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.

scholarly journals Engaging in hate speech as grounds for enhancement of criminal punishment — Wisconsin v. Mitchell

2020 ◽  
Vol 42 (1) ◽  
pp. 101-116
Author(s):  
Łukasz Machaj
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
Hate Speech ◽  
United States Supreme Court ◽  
The United States ◽  
Criminal Punishment ◽  
The Supreme Court ◽  
Expressive Activity ◽  
Severe Punishment

The First Amendment to the Constitution of the United States, which prohibits any abridgement of freedom of speech, must be regarded as a cornerstone of the American social and political order. The number of expressive categories placed beyond the First Amendmentʼs pro-tective mantle is very small. In particular, there is no hate speech exception to the free speech Constitutional clause. The article analyzes the decision of the United States’ Supreme Court in the case of Wisconsin v. Mitchell. The issue at hand concerned the question of whether it is constitu-tionally permissible to enhance criminal punishment for bias-motivated crimes in comparison with crimes motivated by other factors. In those types of cases, the factual basis for meting out a more severe punishment is usually and necessarily provided by a criminal’s expression that reveals the aforementioned bias. By considering such regulations to be constitutional, the Supreme Court cre-ated an exception regarding the First Amendment protections granted to hate speech by permitting the courts — albeit in a very narrow and specific set of circumstances — to attach negative con-sequences to someoneʼs engagement in constitutionally protected expressive activity. The article critically describes the doctrinal justifications given for this conclusion by the Supreme Court, con-sidering them to be cursory and doctrinaire. The author contends that the Mitchell decision is an example of results-oriented jurisprudence, issued with the political aim of combatting hate crimes in mind. While this objective remains a worthy one, it does not — in the author’s opinion — provide a sufficient justification for reducing the scope of the First Amendment’s protection of (admittedly outrageous, immoral, and shocking) expression a majority may find distasteful. While the legisla-tive branch ought to be permitted to consider specific motives as aggravating factors in a crime (at least from the First Amendment standpoint), a penalty-enhancement should not be contingent on the question whether the accused engaged in protected expressive activity, distinguishing “silent” and “vocal” criminals. The paper utilizes descriptive and analytical methods.

scholarly journals The Holmes Truth: Toward a Pragmatic, Holmes-Influenced Conceptualization of the Nature of Truth

2018 ◽  
Vol 7 (1) ◽  
pp. 169-203
Author(s):  
Jared Schroeder
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
William James ◽  
Freedom Of Expression ◽  
Complex Relationship ◽  
Oliver Wendell Holmes ◽  
The Supreme Court ◽  
Traditional Approaches ◽  
The U.S

Abstract Truth as a fundamental ingredient within the flow of discourse and the application of freedom of expression in democratic society has historically received considerable attention from the U.S. Supreme Court. Many of the Court’s central precedents regarding First Amendment concerns have been determined by how justices have understood truth and how they have conceptualized the complex relationship truth and falsity share. Despite the attention truth has received, however, the Court has not provided a consistent understanding of its meaning. For these reasons, this article examines how the Supreme Court has conceptualized truth in freedom-of-expression cases, ultimately drawing upon the results of that analysis, as well as pragmatic approaches to philosophy, the so called “pragmatic method” put forth by American philosopher William James, to propose a unifying conceptualization of truth that could be employed to help the Court provide consistency within its precedents regarding the meaning of a concept that has been central to the Court’s interpretation of the First Amendment since, in many ways, another pragmatist and friend of James’s, Justice Oliver Wendell Holmes, substantially addressed truth in his dissent in Abrams v. United States. The article concludes by proposing that the courts conceptualize the nature of truth via three substantially related understandings: that truth is a process, that it is experience-funded, and that it is not absolute and is best approached without prejudice. Each of the three ingredients relates, at least to some extent, with thematic understandings put forth by the Court in previous freedom-of-expression cases, and therefore does not represent a significant departure from justices’ traditional approaches to truth. The model, most ideally, does seek, with the help of pragmatic thought and ideas put forth by Justice Holmes, to encourage consistent recognition of certain principles regarding truth as justices go about considering its nature in First Amendment cases.

Speech and Crime

1980 ◽  
Vol 5 (4) ◽  
pp. 645-785 ◽  
Author(s):  
Kent Greenawalt
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Freedom Of Expression ◽  
Critical Examination ◽  
Court Decisions ◽  
Degree Of Protection ◽  
The Supreme Court ◽  
Supreme Court Decisions

What kind of constitutional standards are applicable to communications likely to cause listeners to commit crimes? An examination of the tension between the highly protective approach to advocacy of crime taken by the Supreme Court inBrandenburg v. Ohioand the provisions in many criminal codes that make those who encourage criminal violations generally punishable for solicitation is followed by an analysis of the penological reasons for punishing crime-causing communications and of the relevance to such communications of the justifications for freedom of expression. After an account of the Supreme Court decisions dealing with this subject and a summary critical examination of interpretive approaches to the First Amendment, the author suggests standards for constitutional appraisal of prohibitions of communications that may cause crime. The central proposals are that most statements of fact and value be accorded virtually absolute protection; that dominantly situation-altering utterances, such as agreements, offers of agreement, and orders, be treated as outside the scope of First Amendment protection; and that simple encouragements to commit specific crimes, a kind of action-inducing communication, be granted a degree of protection that depends heavily on context, with criteria like those contained inBrandenburgapplicable to public ideological solicitation but with much less restrictive standards applicable to private solicitation.

