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Articles 1 - 13 of 13
Full-Text Articles in Law
In Defense Of Brandenburg: The Aclu And Incitement Doctrine In 1919, 1969, And 2019, Emerson J. Sykes
In Defense Of Brandenburg: The Aclu And Incitement Doctrine In 1919, 1969, And 2019, Emerson J. Sykes
Brooklyn Law Review
In the United States, full-throated advocacy—even advocacy of violence—is protected by the First Amendment of the Constitution. Few other countries define “incitement to violence” as narrowly, and governments tend to exploit any authority to regulate speech. The ACLU has played a central role in developing America’s speech-protective modern incitement doctrine over the last century, sometimes by representing clients with abhorrent views, including in the landmark Brandenburg v. Ohio. The Brandenburg test sets a high bar for incitement that should be maintained, even with respect to online speech. Calls for increased regulation of speech should not be heeded.
The First Amendment And The Imminence Of Harm, Floyd Abrams
The First Amendment And The Imminence Of Harm, Floyd Abrams
Brooklyn Law Review
Noted First Amendment litigator Floyd Abrams engages questions about the past, the present and the future of free speech directly by considering the key words from Justice Holmes’s canonical formulation for the constitutional standard governing regulation of incitement speech—the requirement that any danger justifying such speech regulation must be “clear and present.” Mr. Abrams asks what types of “danger” are sufficiently “present” to provide that justification, using as examples the Communist teachings at issue in Dennis v. United States and The Progressive magazine’s publication of plans for constructing a hydrogen bomb. While Mr. Abrams reaches no hard and fast conclusion …
#Losingthethread: Recognizing Assembly Rights In The New Public Forum, Liz Grefrath
#Losingthethread: Recognizing Assembly Rights In The New Public Forum, Liz Grefrath
Brooklyn Law Review
The specter of banishment from the vibrant public forum of social media to the empty streets and deserted sidewalks is a matter of increasing political, social, and cultural importance. Today, nearly every government official maintains a social media presence on Facebook or Twitter, generally to promote initiatives, share ideological positions, engage constituents, and tangle with critics. Privacy controls and content moderation tools, however, offer government officials tantalizing opportunities to discretely and effectively muffle disapproval, stifle dissent, and shield themselves from criticism on their public social media pages through “blocking” features. Courts are just starting to grapple with the First Amendment …
"Incitement Lite" For The Nonpublic Forum, Leslie Gielow Jacobs
"Incitement Lite" For The Nonpublic Forum, Leslie Gielow Jacobs
Brooklyn Law Review
The incitement exception set out in Brandenburg v. Ohio defines the authority of the government, acting in its sovereign capacity, to impose criminal punishment on speakers because the content of their advocacy may persuade listeners to commit crimes. Nonpublic forum managers have much greater flexibility than the government-as-sovereign to restrict the private speakers they invite onto their property because the content of their speech may persuade listeners to engage in harmful conduct. In nonpublic forum management, speakers experience no sanctions and, unlike the government-as-sovereign, nonpublic forum managers may close their forums to all private speakers to avoid unwanted speech. This …
Assumptions About “Terrorism” And The Brandenburg Incitement Test, Christina E. Wells
Assumptions About “Terrorism” And The Brandenburg Incitement Test, Christina E. Wells
Brooklyn Law Review
The incitement standard announced in Brandenburg v. Ohio, which bars government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity, is one of the most speech-protective tests in the Supreme Court’s jurisprudence. However, terrorist advocacy – glorification of violence, spreading of propaganda, and recruitment of individuals to their cause – is putting pressure on the Brandenburg standard. Scholars have suggested working around Brandenburg’s incitement standard to counter the dangerous influence of terrorist advocacy, especially online advocacy. Although scholars’ concern with the harms of terrorism is understandable, their willingness to alter Brandenburg …
Symposium Introduction, William D. Araiza, Joel M. Gora
Symposium Introduction, William D. Araiza, Joel M. Gora
Brooklyn Law Review
On April 12, 2019, scholars gathered at Brooklyn Law School to consider the past, the present, and the future of free speech, and concerns about incitement that militate toward suppression. The speakers provided incisive and timely insight on these important matters—insight that is reflected in the papers published in this symposium issue of the Brooklyn Law Review. This introduction provides an overview of this symposium issue and the questions presented by each article.
