First Amendment Commons^™

International Megan's Law As Compelled Speech, Alexandra R. Genord

Michigan Law Review

“The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).” International Megan’s Law (IML), passed in 2016, prohibits the State Department from issuing passports to individuals convicted of a sex offense against a minor unless those passports are branded with this phrase. The federal government's decision to brand its citizens’ passports with this stigmatizing message is novel and jarring, but the sole federal district court to consider a constitutional challenge to the passport identifier dismissed the plaintiffs’ First Amendment claim, deeming the provision government speech. …

Return Of The Campus Speech Wars, Thomas Healy

Michigan Law Review

Review of Erwin Chemerinsky and Howard Gillman's Free Speech on Campus.

Privacy, Property, And Publicity, Mark A. Lemley

Michigan Law Review

Review of Jennifer E. Rothman's The Right of Publicity: Privacy Reimagined for a Public World.

Use Your Words: On The "Speech" In "Freedom Of Speech", Leslie Kendrick

Michigan Law Review

Freedom of speech occupies a special place in American society. But what counts as “speech” is a contentious issue. In countless cases, courts struggle to distinguish highly protected speech from easily regulated economic activity. Skeptics view this struggle as evidence that speech is, in fact, not distinguishable from other forms of activity.

This Article refutes that view. It argues that speech is indeed distinct from other forms of activity, and that even accounts that deny this distinction actually admit it. It then argues that the features that make speech distinctive as a phenomenon also make it distinctive as a normative …

Is The First Amendment Obsolete?, Tim Wu

Michigan Law Review

The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce—rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on the weaponization …

Precedent And Speech, Randy J. Kozel

Michigan Law Review

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years, the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its positions on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways large and small. The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the context …

Life-Giving Speech Amid An Empire Of Silence, Walter Brueggemann

Michigan Law Review

It will come as no surprise to readers of the Law Review that James Boyd White is a daring and wise practitioner of what Clifford Geertz terms "blurred genres." By appeal to Kenneth Burke, Victor Turner, and Paul Ricoeur, among others, Geertz envisions a broad interpretive venture that breaks out of the rigid regulations of a particular discipline to the larger constructive enterprise that entertains life and its meaning as a "game" of face-to-face engagement, or as a "drama" that presses on to the next scene. White's work fits that vision precisely. In Living Speech: Resisting the Empire of Force, …

Monuments To The Past In A Leveling Wind, Benjamin Means

Michigan Law Review

Early in the twentieth century, the Emperor Franz Joseph sponsored a monument to Hungary's history - a Millennium Monument containing statues of the country's heroes, as well as statues of the proud sponsor and his family (p. 5). When the communists took over in 1919, the statues of Franz Joseph and the rest of the Hapsburgs were dragged out of the Millennium Monument and replaced with more politically correct statuary (p. 8). Counterrevolutionaries, though, retook the country and reinstated the Hapsburg Statues in the Millennium Monument - until a later regime once again reshuffled the millennial display (pp. 9-10). Professor …

The First Amendment Status Of Commercial Speech: Why The Fcc Regulations Implementing The Telephone Consumer Protection Act Of 1991 Are Unconstitutional, Deborah L. Hamilton

Michigan Law Review

This Note considers the constitutionality of the FCC's regulations implementing the no-recorded-message provision of the 1991 TCPA and concludes that they violate the First Amendment because they impermissibly distinguish between commercial and noncommercial speech. Part I explains the structure of the FCC's recorded-message regulations and demonstrates that the regulations explicitly distinguish commercial recorded messages from other recorded messages. Part II examines First Amendment protection for commercial speech in light of three 1993 Supreme Court decisions that restructured commercial speech doctrine by holding that the government can single out commercial speech for regulation only in response to a distinct harm arising …

Post Constitutionalism, Lawrence Lessig

Michigan Law Review

A Review of Robert C. Post, Constitutional Domains: Democracy, Community, Management

Radically Subversive Speech And The Authority Of Law, Steven D. Smith

Michigan Law Review

This essay attempts to use a familiar, relatively concrete constitutional question to think about a familiar, relatively abstract jurisprudential question - and vice versa. The constitutional question asks why we should give legal protection to what I will call "radically subversive speech." The jurisprudential question concerns the ancient problem of the legitimacy or authority of law in general. "What is law," as Philip Soper puts the question, "that I should obey it?" I will try in this essay to show that the abstract question sheds light on the more concrete one - and vice versa.

A Prior Restraint By Any Other Name: The Judicial Response To Media Challenges Of Gag Orders Directed At Trial Participants, René L. Todd

Michigan Law Review

Gag orders directed at trial participants do not directly intrude into the media's editorial process, but instead result in a reduction of the total communication available regarding trial proceedings. In this way, participant-directed gag orders are effective, albeit indirect, restraints upon the media. This Note examines the dynamics of these participant-directed restrictions and their consequent effect upon the media. Part I examines participant-directed gag orders in relation to traditional prior restraint doctrine. After discussing the history of prior restraint doctrine and the present standard of prior restraint analysis, Part I relates efforts by courts to apply. prior restraint doctrine to …

The Legislative Process And The Rule Of Law: Attempts To Legislate Taste In Moral And Political Beliefs, Samuel D. Estep

Michigan Law Review

In a nutshell, the topic of this paper is "Comstockery and the Bowdlerizing of Ideas." The thesis here asserted is that the Rule of Law is violated when legislatures succumb to modern attempts by the often pathologically-motivated zealot legally to freeze current tastes in moral and political beliefs. The relationship between taste statutes and the seemingly esoteric topic, "The Legislative Process and the Rule of Law," is based on the premise that the maximum possible degree of intellectual freedom for each individual is an essential ingredient in the legal system of a civilized society.