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Fundamental First Amendment Principles, David L. Hudson Jr., Jacob David Glenn

Northern Illinois University Law Review

First Amendment law is highly complex, even labyrinthine. But, there are fundamental principles in First Amendment law that provide a baseline for a core understanding. These ten fundamental principles are: (1) the First Amendment protects the right to criticize the government; (2) the First Amendment abhors viewpoint discrimination and often content, or subject-matter discrimination; (3) the First Amendment protects a great deal of symbolic speech or expressive conduct; (4) the First Amendment protects a great deal of offensive and even repugnant speech; (5) the First Amendment does not protect all forms of speech; (6) the First Amendment often depends upon …

Sex And Religion: Unholy Bedfellows, Mary-Rose Papandrea

Michigan Law Review

A review of Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century.

Hate Speech, Public Assurance, And The Civic Standing Of Speakers And Victims, Vincent A. Blasi

Faculty Scholarship

Jeremy Waldron and James Weinstein have opened up a promising line of inquiry regarding the legitimacy and propriety of hate speech regulation. In doing so, they have succeeded in reinvigorating a subject that had grown academically formulaic even while becoming alarmingly more salient politically and culturally. Together they have enriched our understanding with their specificity of argumentation, intellectual courage, fairminded attentiveness to critics and counter-arguments, comparative law perspective, and genuine originality of conception. I find that each has shown me at least one significant problem in the other’s analysis, a symmetry that I consider a tribute to both.

The Folklore Of Informationalism: The Case Of Search Engine Speech, Oren Bracha

Fordham Law Review

Are search engine results protected speech under the First Amendment? This has become an essential question in the debate over search engine regulation. Search engine speech is at the cutting edge of several recent trends in First Amendment jurisprudence: the challenge of protection for machine–generated speech, a recent tendency toward constraining governmental economic regulatory power through aggressive and broad interpretation of freedom of speech, and the question of limitations on the coverage of the First Amendment. Arguments on behalf of First Amendment protection for search engine results focus on different protected speech interests. Free speech scrutiny is justified and necessary …

Getting Down To (Tattoo) Business: Copyright Norms And Speech Protections For Tattooing, Alexa L. Nickow

Michigan Telecommunications & Technology Law Review

What level of First Amendment protection should we afford tattooing? General public consensus formerly condemned tattoos as barbaric, but the increasingly diverse clientele of tattoo shops suggests that tattoos have become more mainstream. However, the law has struggled to adjust. The recent proliferation of municipal near-bans on tattooing has brought tattooing to the forefront of First Amendment debates, with cases such as Anderson and Coleman leading the way toward recognizing tattooing as pure speech. Tensions between formal and informal copyright norms in the tattoo industry further highlight the collaborative and expressive nature of the artist-customer relationship and its resulting products, …

Nonsense And The Freedom Of Speech: What Meaning Means For The First Amendment, Joseph Blocher

Faculty Scholarship

A great deal of everyday expression is, strictly speaking, nonsense. But courts and scholars have done little to consider whether or why such meaningless speech, like nonrepresentational art, falls within “the freedom of speech.” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated. And because nonsense is so common, the case is also important — artists like Lewis Carroll and Jackson Pollock are not the only putative “speakers” who should be concerned about the outcome.

This Article is the first to explore thoroughly the relationship between …

Algorithms And Speech, Stuart M. Benjamin

Faculty Scholarship

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance – algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt …

Global Anti-Anarchism: The Origins Of Ideological Deportation And The Suppression Of Expression, Julia Rose Kraut

Indiana Journal of Global Legal Studies

On September 6, 1901, a self-proclaimed anarchist named Leon Czolgosz fatally shot President William McKinley at the Pan-American Exposition in Buffalo, New York. This paper places the suppression of anarchists and the exclusion and deportation of foreigners in the aftermath of the "shot that shocked the world" within the context of international anti-anarchist efforts, and reveals that President McKinley's assassination successfully pulled the United States into an existing global conversation over how to combat anarchist violence. This paper argues that these anti-anarchist restrictions and the suppression of expression led to the emergence of a "free speech consciousness" among anarchists, and …

Public Discourse, Expert Knowledge, And The Press, Joseph Blocher

Faculty Scholarship

This Essay identifies and elaborates two complications raised by Robert Post’s Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post’s theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public discourse …

Transmitting, Editing, And Communicating: Determining What “The Freedom Of Speech” Encompasses, Stuart Minor Benjamin

Duke Law Journal

How much can one say with confidence about what constitutes "the freedom of speech" that Congress shall not abridge? In this Article, I address that question in the context of the transmission of speech specifically, the regulation of Internet access known as net neutrality. This question has implications both for the future of economic regulation, as more and more activity involves the transmission of bits, and for First Amendment interpretation. As for the latter, the question is what a lawyer or judge can conclude without having to choose among competing conceptions of speech. How far can a basic legal toolkit …

First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal

Indiana Law Journal

No abstract provided.

