Assembly, Press, and Petition

2018 ◽  
Author(s):  
Timothy Zick
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
Free Expression ◽  
Negative Consequences ◽  
The Supreme Court ◽  
Speech Clause

Chapter 3 examines the Free Speech Clause’s interactions with its First Amendment cousins—the Assembly Clause, Press Clause, and Petition Clause. It explains how and why the Supreme Court collapsed these distinctive rights into a general “Free Expression Clause” that is governed primarily by free speech doctrines and principles. The chapter examines in detail the events and influences that led each clause to be subordinated to or supplanted by the Free Speech Clause. It explains the negative consequences of free speech expansionism, for the non-speech rights and the freedom of speech. The chapter considers existing proposals for recovering or reviving the Assembly, Press, and Petition Clauses, but argues that we must rethink and expand the project. We need to work toward a First Amendment pluralism that not only disaggregates the elements of the fictional “Free Expression Clause,” but also reconnects once and still “cognate” rights of speech, assembly, press, and petition.

scholarly journals Congress Shall Make No Law: The First Amendment, Unprotected Expression, and the U.S. Supreme Court

AmeriQuests ◽  
2011 ◽  
Vol 8 (1) ◽  
Author(s):  
Charles Percy DeWitt
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
The United States ◽  
Research Associate ◽  
Daunting Task ◽  
The Supreme Court ◽  
History Of ◽  
The University

David M. O’Brien’s Congress Shall Make No Law: The First Amendment, Unprotected Expression, and the Supreme Court serves as a significant contribution to the field of First Amendment Law by offering an overview of crucial issues and, moreover, by emphasizing the outlook for the future of free speech. O’Brien’s credentials position him favorably for the task; he was a judicial fellow and research associate with the Supreme Court, he has written numerous articles and books on the Supreme Court, and he is currently the Leone Reaves and George W. Spicer Professor of Law at the University of Virginia. Considering the daunting task of compiling a succinct account and analysis of the history of free speech in the United States, Professor O’Brien does well to allow readers to better understand the complexities of free speech policy in the United States.

scholarly journals Elonis v. United States: The Doctrine of True Threats: Protecting Our Ever-Shrinking First Amendment Rights in the New Era of Communication

2015 ◽  
Vol 15 (2) ◽  
pp. 197-223
Author(s):  
Mary Margaret Roark
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
New Era ◽  
The Public ◽  
Definition Of ◽  
The U.S

The First Amendment protects one of our most precious rights as citizens of the United States—the freedom of speech. Such protection has withstood the test of time, even safeguarding speech that much of the population would find distasteful. There is one form of speech which cannot be protected: the true threat. However, the definition of what constitutes a "true threat" has expanded since its inception. In the new era of communication—where most users post first and edit later—the First Amendment protection we once possessed has been eroded as more and more speech is considered proscribable as a "true threat." In order to adequately protect both the public at large and our individual right to free speech, courts should analyze a speaker’s subjective intent before labeling speech a "true threat." Though many courts have adopted an objective, reasonable listener test, the U.S. Supreme Court now has the opportunity, in deciding Elonis v. United States, to take a monumental step in protecting the First Amendment right to free speech. By holding that the speaker’s subjective intent to threaten is necessary for a true threat conviction, the Court will restore the broad protection afforded by the First Amendment and repair years of erosion caused by an objective approach.

scholarly journals Emerging Technologies and Dwindling Speech, 16 U. Pa. J. Const. L. 1235 (2013)

2018 ◽  
Author(s):  
Jorge R. Roig
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Emerging Technologies ◽  
Source Code ◽  
Individual Rights ◽  
Recent Past ◽  
Comprehensive Theory ◽  
Speech Clause

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context, reflects a continuing dissatisfaction on the part of both courts and legislatures with the current Supreme Court doctrine on First Amendment coverage. From this discussion, we can also derive some meaningful normative insights regarding the interplay between emerging technologies and First Amendment coverage doctrine. Finally, this article hopes to serve as a stepping stone in a more profound and long term pursuit of a comprehensive theory of constitutional individual rights coverage issues that might serve us well as the future brings unexpected changes in our society.

