Amendment Cases Research Articles

What is “Robust” Public Debate? An Analysis of the Supreme Court’s Use of the Word “Robust” in First Amendment Jurisprudence

In New York Times Co. v. Sullivan, Justice William Brennan famously wrote of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” “Uninhibited” refers to the lack of government restrictions on debate, and “wide-open” denotes the range of voices participating in that debate. Meanwhile, “robust” is a qualitative adjective that denotes strength, a characteristic whose definition in First Amendment cases is open to interpretation. Examining the use of the word “robust” in cases since Sullivan allows for an analysis of the interplay of First Amendment theory and doctrine that transcends the boundaries of particular areas and issues of First Amendment law. This article analyzes the Court’s use of the word “robust” in First Amendment cases after Sullivan. It finds that perspectives from negative and affirmative First Amendment theory offer competing claims about the best doctrinal recipes for foster robust debate. Using a theoretical framework that combines Robert Post’s notion of constitutional domains with Vincent Blasi’s civic courage theory, the study presents an alternative perspective for the elements of robust debate. The article ends with some prescriptions for First Amendment theory and doctrine.

Computer Crime Law, 2018 Summer Supplement

This document is the 2018 Summer Supplement for Kerr's Computer Crime Law (4th Edition 2018). It covers legal developments from December 2017 through July 2018. New materials include a critical new Fourth Amendment case, Carpenter v. United States; an explanation of the new CLOUD Act on cross-border data requests and challenges on foreign conflicts grounds; new circuit court decisions diverging on how the Fourth Amendment's border search exception applies to computer searches; new cases and notes interpreting the Computer Fraud and Abuse Act; and new decisions construing the Stored Communications Act.

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

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.

Conventionality control and Amendment 95/2016: a Brazilian case of unconstitutional constitutional amendment

This article presents reflections on Brazilian Constitutional Amendment 95/2016, which established the New Tax Regime and consequently the ceiling of public spending in Brazil for a period of twenty years, which has serious consequences for Brazilian public services. The hypothesis defended in the study is that Amendment 95/2016 is an unconstitutional constitutional amendment, since it violates the essence of the Social State present in the original text of the 1988 Constitution and has direct influences on the guarantee of fundamental rights, which constitute stone clauses (clausulas petreas). Thus, the study starts with the technical analysis of the Amendment. Next, the concept and content of the stone clauses in the Brazilian constitution are analyzed to propose the possibility of conventionality control as an alternative, focusing on the Intermerican Convention on Human Rights, UN Convention on the Rights of Persons with Disabilities and International Covenant on Economic, Social and Cultural Rights. It is concluded that conventionality control of the Amendment is imperative. The methodology used is the bibliographic analysis on the themes, as well as the projection of data on the economic and social effects of Amendment 95/2016.

Beyond Liberal and Conservative

AbstractA significant undiscussed problem with the leading conceptualization of ideologically based judicial behavior, Jeffrey Segal and Harold Spaeth’s attitudinal model, is its lack of theory. This problem leads to circular reasoning, ad hoc coding adjustments, and inaccurate characterizations and explanations of case outcomes, judicial votes and ideologies, and trends in judicial behavior. A values-based theory of ideology, such as the cultural theory pioneered by Mary Douglas, Michael Thompson, Aaron Wildavsky, and others, can help remedy this problem. Applying this cultural theory to First Amendment cases, we find that political cultures valuing equality, order, and liberty provide a more accurate account of judicial decisions than labeling them liberal or conservative.

The Heat is On: Thermal Sensing and Newsgathering – A Look at the Legal Implications of Modern Newsgathering

Thermal imaging technology, which was once used primarily by the military, has made its way into the civilian world. Journalists have begun making use of the technology, and, as that use becomes more prevalent, concerns about legal issues also arise. This article, relying on tort privacy cases, Fourth Amendment case law, and theoretical conceptualizations of privacy, provides an in-depth examination of the legal implications surrounding the use of thermal imaging devices for newsgathering.

