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Articles 1 - 6 of 6
Full-Text Articles in Constitutional Law
Free Speech And Speaker's Intent: A Reply To Kendrick., Larry Alexander
Free Speech And Speaker's Intent: A Reply To Kendrick., Larry Alexander
Faculty Scholarship
No abstract provided.
New Problems For Subsidized Speech, Joseph Blocher
New Problems For Subsidized Speech, Joseph Blocher
Faculty Scholarship
The constitutionality of conditional offers from the government is a transsubstantive issue with broad and growing practical implications, but it has always been a particular problem for free speech. Recent developments suggest at least three new approaches to the problem, but no easy solutions to it. The first approach would permit conditions that define the limits of the government spending program, while forbidding conditions that leverage funding so as to regulate speech outside the contours of the program. This is an appealing distinction, but runs into some of the same challenges as public forum analysis. The second approach would treat …
Student Press Exceptionalism, Sonja R. West
Student Press Exceptionalism, Sonja R. West
Scholarly Works
Constitutional protection for student speakers is an issue that has been hotly contested for almost 50 years. Several commentators have made powerful arguments that theCourt has failed to sufficiently protect the First Amendment rights of all students. But this debate has overlooked an even more troubling reality about the current state ofexpressive protection for student — the especially harmful effect of the Court’s precedents on student journalists. Under the Court’s jurisprudence, schools may regulate with far greater breadth and ease the speech of student journalists than of their non-press classmates. Schools are essentially free to censor the student press even …
Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan
Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan
Scholarly Works
Citizens United v. FEC articulated a new pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. This new doctrine has the potential to reshape free speech law far beyond the corporate speech and campaign finance contexts. This article explores the …
Do Immigrants Have Freedom Of Speech?, Michael Kagan
Do Immigrants Have Freedom Of Speech?, Michael Kagan
Scholarly Works
The Department of Justice recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. If the DOJ argument is right, then most of the 11 million unauthorized immigrants in the U.S. could be censored or punished for speaking their minds – as many of them have in support of comprehensive immigration reform and the Dream Act. This Essay explores the complicated and conflicted case law governing immigrants’ free speech rights, and argues that, contrary to the DOJ position, all people in the United States are protected …
Plenary Power Is Dead! Long Live Plenary Power!, Michael Kagan
Plenary Power Is Dead! Long Live Plenary Power!, Michael Kagan
Scholarly Works
For decades, scholars of immigration law have anticipated the demise of the plenary power doctrine. The Supreme Court could have accomplished this in its recent decision in Kerry v. Din, or it could have re-affirmed plenary power. Instead, the Court produced a splintered decision that did neither. This essay examines the long process of attrition that has significantly gutted the traditional plenary power doctrine with regard to procedural due process, while leaving it largely intact with regard to substantive constitutional rights.