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Chief Justice Mogoeng V Africa4palestine And Others [2021] Jsc/819/20; Jsc/825/20; And Jsc/ 826/20, Dunia P. Zongwe Nov 2022

Chief Justice Mogoeng V Africa4palestine And Others [2021] Jsc/819/20; Jsc/825/20; And Jsc/ 826/20, Dunia P. Zongwe

SAIPAR Case Review

This is a judgment against the first judge among his peers: the Chief Justice. Handed down by the Judicial Conduct Committee (JCC) of South Africa’s Judicial Service Commission (JSC), this judgment involves the remarks made in 2020 by Chief Justice Mogoeng Mogoeng at a webinar hosted by a pro-Israel, conservative, Zionist newspaper. During that webinar, Mogoeng criticized the South African government’s official policy on the Israel-Palestine conflict. Following Mogoeng’s faux pas and a loud public outcry, three non-governmental organizations (NGOs) lodged complaints with the JCC against Mogoeng for his Israel comments.

This appeal judgment largely confirms the JCC’s earlier complaint …


A Democratic Political Economy For The First Amendment, Nelson Tebbe Mar 2020

A Democratic Political Economy For The First Amendment, Nelson Tebbe

Cornell Law Review

In this Article, I begin building an interpretation of the First Amendment that promotes the practical conditions for a vital democracy. I argue that considerations of distributive justice do properly affect interpretation of free speech and religious liberty. This is true even assuming that those provisions have priority over ordinary law, including economic regulation.


Does The Clear And Present Danger Test Survive Cost-Benefit Analysis?, Cass R. Sunstein Nov 2019

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 …


Listeners' Choices, James Grimmelmann Jan 2019

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.


When Schools Refuse To Say Gay: The Constitutionality Of Anti-Lgbtq No-Promo-Homo Public School Policies In The United States, Ashley E. Mcgovern Jan 2012

When Schools Refuse To Say Gay: The Constitutionality Of Anti-Lgbtq No-Promo-Homo Public School Policies In The United States, Ashley E. Mcgovern

Cornell Journal of Law and Public Policy

No abstract provided.


The Marginality Of Citizens United, Michael C. Dorf Apr 2011

The Marginality Of Citizens United, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.


The Marginality Of Citizens United, Michael C. Dorf Jan 2011

The Marginality Of Citizens United, Michael C. Dorf

Cornell Journal of Law and Public Policy

No abstract provided.


‘Right Of Selfishness’ Vis-À-Vis Media Pluralism In The Us And In Europe: The Crucial Role Of Broadcasting At The Verge Of Private Enterprise And Public Trusteeship, Niels Lutzhoeft Apr 2009

‘Right Of Selfishness’ Vis-À-Vis Media Pluralism In The Us And In Europe: The Crucial Role Of Broadcasting At The Verge Of Private Enterprise And Public Trusteeship, Niels Lutzhoeft

Cornell Law School Inter-University Graduate Student Conference Papers

Few areas of law raise the question as to the delimitation of the public vis-à-vis the private sphere as forcefully as broadcasting does. And few businesses display the dual nature inherent in nature radio and TV broadcasting: economic versus cultural good. In Continental Europe, until the 1980s, broadcasting was subject to State monopolies that ought to ensure media pluralism. Likewise, the U.S. Supreme Court, embracing a scarcity rationale, qualified the First Amendment in the realm of broadcasting primarily as a right of the listeners and viewers to receive a wide array of information and opinions. In Red Lion, the Court …


El Salvador: Repression In The Name Of Anti-Terrorism, Mirna Cardona Jan 2009

El Salvador: Repression In The Name Of Anti-Terrorism, Mirna Cardona

Cornell International Law Journal

No abstract provided.


Privatizing And Publicizing Speech, Nelson Tebbe Jan 2009

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 …


The Global Gag Rule: Undermining National Interests By Doing Unto Foreign Women And Ngos What Cannot Be Done At Home, Nina J. Crimm Oct 2007

The Global Gag Rule: Undermining National Interests By Doing Unto Foreign Women And Ngos What Cannot Be Done At Home, Nina J. Crimm

Cornell International Law Journal

No abstract provided.


The Digital Millennium Copyright Act: Overextension Of Copyright Protection And The Unintended Chilling Effects On Fair Use, Free Speech, And Innovation, Derek J. Schaffner Oct 2004

The Digital Millennium Copyright Act: Overextension Of Copyright Protection And The Unintended Chilling Effects On Fair Use, Free Speech, And Innovation, Derek J. Schaffner

Cornell Journal of Law and Public Policy

No abstract provided.


