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Full-Text Articles in Law
Why Should The First Amendment Protect Government Speech When The Government Has Nothing To Say?, Steven G. Gey
Why Should The First Amendment Protect Government Speech When The Government Has Nothing To Say?, Steven G. Gey
Steven G. Gey
It is an uncontroversial fact of political life that the government sometimes must communicate with the public. For several years, however, the Supreme Court has used this uncontroversial fact as a justification for developing a First Amendment doctrine of government speech. This new doctrine does more than simply recognize the government's authority to speak out on matters of public policy; as envisioned by the Supreme Court, the doctrine also allows the government to silence or coerce the speech of those in the private sector who wish to speak out against the government. In much the same way that private speakers …
The Brandenburg Paradigm And Other First Amendments, Steven G. Gey
The Brandenburg Paradigm And Other First Amendments, Steven G. Gey
Steven G. Gey
This article addresses the fracturing of modern First Amendment law into multiple different sets of rules and rationales for the protection of speech, depending on what kind of speech is an issue. It is no longer accurate to say that there is one universal First Amendment jurisprudence; indeed, it is no longer accurate to say that there is one First Amendment. Today there are many different -- often very different -- First Amendments for different types of speech. On a practical level, this fracturing of First Amendment law creates difficulties only in that it requires litigators and judges addressing First …
The Procedural Annihilation Of Structural Rights, Steven G. Gey
The Procedural Annihilation Of Structural Rights, Steven G. Gey
Steven G. Gey
For several years the Supreme Court has been systematically erecting obstacles to the litigation of constitutional claims in federal court. These obstacles take several forms, including restrictions on standing, restrictions on raising facial challenges to unconstitutional statutes, and an increasingly unwillingness to allow federal courts to infer remedies when necessary to enforce federal statutory or constitutional claims. Although this trend toward limiting federal court authority affects all types of constitutional claims, including those involving traditional individual constitutional rights, the most serious effect is on what can be called "structural rights." The term "structural rights" describes constitutional provisions that are designed …