Recent High-Profile Cases Highlight the Need for Greater Procedural Protections for Freedom of the Press

Two recent high-profile First Amendment cases, Terry Bollea (a/k/a Hulk Hogan) v. Gawker Media and Beef Products, Inc. v. American Broadcasting Companies, Inc. (a/k/a the “Pink Slime” case) demonstrate the need for greater procedural protection for media defendants in civil litigation arising from their newsgathering and publishing activities. To provide the “breathing space” for the freedom of speech the Constitution demands, there must be an opportunity for interlocutory appeal of dispositive motions premised on First Amendment defenses. To subject members of the press to the devastating costs of discovery and trial as the prerequisite for obtaining independent appellate review is to effectively deny that remedy altogether. This article discusses four alternative approaches to establish such a procedural mechanism. The author also calls upon those in the legal academy to prepare more detailed and scholarly articles urging the judiciary to recognize this constitutionally-mandated remedy.

Why the Religious Right Can't Have Its (Straight Wedding) Cake and Eat It Too: Breaking the Preservation-Through-Transformation Dynamic in Masterpiece Cakeshop V. Colorado Civil Rights Commission

This term, the U.S. Supreme Court will consider the most significant LGBT-rights case since it recognized marriage equality: Masterpiece Cakeshop v. Colorado Civil Rights Commission. While the case is framed as a First Amendment case—whether antidiscrimination law, as applied to secular, for-profit business with Christian owners who oppose same-sex marriage on religious grounds, violates the owners’ Free Exercise and Free Speech rights—there is a secondary and subordinate argument lurking just below the surface, one that presents a risk of great harm to LGBT Americans if it is not exposed and rejected by the Court. This essay exposes that argument as one that is nothing more than a modernized version of the “status-conduct” argument—an argument used three decades ago to justify the Court’s decision in Bowers v. Hardwick and to deny LGBT Americans the protection of the law in all realms of life. The Religious Right has modernized the status-conduct argument in the seemingly neutral garb of the exalted American values of free speech and religious freedom: Christian business owners are not discriminating based on the status of the gay or lesbian customers when refusing same-sex wedding goods and services, but rather are refusing to participate in conduct—the act of marriage. We should not be fooled: In using this old trope in new garb, the Religious Right is attempting to achieve what Professor Reva Siegel calls “transformation-through-preservation”—a dynamic through which a group that opposes civil rights reform modernizes its rhetoric after a civil rights victory in an effort to maintain unequal status regimes. The Religious Right’s modernized status-conduct argument attempts to hide its real goal—ushering in an era of Gay Jim Crow. The essay urges the Court to expose and reject the Religious Right’s attempt at preservation-through-transformation. Failure to do so will preserve anti-equality status regimes by denying formal equality to LGBT Americans and will undermine the legitimacy of the Court’s prior LGBT-rights cases and thus the legitimacy of the Court itself.

A Model of First Amendment Decisionmaking at a Divided Court

On First Amendment issues, today’s Supreme Court is arguably the most protective in the institution’s history. But the apparent libertarian consensus masks a surprisingly deep disagreement about the manner in which First Amendment decisions should be made. The Court’s Republican justices prefer an austere, formal approach in which logical conclusions are pursued to the farthest reach. The Court’s Democratic justices, on the other hand, would follow a more complex, contextual approach in which rules and standards are often custom-tailored to narrow factual domains. This Article models that divide. I demonstrate that the Court’s First Amendment case law over the past three decades has conformed to a small set of unspoken rules that I call “the four tenets.” These four tenets have defined First Amendment doctrine for nearly thirty years, and they are today so deeply ingrained that we barely notice them. Yet they do not represent a consensus position. Instead, the Court’s four Democratic justices stand prepared to break with the four tenets, and President Trump’s nominee could well supply the fifth vote. If that occurs, it will mean the end of an era in First Amendment law and the beginning of a new one.

