Judicial Challenges, 1982–2019

2021 ◽  
pp. 260-308
Author(s):  
Max Waltman
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
Criminal Law ◽  
First Amendment ◽  
Freedom Of Expression ◽  
Obscenity Law ◽  
Substantive Equality ◽  
The Government ◽  
Equality Provision ◽  
Pornography Industry

The chapter compares Canadian and U.S. judicial challenges, tracing the development of Canada’s unconventional harm-based criminal obscenity law under the 1982 Charter’s substantive equality guarantees. It highlights the Canadian Supreme Court intervener LEAF—a women’s organization instrumental in Butler (1992), where the law was saved as an equality provision against freedom of expression challenges. Butler is contrasted with the more categorical U.S. First Amendment law. Despite Butler’s promises, it is shown that since then, pornographers have mainly been protected by Canadian courts, which use desensitized contemporary standards, flawed empirical evidence, surgically inserted loopholes, and wishy-washy judicial reasoning where harm is concerned. In light of LEAF’s successful intervention, the civil rights model is explored as an alternative to criminal law that would better represent the groups whose interests are most threatened by pornography—groups with substantially stronger incentives than the government to invest time and effort in challenging the pornography industry.

scholarly journals After Labaye: The Harm Test of Obscenity, the New Judicial Vacuum, and the Relevance of Familiar Voices

2009 ◽  
Vol 46 (3) ◽  
pp. 741 ◽  
Author(s):  
Richard Jochelson
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Tolerance Test ◽  
Supreme Court Of Canada ◽  
Obscenity Law ◽  
The Supreme Court ◽  
Tolerance Approach ◽  
Lower Courts ◽  
The Subject ◽  
Community Standards

In R. v. Labaye, the Supreme Court of Canada finally retired the community standards of tolerance test of obscenity. The test had been the subject of much academic critique, a matter that reached its zenith in the period following Little Sisters Book and Art Emporium v. Canada (Minister of Justice), in which a gay and lesbian bookshop contested the procedures and legislative regime of customs officials in detaining its imports. The engagement in the literature on the efficacy of the community standards test that followed was often heated, always interesting, and ultimately unresolved. To date, we have not seen any clarifying applications of the newly proposed harm test by the Supreme Court, nor have we seen a profound articulation in any lower courts. Subsequently, the academic discussion has slowed to a crawl. In this article, the author reviews four accounts of the community standards test that were prominent following Little Sisters, and asks if the newly proposed Labaye standard meets their concerns. The Labaye case provides much fodder for the previous critics and supporters of a community standards of tolerance approach to analyze. After a critical analysis of the new Labaye test, the author concludes that the concerns have not been muted by the retirement of the community standards test, even if the voices have been. The engaged voices heard in the aftermath of Little Sisters should not hold back and they should not abandon the work to be done in obscenity law and freedom of expression discourse generally.

scholarly journals Kyoto, Constitutional Law and Alberta's Proposals

1969 ◽  
pp. 355
Author(s):  
Nigel Bankes ◽  
Alastair R. Lucas
Keyword(s):  
Climate Change ◽  
Civil Rights ◽  
Criminal Law ◽  
Constitutional Law ◽  
Public Lands ◽  
The Other ◽  
Legal Position ◽  
Federal Initiatives ◽  
The Government ◽  
Constitutional Analysis

This article examines Alberta’s Bill 37, a provincial plan to reduce greenhouse gases and climate change, and explores the constitutionality of such legislation. Its main focus revolves around a constitutional analysis of Alberta's proposed legislation and its potential incompatibility with federal initiatives used to meet the Government of Canada's commitments under the Kyoto Protocol. In this discussion, the authors conclude that Bill 37 would likely be constitutionally valid under the provincial subject matter of property and civil rights, and possibly local undertakings and ownership of provincial public lands. However, the authors dismiss the argument that Alberta's legal position over any federal initiative would be bolstered by the Crown's ownership of provincial resources. The article then looks to the federal government's Kyoto commitments and analyzes the constitutionality of possible federal initiatives under the federal subject matters of taxation, criminal law, trade and commerce and POGG. With both the Alberta and federal plans analyzed, the authors then discuss the potential incompatibility of the plans through three possible scenarios. The article concludes with a brief discussion of the other cooperative measures, such as equivalency agreements and incorporation by reference, which the federal and provincial governments may use to combat the issue of climate change.

