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.

The Reckoning

2021 ◽  
pp. 483-520
Author(s):  
Eric Van Young
Keyword(s):  
Supreme Court ◽  
Mexico City ◽  
The State ◽  
The Other ◽  
Grand Jury ◽  
The Supreme Court ◽  
The Government ◽  
The U.S

Alamán’s internal self-exile in Mexico City, when he hid for nearly two years only to emerge in 1834, is discussed in as much detail as is possible for a largely undocumented episode. Having left the government along with the other ministers during 1832, he was being pursued by agents of the state and political enemies to stand trial before a congressional grand jury for his involvement in the judicial murder of Vicente Guerrero. The chapter also discusses his cordial relationship with the U.S. envoy who replaced the recalled Joel Poinsett, Anthony Butler. The fall of the Anastasio Bustamante government to an uprising led by Santa Anna is narrated, along with Alamán’s eventual trial, his spirited defense of himself, the intervention of Carlos María de Bustamante (not the president) on his behalf before the Supreme Court, and the ex-minister’s exoneration at the hands of President Santa Anna.

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 Laird v. Tatum and Article III Standing in Surveillance Cases

2018 ◽  
Author(s):  
Jeffrey Vagle
Keyword(s):  
Supreme Court ◽  
Federal Courts ◽  
Surveillance Program ◽  
Court Cases ◽  
The Supreme Court ◽  
Surveillance Programs ◽  
The Government ◽  
Government Surveillance ◽  
Very High

Plaintiffs seeking to challenge government surveillance programs have faced long odds in federal courts, due mainly to a line of Supreme Court cases that have set a very high bar to Article III standing in these cases. The origins of this jurisprudence can be directly traced to Laird v. Tatum, a 1972 case where the Supreme Court considered the question of who could sue the government over a surveillance program, holding in a 5-4 decision that chilling effects arising “merely from the individual’s knowledge” of likely government surveillance did not constitute adequate injury to meet Article III standing requirements.

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.

The Supreme Court Defines the Marketplace of Ideas

1996 ◽  
Vol 73 (1) ◽  
pp. 40-52 ◽  
Author(s):  
W. Wat Hopkins
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Free Expression ◽  
Marketplace Of Ideas ◽  
Regulatory Scheme ◽  
The Supreme Court ◽  
The U.S

The marketplace of ideas metaphor is the model most called upon by the U.S. Supreme Court in the resolution of free-expression cases. Justices have used the theory in the adjudication of virtually every area of First Amendment law, despite increasing attacks on the theory. For the most part, however, the Court does not recognize a single, universal marketplace of ideas, but numerous mini-marketplaces, each with its own dynamics, parameters, regulatory scheme, and audience.

“Religion always wins” rules are bad for religious liberty

2020 ◽  
pp. 83-92
Author(s):  
Andrew Koppelman
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Federal Courts ◽  
Religious Liberty ◽  
Freedom Of Religion ◽  
Special Treatment ◽  
The Supreme Court ◽  
Hobby Lobby

This chapter examines the First Amendment doctrine that the Supreme Court is now developing. Burwell v. Hobby Lobby, the Court’s most important recent decision on accommodation, is no victory for religious liberty. It replaces the sensible regime of balancing with a rule whereby religion will almost always be given special treatment, even if that means that nonadherents suffer enormous harm. If this is now to be the authoritative meaning of freedom of religion, then the consensus that once supported it will inevitably collapse. This chapter shows the destructive implications of the decision for the discrimination question—implications that have already been drawn by several federal courts.

Government and Its Speech Forum

2017 ◽  
Author(s):  
Randall P. Bezanson
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Religious Group ◽  
Private Speech ◽  
Public Park ◽  
Ten Commandments ◽  
The Supreme Court ◽  
The Right ◽  
Grove City ◽  
The City

This chapter examines the Supreme Court's decision inPleasant Grove City v. Summum. In the city of Pleasant Grove, Utah, sits Pioneer Park—the site of a local controversy that launched a landmark expansion of the doctrine known as “government speech.” The park's attractions are a hodgepodge of monuments and historical markers, including a privately donated Ten Commandments monument. A small and unconventional local religious group called Summun argued before the Supreme Court for the right to place its own monument next to the Ten Commandments in Pioneer Park. At issue in the Summun case was whether and how the claimed government speech forum would apply to monuments in a public park. Beneath the surface of this issue, however, were some very fundamental First Amendment questions. The chapter focuses on these questions. Is First Amendment immunity for government speech constitutionally justified, and if so, why? Should government's choice of private speech qualify as government speech? Should government's speech power be extended to a government speech forum in which only approved ideas and viewpoints can be expressed?

