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Closing The Barn Door After The Genie Is Out Of The Bag: Recognizing A "Futility Principle" In First Amendment Jurisprudence, Eric Easton
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This article argues for a simple proposition: the First Amendment imposes a presumption against the suppression of speech when suppression would be futile. Suppression is futile when the speech is available to the same audience through some other medium or at some other place. The government can overcome this presumption of futility only when it asserts an important interest that is unrelated to the content of the speech in question, and only when the suppression directly advances that interest.
In Part I, the article explores the role that this unarticulated "futility principle" has played in Supreme Court and other decisions …
This Gun For Hire: Dancing In The Dark Of The First Amendment, Michael I. Meyerson
This Gun For Hire: Dancing In The Dark Of The First Amendment, Michael I. Meyerson
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Classified advertisements in newspapers and magazines represent a uniquely democratic access to the media for the individual. Without having to pay the thousands of dollars for full-page advertisements, buyers and sellers can purchase space for their offers for only a few dollars, yet have them seen by city-wide or nation-wide audiences. Democracy, though, breeds its own excesses, and the legal question is always how to control that excess without harming the freedom.
As befits a medium open to all, classified advertisements run the gamut of human activity, from the sale of a used automobile to employment to lonely singles looking …