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Constitutional Law

Selected Works

2013

First Amendment

Stephen W. Gard

Articles 1 - 5 of 5

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The Absoluteness Of The First Amendment, Stephen W. Gard Mar 2013

The Absoluteness Of The First Amendment, Stephen W. Gard

Stephen W. Gard

Despite an urgent need, the reality is that today we have no unifying free speech theory. Instead, the recent decisions of the United States Supreme Court suggest that doctrinal confusion reigns. Ironically, I would suggest that the cause of the present doctrinal confusion is not that insufficient attention has been paid to technical free speech issues, but rather that modern first amendment thinking has been dominated by "balancers." The poverty of the balancing approach, be it ad hoc or definitional in character, stems from its reliance on pragmatic considerations rather than on fundamental principles embodied in the enduring legacy of ...


Fighting Words As Free Speech, Stephen W. Gard Mar 2013

Fighting Words As Free Speech, Stephen W. Gard

Stephen W. Gard

It is now settled that "above all else, the first amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Despite the universal acceptance of this general principle, the United States Supreme Court has created several exceptions. In appropriate cases libel, obscenity, commercial speech, and offensive language may be censored without contravention of the first amendment guarantee of freedom of expression. The source of each of these exceptions to the general principle of governmental neutrality regarding the content of expression is Chaplinsky v. New Hampshire.


The Impact Of Pacifica Foundation On Two Traditions Of Freedom Of Expression (With Endress), Stephen W. Gard Mar 2013

The Impact Of Pacifica Foundation On Two Traditions Of Freedom Of Expression (With Endress), Stephen W. Gard

Stephen W. Gard

The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. The admonition that the perceived wisdom of governmental regulations should never be confused with the issue of their constitutionality remains appropriate. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily have much to say by implication on this issue. The purpose of this article is rather to assess the impact of Pacifica on the two traditions of freedom of expression which continue ...


Book Review, Stephen W. Gard Mar 2013

Book Review, Stephen W. Gard

Stephen W. Gard

The author reviews Justice Hugo Black and the First Amendment, edited by Everette E. Dennis, Donald M. Gillmor and David L. Grey.


The Flag Salute Cases And The First Amendment, Stephen W. Gard Mar 2013

The Flag Salute Cases And The First Amendment, Stephen W. Gard

Stephen W. Gard

The flag salute cases have been a source of endless fascination for legal and historical scholars. Most of this large body of scholarship has focused on the apparent oddity of Justice Frankfurter's view that there was no constitutional infirmity in the "petty tyranny" of a governmental requirement that school children engage in a hypocritical affirmation of belief. Unfortunately, the doctrinal importance of the opinions of Justices Jackson and Frankfurter in the flag salute cases as contrasting statements on the interpretation of the freedom of speech guarantee of the first amendment and the function of the judiciary in preserving our ...