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Unprecedented Precedent And Original Originalism: How The Supreme Court’S Decision In Dobbs Threatens Privacy And Free Speech Rights, Leonard Niehoff

Articles

The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has drawn considerable attention because of its reversal of Roe v. Wade and its rejection of a woman’s constitutional right to terminate her pregnancy. The Dobbs majority, and some of the concurring opinions, emphasized that the ruling was a narrow one. Nevertheless, there are reasons to think the influence of Dobbs may extend far beyond the specific constitutional issue the case addresses.

This article explains why Dobbs could have significant and unanticipated implications for the law of privacy and the law of free expression. I argue that two …

Rescuing Our Democracy By Rethinking New York Times Co. V. Sullivan, David A. Logan

Law Faculty Scholarship

No abstract provided.

Institutional Actors In New York Times Co. V. Sullivan, Paul Horwitz

Georgia Law Review

Like all major cases, New York Times Co. v. Sullivan, which has now reached its fiftieth anniversary, is capable of multiple readings. This is less true of Sullivan than of some other epochal cases, especially those cases that continue to have a powerful political valence. Brown v. Board of Education, in particular, which will mark its sixtieth anniversary this year, continues to provoke fierce debates about its meaning and, in a deeper sense, its ownership. Sullivan is unquestionably one of the most important decisions in First Amendment jurisprudence. It has certainly produced debate. But arguments about Sullivan generally focus on …

Fast Forward Fifty Years: Protecting Uninhibited, Robust, And Wide-Open Debate After New York Times Co. V. Sullivan, Amy K. Sanders

Georgia Law Review

In September 2013, California Governor Jerry Brown signed into law SB 606, criminalizing attempts to photograph or videotape a child if the reason for doing so was because the child's parent is a celebrity or public official. Not surprisingly, the measure garnered significant support from Hollywood's elite, including legislative testimony from actress-moms Halle Berry and Jennifer Garner. Against the outcry of the California Broadcasters Association and the California Newspaper Publishers Association, the California Legislature approved the measure, which raises current penalties for first-time offenders to one year of incarceration and/or a $10,000 fine (up from a maximum of six months …

In New York Times Co. V. Sullivan, The Supreme Court Got It Right Then- And Now, David G. Savage

Georgia Law Review

On April 5, 1960, Ray Jenkins, a city editor for the Alabama Journal,the afternoon paper in Montgomery, was having lunch at his desk and skimming through the old papers that had piled up. They included a week-old copy of the New York Times. He spotted an item that had a local angle, and he wrote a thirteen-paragraph story for that day's paper. "Sixty prominent liberals, including [former First Lady] Eleanor Roosevelt, have signed a full page advertisement in the New York Times appealing for contributions to 'The Committee to Defend Martin Luther King and the Struggle for Freedom in the …

First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji

Michigan Law Review

The tension between equality and discretion lies at the heart of some of the most vexing questions of constitutional law. The considerable discretion that many official decisionmakers wield raises the spectre that violations of equality norms will sometimes escape detection. This is true in a variety of settings, whether discretion lies over speakers' access to public fora, implementation of the death penalty, or the recounting of votes. Is the First Amendment violated, for example, when a city ordinance gives local officials broad discretion to determine the conditions under which political demonstrations may take place? Is equal protection denied where the …

The Heroes Of The First Amendment, Frederick Schauer

Michigan Law Review

In 1950, Felix Frankfurter famously observed that "[i)t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." The circumstances of Justice Frankfurter's observation were hardly atypical, for his opinion arose in a Fourth Amendment case involving a man plainly guilty of the crime with which he had been charged - fraudulently altering postage stamps in order to make relatively ordinary ones especially valuable for collectors. Indeed, Fourth Amendment cases typically present the phenomenon that Frankfurter pithily identified, for most of the people injured by an …

Strangers On A Train, Peirre N. Leval

Michigan Law Review

A Review of Make No Law: The Sullivan Case and the First Amendment by Anthony Lewis

Justice Brennan's Gender Jurisprudence, Rebecca Korzec

All Faculty Scholarship

During his thirty-four year tenure on the Supreme Court, Justice William Joseph Brennan, Jr. demonstrated unparalleled sensitivity to the protection of individual rights. Justice Brennan's landmark opinions included Baker v. Carr, Goldberg v. Kelly, and New York Times Co. v. Sullivan. before Brennan, Supreme Court jurisprudence exalted judicial passivity by employing techniques for avoiding constitutional issues, such as abstention, comity, exhaustion of remedies and the political question doctrine.

