Law Commons^™

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 …

Book Challenges Popping Up All Over: What Do School Principals Need To Know?, Samantha Laine Hull, Sue Kimmel

STEMPS Faculty Publications

This chapter provides practical advice and reasons for school leaders to support students' intellectual freedom through their support of school libraries and school librarians. The chapter begins with a short but critical literature review that includes case law on the topic of censorship in schools. The concerns of teachers and librarians from a recent study are summarized and help build the foundation for practical and ready to use advice for any school leaders to uphold the intellectual freedom of all students.

Discriminatory Censorship Laws, Jonathan Feingold, Joshua Weishart

Faculty Scholarship

The summer of 2020 ignited global protests for racial justice. Across the United States, millions marched with a modest plea: that America reckon with its racism. For K-12 schools, this moment pushed local communities and district leaders to create more inclusive classrooms and curricula. Yet before the summer had ended, America's antiracist turn provoked a backlash campaign that has proven far more impactful and enduring.

This campaign has featured the rise and spread of "discriminatory censorship laws"-a term we apply to government action designed to demean inclusionary values and to deny students access to critical knowledge, inquiry, and thinking. As …

Understanding Chilling Effects, Jonathon Penney

Articles, Book Chapters, & Popular Press

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical …

New Media, Free Expression, And The Offences Against The State Acts, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

New media facilitates communication and creates a common, lived experience. It also carries the potential for great harm on an individual and societal scale. Posting integrates information and emotion, with study after study finding that fear and anger transfer most readily online. Isolation follows, with insular groups forming. The result is an increasing bifurcation of society. Scholars also write about rising levels of depression and suicide that stem from online dependence and replacing analogical experience with digital interaction, as well as escalating levels of anxiety that are rooted in the validation expectation of the ‘like’ function. These changes generate instability …

Indecency Regulation Of The Fcc And Censorship Law In Republic Korea: Comparison And Contrasts, Min-Soo "Minee" Roh

Upper Level Writing Requirement Research Papers

Regulating music on radio or television is not a straightforward process, as the music is comprised of lyrics of words. On top of the lyrics, any music performance has an additional layer of choreography and dress code. If any individual elements or combined elements is obscene or indecent, the government attempts to regulate broadcasting both music and performance. This leads to regulating general speech on communications and it requires this paper to look into regulation of broadcasting in general and specific examples of music broadcasting regulation on radio and television, particularly, in the United States (“States”) and in Republic of …

Justice Anthony Kennedy's Free Speech Legacy [Comments], Nadine Strossen

Articles & Chapters

Justice Kennedy has been hailed by free speech advocates as a leading free speech champion. In contrast, other experts have not only criticized particular opinions and votes by Justice Kennedy that rejected free speech claims, but they also have maintained that Justice Kennedy specifically declined to protect speech that was at odds with his conservative political and religious views. It is certainly true that Justice Kennedy did not uphold freedom of speech in some important contexts, including when the Government asserted countervailing national security or "War on Drugs" concerns. However, in other important cases, Justice Kennedy showed courage in defending …

We’Ve Come A Long Way (Baby)! Or Have We? Evolving Intellectual Freedom Issues In The Us And Florida, L. Bryan Cooper, A.D. Beman-Cavallaro

Works of the FIU Libraries

This paper analyzes a shifting landscape of intellectual freedom (IF) in and outside Florida for children, adolescents, teens and adults. National ideals stand in tension with local and state developments, as new threats are visible in historical, legal, and technological context. Examples include doctrinal shifts, legislative bills, electronic surveillance and recent attempts to censor books, classroom texts, and reading lists.

Privacy rights for minors in Florida are increasingly unstable. New assertions of parental rights are part of a larger conservative animus. Proponents of IF can identify a lessening of ideals and standards that began after doctrinal fruition in the 1960s …

John Stuart Mill And Political Correctness, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

This article will examine Mill’s arguments in favor of unrestrained freedom of speech and his objection to the social censorship of speech. It will then discuss the origins and impact of what is now characterized as political correctness. The article will then define the concept of social censorship and attempt to distinguish pure social censorship from private tangible punishment of speech. Next, the article will examine the ways in which social censorship serves important social goals and promotes free speech as well as the ways in which it undermines free speech. It will especially focus on the damage to intellectual …

Censorship 101, Sonja R. West

Popular Media

This article looks at censorship in the public school setting.