A Moderate Defense Of Hate Speech Regulations On University Campuses, W. Bradley Wendel Jul 2004

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.


Republican Party Of Minnesota V. White: The End Of Judicial Election Reform, Lindsay E. Lippman Oct 2003

Republican Party Of Minnesota V. White: The End Of Judicial Election Reform, Lindsay E. Lippman

Cornell Journal of Law and Public Policy

No abstract provided.


The First Amendment And The Socialization Of Children: Compulsory Public Education And Vouchers, Steven H. Shiffrin Jul 2002

The First Amendment And The Socialization Of Children: Compulsory Public Education And Vouchers, Steven H. Shiffrin

Cornell Journal of Law and Public Policy

No abstract provided.


“Certain Fundamental Truths”: A Dialectic On Negative And Positive Liberty In Hate-Speech Cases, W. Bradley Wendel Apr 2002

“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 May 2001

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 …


Performance And Politics: An Argument For Expanded First Amendment Protection Of Homosexual Expression, Jennifer Minear Apr 2001

Performance And Politics: An Argument For Expanded First Amendment Protection Of Homosexual Expression, Jennifer Minear

Cornell Journal of Law and Public Policy

No abstract provided.


When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler Jan 2000

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.


Picketing And Prayer: Restricting Freedom Of Expression Outside Churches , Alan Phelps Jan 1999

Picketing And Prayer: Restricting Freedom Of Expression Outside Churches , Alan Phelps

Cornell Law Review

No abstract provided.


Antidiscrimination Laws & Artistic Expression, Steven H. Shiffrin, Gregory R. Smith Jan 1999

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

Cornell Law Faculty Publications



Promises Of Silence: Contract Law And Freedom Of Speech , Alan E. Garfield Jan 1998

Promises Of Silence: Contract Law And Freedom Of Speech , Alan E. Garfield

Cornell Law Review

No abstract provided.


Obscenity On-Line: A Transactional Approach To Computer Transfers Of Potentially Obscene Material , Donald T. Stepka May 1997

Obscenity On-Line: A Transactional Approach To Computer Transfers Of Potentially Obscene Material , Donald T. Stepka

Cornell Law Review

No abstract provided.


Freedom Of Speech On The Electronic Village Green: Applying The First Amendment Lessons Of Cable Television To The Internet, Robert Kline Oct 1996

Freedom Of Speech On The Electronic Village Green: Applying The First Amendment Lessons Of Cable Television To The Internet, Robert Kline

Cornell Journal of Law and Public Policy

No abstract provided.


Racist Speech Outsider Jurisprudence And The Meaning Of America , Steven H. Shiffrin Nov 1994

Racist Speech Outsider Jurisprudence And The Meaning Of America , Steven H. Shiffrin

Cornell Law Review

No abstract provided.


The Politics Of The Mass Media And The Free Speech Principle, Steven H. Shiffrin Jul 1994

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

Cornell Law Faculty Publications



Images Of The Outsider In American Law And Culture: Can Free Expression Remedy Systemic Social Ills, Richard Delgado, Jean Stefancic Sep 1992

Images Of The Outsider In American Law And Culture: Can Free Expression Remedy Systemic Social Ills, Richard Delgado, Jean Stefancic

Cornell Law Review

No abstract provided.


Racist Speech The First Amendment And Public Universities: Taking A Stand On Neutrality , David Rosenberg Jan 1991

Racist Speech The First Amendment And Public Universities: Taking A Stand On Neutrality , David Rosenberg

Cornell Law Review

No abstract provided.


Framework For Evaluating Equal Access Claims By Student Religious Groups: Is There A Window For Free Speech In The Wall Separating Church And State , Nadine Strossen Nov 1985

Framework For Evaluating Equal Access Claims By Student Religious Groups: Is There A Window For Free Speech In The Wall Separating Church And State , Nadine Strossen

Cornell Law Review

No abstract provided.


Adjudication Of Freedom Of Expression Cases Under Israel’S Unwritten Constitution, Daniel J. Rothstein Jul 1985

Adjudication Of Freedom Of Expression Cases Under Israel’S Unwritten Constitution, Daniel J. Rothstein

Cornell International Law Journal

No abstract provided.