Abortion

Buskers are street performers who are performing for money — they are not panhandlers. Unfortunately though, they are being treated as such. Cities and municipalities are effectively infringing upon buskers’ free speech and expression rights under the First Amendment by promulgating vague or inadequate regulations that ban conduct often intertwined with busking. For example, officers enforcing these regulations can validly lump a busker’s conduct into an anti-panhandling regulation. Therefore, an intricate balance must be struck in order to justifiably further the governmental interests at play and honor buskers’ guaranteed free speech and expression rights under the First Amendment.Cities and municipalities are doing the courts no favors in this busker dilemma. The regulations that are regularly implemented inevitably result in litigation. Then, the regulations force courts to define indefinable concepts: art and expression. To help alleviate the courts’ definitional crisis, cities and municipalities should promulgate regulations aimed directly at advancing the governmental interests that necessitated the regulation, as opposed to aiming regulations at particular types of conduct. This would be a much-needed solution for the courts, and would also properly strike the balance between government interests and buskers’ free speech rights. Throughout this Article, the case law directly impacting and shaping buskers’ free speech rights is thoroughly dissected. Then, the proposed solution to appropriately strike the balance between government interests and buskers’ free speech rights is elucidated. Last, the current case law and proposed solution are applied to the pending busker case of Young v. Sarles, to exemplify the problems of the current approach and illuminate the ease of the proposed “advancing the interest” approach to this busker dilemma.

Chapter 7 addresses the relationship between the Free Speech Clause and the Second Amendment’s right to “keep and bear Arms.” Relative to the other non-speech rights examined in the book, recognition of an individual right to keep and bear arms occurred relatively recently (the Supreme Court recognized the right in 2008). As a result, the relationship between free speech and Second Amendment rights is still developing. The chapter focuses primarily on two aspects of their intersection. The first is the extent to which the nature and scope of Second Amendment rights ought to be modeled on Free Speech Clause doctrines and principles. The chapter considers the pros and (mostly) cons of “borrowing” the Free Speech Clause for this purpose. The second aspect of the relationship between the Free Speech Clause and the Second Amendment relates to potential conflicts between them. The chapter addresses two tension points—the effect on free speech of openly carrying firearms at public protests and demonstrations, and the effect on academic freedom and inquiry from the presence of firearms in university classrooms. The chapter argues that the future of the Second Amendment will not be determined by explicit borrowing of Free Speech Clause doctrines. However, in terms of constructing the modern right to keep and bear arms, there is much we can learn from the nation’s long experience with free speech rights.

This article explores the impact on students when non–university-affiliated conservative fundamentalist Christian groups conduct provocative demonstrations on campus. As university administrators work to balance free speech rights with missions of civility and pluralism, there is a need to assess and address potential adverse impacts of these sensational events. Based on a survey of 97 public university students after a controversial demonstration, we found the most adverse impact to be on students’ emotions, followed by disruption to their routines, changes to their feelings of safety, and minor consequences on academic activities. Those closer in proximity to the demonstration reported more adverse effects, and there were small differences in effects as a function of student gender, sexual orientation, and Christian identity. Counter to the ostensibly conservative aims of the demonstration, students typically reported it had little affect on their attitudes or that the demonstration made them more in favor of abortion rights, more supportive of homosexuality, and more anti-Christian. In addition, the demonstration caused many to question free speech and First Amendment rights. Results are discussed with regard to minimizing negative effects on our campus communities through the intentional involvement of faculty, campus police, and mental health service providers.

For the past century, the expansion of free speech rights has been the domain of liberals. Recently, however, conservatives have become advocates for expanded free speech rights. For Evangelicals Protestants, this advocacy would have been highly controversial only a generation ago, offending the base's ordered liberty sentiments. I suggest that abortion politics is a primary contributor to the evangelical free speech advocacy shift. Using a variety of data, I detail the evangelical shift toward expanded free speech by exploring the topics of radical protest, campaign finance, and obscenity. While rank-and-file evangelicals are less supportive of free speech than the general-public, elites have routinely used abortion politics to frame the shift toward individual free speech rights. Elites have diverged from their constituents to support a higher-priority issue (abortion), and the constituents have been supportive. Abortion politics has come to dominate evangelical advocacy decisions and has cultivated an evangelical rights culture.

This chapter describes the structural elements or components of a free speech right. The nature and extent of a free speech right depends upon a number of legal components. The first is the legal source of the right (in common law, statute, or a constitution) and the force of the right having regard to how it is enforced, and whether and how it can be superseded. The second component is the ‘subject’ of free speech rights, or who are the rights-holders: citizens, natural or legal persons. The third is the ‘scope’ of a free speech right, while the fourth is the kind of obligation it imposes on others: a negative prohibition or a positive obligation. The fifth component is the ‘object’ of a free speech right: who is bound to respect a right of freedom of expression and against whom the right may be asserted. Finally, there is the ‘limitation’ of a free speech right.

