Digital Commons Network^™

Talking Chalk: Defacing The First Amendment In The Public Forum, Marie Failinger

Faculty Scholarship

This article examines the surprising outcomes of cases challenging arrests of protesters for chalking sidewalks in public forums, and argues that courts have been careless in analyzing these blanket prohibitions under the time, place and manner doctrine.

The Intellectual Integrity Of Ed Baker, Vincent A. Blasi

Faculty Scholarship

John Stuart Mill was not one of Ed Baker’s favorite authors, although Ed knew his Mill well and drew on him for some of his important work. But I know Ed Baker would have been a particular favorite of John Stuart Mill. I say that not generically, but specifically. Mill said that what an adaptive, improving society needs most of all — even more than technological expertise — is the hardest thing to achieve: independent thinkers who have the courage to follow their thought wherever it leads, even when that journey risks unsettling their cherished beliefs or damaging their credibility. …

Unconstitutional Conditions: The Irrelevance Of Consent, Philip A. Hamburger

Faculty Scholarship

Unconstitutional conditions are a conundrum. On the one hand, if government can spend, why can't it place whatever conditions it wants on its spending? On the other hand, if it can place any conditions on spending, won't it be able to impose restrictions that evade much of the Constitution, including most constitutional rights? This enigma is notoriously complex, and unconstitutional conditions therefore are considered a sort of Gordian knot.

The standard solution is to slice through the knot with consent to conclude that consent excuses otherwise unconstitutional restrictions. This solution, however, is problematic, for it concedes that the government can …

Deductions For Drug Ads? The Constitution Does Not Require Congress To Subsidize Direct-To-Consumer Prescription Drug Advertisements, Kevin Outterson, Shoshana Speiser

Faculty Scholarship

The First Amendment protects lawful, non-misleading advertising as commercial speech, which constrains Congressional attempts to regulate direct-to-consumer advertising (DTCA) of prescription drugs. But the Constitution does not require the federal government to subsidize advertising through the Tax Code. Congress could revoke the legislative gift of tax deductions for DTCA without running afoul of regulating speech. While DTCA proponents maintain that DTCA increases disease awareness and leads to more doctor-patient conversations, Congress could find that these purported benefits are outweighed by other negative consequences, including excessive prescribing.