Words We Fear: Burning Tweets & The Politics Of Incitement, Rachel E. Vanlandingham
Words We Fear: Burning Tweets & The Politics Of Incitement, Rachel E. Vanlandingham
Brooklyn Law Review
The United States government has long wrestled with the link between speech and violence, periodically employing speculative claims of potential violence and law-breaking to suppress political speech in times of national insecurity. By the late 1960s, however, the Supreme Court fully operationalized the First Amendment’s premise that most government speech suppression is antithetical to self-government, individual autonomy, equality, and liberty. The Court therefore, required immediacy of potential violence before the government could punish speech advocating such illegality, but left private actors free to censor and suppress speech. Today, social media companies, at the behest of the government, are doing what …
Brandenburg And Terrorism In The Digital Age, David S. Han
Brandenburg And Terrorism In The Digital Age, David S. Han
Brooklyn Law Review
This essay explores the tension between the longstanding Brandenburg standard and the current technological context—one in which abstract advocacy of terrorist conduct, widely and cheaply disseminated through the internet and channeled through social media, has contributed to a number of devastating attacks such as the Orlando nightclub shooting, the Boston marathon bombings, and the shootings in San Bernardino. It does so through the lens of the Supreme Court’s recent decision in Carpenter v. United States—a Fourth Amendment case that similarly dealt with the collision between the longstanding constitutional righThis essay explores the tension between the longstanding Brandenburg standard and the …
The Long Road Back To Skokie: Returning The First Amendment To Mask Wearers, Rob Kahn
The Long Road Back To Skokie: Returning The First Amendment To Mask Wearers, Rob Kahn
Journal of Law and Policy
When the Seventh Circuit upheld the First Amendment right of Nazis to march in Skokie, Illinois in 1978, the protection of mask wearers was not far behind. Since then, doctrinal paths have diverged. While the Supreme Court continues to protect hate speech, mask wearing has been increasingly placed outside First Amendment protection. This article seeks to get to the bottom of this doctrinal divergence by addressing the symbolic purposes of mask bans—rooted in repudiating the Ku Klux Klan—as well as the doctrinal steps taken over the past forty years to restrict the First Amendment claims of mask wearers. It also …
Grinding Down The Edges Of The Free Expression Right In Hong Kong, Stuart Hargreaves
Grinding Down The Edges Of The Free Expression Right In Hong Kong, Stuart Hargreaves
Brooklyn Journal of International Law
In the liberal-democratic tradition limits on speech must be clear, precise, and subject to justification within the particular constitutional framework of a given jurisdiction. In the Hong Kong Special Administrative Region (HKSAR), the Court of Final Appeal has developed a line of jurisprudence that explains under which circumstances the Government of Hong Kong (Government) may seek to limit the free speech provisions contained within the Basic Law, Hong Kong's quasi-constitution. In its fight against ‘localists,’ however, rather than legislating a clear speech restriction that is consistent with this jurisprudence, the Government has instead attempted to suppress unwelcome political speech in …
Lactose’S Intolerance: The Role Of Manufacturers’ Rights And Commercial Free Speech In Big Dairy’S Fight To Restrict Use Of The Term “Milk”, Kathleen Justis
Lactose’S Intolerance: The Role Of Manufacturers’ Rights And Commercial Free Speech In Big Dairy’S Fight To Restrict Use Of The Term “Milk”, Kathleen Justis
Brooklyn Law Review
This note examines the relationship between restrictions on commercial speech and manufacturers’ First Amendment right to describe their products to consumers, with a focus on the DAIRY PRIDE Act. It argues that broad, content-based restrictions of commercial speech, like that proposed in the DAIRY PRIDE Act, likely impose unconstitutional limitations on manufacturers’ First Amendment right to freedom of speech. This note recommends that both Congress and the FDA should refrain from passing a statute or promulgating a regulation like the DAIRY PRIDE Act. Rather, it proposes that adding rules to control the proportions and location of disclaimers on product labels …
Direct-To-Consumer Calls To Action: Lowering The Volume Of Claims And Disclosures In Prescription Drug Broadcast Advertisements, Andrew Andrzejewski
Direct-To-Consumer Calls To Action: Lowering The Volume Of Claims And Disclosures In Prescription Drug Broadcast Advertisements, Andrew Andrzejewski
Brooklyn Law Review
Pharmaceutical companies advertise drugs directly to consumers via television and radio broadcast commercials, print advertisements, and the internet. Although broadcast advertisements are demonstrably unable to adequately convey risk information, a total ban on them would be too restrictive, and any regulation targeting these advertisements must withstand First Amendment scrutiny. The FDA’s recent attempts to modify its requirements for broadcast advertisements do not overcome these challenges. It is in the best interest of patients, doctors, the drug industry, and the government for Congress to authorize the FDA to regulate broadcast drug advertisements as limited calls to action, consisting of restricted product …
Invasion Of The Content-Neutrality Rule, William D. Araiza
Invasion Of The Content-Neutrality Rule, William D. Araiza
Faculty Scholarship
No abstract provided.