If we assume that individuals have moral rights to free speech, and that privacy may restrict such expression, then there appears to be a conflict of rights-a conflict where speech or expression may trump privacy concerns. For example, when a musician offers up a song about a romantic affair for public consumption, privacy rights may run headlong into speech and expression rights. Andrew McClurg has noted that judges are not willing to protect privacy if doing so threatens free speech: Of the forty- nine invasion of privacy cases reported by state courts in 1992, trial courts granted summary judgment to the defendant in twenty- one of the cases and granted the defendant's motion to dismiss the complaint in fifteen of the cases. other words, in thirty- six of the forty- nine cases (73 percent) trial judges deprived plaintiffs the opportunity to have their privacy claims heard by a jury.2 McClurg also mentions that the situation is nearly identical in the federal courts.3On the other hand, privacy and free expression may be mutually reinforcing. Anonymous communication, online or otherwise, allows individuals to express themselves freely without fear of censure. Citing precedents dating back to the 1950s, Nadine Strossen, former president of the American Civil Liberties Union, writes, In all these cases, the Court has recognized that without the cloak of anonymity, many individuals simply will not exercise their First Amendment rights. They will not freely associate with controversial organizations, nor will they express controversial ideas or discuss sensitive subjects.4 Privacy also reinforces free speech by supporting access to information. When Virginia mandated blocking software to deny access to pornographic materials online and required permission and public disclosure to turn offthe blocking software, free speech was threatened. Professors and researchers across numerous disciplines were loath to disclose the subject matter of their studies-especially when such disclosures would occur piecemeal and unaccompanied by the final written document.5While privacy may strengthen speech or expression in some instances, it seems that in most cases there is conflict. Do we have a right to know the names of rape victims or the sexual preferences of citizens who act heroically? Are the daily events of politicians or entertainers newsworthy? Is privacy less important than freedom of speech? My answer is no to each of these questions. this article I will argue that upon careful analysis there is little conflict between privacy and expression in the moral realm. Moreover, if legal systems are to reflect, promote, or protect basic rights, then it is not so clear that speech should nearly always trump privacy. The ascendancy of speech protection in the legal realm, I argue, is due to an expansive and unjustified view of the value or primacy of free expression-this is perhaps understandable, given that privacy has been understood as a mere interest, whereas speech rights have been seen as more fundamental. I have argued elsewhere that this view of privacy is false-privacy, properly defined, is a necessary condition for human well- being or flourishing.6 Part I will provide an overview of the moral foundations of privacy-while brief, the goal is to establish the claim that privacy is more than a mere interest. Part II will consider several arguments-or strands of argument-purporting to justify free speech rights. While these arguments, taken together, establish that free speech is important, they do not support the view that speech should nearly always trump privacy. Part III, I will suggest a way to balance free speech and privacy claims in the law.Part I: Establishing a Moral Presumption in Favor of PrivacyI favor what has been called a based definition of privacy. Privacy is the right to control access to, and uses of, personal information and spatial locations 7 Privacy may be understood as a right to control both tokens and types. …

‘Moderate Islam’

A Note on Commercial Speech in the Era of Late Capitalism

A unique and definitive study of freedom-of-expression rights in electronic media from the 1920s through the mid-1930s, Louise M. Benjamin's Freedom of the Air and the Public Interest: First Amendment Rights in Broadcasting to 1935 examines the evolution of free speech rights in early radio. Drawing on primary resources from sixteen archives plus contemporary secondary sources, Benjamin analyzes interactions among the players involved and argues that First Amendment rights in radio evolved in the 1920s and 1930s through the interaction of many entities having social, political, or economic interests in radio. She shows how free speech and First Amendment rights were defined and perceived up to 1935. Focusing on the evolution of various electronic media rights, Benjamin looks at censorship, speakers' rights of access to the medium, broadcasters' rights to use radio as they desired, and listeners' rights to receive information via the airwaves. With many interested parties involved, conflict was inevitable, resulting in the establishment of industry policies and government legislation - particularly the Radio Act of 1927. Further debate led to the Communications Act of 1934, which has provided the regulatory framework for broadcasting for over sixty years. Controversies caused by new technology today continue to rage over virtually the same rights and issues that Benjamin addresses.

There are no secure rights without the right of free speech. Free speech is the right that is necessary to defend all other rights. Student free speech is an essential foundation for societal free speech. We will not have a society that values and protects free speech without valuing and protecting free speech for students. Schools must serve as the essential nurseries of our democracy and as examples of the responsible exercise of rights in a free society including free speech. We cannot expect students to spend most of their waking hours in institutions devoid of meaningful rights to freedom of speech and then emerge as adults prepared to exercise and defend democratic freedoms including free speech. Students who learn to exercise free speech rights in schools are more likely to become adults ready to exercise free speech rights in a civil democracy. This article addresses the ongoing evolution of student free speech rights in the U.S., providing a brief overview of free speech law; a review of student speech law in public K-12 schools and in public higher education institutions; a guide to applying the Tinker test in practice; a discussion of the continuing evolution of student speech law in public educational institutions; a review of freedom of the press in public educational institutions; and conclusions on the evolution of student speech.

