Digital Commons Network^™

If You Work For The Government, Then Shut Your Mouth: Garcetti V. Ceballos And The Future Of Public Employee Speech, Joseph E. Hardgrave

ExpressO

This article dismantles the majority's reasoning in Garcetti v. Ceballos. A theory is proposed to why the Court broke with prior precedence and the sweeping effect of the ambigous holding is examined.

Access To Audiences As A First Amendment Right: Its Relevance And Implications For Electronic Media Policy, Philip M. Napoli, Sheea T. Sybblis

ExpressO

When the issue of speakers’ rights of access arises in media regulation and policy contexts, the focus typically is on the concept of speakers’ rights of access “to the media,” or “to the press.” This right usually is premised on the audience’s need for access to diverse sources and content. In contrast, in many non-mediated contexts, the concept of speakers’ rights of access frequently is defined in terms of the speaker’s own First Amendment right of access to audiences. This paper explores the important distinctions between these differing interpretations of a speaker’s access rights and argues that the concept of …

Dignity - The Enemy From Within, Guy E. Carmi

ExpressO

The manuscript challenges the use of human dignity as an independent free speech justification. The articulation of free speech in human dignity terms carries unwarranted potential consequences that may result in limiting free speech rather than protecting it. This possible outcome makes human dignity inadequate as a free speech justification.

The manuscript also demonstrates why articulations of the rationales behind the “argument from dignity” are either superfluous, since they are aptly covered by the “argument from autonomy,” or simply too broad and speech-restrictive to be considered a free speech justification. As a matter of principle, the nexus between freedom of …

Against Freedom Of Commercial Expression, Tamara R. Piety

ExpressO

An article that announces itself in the title as “against freedom” has a heavy burden of persuasion to carry. At this time and in this place, it seems almost un-American to be “against freedom,” (however much our civil liberties have in fact been circumscribed in recent years). Nevertheless, the most significant word in the title is not “against” or “freedom,” but “commercial.” Conventional wisdom in the First Amendment area would have it that there is no meaningful basis on which to distinguish between commercial speech and other speech for purposes of the First Amendment. And in recent years the courts …

Can Commercial Corporations Engage In Non-Commercial Speech?, Tom Bennigson

ExpressO

I argue that all speech by commercial corporations, regardless of content, should be classified as “commercial speech,” a category not protected as fully as speech closer to the core of First Amendment concerns. Although this position is not currently accepted, surprisingly, it is supported by various aspects of accepted legal doctrine.

After a short critical introduction to commercial speech doctrine, I argue briefly that the legal requirement that all corporate activity be directed toward profit entails that all authorized corporate speech must be commercial in a significant sense. The principal part of the paper then surveys the First Amendment interests …

"You Can't Wear That To Vote": The Constitutionality Of State Laws Prohibiting The Wearing Of Political Message Buttons, Kimberly J. Tucker

ExpressO

My research for this article began on Election Day 2004 when I was told that I could not wear a campaign button into the polling room while voting in Virginia. The article outlines the laws of all 50 states that restrict a voter’s right to speak in and around polling places. It focuses on the 10 states that explicitly prohibit a voter from wearing “buttons” to the polls.

Equal Protection In The World Of Art And Obscenity: The Art Photographer's Latent Struggle With Obscenity Standards In Contemporary America, Elaine P. Wang

ExpressO

In the realm of obscenity law in the United States, photography as an art form is not on equal footing with more traditional art forms such as painting, drawing, and sculpture. This is a latent dilemma for artistic photographers because the law itself – in the form of state obscenity laws and the Supreme Court’s three-pronged test in Miller v. California – does not explicitly set forth varied standards of obscenity based on artistic medium. However, given the marginalization of photography in art history, there exists a bias against photography as “serious art.” Furthermore, evidence of the differential treatment of …

Circular 230 Opinion Standards, Legal Ethics And First Amendment Limitations On The Regulation Of Professional Speech By Lawyers, David T. Moldenhauer

ExpressO

This article addresses the legal ethics and First Amendment implications of recent Treasury Department regulations governing legal opinions on tax-motivated transactions. As discussed in the article, the regulations are intended to address the significant policy and budgetary issue of practitioners’ involvement in the development, marketing and encouragement of abusive tax shelters. However, the article concludes that the regulations are in many respects an inappropriate response to these problems because their prohibitions prevent a lawyer from giving taxpayers a complete, informed assessment of their rights. As such, they create significant ethical conflicts and deny the public legal advice. More generally, they …

The Suffocation Of Free Speech Under The Gravity Of Danger Of Terrorism, Tim Davis

ExpressO

On July 14, 2005, Ali al-Timimi was sentenced to life in prison plus 70 years for acts of pure speech. The United States government contended that Timimi, through his lectures and direct personal appeals, induced and/or aided and abetted local Muslim men to leave the country and pursue jihad training with the intent to defend the Taliban against all potential enemies, including the United States. Buried in nearly 200 pages of jury instructions was a single paragraph that unceremoniously described the law of protected speech under Brandenburg v. Ohio. At first blush, Brandenburg seemed to unequivocally lay down the rule …

