Law Commons^™

The Future And The First Amendment, Lee C. Bollinger

Faculty Scholarship

It is my honor and pleasure to deliver this year's Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly …

Harry Kalven, The Proust Of The First Amendment, Lee C. Bollinger

Faculty Scholarship

Reading A Worthy Tradition makes one nostalgic. For the generation of scholars who cut their first amendment teeth on Harry Kalven's articles, this book offers the experience of a recaptured past. The question is, however, does it offer anything more?

Mark Tushnet On Liberal Constitutional Theory: Mission Impossible, Frank Goodman

All Faculty Scholarship

No abstract provided.

Forgetting The Constitution, Robert F. Nagel

Publications

No abstract provided.

First Amendment And Land Use, In Recent Developments In Land Use, Planning, And Zoning, Alan C. Weinstein, Edward E. Ziegler Jr.

Law Faculty Articles and Essays

In the mid-1980s, the focus in this area of the law was on nuisance closures and license revocation actions affecting adult bookstores and other kinds of establishments where either obscenity or illicit sexual activities were taking place. In our last committee report focusing on the first amendment area we reported on those areas of the law in light of the Supreme Court's decision in Arcara v. Cloud Books, Inc. Since then, there has been one important Fifth Circuit decision, FW/PBS Inc. v. City of Dallas, that the Supreme Court has agreed to review, with a decision expected in 1989. There …

Freedom Of Communicative Action: A Theory Of The First Amendment Freedom Of Speech, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

We are still searching for an adequate theory of the first amendment freedom of speech. Despite a plethora of judicial opinions and scholarly articles, there are fundamental conflicts over the meaning of the words "Congress shall make no law ... abridging the freedom of speech." This Article examines the possibility that recent developments in social theory can aid our understanding of the freedom of speech. My thesis is that Jiirgen Habermas' theory of communicative action can serve as the basis for an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a …

"Libelous" Petitions For Redress Of Grievances -- Bad Historiography Makes Worse Law, Eric Schnapper

Articles

Both the majority and concurring opinions in McDonald v. Smith, 472 U.S. 479 (1985), concluded that there was no historical basis for McDonald's contention that the framers understood the right to petition to include an unqualified right to do so without being subject to suit for libel. This Article argues that the historical analysis in McDonaldis incorrect; indeed, this appears to be one instance in which the relevant historical materials are both voluminous and crystal clear.

Part I evaluates the McDonald Court's discussion of the intent of the framers. Subsequent sections discuss the wide variety of materials that …

Commentary, The Selling Of Jury Deliberations, Robert F. Nagel

Publications

No abstract provided.

Distinction Without A Difference: A Reappraisal Of The Doctrine Of Prior Restraint, Marin Roger Scordato

Scholarly Articles

For nearly 60 years, the doctrine of prior restraint has held a central position in first amendment jurisprudence. A law that acts as a prior restraint on speech comes under such searching judicial scrutiny that it almost always is invalidated. Professor Marin Scordato makes a frontal attack on the existing prior restraint doctrine in this Article. ie first maintains that the traditional definition of prior restraint defies the common-sense meaning of the term. Then he examines the policy justifications for identifying prior restraints by their asserted tendency to produce constitutionally undesirable results compared with their definitional opposites, subsequent sanctions. He …

Academic Freedom: A ‘Special Concern Of The First Amendment’, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The First Amendment protects academic freedom. This simple proposition stands explicit or implicit in numerous judicial opinions, often proclaimed in fervid rhetoric. Attempts to understand the scope and foundation of a constitutional guarantee of academic freedom, however, generally result in paradox or confusion. The cases, shorn of panegyrics, are inconclusive, the promise of their rhetoric reproached by the ambiguous realities of academic life.

The Original Conception Of Section 1 And Its Demise: A Comment On Irwin Toy V. A-G Of Quebec, Jamie Cameron

Articles & Book Chapters

The author submits that the logic and purpose of the Canadian Charter of Rights and Freedom, as it was originally conceived, demand that the substantive rights be given a broad and literal interpretation with limitations imposed exclusively under section 1. This distinction between breach and justification must be maintained to preserve the Charter's integrity. The author suggests that the Supreme Court of Canada's decision in Irwin Toy will only perpetuate the confusion surrounding Charter interpretation. The Court again failed to articulate a concrete conception of section 1 review, and, in obiter dicta, noted that forms of expressive activity having physical …

Free Speech Justifications, Kent Greenawalt

Faculty Scholarship

This Article sets out what I believe are the relevant justifications for free speech, the term "free speech" being meant to cover both freedom of speech and freedom of the press. These are the justifications one might use to assess whether communications fall within a political or judicial principle of free speech and how great the protection of the communications that are covered should be. Such assessments are undertaken in a longer study that is mainly about the ways in which different uses of language affect the application of principles of freedom of speech to the criminalization of behavior. That …