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Full-Text Articles in Law
Commercial Speech, First Amendment Intuitionism And The Twilight Zone Of Viewpoint Discrimination, Martin H. Redish
Commercial Speech, First Amendment Intuitionism And The Twilight Zone Of Viewpoint Discrimination, Martin H. Redish
Faculty Working Papers
In this article, I seek to demonstrate that arguments made by scholars against First Amendment protection for commercial speech may be divided into three categories: (1) rationalist, (2) intuitionist, and (3) ideological. I argue that all three forms of opposition to commercial speech protection suffer, either directly or indirectly, from the same fundamental flaw: each constitutes or at the very least facilitates creation of a constitutionally destructive form of viewpoint discrimination. I show that all of the specific rationales for opposing First Amendment protection for commercial speech are fatally and illogically underinclusive: In each case the justification asserted to support …
Prediction Markets And The First Amendment, Miriam A. Cherry, Robert L. Rogers
Prediction Markets And The First Amendment, Miriam A. Cherry, Robert L. Rogers
Faculty Publications
The continuing development of prediction markets is important because of their success in foretelling the future in politics, economics, and science. In this article, we identify the expressive elements inherent in prediction markets and explore how legislation such as the Unlawful Internet Gambling Enforcement Act of 2006 might harm such predictive speech. This article is the first to explore First Amendment protections for prediction markets in such depth, and in so doing, we distinguish prediction markets from other regulated areas such as gambling, commodities, and securities trading. The article’s examination of prediction markets also illustrates the limitations of current commercial …
Mixed Speech: When Speech Is Both Private And Governmental, Caroline Mala Corbin
Mixed Speech: When Speech Is Both Private And Governmental, Caroline Mala Corbin
Articles
Speech is generally considered to be either private or governmental, and this dichotomy is embedded in First Amendment jurisprudence. However, speech is often neither purely private nor purely governmental but rather a combination of the two. Nonetheless, the Supreme Court has not yet recognized mixed speech as a distinct category of speech. This Article suggests considerations for identifying mixed speech and exposes the shortcomings of the current approach of classifying all speech as either private or governmental when determining whether viewpoint restrictions pass First Amendment muster. Treating mixed speech as government speech gives short shrift to the free speech interests …