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The Disappearing First Amendment

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Cambridge Core - US Law - The Disappearing First Amendment - by Ronald J. Krotoszynski, Jr.
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This article seeks to trace the history of the AAUP's 1940 statement on academic freedom. Although the statement and the First Amendment have very different roots and practical applications, the two share a body of case law that often overlaps.
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In 1926, a young Tennessee biology teacher, John Thomas Scopes, was charged with "teach[ing] in the public schools . . . a certain theory that denied the story of the divine creation of man, as taught in the Bible, and teach[ing] instead thereof that man had descended from a lower order of animals," all in violation of a Tennessee criminal statute.
Book
Professor Fiss examines contemporary free-speech issues in the context of the collision of liberal ideas of equality and freedom with modern social structures and speculates on what role the state might play in furthering robust public debate.
Chapter
Americans seem to care more in practice about privacy as against their neighbors than they do about privacy as against their governments. As a result, they often take steps to protect privacy-as-against-neighbors that are completely ineffective against government or corporate tracking: the Gmail account Batman906 enables its owner to speak in many ways that are invisible to her friends and family, which is what she wants, even though Google knows all about her – including the link between Batman906 and her work email. It’s in this citizen-on-citizen context that I want to talk about pseudonymity, its abuses, and its promises. Law tends to see anonymity and pseudonymity in the same way: both serve as a shield against suppression, often suppression by private parties. But the two types of self-presentation have distinct features. Pseudonymity can also be creative and valuable in itself, though this is less often recognized in the law. I want to give an account of pseudonymity that considers both what pseudonymity protects and what it enables. The positive aspects of pseudonymity include both insulation from certain pressures, allowing self-development and exploration, and also the ability to build a community of like-minded souls. It’s a cliché that the internet allows people to try on new identities, liberating themselves but potentially harming others. Anonymity is the usual target of critiques of such identity-play: anonymity is often used for sexual and racial harassment, suppressing the very liberatory potential that disconnection from physical identity was supposed to offer. These accounts, while offering powerful examples of the misuse of expression disconnected from identifiable people, often set up a binary opposition between a persistent identity linked to legal names and pure anonymity. Pseudonymity is just a variant of anonymity in these critiques, and dedicated harassers often switch pseudonyms so they can continue their attacks.
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A leading American legal scholar offers a surprising account of the incompleteness of prevailing theories of freedom of speech. Robert C. Post shows that the familiar understanding of the First Amendment, which stresses the "marketplace of ideas" and which holds that "everyone is entitled to an opinion," is inadequate to create and preserve the expert knowledge that is necessary for a modern democracy to thrive. For a modern society reliably to answer such questions as whether nicotine causes cancer, the free and open exchange of ideas must be complemented by standards of scientific competence and practice that are both hierarchical and judgmental. Post develops a theory of First Amendment rights that seeks to explain both the need for the free formation of public opinion and the need for the distribution and creation of expertise. Along the way he offers a new and useful account of constitutional doctrines of academic freedom. These doctrines depend both upon free expression and the necessity of the kinds of professional judgment that universities exercise when they grant or deny tenure, or that professional journals exercise when they accept or reject submissions.
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Having identified proportionality as the main tool for limiting constitutional rights, Aharon Barak explores its four components (proper purpose, rational connection, necessity and proportionality stricto sensu) and discusses the relationships between proportionality and reasonableness and between courts and legislation. He goes on to analyse the concept of deference and to consider the main arguments against the use of proportionality (incommensurability and irrationality). Alternatives to proportionality are compared and future developments of proportionality are suggested.