The Sound of Constitutional Silences: Interpretive Holism and Free Speech under Article 19 of the Indian Constitution

2020 ◽  
Author(s):  
Raghav Kohli
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Fundamental Rights ◽  
Fundamental Issue ◽  
Indian Constitution ◽  
Academic Literature ◽  
The Supreme Court ◽  
The Us ◽  
Constitutional Adjudication ◽  
Speech Clause

Abstract Unlike the US First Amendment, Article 19 of the Indian Constitution expressly enumerates eight grounds on which free speech may be restricted. Despite being a fundamental issue of constitutional interpretation, the question of whether Article 19 provides for an exhaustive list of restrictions has largely been neglected in academic literature and Indian jurisprudence. The latest site of contestations on the scope of the free speech clause has been the case of Kaushal Kishor, where the Supreme Court is currently hearing arguments on whether speech can be restricted by invoking fundamental rights beyond Article 19. This Article seeks to develop a principled answer by excavating the meaning of constitutional silences on the relationships between fundamental rights under the Indian Constitution. It argues that a strict textualist approach leads to a distinct form of rights absolutism that is both doctrinally incoherent and inconsistent with Indian jurisprudence. Examining the shift in the Supreme Court’s interpretive outlook from strict textualism to interpretive holism, it finds that the Court’s rich fundamental rights jurisprudence allows importing restrictions on speech from beyond Article 19. Such an approach also provides a meaningful framework for resolving intra-right, inter-right, and right-interest conflicts in the constitutional adjudication of free speech issues.

Reproductive Technologies and Free Speech

2021 ◽  
Vol 49 (4) ◽  
pp. 514-530
Author(s):  
Sonia M. Suter
Keyword(s):  
Health Care ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Reproductive Technologies ◽  
Access To Information ◽  
Patient Relationship ◽  
Patient Access ◽  
The Supreme Court ◽  
Lower Courts

AbstractThe Supreme Court and lower courts have not articulated a clear or consistent framework for First Amendment analysis of speech restrictions in health care and with respect to abortion. After offering a coherent doctrine for analysis of speech restrictions in the doctor-patient relationship, this piece demonstrates how potential legislation restricting patient access to information from reproductive testing intended to limit “undesirable” reproductive choices would violate the First Amendment.

Expressive Conduct and Article 19(1)(a) of the Indian Constitution: A Purposivist Approach

2021 ◽  
pp. 1-26
Author(s):  
Raghav Kohli
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Ad Hoc ◽  
The United States ◽  
Indian Constitution ◽  
The Us ◽  
Indian Supreme Court ◽  
Judicial Scrutiny ◽  
Speech Clause

Abstract Unlike the First Amendment of the United States, the quest to develop a grand theory to explain the scope and purpose of the free speech clause of the Indian Constitution has rarely been attempted. In this void, the significant constitutional question of when expressive conduct should trigger free speech protection has not received adequate academic and judicial scrutiny in India despite its global resonance. This article examines the evolution of the current doctrine by the Indian Supreme Court on the issue of expressive conduct and finds that the Court's ad-hoc approach fails to provide a meaningful resolution framework. Analysing the jurisprudence of the US Supreme Court on its First Amendment, it discusses two potential approaches available to the Indian Supreme Court: one based on the speaker's conduct, and the other, based on state purposes. It argues that focusing on state purposes not only provides a principled answer to this conundrum but is also consistent with Indian free speech jurisprudence. Contrary to contemporary scholarship, it demonstrates that the law on Article 19(1)(a) of the Indian Constitution, as moulded by the Indian Supreme Court over decades, has implicitly treated the examination of state purpose as its predominant inquiry. This article concludes with some ideas on the limitations and prospects of adopting such an approach.

The Pornography/Civil Rights Ordinance v. The BOG: And the Winner Is…?

