Free Speech on Campus: A New Forum-Based Approach

2020 ◽  
pp. 174387212095030
Author(s):  
Howard Schweber ◽  
Eric Segall
Keyword(s):  
First Amendment ◽  
Free Speech ◽  
Public Colleges ◽  
Lower Court ◽  
College Administrators ◽  
Public College ◽  
Student Protests ◽  
The Supreme Court ◽  
Lower Courts ◽  
Public Colleges And Universities

Students and faculty at public colleges and universities frequently find themselves in conflict with administrators over questions of free speech. Unfortunately, the courts have provided precious little guidance. Lower courts are struggling with a diverse set of issues: the appropriate rules for student protests; which campus spaces constitute open forums for speech and which can be closed off or regulated; how much control administrators can wield over student-invited speakers; and whether or when student online speech can be punished, among many other problems. The Supreme Court has provided virtually no helpful guidance to lower court judges or public college administrators as to how or when the First Amendment limits their discretion. This article provides a helpful forum-based approach to the analysis of many of these questions and proposes specific solutions in the hope of bringing more predictability and stability to this confusing area of constitutional law.

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.

scholarly journals Can Speech by FDA-Regulated Firms Ever Be Noncommercial?

2011 ◽  
Vol 37 (2-3) ◽  
pp. 388-421
Author(s):  
Nathan Cortez
Keyword(s):  
Drug Administration ◽  
First Amendment ◽  
Free Speech ◽  
Regulatory Scheme ◽  
Commercial Speech ◽  
Federal Food ◽  
Regulated Firms ◽  
The Supreme Court ◽  
Regulated Firm ◽  
Free Speech Rights

For over a century, the Food and Drug Administration (FDA or the Agency) and its precursors have regulated what companies say about their products. The FDA itself notes that the regulatory scheme imposed by the Federal Food, Drug, and Cosmetic Act “depends on the use of words” and that its requirements can “explicitly limit speech.” For seventy years, the FDA had little reason to worry about First Amendment constraints. But since 1976, when the Supreme Court reversed its longstanding position that the First Amendment does not protect commercial speech, the Agency has had to confront–perhaps more than any other federal agency–the free speech rights of regulated firms.But how far do those rights extend, and what room do they leave for regulators like the FDA? The answer largely depends on another question: Is the speech commercial or noncommercial? The distinction is paramount. If speech by a regulated firm is commercial, then the FDA can ensure that it is not false or misleading; the Agency can require or compel certain speech; it can impose prior restraints; and it can even limit truthful speech, all within certain parameters.

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.

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.

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.

School Jurisdiction over Online Speech

2019 ◽  
Author(s):  
Emily Gold Waldman
Keyword(s):  
School Personnel ◽  
Digital Age ◽  
The United States ◽  
United States Supreme ◽  
Lower Court ◽  
Student Speech ◽  
The Supreme Court ◽  
Lower Courts ◽  
A Minor ◽  
Current Reality

In today’s digital age, the line between on-campus and off-campus speech has become murky. Speech initially expressed on a student’s home computer, tablet, or smartphone can instantly be accessed anywhere, including at school. But the United States Supreme Court’s student speech cases, which largely predate the digital age, do not grapple with this current reality. This chapter explores lower courts’ attempts to find a new dividing line, beyond the physical schoolhouse gate, for schools’ jurisdiction over student speech. So far, the emerging consensus is that the test should be whether the speech is likely to cause a material disruption at school. That standard, in turn, can implicate several subsidiary questions: whether the speech is arguably threatening; whether the student speaker was punished with suspension or only a minor sanction; whether the speech targets a fellow student or a teacher/administrator; and whether the speech conveys a substantive viewpoint. This chapter analyzes how courts grapple with each of those issues, and then shifts the lens to explore what happens when school personnel, rather than students, are the ones speaking online. It concludes that the Supreme Court will soon weigh in to provide more guidance on these complex issues, building on the lower court consensus that is already developing.

The Persistent Problem of Media Taxation: First Amendment Protection in the 1990S

1997 ◽  
Vol 74 (3) ◽  
pp. 579-590 ◽  
Author(s):  
Cathy Packer ◽  
Karla K. Gower
Keyword(s):  
Supreme Court ◽  
Court Decisions ◽  
Lower Court ◽  
Persistent Problem ◽  
The Supreme Court ◽  
Lower Courts ◽  
Explicit Recognition ◽  
One Step ◽  
The Media ◽  
Substantial Change

This article examines U.S. Supreme Court decisions regarding the constitutionality of taxation of the mass media. It concludes that the Court's 1991 decision in Leathers v. Medlock does not represent a substantial change in the law governing taxation of the media but is one step in the evolution of two distinct lines of media taxation cases. The article also examines how the lower courts have applied Leathers in the six years since it was decided. The lower court decisions uniformly - although not explicitly - recognize the two lines. What is needed now is explicit recognition by both the Supreme Court and the lower courts.

scholarly journals An Examination of the Coherence of Fourth Amendment Jurisprudence

2018 ◽  
Author(s):  
Nicholas Kahn-Fogel
Keyword(s):  
Supreme Court ◽  
Fourth Amendment ◽  
The Body ◽  
High Rate ◽  
Systematic Evaluation ◽  
Court Cases ◽  
Lower Court ◽  
Wrong Answer ◽  
The Supreme Court ◽  
Lower Courts

For decades, scholars have routinely attacked the Supreme Court’s Fourth Amendment jurisprudence as an incoherent mess, impossible for lower courts to follow. These scholars have based their claims almost entirely on qualitative analysis of the Court’s opinions. This Article presents the first systematic evaluation of the consensus view of Fourth Amendment law as incoherent. The primary method I use to evaluate the coherence of the body of law is an assessment of lower court performance on Fourth Amendment issues the Supreme Court would later resolve. Because the Supreme Court’s agreement with lower courts likely reflects, at least in part, the clarity of the Supreme Court’s previous pronouncements, a high rate of agreement between lower courts and the Supreme Court would tend to suggest the coherence of the field. On the other hand, if the Court concludes most lower courts got the wrong answer to a Fourth Amendment question, that conclusion suggests either a lack of clarity in the Court’s precedent or that the Court simply shifted course after having issued seemingly straightforward pronouncements in the past. Either of these possibilities would suggest a kind of incoherence or instability in Fourth Amendment law. I examine lower court decisions dealing with issues the Supreme Court subsequently addressed over the course of twenty Supreme Court terms. Because Supreme Court cases tend to deal with the most difficult, divisive issues, I also compare the frequency with which the Court has felt compelled to review Fourth Amendment questions to the rate at which the Court has dealt with other important constitutional issues.

Sign in / Sign up

Export Citation Format

Share Document