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Over the past two decades, corporations and other commercial entities have used strategic litigation to win more expansive First Amendment protections for commercial speech-from the regulation of advertising to the role corporate interests play in the political process, most recently debated in the Supreme Court case of Citizens United v. Federal Election Commission. Tamara R. Piety, a nationally known critic of commercial and corporate speech, argues that such an expansion of First Amendment speech rights imperils public health, safety, and welfare; the reliability of commercial and consumer information; the stability of financial markets; and the global environment. Beginning with an evaluation of commonly evoked philosophical justifications for freedom of expression, Piety determines that, while these are appropriate for the protection of an individual's rights, they should not be applied too literally to commercial expression because the corporate person is not the moral equivalent of the human person. She then gathers evidence from public relations and marketing, behavioral economics, psychology, and cognitive studies to show how overly permissive extensions of First Amendment protections to commercial expression limit governmental power to address some of the major social, economic, and environmental challenges of our time. "The timeliness of the topic and the provision of original positions are sure to make the book a valuable contribution that should draw much attention." -Kevin W. Saunders, Michigan State University.
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As states increasingly impose informed consent mandates on abortion providers, the required disclosures bring two well-established legal doctrines into conflict — the First Amendment’s freedom of speech and the physician’s duty to obtain informed consent. On one hand, the First Amendment provides for a broad freedom of speech, under which government may neither prevent people from voicing their own views, nor compel individuals to voice the government’s views. As the Supreme Court observed in Wooley v. Maynard , the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” When legislatures tell physicians what they must disclose to their patients, the physicians lose their right not to speak.
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The regulation of medicine has long been recognized as within the state’s police powers. Yet when the state regulates physicians’ professional speech, it potentially raises First Amendment concerns. Nowhere is this truer than in the abortion context, where state legislatures have attempted to influence women’s reproductive decisions with informed consent requirements. Although the Supreme Court, in Planned Parenthood of Se. Pa. v. Casey , found a mandated disclosure provision constitutional some 20 years ago, it offered little to clarify the scope and reach of the First Amendment issues that arise with abortion informed consent laws. Since Casey was decided, legislatures have enacted a range of informed consent laws that impose even more stringent abortion informed consent regulations than the provisions at issue in Casey .
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Basic constitutional jurisprudence dictates that courts subject most government benefit decisions to minimal scrutiny, but scrutinize government actions that directly burden preferred liberties more closely. Unconstitutional conditions problems arise at the boundary between these two directives: when government conditions a benefit on the recipient's waiver of a preferred liberty, should courts review the conditioned benefit deferentially, as a benefit, or strictly, as a burden on a preferred liberty? In this Article, Professor Sullivan criticizes traditional analyses of unconstitutional conditions for focusing wrongly on whether conditions coerce individuals, distort legislative process, or permit alienation of constitutional rights. She articulates an alternative defense of close scrutiny, arguing that rights-pressuring conditions on government benefits skew distribution of power between government and rightholders, as well as among rightholders themselves. Professor Sullivan then develops this systemic approach, detailing both the circumstances in which courts should apply close scrutiny, and those in which government justifications may be strong enough to survive such scrutiny.
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The practice of providing reasons for decisions has long been considered an essential aspect of legal culture. In this article, Frederick Schauer explores the logic of giving reasons. What is the structural relationship between a reason and the result that it is a reason for? What commitments, if any, attach to giving a reason? Professor Schauer concludes that giving reasons involves committing, and that this insight can inform our understanding of why giving reasons might be encouraged in some spheres yet discouraged in others.
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The press, long enshrined among our most highly cherished institutions, was thought a cornerstone of democracy when its name was boldly inscribed in the Bill of Rights. Freed from governmental restraint, initially by the first amendment and later by the fourteenth, the press was to stand majestically as the champion of new ideas and the watch dog against governmental abuse. Professor Barron finds this conception of the first amendment, perhaps realistic in the eighteenth century heyday of political pamphleteering, essentially romantic in an era marked by extraordinary technological developments in the communications industry. To make viable the time-honored "marketplace" theory, he argues for a twentieth century interpretation of the first amendment which will impose an affirmative responsibility on the monopoly newspaper to act as sounding board for new ideas and old grievances.