Fair Use And The First Amendment: Corporate Control Of Copyright Is Stifling Documentary Making And Thwarting The Aims Of The First Amendment, Paige Gold

ExpressO

Documentary motion pictures constitute a crucial part of contemporary public debate, because in today’s highly consolidated mass media environment, documentaries offer the kinds of independent voices that the First Amendment was designed to protect. However, current intellectual property practices are chilling speech by forcing documentary filmmakers to tailor their films to accommodate new, strict licensing practices. When filmmakers are compelled to edit their work to meet insurance requirements, it harms the interests of not just the filmmaker, but also the public. Thus, the “clearance culture,” in which anything and everything that could possibly lead to a lawsuit must be cleared, …

Winning Wirzburger And Defeating The Blaine Amendments: Arguing Present Efficacy Instead Of Past Intent, Brendan Michael Groves

ExpressO

The case of Wirzburger v. Galvin, currently on a writ of certiorari to the Supreme Court, may set the tone for all religious discrimination cases in the future. Massachusetts’ constitutional amendments that proscribe any citizen initiatives from either dealing with religion in general or attempting to repeal the states Blaine Amendment are at issue in the case. Petitioner’s counsel, the Becket Fund, rightly views this case as paramount in the long-march to victory over the anti-Catholic Blaine Amendments still codified in 37 state constitutions. However, they have lost almost every stage of the case.

This article argues that Wirzburger and …

How It Works: Sobriety Sentencing, The Constitution And Alcoholics Anonymous. A Perspective From Aa's Founding Community, Max E. Dehn

ExpressO

This paper analyzes the public health as well as constitutional issues that arise when persons are required by courts to participate in 12-step recovery programs.

U.S. Supreme Court Tort Reform: Limiting State Power To Articulate And Develop Its Own Tort Law–Defamation, Preemption, And Punitive Damages, Thomas C. Galligan

ExpressO

U.S. Supreme Court Tort Reform: Limiting State Power to Articulate and Develop Its Own Tort Law–Defamation, Preemption, and Punitive Damages analyzes and critiques the three primary areas in which the U.S. Supreme Court has found federal constitutional limits on a state’s power to articulate, develop, and apply its common law of torts. It is the first piece to consider all three areas together as an emerging body of jurisprudence which Professor Galligan calls U.S. Supreme Court tort reform. After setting forth a modest model of adjudication, the article applies that model to each of the three areas: defamation and related …

Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino

ExpressO

Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges’ political activity.

This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions on …

Substantive Due Process As A Source Of Constitutional Protection For Nonpolitical Speech, Gregory P. Magarian

ExpressO

Present First Amendment doctrine presumptively protects anything within the descriptive category “expression” from government regulation, subject to balancing against countervailing government interests. As government actions during the present war on terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent – the expressive activity most integral to our constitutional design. At the same time, present doctrine fails to give a clear account of why the Constitution protects expressive autonomy and when that protection properly should yield to government interests, leading to an inconsistent and unsatisfying free speech regime. In this article, Professor Magarian advocates …

Reclaiming The Public Forum: Courts Must Stand Firm Against Governmental Efforts To Displace Dissidence, Christopher B. Ford

ExpressO

Recognizing that the right to free speech for dissidents is increasingly at risk in the United States, this submission catalogs manifold methods the government has employed to constrain free speech and urges that courts not only serve as a bulwark against further erosion of public expression of dissent but endeavor to restore access to the public forum that recently has been lost. The submission surveys the background of the right to free expression and provides details and examples of the government’s increasing tendency to suppress dissident speech by deploying heavily armed police in demonstrations, committing violent acts against peaceful protesters, …

Speech As Conduct: Generally Applicable Laws, Illegal Courses Of Conduct, “Situation-Altering Utterances,” And The Uncharted Zones, Eugene Volokh

ExpressO

In many recent free speech controversies -- over crime-facilitating speech, hostile environment harassment, child custody decisions, doctors’ recommending medical marijuana to their patients, pro-jury-nullification advocacy, and more -- defenders of the speech restriction have argued that the speech isn’t really speech, but is instead tantamount to conduct. Sometimes people argue that there’s no First Amendment problem when speech is restricted under a generally applicable law that covers both speech and conduct. Sometimes they argue that speech may be punished if it’s “an integral part of conduct in violation of a valid criminal statute.” Sometimes they argue that the speech should …

Crime-Facilitating Speech, Eugene Volokh

ExpressO

Many recent free speech controversies -- over Patriot Act subpoenas, contract murder manuals, encryption and decryption algorithms, contributory copyright infringement, publication of abortion providers’ names, discussions of gaps in security systems, certain kinds of invasion of privacy lawsuits, online term paper mills, and more -- turn out to be special cases of a general problem: Should there be a new First Amendment exception for speech that gives criminals information that can help them commit crimes? And, if so, how broad or narrow should this exception be?

Surprisingly, scholars have almost entirely ignored these broad questions, and the Supreme Court has …