Law Commons^™

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.

Privatizing And Publicizing Speech, Nelson Tebbe

Cornell Law Faculty Publications

When and how should governments be permitted to use private-law mechanisms to manage their public-law obligations? This short piece poses that question in the context of Summum, which the Supreme Court decided earlier this year, and Buono, which it will hear in the fall. In both cases, the government manipulated formal property rules in order to fend off constitutional challenges. In Summum, the government took ownership of a religious symbol in the face of a free speech challenge, while in Buono it shed ownership of land containing another sectarian symbol in an effort to moot an Establishment Clause problem. Although …

A Moderate Defense Of Hate Speech Regulations On University Campuses, W. Bradley Wendel

Cornell Law Faculty Publications

The regulation of hate speech on public and private university campuses is a fiercely contested and divisive issue. Professor Bradley Wendel defends the middle ground in this debate. This Essay argues that concerns about abuses of power by those in positions of authority are unfounded when an institution possesses greater expertise in a domain than the citizens who are affected by the institution’s decision, provided that the institution is acting on the basis of reasons that are shared by the affected individual.

“Certain Fundamental Truths”: A Dialectic On Negative And Positive Liberty In Hate-Speech Cases, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Hate And The Bar: Is The Hale Case Mccarthyism Redux Or A Victory For Racial Equality?, W. Bradley Wendel

Cornell Law Faculty Publications

The application of the constitutional free expression guarantee to the activities of the organized bar is one of the most important unexplored areas of legal ethics. In this essay I will consider in particular the question of whether an applicant may be denied admission to the bar for involvement with hateful or discriminatory activities. This question reveals the tension between the first amendment principle, established after the agonizing struggles of the McCarthy era, that no one may be denied membership in the bar because of his or her beliefs alone, and the plenary authority of bar associations to make predictive …

Antidiscrimination Laws & Artistic Expression, Steven H. Shiffrin, Gregory R. Smith

Cornell Law Faculty Publications

The Politics Of The Mass Media And The Free Speech Principle, Steven H. Shiffrin

Cornell Law Faculty Publications

The First Amendment And Economic Regulation: Away From A General Theory Of The First Amendment, Steven H. Shiffrin

Cornell Law Faculty Publications

Defamatory Non-Media Speech And First Amendment Methodology, Steven H. Shiffrin

Cornell Law Faculty Publications

In the course of his eloquent commentary upon New York Times Co. v. Sullivan, the late Professor Kalven enthused that the Court had written "an opinion that may prove to be the best and most important it has ever produced in the realm of freedom of speech." This excitement was generated not by the Court's rather narrow holding but rather by the hope that Sullivan would serve as the opening wedge to dislodge the clear and present danger test, to dismantle the "two-level" approach to first amendment analysis (reflected in cases such as Chaplinsky, Beauharnais, and Roth …