scholarly journals THE CONCEPT AND THE CONTENT OF THE INTERROGATION OF THE SUSPECT IN CUSTODY IN CRIMINAL PROCEDURE IN THE UNITED STATES

2019 ◽  
Vol 1 (40) ◽  
Author(s):  
Miodrag N. Simović ◽  
Vladimir M. Simović
Keyword(s):  
United States ◽  
Supreme Court ◽  
Criminal Procedure ◽  
The United States ◽  
Federal Courts ◽  
The State ◽  
Constitutional Rights ◽  
The Supreme Court ◽  
The Right ◽  
The U.S

The paper analyses some relevant issues related to the treatment oflaw enforcement officers in the United States after a person has been taken intocustody or otherwise deprived of liberty, which requires informing that personof his/her constitutional rights. In the landmark decision Miranda v. Arizona(1966), the Supreme Court of the United States set standards for law enforcementofficers to follow when interrogating suspects held in custody.Suspects who are subject to custodial interrogation must be warned of theirright to remain silent; that any statements they make may be used as evidenceagainst them; that they have a right to an attorney; and if they cannot afford anattorney, the State will assign them one prior to any questioning, if they so wish.According to Miranda, unless those rights are not read, any evidence obtainedduring the interrogation may not be used against the defendant.Ever since Miranda was decided, state and federal courts have struggled witha number of issues with regard to its application, including the suspect’s beingin custody, which entitles the suspect to being readMiranda rights, the suspect’swaiving the right to have an attorney present during questioning. Some decisionsby the U.S. Supreme Court have attempted to answer these difficult questions.

DEKADENSI PEMILIHAN HAKIM AGUNG OLEH DPR RI

2020 ◽  
Vol 14 (1) ◽  
pp. 73-104
Author(s):  
Rustam Magun Pikahulan
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
House Of Representatives ◽  
Good Governance ◽  
Constitutional Court ◽  
Due Diligence ◽  
The Rule Of Law ◽  
The Supreme Court ◽  
Institutional Status ◽  
The Government

Abstract: The Plato's conception of the rule of law states that good governance is based on good law. The organization also spreads to the world of Supreme Court justices, the election caused a decadence to the institutional status of the House of Representatives as a people's representative in the government whose implementation was not in line with the decision of the Constitutional Court. Based on the decision of the Constitutional Court No.27/PUU-XI/2013 explains that the House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only approve or disapprove candidates for Supreme Court Justices that have been submitted by the Judicial Commission. In addition, the proportion of proposed Supreme Court Justices from the judicial commission to the House of Representatives (DPR) has changed, whereas previously the Judicial Commission had to propose 3 (three) of each vacancy for the Justices, now it is only one of each vacant for Supreme Court Judges. by the Supreme Court. The House of Representatives no longer has the authority to conduct due diligence and suitability (elect) to prospective Supreme Judges proposed by the Judicial Commission. The House of Representatives can only "approve" or "disagree" the Supreme Judge candidates nominated by the Judicial Commission.

Summary of Results

2017 ◽  
Author(s):  
Adrian Kuenzler
Keyword(s):  
Intellectual Property ◽  
Supreme Court ◽  
Government Agencies ◽  
Property Law ◽  
Trademark Law ◽  
Intellectual Property Law ◽  
The Past ◽  
The Supreme Court ◽  
The Government ◽  
Networked Economy

The persuasive force of the accepted account’s property logic has driven antitrust and intellectual property law jurisprudence for at least the past three decades. It has been through the theory of trademark ownership and the commercial strategy of branding that these laws led the courts to comprehend markets as fundamentally bifurcated—as operating according to discrete types of interbrand and intrabrand competition—a division that had an effect far beyond the confines of trademark law and resonates today in the way government agencies and courts evaluate the emerging challenges of the networked economy along the previously introduced distinction between intertype and intratype competition. While the government in its appeal to the Supreme Court in ...

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