The Dynamic Free Speech Clause

2018 ◽  
Author(s):  
Timothy Zick
Keyword(s):  
Free Speech ◽  
Constitutional Rights ◽  
Relational Dynamics ◽  
Free Exercise ◽  
Second Amendment ◽  
The Press ◽  
The Common ◽  
Rights Discourse ◽  
The Right ◽  
Speech Clause

This book examines the relational dynamics between the U.S. Constitution’s Free Speech Clause and other constitutional rights. The free speech guarantee has intersected with a variety of other constitutional rights. Those intersections have significantly influenced the recognition, scope, and meaning of rights ranging from freedom of the press to the Second Amendment right to bear arms. They have also influenced interpretation of the Free Speech Clause itself. Free speech principles and doctrines have facilitated the recognition and effective exercise of constitutional rights, including equal protection, the right to abortion, and the free exercise of religion. They have also provided mediating principles for constructive debates about constitutional rights. At the same time, in its interactions with other constitutional rights, the Free Speech Clause has also been a complicating force. It has dominated rights discourse and subordinated or supplanted free press, assembly, petition, and free exercise rights. Currently, courts and commentators are fashioning the Second Amendment right to keep and bear arms in the image of the Free Speech Clause. Borrowing the Free Speech Clause for this purpose may turn out to be detrimental for both rights. The book examines the common and distinctive dynamics that have brought free speech and other constitutional rights together. It assesses the products and consequences of these intersections, and draws important lessons from them about constitutional rights and constitutional liberty. Ultimately, the book defends a pluralistic conception of constitutional rights that seeks to leverage the power of the Free Speech Clause but also to tame its propensity to subordinate, supplant, and eclipse other constitutional rights.

Arms

2018 ◽  
Author(s):  
Timothy Zick
Keyword(s):  
Academic Freedom ◽  
Free Speech ◽  
The Other ◽  
Second Amendment ◽  
The Supreme Court ◽  
The Right ◽  
Free Speech Rights ◽  
University Classrooms ◽  
The Relationship ◽  
Speech Clause

Chapter 7 addresses the relationship between the Free Speech Clause and the Second Amendment’s right to “keep and bear Arms.” Relative to the other non-speech rights examined in the book, recognition of an individual right to keep and bear arms occurred relatively recently (the Supreme Court recognized the right in 2008). As a result, the relationship between free speech and Second Amendment rights is still developing. The chapter focuses primarily on two aspects of their intersection. The first is the extent to which the nature and scope of Second Amendment rights ought to be modeled on Free Speech Clause doctrines and principles. The chapter considers the pros and (mostly) cons of “borrowing” the Free Speech Clause for this purpose. The second aspect of the relationship between the Free Speech Clause and the Second Amendment relates to potential conflicts between them. The chapter addresses two tension points—the effect on free speech of openly carrying firearms at public protests and demonstrations, and the effect on academic freedom and inquiry from the presence of firearms in university classrooms. The chapter argues that the future of the Second Amendment will not be determined by explicit borrowing of Free Speech Clause doctrines. However, in terms of constructing the modern right to keep and bear arms, there is much we can learn from the nation’s long experience with free speech rights.

Religion

2018 ◽  
Author(s):  
Timothy Zick
Keyword(s):  
Free Speech ◽  
Establishment Clause ◽  
Public Forum ◽  
Public Buildings ◽  
Relational Dynamics ◽  
Free Exercise ◽  
Free Exercise Clause ◽  
The Relationship ◽  
Speech Clause ◽  
Important Shift

Chapter 4 addresses the relationship between the Free Speech Clause and the Free Exercise Clause. It explains that although these provisions have a collaborative and synergistic history, beginning in the 1980s, the Free Speech Clause began to dominate the relationship. This important shift also affected, to some extent, interpretation of the First Amendment’s other religion clause, the Establishment Clause. The course of the free speech/free exercise relationship has also complicated several free speech doctrines, including those relating to public forum, content neutrality, and government speech. In addition to explaining these relational dynamics, the chapter advocates reinvigorating the Free Exercise Clause and reconnecting it with the Free Speech Clause in ways that recover the mutually facilitative relationship that once existed between the two. To illustrate, the chapter considers the respective functions of the Free Speech and Free Exercise Clauses as they relate to claims involving worship in public buildings and application of anti-discrimination laws to religious speakers.