Search Engines, Free Speech Coverage, and the Limits of Analogical Reasoning

In this Essay we investigate whether new modes of online communication ought to be covered by free speech principles. The types of communications we’re interested in are the outputs of programs that synthesize, organize, and transmit third-party communications to users. Search engine results are the most familiar and ubiquitous example of this. Another notable example is Trending News on Facebook. While we are interested in the immediate policy implications of this classificatory question, this Essay also puts forth a broader methodological critique. More specifically, we critique the analogical reasoning – which likens search engine results to editorial publications – that has dominated First Amendment case law and legal scholarship around this issue to date. We argue that this analogy is unpersuasive on its own terms, and that proponents of this analogy have failed to properly engage with rival analogical interpretations of the function of search engines that favor the opposite conclusion (i.e., that search engine results should not receive free speech coverage). We argue that this is indicative of shortcomings with analogical methods in debates over free speech coverage more generally. When important and novel forms of communicative practice are being considered, courts should not use tenuous analogical inferences to extend First Amendment protections beyond their established scope. Here we present, for the first time in this literature, a taxonomy of different types of analogical reasoning, in order to offer a more precise account of the specific forms of analogical reasoning that we’re objecting to. We then explain the comparative merits of addressing question of coverage in a way that primarily relies on reference to three normative theories of free speech: democratic participation, epistemic, and thinker-based. We argue that under each of these theories – contrary to the currently prevailing view in both the cases and existing scholarship – only a subset of search engine results and similar communication should in fact be afforded free speech coverage.

Competing Free Speech Values in an Age of Protest

This Article endeavors to catalog and resolve cases involving competing free speech values, and then applies its solutions to violent and disruptive protests. Almost every First Amendment case can be framed as implicating free speech values on both sides of the First Amendment equation. Government action directly abridges speech, but government inaction may allow private parties too much control over others’ speech. First Amendment doctrine, which generally protects speech only from suppression by state actors, can thus compromise the very free speech values that form the rationales for the First Amendment. Scholars and litigants have argued that government regulation of speech, to preserve free speech values, is necessary in areas ranging from campaign finance, to access to media resources, to bigoted speech. This Article argues that strict adherence to a formal state action doctrine should resolve most, but not all, clashes between free speech doctrine and values. A robust application of the state action doctrine – where government interference to preserve speech values is not considered as part of the First Amendment calculus – also best advances both formal and substantive First Amendment equality. This Article proceeds in three parts. First, the Article chronicles the Supreme Court’s approach to cases involving competing free speech values. The Article then demonstrates why the state action doctrine, with its associated formal equality and neutrality principles, will ultimately advance free speech values. Finally, the Article considers political protests, and distinguishes between prosecution of violent protesters, which should be encouraged, and legislation criminalizing disruptive protest tactics, which may be unconstitutional.

The Political Roots of Racial Tracking in American Criminal Justice. By Nina M. Moore. New York: Cambridge University Press, 2015. 406 pp. $30.99 paperback.

