Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication
-
- Faculty Scholarship (2)
- Law Faculty Publications (2)
- University of Michigan Journal of Law Reform (2)
- Cleveland State Law Review (1)
- Cornell Law Faculty Publications (1)
-
- Cornell Law Review (1)
- Michigan Law Review (1)
- Missouri Law Review (1)
- Mitchell Hamline Law Journal of Public Policy and Practice (1)
- Ohio Northern University Law Review (1)
- Pace Law Review (1)
- SMU Law Review (1)
- University of Colorado Law Review (1)
- Washington and Lee Law Review (1)
- William & Mary Law Review (1)
- Publication Type
Articles 1 - 18 of 18
Full-Text Articles in Law
Does The Clear And Present Danger Test Survive Cost-Benefit Analysis?, Cass R. Sunstein
Does The Clear And Present Danger Test Survive Cost-Benefit Analysis?, Cass R. Sunstein
Cornell Law Review
Under American regulatory law, the dominant contemporary test involves cost-benefit analysis. The benefits of regulation must justify the costs; if they do, regulation is permissible and even mandatory. Under American free speech law, in sharp contrast, an important contemporary test for the regulation of speech involves "clear and present danger." In general, officials cannot censor or regulate political speech on the ground that the benefits of regulation justify the costs. They may proceed only if the speech is likely to produce imminent lawless action. In principle, it is not simple to explain why the free speech test does not involve …
Constitutional Moral Hazard And Campus Speech, Jamal Greene
Constitutional Moral Hazard And Campus Speech, Jamal Greene
William & Mary Law Review
One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …
Masterpiece Of Misdirection?, Mark Strasser
Masterpiece Of Misdirection?, Mark Strasser
Washington and Lee Law Review
In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the United States Supreme Court overruled a finding that a religious baker had violated a state antidiscrimination law when refusing to create a wedding cake for a same-sex couple. The decision might seem to have been a masterful resolution of an extremely difficult case because the Court issued a narrow opinion that seemed to affirm free exercise rights while at the same time affirming the right of same-sex couples to marry. Yet, the opinion, along with the accompanying concurrences and dissent, may well destabilize various settled areas of constitutional law …
Policing Hate Speech And Extremism: A Taxonomy Of Arguments In Opposition, Leonard M. Niehoff
Policing Hate Speech And Extremism: A Taxonomy Of Arguments In Opposition, Leonard M. Niehoff
University of Michigan Journal of Law Reform
Hate speech and extremist association do real and substantial harm to individuals, groups, and our society as a whole. Our common sense, experience, and empathy for the targets of extremism tell us that our laws should do more to address this issue. Current reform efforts have therefore sought to revise our laws to do a better job at policing, prohibiting, and punishing hate speech and extremist association.
Efforts to do so, however, encounter numerous and substantial challenges. We can divide them into three general categories: definitional problems, operational problems, and conscientious problems. An informed understanding of these three categories of …
The Indecency Of The Communications Decency Act § 230: Unjust Immunity For Monstrous Social Media Platforms, Natalie Annette Pagano
The Indecency Of The Communications Decency Act § 230: Unjust Immunity For Monstrous Social Media Platforms, Natalie Annette Pagano
Pace Law Review
The line between First Amendment protection and the innovation of social media platforms is hazy at best. Not only do these platforms increasingly encompass the lives of many individuals, but they provide incredible new opportunities to interact from near and far, through sharing photographs, videos, and memories. The Internet provides countless outlets that are available at the tip of users’ fingers: thriving forums to communicate nearly whenever and wherever desired. Users effortlessly interact on these platforms and are consistently exposed to numerous forms of speech, including messages through posts, chat room discussions, videos, polls, and shared statements. From 2010 to …
Speech As Speech: “Professional Speech” And Missouri’S Informed Consent For Abortion Statute, Michael J. Essma
Speech As Speech: “Professional Speech” And Missouri’S Informed Consent For Abortion Statute, Michael J. Essma
Missouri Law Review
Does life begin at conception? Do women need to see a sonogram to make an informed decision about whether they want an abortion? Some state legislatures believe so. Laws mandating politically driven doctor-patient dialogue affect one of the hallmarks of the physician-patient relationship: a patient’s trust in the physician’s expertise. The common law and statutory requirement that a patient provide informed consent for a medical procedure facilitates the development of trust between patient and physician by allowing the patient to understand the procedure and discuss her options with her physician. However, provisions of abortion-specific informed consent statutes that require physicians …
Rights On Publicity As Remarkably Insignificant, R. George Wright
Rights On Publicity As Remarkably Insignificant, R. George Wright
Cleveland State Law Review
This Article introduces the right of publicity through a brief consideration of high-profile cases involving, respectively, Paris Hilton, human cannonball Hugo Zacchini, and the famous actress Olivia de Havilland. With this background understanding, the Article considers the supposed risks to freedom of speech posed by recognizing rights of publicity in a private party. From there, the Article addresses the nagging concern that the publicity rights cases promote a harmful "celebrification" of culture. Finally, the Article considers whether allowing for meaningful damage recoveries in publicity rights cases appropriately compensates victims in ways promoting the broad public interest.
