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Full-Text Articles in Social and Behavioral Sciences
“Arrogance Cloaked As Humility” And The Majoritarian First Amendment: The Free Speech Legacy Of Chief Justice William H. Rehnquist, Edward L. Carter, Brad Clark
“Arrogance Cloaked As Humility” And The Majoritarian First Amendment: The Free Speech Legacy Of Chief Justice William H. Rehnquist, Edward L. Carter, Brad Clark
Faculty Publications
In his 19 years as Chief Justice of theUnited States, William H. Rehnquist voted in favor of the individual expression interest asserted in approximately one-fifth of the Speech Clause cases heard by the Supreme Court. Meanwhile, he opposed protecting those constitutional interests in approximately two-thirds of the speech cases during that time. (His votes evidenced both speech-protective and non-protective elements just more than 10 percent of the time). This manuscript analyzes the Rehnquist jurisprudence in comparison with that of his two immediate predecessors as Chief, Warren Burger and Earl Warren. Rehnquist’s deference to government, reliance on history and formalist categorization …
Death Of Procedural Safeguards: Prior Restraint, Due Process And The Elusive First Amendment Value Of Content Neutrality, Edward L. Carter, Brad Clark
Death Of Procedural Safeguards: Prior Restraint, Due Process And The Elusive First Amendment Value Of Content Neutrality, Edward L. Carter, Brad Clark
Faculty Publications
In recent years, federal courts eroded the procedural safeguards required for prior restraint licensing schemes established in Freedman v. Maryland. The Supreme Court of the United States stated that the dangers of prior restraint were accounted for by content neutrality. But a close examination of federal courts of appeals opinions since 2002 reveals that erosion of procedural safeguards may threaten speech interests. First, procedural safeguards have not been required, in some cases, even for content-based prior restraints. Second, courts of appeals have held that, in the context of content-neutral prior restraints, the First Amendment no longer requires a time limit …