Hypatia ◽  
1992 ◽  
Vol 7 (3) ◽  
pp. 94-109
Author(s):  
Melinda Vadas
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Speech Act ◽  
The Supreme Court

The Supreme Court dismissed the Pornography/Civil Rights Ordinance as an unconstitutional restriction of speech. The Court's dismissal itself violates the free speech of the proposers of the Ordinance. It is not possible for both pornographers to perform the speech act of making pornography and feminists to perform the speech act of proposing the Ordinance. I show that the speech act of proposing the Ordinance takes First Amendment precedence over the speech act of making pornography.

scholarly journals The "Expanding First Amendment" in an Age of Free Speech Paradox

2018 ◽  
Author(s):  
Peter M. Shane
Keyword(s):  
At Risk ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Digital Technologies ◽  
Digital Platforms ◽  
Personal Attack ◽  
Public Expression ◽  
The Supreme Court ◽  
Significant Measure

This essay, which introduces a symposium on “The Expanding First Amendment” considers when, many Americans perceive that their capacity to speak freely is increasingly being imperiled in ways for which they have no legal recourse even though the Supreme Court has expanded the domain of communicative activity covered by the First Amendment’s “speech” protection and has limited in other ways the capacity of government to regulate communication based on content. The essay attributes the paradox in significant measure to the rise of private digital platforms as venues for public expression. At the same time that digital technologies (along with print, broadcast, and cable) provide unprecedented opportunities for people to share provocative views, many people may find that they enter public debate only at risk of unleashing a torrent of personal attack that may be a source of embarrassment and worse.

scholarly journals Speech-Facilitating Conduct

2017 ◽  
Author(s):  
Jud Campbell
Keyword(s):  
Supreme Court ◽  
Child Labor ◽  
First Amendment ◽  
Free Speech ◽  
General Concept ◽  
Guiding Principle ◽  
Downstream Effects ◽  
Historical Argument ◽  
The Supreme Court ◽  
The Government

Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law— restrictions on photography and audiovisual recording, limits on campaign contributions, putative newsgathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on downstream effects on speech as the touchstone for First Amendment coverage. The usual conclusion is that the Supreme Court’s decisions are in disarray. This Article argues that key features of doctrine are easily overlooked when employing a granular focus on particular rights. Instead, the Article presents an overarching framework that brings together, descriptively and normatively, otherwise disparate strands of free speech law. The guiding principle of this framework is that First Amendment coverage for nonexpressive conduct depends on whether the government uses a rule that targets speech (e.g., a special tax on newspapers), not on whether expression is indirectly burdened by particular applications of otherwise constitutional rules (e.g., a child labor law applied to newspapers). Applications of this “anti-targeting” principle vary by context, but the general concept offers a surprisingly comprehensive account of most Supreme Court decisions. Tracing the development of the anti-targeting principle also reveals an underappreciated shift in the way that the Court has dealt with claims based on nonexpressive conduct. This historical argument shows that the reasoning in many of the Court’s foundational cases—including Buckley v. Valeo, Branzburg v. Hayes, Abood v. Detroit Board of Education, and Roberts v. United States Jaycees—is now out of step with current doctrine.

scholarly journals Ethical Principles on the Freedom of Speech and Expression in the Developed and Developing Countries

2020 ◽  
Vol 4 (1) ◽  
Author(s):  
Abdul Alim
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
United States Constitution ◽  
Bill Of Rights ◽  
The Us ◽  
Us Constitution

The First Amendment to the United States Constitution is an essential part of the Bill of Rights. The amendment prohibits making of any law respecting an establishment of religion, obstructing the free exercise of religion, infringing on the freedom of speech, infringing on the freedom of the press, interfering peoples assembling rights in a peaceful manner or prohibiting the petitioning for a governmental remedy of grievances. The guarantees of this Bill of Rights were subject to the limitation imposed by the free speech and press provisions of the First Amendment to the US Constitution as interpreted and applied by the Supreme Court and other courts. The United States and India are the largest democratic country and almost have similar free speech provisions in their Constitutions. This Article is intended to present the free speech provisions of the American and Indian Constitution as a basic fundamental right of human being. It is also to be examined that what is the role of Supreme Court in interpreting the freedom of speech and expression provisions. The study also tries to incorporate the comparison between the looms of both countries as far as freedom of speech is disturbed.

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