Abortion and Human Rights for Women in Argentina Barbara Sutton (bio) and Elizabeth Borland (bio) introduction Legal abortion is one among several dimensions of a reproductive justice agenda, and yet it continues to be at the center of controversy in many places around the world. While in countries such as the United States abortion is legal but contested,1 in places such as Argentina, abortion is largely illegal, with few exceptions.2 Despite its criminalization, it is estimated that up to 522,000 abortions take place annually in Argentina.3 Abortion is also a leading cause of maternal mortality, and the clandestinity of the practice especially hurts the most destitute women.4 In this context, women's movement and feminist activists in Argentina have long advocated for the legalization of abortion. Their cause gained momentum in the last decade. Unlike the more narrow emphasis on "choice" that has been prevalent in the United States and other contexts,5 and critiqued by scholars and activists advocating for "reproductive justice,"6 abortion rights activists in Argentina have included expansive frames in their discursive repertoire, even as they concentrate on legalizing abortion. One of these expansive frames pertains to the notion of human rights. The proliferation of human rights discourse as a recognized and shared language across national borders and cultures—for example, as evidenced by international human rights treaties—suggests the need to examine how this frame works in practice and whether it has local resonance in different national contexts. According to Elizabeth Jay Friedman, from a feminist perspective, part of the power of the human rights frame derives from its ability to "provide legitimacy to political demands, given both its political acceptance and its 'machinery,' or instruments for its realization."7 Furthermore, the notion that "women's rights are human rights" was increasingly deployed in the global arena during the 1990s and is still being invoked in prominent activist spaces in different locales, including the 2017 Women's March on Washington.8 Still, [End Page 27] as we shall see, this frame is not without critics, including among feminists who have taken issue with its usefulness both philosophically and in terms of its concrete application in specific national contexts.9 Thus the question emerges: Is the human rights frame useful or viable when it comes to articulating long-standing feminist demands such as abortion rights? If so, in which circumstances? In the case of Argentina, why have abortion rights activists chosen to incorporate the language of human rights as an important component of their discursive repertoire? Within Argentina, the movement for abortion rights needs to be situated in the context of broader struggles for social justice, democracy, and gender and sexuality rights. In the last two decades several progressive laws were passed in Argentina, including legislation on sexual and reproductive health (2002), comprehensive sex education (2006), ending violence against women (2009), marriage equality (2010), and self-determination of gender identity (2012). These changes followed a historic turning point marked by a severe economic and political crisis in 2001, when a variety of social movements were agitating for new and old demands.10 However, despite legislative progress on matters of sexual and reproductive rights, legalizing abortion has proven more difficult to achieve. This article examines activist efforts to decriminalize and legalize abortion, paying special attention to the strategic use of a human rights frame. The prominent coalition to demand the legalization and decriminalization of abortion in Argentina is the National Campaign for the Right to Legal, Safe, and Free Abortion, launched in 2005.11 By its tenth anniversary the Campaign had the support of more than three hundred organizations as well as countless individuals from all walks of life. Groups in the coalition include political parties, labor organizations, academic institutions, human rights groups, and many more. Activists characterize the Campaign as plural (comprising a diversity of individuals, social sectors, and political ideologies), federal (reaching the various regions of the country), self-organized (not directed by any external entity), and democratic (with the main direction of the Campaign determined through plenary meetings and collective discussion). The Campaign's key slogan, which has unified it when tensions and disagreement have arisen, is: "Sex education...