How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia

UF Law Faculty Publications

This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …

Deciphering A Duality: Understanding Conflicting Standards In Sex & Violence Censorship In U.S. Obscenity Law, Rushabh P. Bhakta

Political Science Honors Projects

This research examines the division in US obscenity law that enables strict sex censorship while overlooking violence. By investigating the social and legal development of obscenity in US culture, I argue that the contemporary duality in obscenity censorship standards arose from a family of forces consisting of faith, economy, and identity in early American history. While sexuality ingrained itself in American culture as a commodity in need of regulation, violence was decentralized from the state and proliferated. This phenomenon led to a prioritization of suppressing sexual speech over violent speech. This paper traces the emergence this duality and its source.

Internet Access Rights: A Brief History And Intellectual Origins, Jonathon Penney

Articles, Book Chapters, & Popular Press

If there is anything we have learned from recent protest movements around the world, and the heavy-handed government efforts to block, censor, suspend, and manipulate Internet connectivity, it is that access to the Internet, and its content, is anything but certain, especially when governments feel threatened. Despite these hard truths, the notion that people have a "right" to Internet access gained high-profile international recognition last year. In a report to the United Nations General Assembly in early 2011, Frank La Rue, the UN Special Rapporteur on Freedom of Expression, held that Internet access should be recognized as a "human right". …

Cultural Values And Government, Walter E. Dellinger Iii

Faculty Scholarship

Mr. Dellinger Mr. Dellinger originally delivered these remarks for the panel entitled The Role of Government in Defining Our Culture, at the Federalist Society’s 2006 National Lawyers Convention, on Saturday, November 18, 2006, in Washington, D.C. commenting on the Ninth Circuit decision Finley v. National Endowment for the Arts. The case involved the constitutionality of the Helms Amendment which required that the National Endowment for the Arts take decency into account in choosing who should be awarded artistic grants.

Censorship By Proxy: The First Amendment, Internet Intermediaries, And The Problem Of The Weakest Link, Seth F. Kreimer

All Faculty Scholarship

The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private actors …

Cross Burning, Hate Speech, And Free Speech In America, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Congress, The Internet, And The Intractable Pornography Problem: The Child Online Protection Act Of 1998, Timothy Zick

Faculty Publications

No abstract provided.

Quo Vadis, Posadas?, William W. Van Alstyne

Faculty Scholarship

This examination looks at Virginia's ban on speech advertising motorcycles and revisits the question raised in the Posadas decision - may a state ban speech about a legal product the state could ban if it so desired. This article uses comparisons to the government employee speech cases to further illuminate the issue.

Censorship Of Cyberspace A Personal Choice, I. Trotter Hardy

Popular Media

No abstract provided.

Girls Should Bring Lawsuits Everywhere . . . Nothing Will Be Corrupted: Pornography As Speech And Product, Marianne Wesson

Publications

No abstract provided.

Freedom Of Speech For Libraries And Librarians, Rodney A. Smolla

Faculty Publications

Noting the recent bicentennial of the First Amendment to the United States Constitution, Professor Smolla considers the role of librarians in opposing censorship. He proposes a new principle of "professionalism" to establish the librarian's role, and discusses the principle in light of the Supreme Court's decision in Board of Education v. Pico.

Propaganda, Xenophobia, And The First Amendment, Rodney A. Smolla, Stephen A. Smith

Faculty Publications

No abstract provided.

The Right To Speak, The Right To Hear, And The Right Not To Hear: The Technological Resolution To The Cable/Pornography Debate, Michael I. Meyerson

All Faculty Scholarship

The advent of cable television presented a new opportunity to consider the competing interests on each side of the free speech/pornography debate. This Article attempts to construct an analysis that will be consistent with Supreme Court teaching on how government, under the first amendment, may constitutionally regulate legal obscenity, particularly in the name of protecting those who wish to avoid exposure to such material.

The Article shows how, unlike earlier battles over technology and pornography, cable television presented the novel opportunity to have a technological rather than a censorial solution to this difficult problem.

Congressional Power And Free Speech: Levy’S Legacy Revisited, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

How Useful Is Judicial Review In Free Speech Cases?, Robert F. Nagel

Publications

No abstract provided.

Prior Restraint Of Expression Through The Private Search Doctrine, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.