Packingham V. North Carolina, Madeleine Burnette-Mcgrath
Packingham V. North Carolina, Madeleine Burnette-Mcgrath
Ohio Northern University Law Review
No abstract provided.
The Invention Of First Amendment Federalism, Jud Campbell
The Invention Of First Amendment Federalism, Jud Campbell
Law Faculty Publications
When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule.
Mostly ignored in the literature, …
Listeners' Choices, James Grimmelmann
Listeners' Choices, James Grimmelmann
Cornell Law Faculty Publications
Speech is a matching problem. Speakers choose listeners, and listeners choose speakers. When their choices conflict, law often decides who speaks to whom. The pattern is clear: First Amendment doctrine consistently honors listeners' choices for speech. When willing and unwilling listeners' choices conflict, willing listeners win. And when competing speakers' choices conflict, listeners' choices break the tie. This Essay provides a theoretical framework for analyzing speech problems in terms of speakers' and listeners' choices, an argument for the centrality of listener choice to any coherent theory of free speech, and supporting examples from First Amendment caselaw.
Social Media And Censorship: Rethinking State Action Once Again, Michael Patty
Social Media And Censorship: Rethinking State Action Once Again, Michael Patty
Mitchell Hamline Law Journal of Public Policy and Practice
No abstract provided.
The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis
The Political Party System As A Public Forum: The Incoherence Of Parties As Free Speech Associations And A Proposed Correction, Wayne Batchis
University of Michigan Journal of Law Reform
The Supreme Court’s jurisprudence addressing the associational rights of political parties is both highly consequential and deeply inconsistent. It dates back at least as far as the Court’s White Primary decisions more than a half-century ago. In recent decades, the Court has imposed an arguably ad hoc formula, striking down regulations on political parties on First Amendment grounds in some cases, while upholding them in others. From a jurisprudential perspective, critics might point to insufficiently principled distinctions between these cases. From a normative perspective, the very expansion of First Amendment rights to political parties, like the parallel extension to corporations …
Compelled Subsidies And Original Meaning, Jud Campbell
Compelled Subsidies And Original Meaning, Jud Campbell
Law Faculty Publications
The rule against compelled subsidization of speech is at the forefront of modem First Amendment disputes. Challenges to mandatory union dues, laws preventing discrimination on the basis of sexual orientation, and the federal "contraceptive mandate" have all featured variants of the anti-subsidization principle, reasoning that the government cannot compel people to support the objectionable activities of others. But the literature currently fails to evaluate modem compelled-subsidy doctrine in terms of the original meaning of the First Amendment. This Essay takes up that task.
Approaching any question of original meaning requires a willingness to encounter a constitutional world that looks very …
The Lessons Of 1919, Lackland H. Bloom
The Lessons Of 1919, Lackland H. Bloom
SMU Law Review
One hundred years ago, the Supreme Court embarked on its first serious consideration of the First Amendment’s guarantee of freedom of speech. In 1919, the Court upheld four federal criminal convictions over First Amendment defenses. Three of the majority opinions were written by Justice Holmes. In the fourth, he offered a classic dissent. Two of the cases, Frohwerk v. United States and Debs v. United States, are of middling significance. The other two, Schenck v. United States and Abrams v. United States, are iconic. From these cases have sprung an expansive and complex jurisprudence of free speech. The …
Free Speech And Justified True Belief, Joseph Blocher
Free Speech And Justified True Belief, Joseph Blocher
Faculty Scholarship
Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons.
And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally …
Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon
Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon
Faculty Scholarship
Expressing racial preferences in casting calls and hiring practices is nothing new. Producers of television shows, movies, and Broadway musicals have regularly and explicitly sought to hire actors and actresses with certain physical characteristics, including race, in casting their productions. And, given that the industry seemingly accepted this standard when it favored white talent, the public heard little about it. To the extent controversy arose, courts quelled concerns in a swift and easy fashion, without consideration of the societal harms or impacts that stereotyped or limited portrayals of minorities in entertainment could have on the public’s perception of people of …
The Macguffin And The Net: Taking Internet Listeners Seriously, Derek E. Bambauer
The Macguffin And The Net: Taking Internet Listeners Seriously, Derek E. Bambauer
University of Colorado Law Review
To date, listeners and readers play little more than bit parts in First Amendment jurisprudence. The advent of digital networked communication over the Internet supports moving these interests to center stage in free speech doctrine and offers new empirical data to evaluate the regulation of online information. Such a shift will have important and unexpected consequences for other areas, including ones seemingly orthogonal to First Amendment concerns. This Essay explores likely shifts in areas that include intellectual property, tort, and civil procedure, all of which have been able to neglect certain free speech issues because of the lack of listener …
Return Of The Campus Speech Wars, Thomas Healy
Return Of The Campus Speech Wars, Thomas Healy
Michigan Law Review
Review of Erwin Chemerinsky and Howard Gillman's Free Speech on Campus.