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One of the most troubling aspects of the civil rights movement, even, or perhaps especially, for observers who are basically sympathetic to the aims of the movement, is its apparent dependence upon and fostering of disrespect for law. Even proponents of nonviolence have on occasion advocated "civil disobedience" in the pursuit of civil rights. The author argues that in many situations where there has been talk of civil disobedience the talk has been out of place, because the only laws broken have been local laws which were in conflict with the federal constitution. The author points out in addition that misguided talk of civil disobedience is dangerous, both because it arouses doubts about the propriety of the movement in the minds of many who would otherwise favor it and because it may lead the participants, who have so far gone unpunished for what they have been told is law-breaking, to expect total immunity from society's regulation.
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This is the Table of Contents, Introduction, and Chapters 1 and 2 of my forthcoming book, which is entitled "The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties" (forthcoming, Cambridge University Press). The book examines the relationship between the First Amendment to the United States Constitution and international borders. In contrast to more traditional and provincial accounts, it reveals a First Amendment that is critical to robust cross-border conversation and commingling and the global spread of democratic principles, protective of expressive and religious liberties regardless of location, influential across the world despite its exceptionalist character, and a core justification for respectful engagement with the liberty regimes of other nations. This more cosmopolitan First Amendment is the product of an array of social, historical, political, technological, and legal developments. Its principles and justifications are examined through analysis of the First Amendment’s relationship to foreign travel, immigration, cross-border communication and association, religious activities that traverse international borders, the conduct of international affairs and diplomacy, and conflicts between foreign and U.S. speech and religious liberty models.
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In 1931, at the very dawn of First Amendment jurisprudence, Chief Justice Hughes presciently observed that "[t]he maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people" was "a fundamental principle of our constitutional system." Since that time, the First Amendment has been interpreted by courts primarily as a guarantor of the ongoing legitimacy of democratic self-governance in the United States. As Justice Cardozo remarked in 1937, freedom of expression is "the matrix, the indispensable condition, of nearly every other form of freedom." To view the First Amendment "as the guardian of our democracy," however, is to adopt a particular image of the American polity. It is to imagine that democratic legitimacy flows from the accountability of the state to the public opinion of its population. From its inception, therefore, First Amendment doctrine has primarily sought to protect from government regulation an independent realm of speech within which public opinion is understood to be forged. The consequence of this orientation is that traditional First Amendment doctrine has had rather little to say about the speech of the government itself. In this Essay, I shall explore the corner of this perplexing territory in which are located the difficult constitutional questions raised by government subsidies for speech. Subsidized speech challenges two fundamental assumptions of ordinary First Amendment doctrine. It renders uncertain the status of speakers, forcing us to determine whether speakers should be characterized as independent participants in the formation of public opinion or instead as instrumentalities of the government. And it renders uncertain the status of government action, forcing us to determine whether subsidies should be characterized as government regulations imposed on persons or instead as a form of government participation in the marketplace of ideas.
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No one concerned with freedom of expression in the United States todaycan fail to be alarmed by the unsatisfactory state of first amendment doctrine.Despite the mounting number of decisions and an even greater volume of comment,no really adequate or comprehensive theory of the first amendment hasbeen enunciated, much less agreed upon. Proponents of the "absolute" or"literal" interpretation of the first amendment have failed to define the boundsof their position or to account for such apparent exceptions to the absolutetest as the law of libel, the application of child labor laws to tMe distribution ofliterature, and the regulation of election campaigns. Their views have thereforebeen dismissed as impractical or illogical, or both. At the other end of thespectrum, the "balancing" test has tended to reduce the first amendment, especiallywhen a legislative judgment is weighed in the balance, to a limp andlifeless formality. Among intermediate positions, the "clear and present danger"test is the best known; yet not only has this formula often been ignored, but itwas discarded in Dennis and at any rate is hardly applicable to many of theissues which now arise, such as the extent of the protection afforded by the firstamendment from the legislative investigating power. Other efforts to formulatean overall theory have not met outstanding success. Nor has doctrine beenevolved to deal with some of the newer problems, where the issue is not purerestraint on government interference but rather the use of governmental powerto encourage freedom of expression or the actual participation by governmentitself in the realm of expression.'
