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Talking Drugs: The Burden Of Proof In Post-Garcetti Speech Retaliation Claims, Thomas E. Hudson
Talking Drugs: The Burden Of Proof In Post-Garcetti Speech Retaliation Claims, Thomas E. Hudson
Washington Law Review
Law Enforcement agencies fire their employees for speaking out in favor of drug legalization, which leads the employees to sue their former employers for violating their First Amendment Free Speech rights. These employee claims fall under the U.S. Supreme Court’s complex speech retaliation test, most recently articulated in Garcetti v. Ceballos. The analysis reveals that circuit courts are inconsistent as to who bears the burden of proving that they prevail under “Pickering balancing,” and how they should construct that burden. This Comment argues that U.S. Supreme Court precedent demands that the employer bears the “Pickering balancing” burden, and that …
The First Amendment's Epistemological Problem, Paul Horwitz
The First Amendment's Epistemological Problem, Paul Horwitz
Washington Law Review
In this Article, I treat the recent interest in these epistemological issues as an opportunity to explore an important aspect of Post’s project: the uneasy role of truth within First Amendment doctrine, and the relationship between courts and those institutions that we view generally as epistemically reliable sources of knowledge. My examination suggests that the First Amendment faces what I call an epistemological problem: specifically, the problem of figuring out just how knowledge fits within the First Amendment. The growing attention to the epistemology problem among leading First Amendment scholars is significant enough to warrant examination. Although I offer some …
A View From The First Amendment Trenches: Washington State's New Protections For Public Discourse And Democracy, Bruce E.H. Johnson, Sarah K. Duran
A View From The First Amendment Trenches: Washington State's New Protections For Public Discourse And Democracy, Bruce E.H. Johnson, Sarah K. Duran
Washington Law Review
In his latest book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Dean Robert Post promotes the concept of “democratic legitimation” as the cornerstone of democratic decision making. Dean Post defines “democratic legitimation” as “all efforts” to influence “public opinion.” As Post explains, “[d]emocracy requires that government action be tethered to public opinion” because “public opinion can direct government action in an endless variety of directions.” As a result, First Amendment coverage should extend to all communications that form public opinion, he contends. Those who object to speech aimed at influencing public opinion have …
The Guardians Of Knowledge In The Modern State: Post's Republic And The First Amendment, Ronald K.L. Collins, David M. Skover
The Guardians Of Knowledge In The Modern State: Post's Republic And The First Amendment, Ronald K.L. Collins, David M. Skover
Washington Law Review
No abstract provided.
The First Amendment, The Courts, And "Picking Winners", Thomas L. Ambro, Paul J. Safier
The First Amendment, The Courts, And "Picking Winners", Thomas L. Ambro, Paul J. Safier
Washington Law Review
Dean Robert Post’s book—Democracy, Expertise, and Academic Freedom—reflects and requires serious thought about our First Amendment. This Essay addresses just two of the many interesting assertions Dean Post makes. The first is his claim that the advancement of knowledge in a democracy springs primarily from the knowledge that experts gather in discerning good from bad ideas, and that recognizing this value requires courts to develop criteria for determining which viewpoints are better in ongoing debates among experts. The second is Dean Post’s contention that the U.S. Constitution protects an individual right to academic freedom, which requires enforcing this …
Public Discourse, Expert Knowledge, And The Press, Joseph Blocher
Public Discourse, Expert Knowledge, And The Press, Joseph Blocher
Washington Law Review
This Essay identifies and elaborates two complications raised by Robert Post’s Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post’s theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public …
Democratic Competence, Constitutional Disorder, And The Freedom Of The Press, Stephen I. Vladeck
Democratic Competence, Constitutional Disorder, And The Freedom Of The Press, Stephen I. Vladeck
Washington Law Review
In Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Robert Post offers a powerful argument for why the First Amendment should protect the manner in which professional disciplines produce expert speech. This symposium Essay responds to Post’s book by focusing on the potential interaction between Post’s theory of “democratic competence” and the freedom of the press. Using the WikiLeaks affair as a foil, this Essay concludes that a “democratic competence” approach might provide a more coherent theoretical underpinning for according constitutional protection to newsgathering (as distinct from publication), and might thereby help to answer …
Understanding The First Amendment, Robert Post
Understanding The First Amendment, Robert Post
Washington Law Review
It is a rare privilege to be read and engaged by such thoughtful and insightful commentators as the Washington Law Review has assembled. It is exhilarating to participate in a conversation of this range and intensity. I am very grateful to the Washington Law Review, Ronald K.L. Collins and David Skover, and the University of Washington School of Law, for making this symposium possible.
Selected Bibliography Of First Amendment Scholarship, Robert C. Post
Selected Bibliography Of First Amendment Scholarship, Robert C. Post
Washington Law Review
Consists of articles, books, and book chapers.