The First Amendment During the Trump Era and Beyond

2021 ◽  
pp. 185-232
Author(s):  
Carlos A. Ball
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Hate Speech ◽  
Vulnerable Groups ◽  
Government Officials ◽  
Free Press ◽  
Religious Minorities ◽  
Real Possibility ◽  
The Real ◽  
Repeated Use

This chapter explores the ways in which some progressives, in the years leading up to Trump’s election, had grown skeptical of expansive First Amendment protections, viewing them as impediments to the pursuit of equality objectives. Although some of that skepticism is understandable, the chapter details the multiple ways in which free speech and free press protections helped curtail some of Trump’s autocratic policies and practices. In doing so, the chapter argues that progressives, going forward, should not allow what it calls “First Amendment skepticism” to grow to the point that it undermines the amendment’s ability to shield democratic processes, dissenters, and vulnerable groups from future autocratic government officials in the Trump mold. The chapter ends with an exploration of future hate speech regulations. While it would be understandable for progressives, after Trump’s repeated use of hate speech, to call for greater regulations of such speech, the chapter urges progressives to be cautious in this area because of the real possibility that the regulations will be used by future government officials in the Trump mold to target and discriminate against both progressive viewpoints and racial and religious minorities.

Toleration Without Hate Speech: The Keegstra Decision, American Free Speech Exceptionalism and Locke's Letter

2015 ◽  
Vol 48 (3) ◽  
pp. 699-718 ◽  
Author(s):  
Samuel V. LaSelva
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Hate Speech ◽  
Bill Of Rights ◽  
Special Committee ◽  
Canadian Charter ◽  
Liberal Tradition ◽  
The Us ◽  
Famous Argument ◽  
Contemporary Context

AbstractThis paper re-examines the issue of hate propaganda under the Canadian Charter of Rights and the US Bill of Rights. It also reconsiders the significance of Locke's Letter Concerning Toleration. What the paper attempts to show is that one strand of Locke's famous argument supports First Amendment exceptionalism and Justice Holmes's dissenting opinions in Abrams and Schwimmer, but another strand buttresses the Keegstra and Butler decisions and the Report of the Special Committee on Hate Propaganda in Canada. In the contemporary context of the debate over free speech and its limits, Lockean toleration has communitarian as well as libertarian dimensions, and the control of hate propaganda in Canada's multicultural and multinational polity becomes more clearly an important part of the liberal tradition.

Freedom of Speech

2018 ◽  
pp. 305-354
Author(s):  
Sandra Fredman
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Hate Speech ◽  
Freedom Of Speech ◽  
Freedom Of Information ◽  
Starting Point ◽  
The Us ◽  
Section Viii ◽  
The Right

This chapter assesses the theories justifying freedom of speech (Section II). Section III considers how free speech is protected by human rights instruments. The absence of an express limitation clause in the US First Amendment contrasts with other jurisdictions, which permit justifiable limitations. Sections IV–VII consider how courts have dealt with the most burning issues confronted in all of these jurisdictions: whether freedom of speech protects subversive speech, pornography, and hate speech. Where the limits of liberal tolerance lie remains a challenge for courts. While the harm principle provides a starting point, much depends on how speech is seen to cause harm. Section VIII asks whether the right-bearer includes not just the speaker, but also the recipient of speech and assesses the role of freedom of information. The chapter concludes that freedom of speech should go further than curbing State power to censor speech, creating conditions of genuine equality.

The Supreme Court in the Era of Bifurcated Review V

2019 ◽  
pp. 691-784
Author(s):  
G. Edward White
Keyword(s):  
Twentieth Century ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Due Process ◽  
Fourteenth Amendment ◽  
Political Campaigns ◽  
Religious Minorities ◽  
The Supreme Court ◽  
Constitutional Jurisprudence

Of all the areas of twentieth-century constitutional jurisprudence, that of free speech has had the most dramatic transformation. From a state of insignificance, the First Amendment has been applied against the states in the Due Process Clause of the Fourteenth Amendment and made the basis for invalidating restrictions on the expressive activities of political and religious minorities, corporations, contributors to political campaigns, and commercial advertisers.