“The Government of All”

2019 ◽  
pp. 124-141
Author(s):  
David S. Schwartz
Keyword(s):  
Civil Rights ◽  
Supreme Court ◽  
Black Americans ◽  
Fourteenth Amendment ◽  
The Other ◽  
Racial Equality ◽  
White Supremacist ◽  
Southern States ◽  
The Supreme Court ◽  
The Government

After being buried by the late Marshall and Taney Courts, McCulloch v. Maryland experienced the beginnings of a revival during Reconstruction. McCulloch’s principles of nationalism, implied powers, and the capable Constitution seemed to have triumphed in the Civil War, offering potentially useful guidance in reconstructing the divided nation. A McCulloch revival occurred in Congress, but not, curiously, in the Supreme Court. After initial success, Reconstruction’s great experiment in integrating black citizens into the constitutional order ended with the slowly unfolding tragedy of abandonment of black Americans to their fate at the hands of white supremacist governments in the southern states. The Court in the Civil Rights Cases (1883) contributed to this abandonment when it ignored McCulloch, just as it had done under the Marshall and Taney Courts, by refusing to acknowledge Congress’s implied powers to legislate for racial equality under the Fourteenth Amendment and the other Reconstruction Amendments.

What The Slants’ First Amendment Case at the Supreme Court Actually Won

2021 ◽  
Author(s):  
Simon Tam
Keyword(s):  
Social Change ◽  
Supreme Court ◽  
First Amendment ◽  
Legal System ◽  
Hate Speech ◽  
Legal Theory ◽  
Freedom Of Expression ◽  
Personal Account ◽  
The Supreme Court ◽  
Person Account

This is a first-person account of the First Amendment case that rocked the nation. Much has been written about The Slants’ trademark case, which was decided at the Supreme Court, from NPR to Rolling Stone, but nearly everything published focused on the Washington Football team’s name and fear about a floodgate of hate speech. This article provides the argument for freedom of expression using an equity lens, moving it from abstract legal theory to a personal account of what the legal system and its procedures are actually like for those who wish to create social change.

A Government Action Approach to First Amendment Analysis

1992 ◽  
Vol 69 (1) ◽  
pp. 65-88 ◽  
Author(s):  
Ruth Walden
Keyword(s):  
First Amendment ◽  
Freedom Of Expression ◽  
Free Expression ◽  
Key Factors ◽  
Regulation Of Expression ◽  
Government Action ◽  
Constitutional Protection ◽  
The Government

Most First Amendment theories focus on the values served by freedom of expression, resulting in First Amendment analysis based on the content of messages, modes of communication or identities of speakers. This article suggests that a more appropriate approach consists of focusing on the actions of government that restrict free expression. This approach is based on the premise that the courts' function is to determine when a particular government action violates the First Amendment, not whether the expression at issue is entitled to constitutional protection. The government action approach requires judicial consideration of three key factors: (1) the role government is playing at the time it engages in regulation of expression; (2) the justification for the government action; and (3) the nature of the restriction.

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.

Defining Government Speech: Recent Approaches and the Germaneness Principle

2005 ◽  
Vol 82 (2) ◽  
pp. 398-415 ◽  
Author(s):  
Edward L. Carter
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Social Issues ◽  
Federal Courts ◽  
Private Speech ◽  
The Supreme Court ◽  
The Face ◽  
The Government ◽  
The U.S

In the last decade, the U.S. Supreme Court and lower federal courts have fashioned the -principle that the First Amendment does not limit the government's ability to determine the content of its own messages. Yet the Supreme Court has not defined what is meant by “government speech.” Defined broadly, it may encompass viewpoint-based messages on controversial social issues, privately funded advocacy on behalf of certain industries, and official endorsement of certain ideologies. In the face of this uncertainty, and confronted with numerous recent cases in which the government asserts its right to expression, the U.S. courts of appeal have devised three major approaches to distinguishing government speech from private speech. The Supreme Court touched on aspects of these approaches in an important 2005 opinion, yet significant questions remain about the definitional contours of the Court's developing government speech doctrine.

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.

The Public Forum

2019 ◽  
pp. 69-90
Author(s):  
Timothy Zick
Keyword(s):  
First Amendment ◽  
Freedom Of Expression ◽  
Law And Order ◽  
Public Forum ◽  
The Public ◽  
Public Square ◽  
The People ◽  
1960S And 1970S ◽  
The Government ◽  
The 1960S

This chapter examines concerns relating to preserving access to public properties for the purpose of facilitating freedom of expression. Historically, speakers and groups have fought to obtain and preserve First Amendment rights to access and use what are referred to as “public forums”—places that the government owns or controls, but that are held in trust for the people for the purpose of exercising First Amendment rights. The “law and order” mantra of the Trump Era has revived concerns, dating in particular from the 1960s and 1970s, about preserving speakers’ access to public places including streets and parks. Government “law and order” policies and actions, along with various other access limits, raise concerns about the continued viability of the public forum. In addition, during the Trump Era, issues have arisen with regard to speakers’ access to places in the “modern public square,” including official social media sites. President Trump’s decision to block several critics from the comment portion of his Twitter page is only the most prominent example of this new access concern, which will affect dissenters’ ability to communicate with an increasing number of public officials. Preserving access to traditional and digital forums will be critical to maintaining a culture of dissent.

Sign in / Sign up

Export Citation Format

Share Document