On Communication, John Greenman

Michigan Law Review

Everybody knows that communication is important, but nobody knows how to define it. The best scholars refer to it. Free-speech law protects it. But no one-no scholar or judge-has successfully captured it. Few have even tried. This is the first article to define communication under the law. In it, I explain why some activities-music, abstract painting, and parading-are considered communicative under the First Amendment, while others-sex, drugs, and subliminal advertising-are not. I argue that the existing theories of communication, which hold that communicative behaviors are expressive or convey ideas, fail to explain what is going on in free-speech cases. Instead, …

The Jurisprudence Of Colliding First Amendment Interests: From The Dead End Of Neutrality To The Open Road Of Participation-Enhancing Review, Gregory P. Magarian

Notre Dame Law Review

First Amendment interests in both speech and religion often collide with one another. A political activist claims a free speech interest in the right to purchase advertising time on a television network, while the network claims a free speech interest in its decision not to sell the time. A religious enclave claims a free exercise interest in having a dedicated public school district, while its neighbors claim a nonestablishment interest in the government's not extending the group special treatment. In this Article Professor Magarian examines the phenomenon of colliding First Amendment interests, explains and critiques the Supreme Court's failure to …

Displacing Dissent: The Role Of "Place" In First Amendment Jurisprudence, Thomas P. Crocker

Fordham Law Review

No abstract provided.

On Boy Scouts And Anti-Discrimination Law: The Associational Rights Of Quasi-Religious Organizations, Erez Reuveni

Erez Reuveni

This paper proposes a tripartite legal approach to analyzing the rights of private, expressive associations. Current law views private associations through a binary lens - either an organization is "religious," or it is "secular." But this dichotomy fails to account for organizations whose animating expressive purpose is both religious and secular. Using the Boy Scouts of America as a case study, this paper develops a third category of private associations, quasi-religious groups, and articulates why the category is necessary and how quasi-religious groups would fit within existing First Amendment jurisprudence. First, the article reviews numerous cases involving the Boy Scouts …

Preservation Of First Amendment Rights: Finding The Proper Balance Between Expression And Exploitation In Works Of Art, Cecilia Chung

Santa Clara Law Review

No abstract provided.

Terrorist Speech And The Future Of Free Expression, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The crucial point is this: Both liberal, democratic states, and non-state terrorist organizations need free speech. Prominent scholars have written elegantly and at length on the role of this liberty for the former. While their arguments surface at times in the text, the author does not dwell on them. Instead, she wrestles with the question: Under what circumstances are the interests of the state secured and the opportunism of terrorist organizations avoided? Here, the experiences of the United States and United Kingdom prove instructive. On both sides of the Atlantic, where the state acts as sovereign, efforts to restrict persuasive …

Speech And Strife, Robert L. Tsai

Law and Contemporary Problems

Tsai examines the ways in which the US Supreme Court uses language to signal its authority. One technique of the Court is to frequently use the image of institutional conflict within its rulings.

Warning: Labeling Constitutions May Be Hazardous To Your Regime, Suzanna Sherry

Law and Contemporary Problems

Sherry presents information concerning the labeling of court decisions as being liberal or conservative victories. Because each case can be viewed in different aspects of liberalism and conservatism, it is more appropriate to simply recognize that there are important, non-ideological values at stake on both sides of each case.

Discussing The First Amendment , Christina E. Wells

Faculty Publications

Despite its many good qualities, Eternally Vigilant nevertheless suffers from a flaw common to First Amendment scholarship--a tendency to give short shrift to study of the social, psychological, historical, and political factors that influence the Court's decision making and, thus, free speech doctrine. Discussion including these influences would facilitate an even greater understanding of free speech doctrine and the principles that underlie it.

Who's Talking? Disentangling Government And Private Speech, Leslie Gielow Jacobs

University of Michigan Journal of Law Reform

Several different constitutional rules apply to government actions that influence the content of speech. The government has far more discretion to determine speech content when the government itself is the speaker than when it regulates private speakers. Specifically, in the former circumstance, the government can discriminate according to viewpoint, whereas in the latter circumstance it cannot. While the application of the rules may be obvious when either the government or private entities speak alone, increasingly, through various different types of interactions, government and private groups or individuals are speaking together. This circumstance complicates the crucial constitutional determination, which is: who's …

Justice Frank Murphy And American Labor Law, Theodore J. St. Antoine

Articles

Working people and disfavored groups were central concerns of Frank Murphy, the last Michigan Law School graduate to sit on the United States Supreme Court. In the pages of this Review, just over a half century ago, Archibald Cox wrote of him: "It was natural ...th at his judicial work should be most significant in these two fields [labor law and civil rights] and especially in the areas where they coalesce."' In this Essay, after a brief overview of Murphy the man, his days at the University of Michigan, and his career prior to the Court appointment, I shall review …

Antidiscrimination Laws And The First Amendment, David E. Bernstein

Missouri Law Review

Part I of this Article discusses the development of Supreme Court doctrine regarding First Amendment challenges to the enforcement of antidiscrimination laws. Part II discusses attempted justifications by courts and academics for applying the toothless compelling interest test in conflicts between the First Amendment and antidiscrimination laws. Rationales have ranged from Congress’ purported intent to eradicate discrimination by passing Title VII of the 1964 Civil Rights Act to the anti-caste attributes of the Reconstructions Amendments. All of these arguments fail. Also examined is the threat reliance on the compelling interest test posed to the rights of speech, expressive association, and …

Accomodation Of Reputational Interests And Free Press: A Call For A Strict Interpretation Of Gertz, Tom Wall

Fordham Urban Law Journal

New York Times Co. v. Sullivan provides that states may award damages in defamation actions brought by public officials against media critics of their official conduct only if the plaintiff proves that the defendant acted with "actual malice." Subsequently, the Supreme Court extended this rule to public figures and promulgated standards for identifying public figures. The Court declared unconstitutional the common law standard of strict liability in actions brought by private individuals. Establishing negligence as a constitutional minimum, the Court delegated to the states the responsibility for formulating the proper standard of fault in actions brought by private individuals. This …