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Full-Text Articles in Law
The First Amendment And Speech Urging Suicide: Lessons From The Case Of Michelle Carter And The Need To Expand Brandenburg'S Application, Clay Calvert
UF Law Faculty Publications
This Article examines the level of First Amendment protection that applies when a defendant-speaker is charged with involuntary manslaughter based on successfully urging a person to commit suicide. The Supreme Judicial Court of Massachusetts’ February 2019 decision in Commonwealth v. Carter provides a timely analytical springboard. The Article argues that courts should adopt the United States Supreme Court’s test for incitement created a half-century ago in Brandenburg v. Ohio before such speech is deemed unprotected by the First Amendment. It contends this standard is appropriate even in involuntary manslaughter cases where intent to cause a specific result is not required …
Reconsidering Incitement, Tinker And The Heckler’S Veto On College Campuses: Richard Spencer And The Charlottesville Factor, Clay Calvert
Reconsidering Incitement, Tinker And The Heckler’S Veto On College Campuses: Richard Spencer And The Charlottesville Factor, Clay Calvert
UF Law Faculty Publications
This Essay analyzes key First Amendment issues surrounding Richard Spencer and Milo Yiannopoulos speaking on public university campuses. Some institutions (Ohio State University, Michigan State University and Pennsylvania State University) have flatly banned Spencer, citing fears of incitement to violence but also sparking federal lawsuits. Other schools have permitted Spencer to speak, but at massive security costs, in an attempt to prevent a so-called heckler’s veto. This Essay examines the tension between providing a public platform for controversial speakers and the costs associated with doing so, including the relevance of the Supreme Court’s aging incitement test created in Brandenburg v. …
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 …