Against this background, Brennan became an active judicial voice in a series of innovative landmark cases, including decisions requiring federal officials to pay damages for violation of citizens' constitutional rights; authorizing federal …

Actual Malice: Twenty-Five Years After Times V. Sullivan, David G. Wille

Michigan Law Review

A Review of Actual Malice: Twenty-Five Years After Times v. Sullivan. by W. Wat Hopkins

A Prior Restraint By Any Other Name: The Judicial Response To Media Challenges Of Gag Orders Directed At Trial Participants, René L. Todd

Michigan Law Review

Gag orders directed at trial participants do not directly intrude into the media's editorial process, but instead result in a reduction of the total communication available regarding trial proceedings. In this way, participant-directed gag orders are effective, albeit indirect, restraints upon the media. This Note examines the dynamics of these participant-directed restrictions and their consequent effect upon the media. Part I examines participant-directed gag orders in relation to traditional prior restraint doctrine. After discussing the history of prior restraint doctrine and the present standard of prior restraint analysis, Part I relates efforts by courts to apply. prior restraint doctrine to …

Public Figures And Malice: Recent Supreme Court Decisions Restricting The Constitutional Privilege, Ann M. Annase, Scott A. Milburn

University of Richmond Law Review

Historically, Americans have placed great importance on both their good name and their right to free speech. "As ingrained as both of these ideals are in the very fabric of our society, they sometimes run counter to each other." The Supreme Court has tried to balance these conflicting ideals in libel cases involving the first amendment's protection of freedom of the press. In the 1964 case of New York Times Co. v. Sullivan, the Court held that the first amendment's constitutional privilege extends to those publishing defamatory statements concerning official conduct, and that a plaintiff in such a case could …

The Expanding Constitutional Protection For The News Media From Liability For Defamation: Predictability And The New Synthesis, Michigan Law Review

Michigan Law Review

The tort of defamation has a long and complex history dating back to the sixteenth century. Though this tort from the very beginning did not find favor with the law courts, it has managed to survive into the second half of the twentieth century. But this survival may not endure much longer since the Supreme Court has found a deep conflict between the law of defamation and the first amendment. The reasons for this conflict and the Supreme Court's basic resolution of it in favor of first amendment values have been the subject of much scholarly comment, but the Court's …

Unconstitutional Conditions Upon Public Employment: New Departures In The Protection Of First Amendment Rights, Harold H. Bruff

Publications

No abstract provided.

The Warren Court And The Press, John P. Mackenzie

Michigan Law Review

The conventional wisdom about the relationship between the ·warren Court and the news media runs something like this: With a few exceptions, the press corps is populated by persons with only a superficial understanding of the Court, its processes, and the values with which it deals. The Court has poured out pages of legal learning, but its reasoning has been largely ignored by a result-oriented news industry interested only in the superficial aspects of the Court's work. The Court can trace much of its "bad press," its "poor image," to the often sloppy and inaccurate work of news gatherers operating …

"Uninhibited, Robust, And Wide-Open"--A Note On Free Speech And The Warren Court, Harry Kalven Jr.

Michigan Law Review

There are several ways to give at the outset, in quick summary, an over-all impression of the Warren Court in the area of the first amendment. The quotation in the title can for many reasons be taken as its trademark. The quotation comes, of course, from a statement about public debate made in the Court's preeminent decision, New York Times v. Sullivan, and it carries echoes of Alexander Meiklejohn. We have, according to Justice Brennan, "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open .... " What catches the eye is …