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First Amendment Envelope Pushers: Revisiting The Incitement-To-Violence Test With Messrs. Brandenburg, Trump, & Spencer, Clay Calvert
First Amendment Envelope Pushers: Revisiting The Incitement-To-Violence Test With Messrs. Brandenburg, Trump, & Spencer, Clay Calvert
UF Law Faculty Publications
This Article examines weaknesses with the United States Supreme Court’s Brandenburg v. Ohio incitement test as its fiftieth anniversary approaches. A lawsuit targeting Donald Trump, as well as multiple cases pitting white nationalist Richard Spencer against public universities, provide timely springboards for analysis. Specifically, In re Trump: 1) illustrates difficulties in proving Brandenburg’s intent requirement via circumstantial evidence; and 2) exposes problems regarding the extent to which past violent responses to a person’s words satisfy Brandenburg’s likelihood element. Additionally, the Spencer lawsuits raise concerns about: 1) whether Brandenburg should serve as a prior restraint mechanism for blocking potential speakers …
The Open Mic, Unplugged: Challenges To Viewpoint-Based Constraints On Public-Comment Periods, Frank D. Lomonte, Clay Calvert
The Open Mic, Unplugged: Challenges To Viewpoint-Based Constraints On Public-Comment Periods, Frank D. Lomonte, Clay Calvert
UF Law Faculty Publications
Perhaps the purest form of citizen political expression is addressing a government body directly during the public-comment period. Despite its salutary civic benefits, the public-comment period faces escalating threats, with local elected officials imposing rigid controls on speakers. Disturbingly, these rules sometimes are enforced via arrest. The U.S. Supreme Court recently confronted this scenario in Lozman v. City of Riviera Beach, involving the arrest of a citizen-critic who refused to stop using his city council's open-mic period to decry public corruption. While narrowly fact-specific, the Court's June 2018 resolution of the case reaffirms the importance of protecting speakers at …