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Posner, Blackstone, And Prior Restraints On Speech, Ashutosh Bhagwat
Posner, Blackstone, And Prior Restraints On Speech, Ashutosh Bhagwat
BYU Law Review
Judge Richard Posner recently asserted that the original understanding of the Free Speech Clause of the First Amendment was to prohibit “censorship”—meaning prior restraints—but not subsequent punishments. Posner was following in the footsteps of many other eminent jurists including Oliver Wendell Holmes, Jr., Joseph Story, James Wilson, and ultimately William Blackstone.
The problem is, this claim is simply wrong. Firstly, it misquotes Blackstone. Blackstone said that the liberty of the press meant only freedom from prior restraints; he never discussed speech. When one does examine the Speech Clause, it becomes quite clear that its protections cannot be limited to freedom …
Justice Brennan's Gender Jurisprudence, Rebecca Korzec
Justice Brennan's Gender Jurisprudence, Rebecca Korzec
Akron Law Review
However, less attention has been focused on Justice Brennan's dramatic impact on the Supreme Court's gender jurisprudence. More than any other member of the Court, Justice Brennan recognized the complexity and pervasiveness of sex discrimination and its costs to society as a whole. Brennan's opinions recognized that sex differentiation is largely cultural in origin, rather than based on "real" gender differences. As a result, Justice Brennan created a truly independent gender jurisprudence, eventually emerging as the architect of the Supreme Court's contemporary test for evaluating claims of sex-based discrimination.
Understanding the significance of Brennan's contribution requires an appreciation of the …