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Full-Text Articles in Law
To Swear Or Not To Swear: Using Foul Language During A Supreme Court Oral Argument, Alan Garfield
To Swear Or Not To Swear: Using Foul Language During A Supreme Court Oral Argument, Alan Garfield
Alan E Garfield
This essay considers the provocative question of whether it is strategically wise for a lawyer to use foul language during a Supreme Court oral argument. This issue doesn’t come up often. But it does when a lawyer claims his client’s First Amendment rights were violated when the government punished him for using foul language. If the lawyer doesn’t use his client’s offensive words, he risks conceding that these words are so horrid they warrant suppression. But if he does use the words, he risks alienating justices who find the words unseemly. The essay uses the “fleeting expletives” case that was …
“Reasoning-Lite” In The Violent Video Game Case, Alan Garfield
“Reasoning-Lite” In The Violent Video Game Case, Alan Garfield
Alan E Garfield
One might have expected that the Supreme Court’s recent decision in the violent video game case, Brown v. Entertainment Merchants Ass’n, would have been a thoughtful balancing of society’s competing interests in protecting freedom of speech and protecting children from harm. After all, the Supreme Court had held decades earlier that the government could deny minors access to soft-porn, or what the Court called “girlie magazines.” So one could have assumed the Court would seriously consider California’s claim that minors also needed sheltering from the grittier world of violent video game rapes, beheadings, and ethnic cleansings. Yet, as Justice Scalia’s …
Calibrating Copyright Statutory Damages To Promote Speech, Alan Garfield
Calibrating Copyright Statutory Damages To Promote Speech, Alan Garfield
Alan E Garfield
Copyright and the First Amendment exist in tension. The Supreme Court acknowledges this tension but says that copyright law resolves it with two built-in free speech safeguards: (1) by protecting only the expression of ideas and not the ideas themselves (the idea/expression dichotomy); and (2) by allowing the use of expression under certain circumstances (the fair use doctrine). The problem is that these doctrines are notoriously vague, so users often cannot know ex ante whether their uses will be immune from liability. This unpredictably might be tolerable if users could be confident that, if they were subject to liability, any …
Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield
Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield
Alan E Garfield
One of the nation’s more profound and volatile ideological divides is between fundamentalist religious adherents and secular members of society. This divide has been particularly salient in recent years as issues challenging traditional religious morality – abortion, gay marriage, and stem-cell research – have been exploited as wedge issues for political gain. In this Article, I join the efforts of other scholars to find a way to bridge the gap between religious and secular Americans. By focusing on one particularly contentious front in the religious-secular wars – the teaching of intelligent design – I am able to identify a value …
Protecting Children From Speech, Alan E. Garfield
Protecting Children From Speech, Alan E. Garfield
Alan E Garfield
Public concern about minor access to inappropriate speech (violent, sexual, vice advertising) has led to an onslaught of regulatory responses in recent years. Courts have wrestled with the constitutionality of these regulations but their decisions have provided little clarity as to what legislators may or may not do. In this Article, I guide legislators and judges through the thicket of child-protection censorship. I cut through the mass of precedent, empirical studies, and scholarship to distill the child-protection/free speech conflict into a series of comprehensible questions. By identifying the key questions underlying the conflict, I draw attention to the core constitutional …
A Positive Rights Interpretation Of The Establishment Clause, Alan E. Garfield
A Positive Rights Interpretation Of The Establishment Clause, Alan E. Garfield
Alan E Garfield
No abstract provided.
The Mischief Of Cohen V. Cowles Media Co., Alan E. Garfield
The Mischief Of Cohen V. Cowles Media Co., Alan E. Garfield
Alan E Garfield
For a short, sloppily reasoned 5-4 decision that textbook editors have largely consigned to note status, Cohen v. Cowles Media Co. has had a remarkably insidious influence on First Amendment law. The problem is not so much the decision’s holding. The Supreme Court’s conclusion that newspapers could be liable for breaching a promise of anonymity to a source might actually further speech interests. The problem instead is in Cohen’s reasoning. It is the way in which the Supreme Court so cavalierly dismissed the argument that the First Amendment precluded punishing media defendants for the publication of truthful information. The Court …