The Political Roots of Racial Tracking in American Criminal Justice. By Nina M. Moore. New York: Cambridge University Press, 2015. 406 pp. $30.99 paperback.In April 2016, Black Lives Matter (BLM) protesters clashed with Bill Clinton over his role in the passage of the 1994 Crime Bill and Hillary Clinton's use of the term super predators to describe the involvement of black youth in criminal offenses. Demonstrators sought to highlight how policymakers and the general public construct narratives and social policies that fuel misperceptions, thereby deepening racial inequality in criminal justice practices throughout the United States. Political pundits largely glossed over the substance of protester concerns because the crime bill did not explicitly target specific racial groups. To address the essence of the BLM critique would require a theory of the policy process that explains racial inequality in criminal justice experiences. Nina Moore's book, The Political Roots of Racial Tracking in American Criminal Justice, provides such a policy process framework.Moore examines the mechanisms that give rise to racial disparities in the criminal justice system and explains why these inequities persist despite considerable national attention to issues of fairness and justice. Her book makes two arguments. First, Moore argues that there are two racially distinct modes of criminal law enforcement in the United States: one white and one black. She contends that racial tracking in the criminal justice system must be evaluated sequentially, from initial contact with police officers to differences in plea negotiations with prosecutors, both of which culminate in racialized differences in pretrial court decisions and prison experiences.The second argument advanced by Moore is that racial tracking in criminal justice persists precisely because policymakers and the American public allow different modalities of law enforcement, even when stark differences in applications of justice contravene constitutional rights to due process and equal protection. She presents a basic principles policy process that anchors empirical insights and disagreements in the study of policymaking with commonalities expressed in varied policy perspectives. By drawing on six policy process axioms-principles that focus on politics, systems, opportunities, multidimensionality, power players, and problemprocess kinship-Moore articulates a seventh maxim, the public origins principle, that fully integrates these perspectives to produce a theory of racial tracking in criminal justice.This is an impressive piece of socio-legal scholarship. Five empirical chapters thoroughly enumerate and rigorously evaluate how colorblind Supreme Court decisions, public opinion polls, political party politics, and congressional agendas impede racial equality in criminal justice. Moore critically analyzes twenty-three Sixth Amendment cases affecting the right to counsel, eighteen Fifth Amendment cases, and twenty of the most noted capital punishment decisions. In each instance, she shows how the Court's reasoning and decision-making process represents a longstanding use of colorblind jurisprudence that is not localized to any one decision or to a handful of cases; instead, her work uncovers how the Court systematically legitimates persistent racial inequalities in law enforcement methods.Professor Moore also presents an in-depth analysis of public opinions on racial progress, criminal victimization, and criminal justice policy in America. …

Evolving Democratic Constitutionalism

In its Eighth Amendment cases, the Supreme Court has often cited counter-majoritarian considerations as the basis for exercising judicial restraint. As a result, excessive and draconian punishments persist in the United States, with the Court being hesitant to use the Constitution to bar state punishment practices. The Court’s evolving standards of decency doctrine, however, is majoritarian. As this Article argues, the doctrinal framework of the Court alleviates the counter-majoritarian difficulty, as the Court’s applications of the Eighth Amendment mirror majoritarian practices and only strike down outlier punishments. Given the lack of justification for judicial restraint under the Eighth Amendment, the Article maps a series of possible applications of the Constitution in this area, both on a micro-level—to limit punishments in certain circumstances—and on a macro-level—to bar certain punishments altogether. In particular, the Article reveals the current ability of the Court to apply its Eighth Amendment doctrine to abolish the death penalty and juvenile life-without-parole sentences. In short, the Article demonstrates that society’s standards with respect to criminal punishments have evolved. The question remains whether the justices themselves will evolve accordingly.

Why the Religious Right Can't Have its (Straight Wedding) Cake and Eat it Too: Breaking the Preservation-Through-Transformation Dynamic in Masterpiece Cakeshop v. Colorado Civil Rights Commission

This term, the U.S. Supreme Court will consider the most significant LGBT-rights case since it recognized marriage equality: Masterpiece Cakeshop v. Colorado Civil Rights Commission. While the case is framed as a First Amendment case—whether antidiscrimination law, as applied to secular, for-profit business with Christian owners who oppose same-sex marriage on religious grounds, violates the owners’ Free Exercise and Free Speech rights—there is a secondary and subordinate argument lurking just below the surface, one that presents a risk of great harm to LGBT Americans if it is not exposed and rejected by the Court. This essay exposes that argument as one that is nothing more than a modernized version of the “status-conduct” argument—an argument used three decades ago to justify the Court’s decision in Bowers v. Hardwick and to deny LGBT Americans the protection of the law in all realms of life. The Religious Right has modernized the status-conduct argument in the seemingly neutral garb of the exalted American values of free speech and religious freedom: Christian business owners are not discriminating based on the status of the gay or lesbian customers when refusing same-sex wedding goods and services, but rather are refusing to participate in conduct—the act of marriage. We should not be fooled: In using this old trope in new garb, the Religious Right is attempting to achieve what Professor Reva Siegel calls “transformation-through-preservation”—a dynamic through which a group that opposes civil rights reform modernizes its rhetoric after a civil rights victory in an effort to maintain unequal status regimes. The Religious Right’s modernized status-conduct argument attempts to hide its real goal—ushering in an era of Gay Jim Crow. The essay urges the Court to expose and reject the Religious Right’s attempt at preservation-through-transformation. Failure to do so will preserve anti-equality status regimes by denying formal equality to LGBT Americans and will undermine the legitimacy of the Court’s prior LGBT-rights cases and thus the legitimacy of the Court itself.

