they are devoted (knowledge, art, music, …

A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. …

The End Of New York Times V Sullivan: Reflections On Masson V New Yorker Magazine, Lee C. Bollinger

Faculty Scholarship

Virtually every year since New York Times v Sullivan, the Supreme Court has decided at least one or two First Amendment cases involving the press. This now seemingly permanent, annual pageant of media cases undoubtedly has significance for the development of both constitutional law and the character of American journalism, though oddly that significance has been little explored in the scholarly literature. This past year the Court had two cases, both of which received an unusual amount of discussion within the press. It is, of course, understandable, even if not wholly defensible, for the press to give disproportionate coverage …

The Tolerant Society: A Response To Critics, Lee C. Bollinger

Faculty Scholarship

In writing The Tolerant Society I was, and yet remain, interested in the treatment of speech behavior in this country, a treatment notably more liberal than in other Western democracies. Liberality, however, is not its only surprising or distinguishing hallmark; so too is how the world is characterized under the free speech concept.

For some time, even after I began teaching in the first amendment area, the scope and nature of protection afforded speech seemed to me obviously right. But the more I thought about it, the more it seemed to me quite extraordinary. Existing free speech theory provided less …

The Future And The First Amendment, Lee C. Bollinger

Faculty Scholarship

It is my honor and pleasure to deliver this year's Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly …

The Teaching Function Of The First Amendment, Vincent A. Blasi

Faculty Scholarship

In this important book, Professor Bollinger seeks to understand and remedy the inadequacy he perceives in the way our legal culture deals with extremist speech. He argues that the high level of protection the first amendment has been construed to require serves a social function that has not been fully recognized or carefully evaluated. His thesis is that the contemporary social function of the idea of freedom of speech is to help the society develop a general capacity for tolerance, a capacity that determines how we respond to many forms of conduct as well as speech. Once this function is …

The Pathological Perspective And The First Amendment, Vincent A. Blasi

Faculty Scholarship

Constitutions are designed to control, or at least influence, future events – political events, adjudicative events, to some extent even interactions between private parties. Yet the future is unknowable, largely unpredictable, and inevitably variable. At any moment there exists a short-run future, a long-run future, and a future in between. The future is virtually certain to contain some progress, some regression, some stability, some volatility. How is a constitution supposed to operate upon this vast panoply?

That is a question that ought to loom large in the deliberations of persons who propose and ratify new constitutions and new constitutional amendments. …

Criminal Coercion And Freedom Of Speech, Kent Greenawalt

Faculty Scholarship

This essay about constitutional limits on criminal coercion concerns a piece of a larger puzzle; how freedom of expression impinges on crimes that involve communication. The essay has two interrelated purposes. One is to reach some rather specific conclusions about the kinds of coercive threats that enjoy constitutional protection and to suggest how legislative formulations of criminal coercion can minimize coverage of such threats. The second purpose, more general and theoretical, is to show how the boundaries of freedom of expression can be understood and how courts can employ those boundaries to arrive at specific tests of constitutional protection. The …

Religion As A Concept In Constitutional Law, Kent Greenawalt

Faculty Scholarship

Because federal and state constitutions forbid government from infringing upon religious liberty or supporting religion, courts must sometimes decide whether a claim, activity, organization, purpose, or classification is religious. In most cases arising under these religion clauses, the religiousness of an activity or organization will be obvious. However; when the presence of religion is seriously controverted, the threshold question, "defining religion," becomes important. Most courts have prudently eschewed theoretical generalizations in approaching that question. Academic commentators have struggled to startlingly diverse proposals.

This Article suggests that in both free exercise and establishment cases, courts should decide whether something is religious …

Free Speech And Intellectual Values, Lee C. Bollinger

Faculty Scholarship

In the preface to his book, The Negro and the First Amendment, Harry Kalven observed that the idea of free speech was marked by an unusually keen "quest for coherent general theory." Every area of the law, Kalven puzzled, was rife with inconsistency and ambiguity, yet inexplicably there was little tolerance· for anomalies in the field of free speech. As to why this was so, Kalven speculated that "free speech is so close to the heart of democratic organization that if we do not have an appropriate theory for our law here, we feel we really do not understand the …

Toward A Theory Of Prior Restraint: The Central Linkage, Vincent A. Blasi

Faculty Scholarship

The doctrine of prior restraint embodies a temporal preference. Acts of expression that could be sanctioned by means of criminal punishment or a civil damage award may not be regulated "in advance." The factor of timing, however, cannot serve to distinguish methods of regulation as neatly as this statement would seem to imply. In addition to a retrospective impact relating to punishment or compensation, criminal prohibitions and civil liability rules are meant to have a prospective impact – to deter speakers from engaging in harmful acts of expression in the future. If impact on speech before the moment of its …