Law Commons^™

Protecting Hatred Preserves Freedom: Why Offensive Expressions Command Constitutional Protection, Andrew P. Napolitano

Journal of Law and Policy

The First Amendment is not the guardian of taste. Instead, the U.S. Constitution wholeheartedly protects freedom of thought and expression, even if generated and defined by hatred, as long as that expression does not produce immediate lawless violence. Although free speech may lead to tenuous relationships or uncomfortable debates, it must be defended unconditionally. Too many politicians and lawmakers believe that the freedom of speech protected by the First Amendment attaches only to those ideas and expressions that they approve of; this is not so. This article argues that the Founders intended the First Amendment's free speech principle as a …

Freedom Of Speech And Equality: Do We Have To Choose?, Nadine Strossen

Journal of Law and Policy

As a lifelong activist on behalf of both equality and free speech, I am convinced, based on actual experience, that these core values are mutually reinforcing, and not, as some have argued, in tension with each other. Moreover, I am convinced that this is true even for offensive or hateful speech that affronts our most cherished beliefs. However, defining hateful or offensive speech is inherently arbitrary and subjective, which raises concerns about what speech should be restricted, and how. Empowering government to punish hateful or offensive expresson necessarily vests officials with enormous discretionary power, which will inevitably lead to arbitrary …

Introduction; The Past, Present And Future Of Free Speech, Joel M. Gora

Journal of Law and Policy

This short paper introduces the papers and commentary produced at two significant First Amendment occasions. First was a 40^th anniversary celebration of the Supreme Court’s landmark 1976 decision in Buckley v. Valeo, the fountainhead ruling on the intersection between campaign finance restrictions and First Amendment rights. The questions were discussed provocatively by two of the leading players in that decision, James Buckley himself, now a retired United States Circuit Judge, and Ira Glasser, former head of the ACLU who helped organize a strange bedfellows, left-right coalition to challenge the new federal election campaign laws on First Amendment grounds. …

A Balancing Act For American Universities: Anti-Harassment Policy V. Freedom Of Speech, Bridget Hart

Journal of Law and Policy

Legal scholars, educational administrators, journalists, and students have all witnessed a rise in students being disciplined by university officials for speech and conduct deemed inappropriate for college campuses. In endeavoring to explain this trend, some academics point to the disconnect between the Department of Education and university administrators regarding the legal standards for campus anti-harassment policies. The lack of clarity regarding what constitutes harassment on college campuses has resulted in the punishment of students by universities for speech and conduct that is normally considered to be protected speech under the First Amendment. This note first provides an overview of the …

The Academy, Campaign Finance, And Free Speech Under Fire, Bradley A. Smith

Journal of Law and Policy

This article discusses the issue of campaign finance and the impact money has on the political process in the country. The author suggests campaign finance regulations that curb the current threat it poses to the system, as well as the First Amendment itself. Lastly, the author discusses the impact academics have had on the debate and this decline in support of free speech that has resulted from the debate.

Free Speech Matters: The Roberts Court And The First Amendment, Joel M. Gora

Journal of Law and Policy

This article contends that the Roberts Court, in the period from 2006 to 2016, arguably became the most speech-protective Supreme Court in memory. In a series of wide-ranging First Amendment decisions, the Court sounded and strengthened classic free speech themes and principles. Taken together, the Roberts Court’s decisions have left free speech rights much stronger than they were found.

Those themes and principles include a strong libertarian distrust of government regulation of speech and presumption in favor of letting people control speech, a consistent refusal to fashion new “non-speech” categories, a reluctance to “balance” free speech away against governmental interests, …

Where's The Fire?, Burt Neuborne

Journal of Law and Policy

Freedom of speech is priceless, but distressingly fragile. Life, and law, would be much simpler if we could react to free speech's importance and fragility by granting it absolute legal protection. Since, however, absolute protection of speech is not—and should not be—a serious option, we face the legal realist challenge of erecting a First Amendment legal structure capable of providing real-world protection to highly controversial speech, often by weak speakers, without closing the door to government regulation. Given the uncertainty inherent in applying fact-dependent complex rules in protean factual settings, many potential speakers would avoid being drawn into unpredictable and …

Producing Democratic Vibrancy, K. Sabeel Rahman

Journal of Law and Policy

Professor Rahman gives his thoughts and opinions on the impact of Citizens' United v. FEC and the growth of the First Amendment debate since. The comment analyzes the normative udnerstanding of democracy and the ongoing debate campaifgn finance have. Professor Rahman concludes by suggesting that the debate is wrongly focused on the indivudals being consumers of politcal speech rather than the producers of it.

Standing Up For Their Data: Recognizing The True Nature Of Injuries In Data Breach Claims To Afford Plaintiffs Article Iii Standing, Andrew Braunstein

Journal of Law and Policy

Over the last several years, data breaches have become increasingly more common, due in no small part to the failures of organizations charged with storing and protecting personal data. Consumers whose data has fallen victim to these breaches are more often turning to federal courts in attempts to be made whole from the loss of their information, whether simple credit card information or, as breaches become more sophisticated, social security information, medical and financial records, and more. These consumers are often being turned away from the courthouse, however, due to a failure of many federal courts to find that the …

Constitutions As Counter-Curses: Revenue Allocation And The Resource Curse, Tom Brower

Journal of Law and Policy

The resource curse—the paradoxical relationship between natural resource abundances and poorer economic growth, weaker political institutions, and higher levels of conflict—remains one of the most confounding issues in international development. Although the literature has proffered a plethora of institutional solutions to the resource curse, they have been vexed by a common theme: their unsuccessful implementation in developing countries without the proper institutional foundations that act as a bulwark against policy reversal and the perpetuation of rent-seeking behavior. This Article introduces constitutionally protected natural resource revenue allocation institutions as a superior mechanism for a state to allocate rents from natural resources. …

Putting The Commerce Back In The Dormant Commerce Clause: State Taxes, State Subsidies, And Commerce Neutrality, Ryan Lirette, Alan D. Viard

Journal of Law and Policy

The unpredictability of the Supreme Court’s dormant Commerce Clause (“DCC”) jurisprudence continues to draw trenchant criticism from commentators and the Justices themselves, as the Court remains unable to explain which state taxes and subsidies impede interstate commerce. We show that these problems can be resolved by a Commerce Neutrality framework requiring that state taxes and subsidies provide a combined treatment of inbound and outbound transactions at least as favorable as their treatment of intrastate transactions. This simple test has an economic foundation because taxes and subsidies that violate it create incentives to engage in intrastate rather than interstate transactions. The …

Trying To Fit A Square Peg Into A Round Hole: Why Title Ii Of The Americans With Disabilities Act Must Apply To All Law Enforcement Services, Michael Pecorini

Journal of Law and Policy

Police use of force has been subject to greater scrutiny in recent years in the wake of several high-profile killings of African Americans. Less attention, however, has been paid to the increasingly routine violent encounters between police and individuals with mental illness or intellectual and development disabilities (“I/DD”). This is particularly problematic, as police have become the de-facto first responders to these individuals and far too often police responses to these individuals result in tragedy.

This Note argues that the Americans with Disabilities Act requires law enforcement to provide reasonable accommodations during their interactions with and seizures of individuals with …