Publicity by the prosecution and defense in the criminal proceedings against George Zimmerman again raised the question of the appropriate scope of First Amendment protection for attorney pretrial publicity. The Supreme Court, the Model Rules of Professional Conduct, and many scholars have viewed restrictions on attorney pretrial publicity as a compromise between the constitutional guarantees of free speech and a fair trial. Nevertheless, scholars advocate widely divergent levels of free speech protection for attorney pretrial publicity — ranging from core free speech protection to almost no protection. Traditional First Amendment doctrines fail to elucidate the proper scope of free speech rights for attorneys, especially when acting in a representative capacity. The access-to-justice theory of the First Amendment provides a workable methodology specific to examining the constitutionality of restrictions on attorney speech. Grounded in established free speech theories and philosophy, the access-to-justice theory ties attorney speech rights to the proper and constitutional functioning of the justice system. Rather than viewing attorney pretrial publicity as a compromise between incompatible rights to a fair trial and lawyer free speech, the lawyer’s speech right is keyed to the lawyer’s role in the justice system. Such an approach does not eliminate the free speech side of the traditional compromise. In fact, restricting certain pretrial publicity can frustrate the attorney’s role to protect a client’s life, liberty, and property. Thus the appropriate scope of free speech protection for attorney pretrial publicity is determined by examining the respective roles of the prosecutor and defense attorney in the criminal justice system and the effects of pretrial publicity by each on the proper workings of that system. Such an analysis demonstrates that the traditional compromise, as embraced in MRPC 3.6, violates the robust free speech rights of the defense attorney to protect her client’s reputation and rights to a fair trial, a just plea, and a presumption of innocence. The compromise also improperly creates false constitutional walls that have kept states from curbing their own representative, the prosecutor, from prejudicing the state’s criminal processes. The prosecutor maintains essential, but limited, First Amendment rights to engage in speech necessary for the investigation and prosecution of crime and to respond to defense-initiated publicity. Notably, the failings of the compromise work to one end: undermining the rights and constitutional processes necessary to protect the guilty and the innocent in the face of state power to forfeit life or liberty.

The question of broad federal constitutional free speech rights for undocumented speakers is generally unexplored in the case law and the law review literature. This Article sketches a case for such rights based on a relatively uncontroversial argument. Briefly, free speech rights generally are inherently relational. They may be enforced either by potentially willing speakers or by potentially willing listeners. As a practical matter, there are a number of current citizen-voters who, for the sake of more fully informing themselves on a broad range of cultural, economic, legal, and political issues, would prefer to hear from the broadest possible range of relevant sources. Such sources would presumably include a broad range of physically present undocumented persons with diverse experiences. As a general matter, punishing or preventing the speech of undocumented persons, where they would otherwise be willing to speak, invokes the clearly established free speech rights of the willing potential listeners among citizen-voters. The willing undocumented speakers in such cases thus wind up with what we might call pragmatic or de facto free speech rights, subject to appropriate regulation. A number of points of clarification and alternative analyses are then addressed.

This book examines the relational dynamics between the U.S. Constitution’s Free Speech Clause and other constitutional rights. The free speech guarantee has intersected with a variety of other constitutional rights. Those intersections have significantly influenced the recognition, scope, and meaning of rights ranging from freedom of the press to the Second Amendment right to bear arms. They have also influenced interpretation of the Free Speech Clause itself. Free speech principles and doctrines have facilitated the recognition and effective exercise of constitutional rights, including equal protection, the right to abortion, and the free exercise of religion. They have also provided mediating principles for constructive debates about constitutional rights. At the same time, in its interactions with other constitutional rights, the Free Speech Clause has also been a complicating force. It has dominated rights discourse and subordinated or supplanted free press, assembly, petition, and free exercise rights. Currently, courts and commentators are fashioning the Second Amendment right to keep and bear arms in the image of the Free Speech Clause. Borrowing the Free Speech Clause for this purpose may turn out to be detrimental for both rights. The book examines the common and distinctive dynamics that have brought free speech and other constitutional rights together. It assesses the products and consequences of these intersections, and draws important lessons from them about constitutional rights and constitutional liberty. Ultimately, the book defends a pluralistic conception of constitutional rights that seeks to leverage the power of the Free Speech Clause but also to tame its propensity to subordinate, supplant, and eclipse other constitutional rights.

Higher education has long been the fundamental building block upon which American democracy is based. The guarantees of free speech have served as the catalyst for higher education, itself a revered liberty in the American polity. As the Supreme Court famously declared in 1969: “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Indeed, freedom of expression is imperative to a university’s mission in preparing young aspiring students to become informed and engaged citizens. This paper examines the decision by the Eighth Circuit Court of Appeals in Gerlich v. Leath and elaborates on the complexities that arise when analyzing student speech rights that conflict with university interests. Specifically, this paper reviews the Eighth Circuit's over-simplification of the rights and interests at stake in the original opinion and more thoroughly scrutinize the intricacies of student speech rights on university campuses. The Gerlich decision ultimately misses the analytical mark because it fails to fully evaluate the Free Speech rights at stake will. Insufficient attention is paid to the nuanced tensions that exist when examining First Amendment rights in the setting of a higher education institution—namely, that such circumstances present unique instances of “mixed speech” where both the university and its students are expressing a message particular to their own interests. Though student speech rights do not end at the schoolhouse gates, exactly how far they extend into the daily operations of a public university it remains to be seen. The Gerlich decision would suggest that they are fairly invasive, and growing. But there is good reason to question the strength of the Gerlich opinion. The relevant question is not whether student speech rights should be curtailed on university campuses; the relevant question, rather, is to what extent student speech rights should prevail when they content with—even conflict with—the expressive interests of their university.