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Hustler Magazine v. Falwell is the most recent in a long line of first amendment decisions in which the Supreme Court has extended constitutional protection to outrageous or offensive speech. In this article Professor Post analyzes the theory behind this protection. He argues that speech is defined as outrageous by reference to norms of community life. In the culturally heterogeneous environment of the United States, however, first amendment doctrine functions to facilitate communication among communities, so that a common democratic and public opinion may be formed. For this reason first amendment doctrine demarcates a distinct realm of public discourse that is neutral with respect to the norms of specific communities. Professor Post demonstrates how several important themes in the Falwell opinion follow from this separation of public discourse from community values. In particular he contends that the separation illuminates Falwell's rejection of "outrageousness" and "bad motive" as criteria for the regulation of public discourse, as well as its reliance upon the curious and muddy distinction between fact and opinion. Professor Post notes, however, that the constitutional concept of public discourse is inherently unstable, because speech that violates community norms of civility is perceived as irrational and coercive, and hence as incompatible with public deliberation. Thus first amendment doctrine suspends legal enforcement of the very norms that make rational deliberation possible. Professor Post labels this the "paradox of public discourse," and argues that the paradox accounts for the jagged and uneven course of first amendment doctrine. The article concludes with a discussion of the various methods by which the domain of public discourse may be defined.
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National security crises are particularly difficult on the judiciary. Faced with a threat to the country's integrity, such cases require judges rationally and fairly to weigh this hefty interest against the rights of persons suspected of posing that very threat. Not surprisingly, judges have rarely lived up to this task as many have fallen sway to the same fear and prejudice that gripped the county during these times. Scholars have written extensively about judicial capitulation to fear and prejudice in such well-known cases as Schenck v. United States, Korematsu v. United States, and Dennis v. United States, with some lamenting the Courts' weakness and others defending the decisions in light of the high stakes involved. However, few, if any, have tried to understand how such decisions came about. Without such an understanding, the debate regarding judicial deference remains unsatisfying, as both sides continue to talk at one another without sufficient consideration of the influences on judges making such decisions. This article considers the manner in which social and psychological forces affected the judiciary in Dennis v. United States, one of the most famous and most criticized Supreme Court crisis decisions. Specifically, it examines the role that biased risk assessment and prejudice likely played in Dennis. It also examines the role that the Court's legal doctrine played in facilitating those psychological influences and concludes with some thoughts regarding the Court's modern doctrine and its capability of battling against the influence of fear and prejudice in times of crisis.
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John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons-some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat these suits pose to Internet discourse. Although the constitutional privilege for opinion holds promise as a solution to this problem, the Supreme Court's jurisprudence provides little assurance that the privilege can protect the "robust, uninhibited, and wide-open nature" of Internet discourse without giving Internet speakers free license to harm the reputation of others. Therefore, this Article attempts to articulate a theory that justifies protecting John Doe and suggests the steps courts should take to adapt the existing opinion privilege to the unique context of cyberspace.
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In this article, Professor Adler argues that child pornography law, intended to protect children from sexual exploitation, threatens to reinforce the very problem it attacks. The article begins with a historical claim: our culture has become preoccupied with child sexual abuse and child pornography in a way that it did not used to be. The article traces the rapid development of child pornography law, showing that a cultural transformation in our notion of childhood sexual vulnerability has coincided with the birth and dramatic expansion of the law. Professor Adler then introduces various causal accounts of this chronological correlation between the regulation of child pornography and the growing crisis of child sexual abuse. First, she explores the possibility that the burgeoning law of child pornography may invite its own violation through a dialectic of taboo and transgression. She then presents another reading of the relationship between child pornography law and culture: the law may unwittingly perpetuate and escalate the sexual representation of children that it seeks to constrain. In this view, the legal tool that we designed to liberate children from sexual abuse threatens us all, by constructing a world in which we are enthralled---anguished, enticed, bombarded---by the spectacle of the sexual child.
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Should state or federal governmental units regulate pornography? Are existing constitutional standards clear enough to create and enforce restrictions on printed materials? In this article the author posits that the federal government should not attempt to curb offensive sexually explicit speech or printed works. However, he argues that the government has the authority to craft regulations addressing narrow issues related to materials combining sex with violence or coercion.