Coda

2021 ◽  
pp. 145-148
Author(s):  
Martha Minow
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
News Media ◽  
Free Press ◽  
Call To Action ◽  
News Industry ◽  
The Government

Chapter 5 concludes with a call to action to fix the crisis in the news media. The First Amendment’s guarantee of free speech and free press presupposes the existence of an independent press. That predicate is now in jeopardy. Changes in the news industry threaten the project of democracy and obligate the government to act. The First Amendment is not a barrier but instead a basis for such action.

scholarly journals Freedom of hate speech: The First Amendment, Snyder v Phelps and beyond

2021 ◽  
Author(s):  
◽  
Tara Schoeller-Burke
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Hate Speech ◽  
The United States ◽  
Complex Issue ◽  
Chilling Effect ◽  
International Experiences

<p>This paper assesses the United States position on the protection of hate speech under the First Amendment and questions whether, in light of the harm hate speech causes and the inconsistencies with free speech rationales, the position is justified. The most recent Supreme Court pronouncement on the issue is Snyder v Phelps which this paper utilizes as an exemplar of the state’s aversion to regulating speech on the basis of content. The ultimate thesis of this paper is that while hate speech is a complex issue, especially given the United States constitutional climate, complete lack of regulation leaves an appreciable harm without a remedy. The approach in the United States can no longer be justified in reliance on oft cited free speech rationales. Though international experiences in hate speech regulation have not been without their difficulties, it serves to illustrate the point that regulating some forms of speech on the basis of content does not necessarily result in the “chilling effect” that heavily concerns First Amendment scholars.</p>

SPEECH AND OTHER ACTS

Legal Theory ◽  
2004 ◽  
Vol 10 (4) ◽  
pp. 261-272
Author(s):  
Susan J. Brison
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Body Problem ◽  
Hate Speech ◽  
Henry Louis Gates ◽  
Mind Body Problem ◽  
The Mind

In an article published in 2001, Charles W. Collier raises a number of objections to my article “Speech, Harm, and the Mind-Body Problem in First Amendment Jurisprudence,” beginning with an implicit objection embedded in the subtitle of his article: “Hate Speech and the Mind-Body Problem: A Critique of Postmodern Censorship Theory.” Since I advocate neither postmodernism nor censorship, and since I would have thought that “postmodern censorship” was an oxymoron, I found this characterization of my position surprising, to say the least. Collier does not define “postmodern censorship theory” or even “postmodernism,” but he helpfully includes a note citing Steven Gey's article, “The Case against Postmodern Censorship Theory.” Gey, in turn, claims to have picked up the terminology from an article by Kathleen Sullivan, “Free Speech Wars.” Curiously, though, Sullivan nowhere uses the phrase “postmodern censorship theory” in the article cited, although she does discuss a group of leftist legal theorists she dubs “the new speech regulators,” arguing that they: demand a response from those who would leave speech mostly deregulated; and they deserve a response that goes beyond the rote and reflexive invocation of free speech as an article of faith. The appeal to the First Amendment as self-evident truth may be no more effective, as Professor Henry Louis Gates Jr. recently cautioned, than Samuel Johnson's attempt to refute Bishop Berkeley merely by kicking a stone.

Not an Empty Box with Beautiful Words on It: The First Amendment in Progressive Era Scholarship

1992 ◽  
Vol 69 (1) ◽  
pp. 37-47 ◽  
Author(s):  
Linda Cobb-Reiley
Keyword(s):  
World War I ◽  
Progressive Era ◽  
First Amendment ◽  
Free Speech ◽  
Turning Point ◽  
Colonial Period ◽  
World War ◽  
Free Press ◽  
Theoretical Terms ◽  
Legal Literature

Although most First Amendment histories focus on the colonial period or on the suppression of expression during World War I (and the controversies that emerged from the war period), the Progressive Era from 1900 to 1914—a time rich with dissent, violence, censorship and suppression—produced the first significant body of legal literature dealing with the meaning of free speech and press in theoretical terms. This study examines that literature and suggests that early 20th-century legal scholars gave new interpretations to the constitutional free press and speech guarantees and, in fact, the era was an important turning point in the evolution of our free press and free speech values.

scholarly journals Freedom of hate speech: The First Amendment, Snyder v Phelps and beyond

2021 ◽  
Author(s):  
◽  
Tara Schoeller-Burke
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Free Speech ◽  
Hate Speech ◽  
The United States ◽  
Complex Issue ◽  
Chilling Effect ◽  
International Experiences

<p>This paper assesses the United States position on the protection of hate speech under the First Amendment and questions whether, in light of the harm hate speech causes and the inconsistencies with free speech rationales, the position is justified. The most recent Supreme Court pronouncement on the issue is Snyder v Phelps which this paper utilizes as an exemplar of the state’s aversion to regulating speech on the basis of content. The ultimate thesis of this paper is that while hate speech is a complex issue, especially given the United States constitutional climate, complete lack of regulation leaves an appreciable harm without a remedy. The approach in the United States can no longer be justified in reliance on oft cited free speech rationales. Though international experiences in hate speech regulation have not been without their difficulties, it serves to illustrate the point that regulating some forms of speech on the basis of content does not necessarily result in the “chilling effect” that heavily concerns First Amendment scholars.</p>

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