PERSECUTION AND THE ART OF FREEDOM: ALEXIS DE TOCQUEVILLE ON THE IMPORTANCE OF FREE PRESS AND FREE SPEECH IN DEMOCRATIC SOCIETY

2020 ◽  
Vol 37 (2) ◽  
pp. 190-208
Author(s):  
Khalil M. Habib
Keyword(s):  
Free Speech ◽  
Freedom Of Speech ◽  
Freedom Of The Press ◽  
Alexis De Tocqueville ◽  
Free Society ◽  
Free Press ◽  
Constituent Element ◽  
The Press ◽  
The Right ◽  
Shed Light

AbstractAccording to Tocqueville, the freedom of the press, which he treats as an extension of the freedom of speech, is a primary constituent element of liberty. Tocqueville treats the freedom of the press in relation to and as an extension of the right to assemble and govern one’s own affairs, both of which he argues are essential to preserving liberty in a free society. Although scholars acknowledge the importance of civil associations to liberty in Tocqueville’s political thought, they routinely ignore the importance he places on the freedom of the press and speech. His reflections on the importance of the free press and speech may help to shed light on the dangers of recent attempts to censor the press and speech.

Freedom of Expression and Democracy

2021 ◽  
pp. 81-105
Author(s):  
Ashutosh Bhagwat ◽  
James Weinstein
Keyword(s):  
Eighteenth Century ◽  
Free Speech ◽  
Freedom Of Expression ◽  
Theoretical Perspective ◽  
Modern World ◽  
Popular Government ◽  
The Press ◽  
Political Association ◽  
The Right ◽  
The Relationship

This chapter focuses on the relationship between freedom of expression and democracy from both a historical and a theoretical perspective. The term ‘freedom of expression’ includes free speech, freedom of the press, the right to petition government, and freedom of political association. Eighteenth-century proponents of popular government had long offered democratic justifications for freedom of expression. The chapter then demonstrates that freedom of political expression is a necessary component of democracy. It describes two core functions of such expression: an informing and a legitimating one. Finally, the chapter examines the concept of ‘democracy’, noting various ways in which democracies vary among themselves, as well as the implications of those variations for freedom of expression. Even before democratic forms of government took root in the modern world.

The Right to Free Speech

Troublemakers ◽  
2019 ◽  
pp. 11-50
Author(s):  
Kathryn Schumaker
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Student Activism ◽  
Voter Registration ◽  
School Segregation ◽  
Constitutional Rights ◽  
Freedom Summer ◽  
Des Moines ◽  
The Right ◽  
The U.S

This chapter examines how two student free speech cases, Burnside v. Byars and Blackwell v. Issaquena County, emerged out of the 1964 Freedom Summer voter registration campaign in Mississippi in 1964. This chapter argues that the two cases were the result of increased student activism following Freedom Summer and that these two First Amendment cases were the result of conflict over the broader issues of racial discrimination and school segregation in Mississippi. These cases were eventually cited in the U.S. Supreme Court lawsuit Tinker v. Des Moines, which established the constitutional rights of all students and led to increased litigation. This chapter explains how the rationale in these cases focused on whether students were considered disorderly, and it argues that concepts like disorder can be racially coded and therefore affect the perception of student actions differently based on the race of students and the context of the action.