A Note on the Law and Economics of Stolen Valor

2017 ◽  
Vol 63 (1) ◽  
pp. 115-119
Author(s):  
Dennis L. Weisman
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Military Service ◽  
Law And Economics ◽  
Wage Premium ◽  
The Supreme Court ◽  
The Law ◽  
Jel Classifications

The issue of stolen valor concerns the act of trading on false claims of being awarded valorous military service medals. The Supreme Court overturned the 2005 Stolen Valor Act, largely on First Amendment grounds, ruling that even false speech deserves some protection. Misrepresentation that devalues the reputation of medals for valor may not violate the revised statute despite reducing the expected wage premium associated with being awarded the medal for valor and discouraging investment in military effort. Hence, the law and economics of stolen valor are in some conflict. JEL Classifications: D82, H1, K23

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 Non-Positivist ‘Higher Norms’ and ‘Formal’ Positivism: Interpretation of the Ethiopian Criminal Law

2020 ◽  
Vol 14 (1) ◽  
pp. 85-118
Author(s):  
Simeneh Kiros Assefa
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Criminal Law ◽  
Common Good ◽  
Legal Theory ◽  
Fundamental Rights ◽  
The Common Good ◽  
The Supreme Court ◽  
The Common

The criminal law is adopted as a means of achieving the common good; it is interpreted and applied by the court. The judge chooses the type of legal theory and method to employ in the interpretation and application of the criminal law. Such theories may be acquired from higher norms or from the decision of the Supreme Court. Because such choice of theory and method determines the outcome of the case, the judge is also expected to be guided by the doctrines in criminal law inspired by the values of rule of law and respect for fundamental rights, enshrined in the Constitution. This article examines how courts harmonise the application of the positive criminal law with the non-positivist theories of higher norms. After reviewing various criminal rules and their judicial application, it finds that the court applies the criminal law as it is written in disregard of the non-positivist theories of higher norms, at times in contradiction to the basic doctrines of the criminal law itself.

scholarly journals RESPONSABILIDADE EM FACE DE PIQUETE NA JURISPRUDÊNCIA NORTE-AMERICANA

2019 ◽  
Vol 1 (54) ◽  
pp. 499
Author(s):  
Edilton MEIRELES
Keyword(s):  
United States ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
United States Supreme Court ◽  
The United States ◽  
The Supreme Court ◽  
Deductive Method ◽  
The Face ◽  
The Subject ◽  
The Right

RESUMONeste trabalho tratamos do direito de manifestação em piquetes e da responsabilidade que possa advir desses atos em face da jurisprudência da Suprema Corte dos Estados Unidos da América. A partir da análise das principais decisões da Suprema Corte se pode concluir que, de modo geral, os participantes do piquete não respondem quando agem de forma não ilegal. Está sedimentado, no entanto, o entendimento de que o organizador do piquete responde pelos atos dos participantes. A pesquisa desenvolvida se justifica enquanto estudo comparativo e diante do pouco debate existente no Brasil a respeito do tema. Na pesquisa foi utilizado o método dedutivo, limitada à ciência dogmática do direito, com estudo de casos apreciados pelo judiciário. PALAVRAS-CHAVES: Responsabilidade; Piquete; Estados Unidos; Suprema Corte; Liberdade De Expressão. ABSTRACTIn this work we deal with the right of demonstration in pickets and the responsibility that may arise from these acts in the face of the jurisprudence of the Supreme Court of the United States of America. From the analysis of the Supreme Court's main decisions it can be concluded that, in general, the picket participants do not respond when they act in a non-illegal way. It is settled, however, the understanding that the picket organizer responds by the acts of the participants. The research developed is justified as a comparative study and in view of the little debate that exists in Brazil regarding the subject. In the research was used the deductive method, limited to the dogmatic science of law, with study of cases appreciated by the judiciary.KEYWORDS: Responsibility; Picket; United States; Supreme Court; Freedom Of Expression.

Overview

2016 ◽  
Author(s):  
Shira Tarrant
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
The United States ◽  
French Film ◽  
The Supreme Court ◽  
Definition Of

What Is the Definition of Pornography? In 1964, the Supreme Court of the United States faced a controversy over whether Louis Malle’s French film The Lovers violated the First Amendment prohibition against obscene speech. In determining what exactly distinguishes pornography from obscenity,...

Overview

2016 ◽  
Author(s):  
Shira Tarrant
Keyword(s):  
United States ◽  
Supreme Court ◽  
First Amendment ◽  
The United States ◽  
French Film ◽  
The Supreme Court ◽  
Definition Of

What Is the Definition of Pornography? In 1964, the Supreme Court of the United States faced a controversy over whether Louis Malle’s French film The Lovers violated the First Amendment prohibition against obscene speech. In determining what exactly distinguishes pornography from obscenity,...

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