Law and the public’s health

2021 ◽  
pp. 291-300
Author(s):  
Lawrence O. Gostin
Keyword(s):  
Public Health ◽  
Common Good ◽  
Health And Safety ◽  
Constitutional Rights ◽  
Individual Liberty ◽  
Right To Life ◽  
Positive Duty ◽  
Human Right ◽  
The Common ◽  
The Right

Public health law safeguards the health and safety of the population, promoting the human right to life and health, and the realization of social justice. There is sometimes a tension between public health regulation to promote community health and protecting individual liberty and autonomy. Governments must balance the common good with individual freedoms. In many countries, there are constitutional rights to health or to life that provide a positive duty on government to advance the right to health. Governments have multiple legal tools available to improve the public’s health and safety, ranging from the economic power to tax and spend, to the authority to alter the environments in which people live, through to direct and indirect regulation, including, where necessary, deregulation. Although the law can be a powerful agent for change, intervention can also raise critical social, ethical, or constitutional concerns. These issues are illustrated through four brief case studies on infectious diseases, non-communicable diseases, unintentional injuries, and violence to self or others.

Introduction

2020 ◽  
pp. 1-22
Author(s):  
Adam S. Chilton ◽  
Mila Versteeg
Keyword(s):  
Research Methods ◽  
Free Speech ◽  
Research Question ◽  
Theoretical Explanation ◽  
Constitutional Rights ◽  
Right To Education ◽  
Main Research ◽  
Freedom Of Movement ◽  
Formal Organizations ◽  
The Right

This chapter introduces our main research question: do constitutional rights make a difference? For instance, if a country constitutionalizes free speech, does that improve respect for free speech in practice? It also describes the research methods we use to answer this question and previews our core findings: five rights that are practiced on an individual basis—the right to free speech, the prohibition of torture, the freedom of movement, the right to education, and the right to healthcare—are not associated with better rights practices, while three rights that are practiced by and within organizations (“organizational rights”)—the freedom of religion, the right to unionize, and the right to form political parties—are associated with higher levels of respect for those rights in practice. The chapter further provides a summary of our core theoretical explanation for these findings: to enforce constitutional rights, rights violations need to be politically costly, and formal organizations are better equipped to impose such costs than unorganized citizens.

Protecting Quasi-Possession of Electricity Supply with the Mandament van Spolie – Has the Supreme Court of Appeal Switched Off this Possibility? [A Discussion of Eskom Holdings Soc Ltd v Masinda 2019 5 SA 386 (SCA)]

2021 ◽  
Vol 2021 (2) ◽  
pp. 215-233
Author(s):  
EJ Marais
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Fundamental Rights ◽  
Electricity Supply ◽  
Constitutional Rights ◽  
Single System ◽  
The Supreme Court ◽  
The Common ◽  
The Right ◽  
Court Of Appeal

In Eskom Holdings SOC Ltd v Masinda 2019 5 SA 386 (SCA) (“Masinda”), the Supreme Court of Appeal had to decide whether the mandament van spolie is available for restoring quasi-possession of electricity supply. The respondent used the mentioned supply, which was sourced in contract, at her home. The court ruled that the spoliation remedy does not protect the quasi-possession of rights sourced in contract. For its quasi-possession to enjoy possessory protection, the right must be in the nature of a servitude, be registered or flow from legislation. This emphasis on the source of the right is problematic for two reasons. First, it contradicts certain common-law authorities which reveal that the quasi-possession of electricity supply sourced in contract does, in fact, enjoy protection under the spoliation remedy. This applies as long as the supply is a gebruiksreg (use right) and the spoliatus performs physical acts associated with the right on immovable property. Secondly, (over)emphasising the source of the right potentially undermines various fundamental rights. When the common law is open to several possible interpretations, as seems to be the case with quasi-possession, the supremacy of the Constitution and the single-system-of-law principle require that courts choose the interpretation that upholds (rather than impairs) constitutional rights. In the Masinda case, the court unfortunately opted for an understanding of quasi-possession which seems to undermine the Constitution. For these reasons, the decision is an unwelcome development.

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