ReedvTown of Gilbert, Arizona, and the Rise of the Anticlassificatory First Amendment

The distinction between content-based and content-neutral regulations of speech is one of the most important in First Amendment law. Despite its importance, however, the Court has had trouble defining what it means for a law to be content-based. Instead, for over thirty years, the Court has vacillated between two definitions. In one line of cases, the Court has insisted that laws are content-based whenever they make content distinctions on their face. In another line of cases, the Court has instead insisted that laws are content-based only when they cannot be justified by a content-neutral purpose. The result has been the creation of a very complicated, often incoherent, body of law. Two terms ago, in Reed v. Town of Gilbert, Arizona, the Court attempted to bring some clarity to this messy area of First Amendment jurisprudence when it held that laws that employ content distinctions are always content-based, regardless of the purposes they serve. The decision gives lower courts what they have long been missing: clear guidance on what to do when faced with an allegedly discriminatory speech regulation. But it also makes it considerably harder to defend laws that make facial content distinctions against constitutional challenge than was true in the past. Reed thus represents a significant, deregulatory shift in First Amendment doctrine. This Article explores this shift and its normative implications. It does so by means of an analogy to the Court’s equal protection jurisprudence, and specifically its case law dealing with race discrimination. As the Article demonstrates, the shift that Reed enacts in First Amendment law resembles in many respects the shift that occurred several decades ago in equal protection law, when the Court squarely embraced what scholars have described as an anti-classificatory test of race discrimination and insisted that all laws that employ racial distinctions are presumptively invalid, no matter the purposes the government invokes to justify them. Reed similarly insists that all laws that employ content distinctions are presumptively invalid, no matter the purposes the government invokes to justify them. It announces what we might call an anti-classificatory test of content discrimination. The Article argues that, whatever the merits of an anti-classificatory approach in the equal protection context, such an approach is singularly inappropriate in First Amendment cases, at least those dealing with non-viewpoint based laws. This is because laws that make content distinctions play a pervasive, even important, role in the regulation of both public and private life. A rule that treats as presumptively unconstitutional all facially content-based laws therefore threatens to invalidate many entirely constitutional laws. It imposes significant costs on the regulatory power of the government—costs that can only be justified if there is no less costly means of protecting speakers against discriminatory state actions. As this Article shows, there are in fact less costly alternatives to the test of content-based lawmaking that Reed announced.

Judicialization of Politics and Legal Culture: The Passage of the Philippine Parity Amendment of 1946

This article examines the Philippine legal culture by highlighting the politics of the Philippine constitutional amendment in 1946-47 and the centrality of the role of judicial review in this process. As this paper shows, the role of the judiciary as ‘the final arbiter of law’ is hinged on this institution’s independence; however, judicial independence was problematic at this juncture in Philippine history. The Philippine Supreme Court, through its power of judicial review, failed to stand for constitutionalism and demonstrated a lack of judicial independence. Employing textual and historical analyses, this paper analyzes the Philippine Supreme Court’s decisions on cases relevant to the constitutional amendment, their precedents, and the history and politics of the amendment. It argues that the decisions on the constitutional amendment cases demonstrate a legal culture of judges and politicians that developed under colonial conditions where norms of legality highlight judicialization of politics and politicization of the judiciary.

Neoliberalism and Law: The Case of the Constitutional Balanced-Budget Amendment

This Article discusses the significance of law in neoliberal theory and practice. Prefaced by a brief look at the role that law plays in the theories of the ordo- and neoliberal thinkers Franz Böhm and Friedrich August von Hayek, the subsequent chapters focus on the work of James Buchanan and his brand of neoliberalism, which combines constitutional economics public choice theory. Buchanan's core demand is a balanced-budget amendment to the constitution. The following Sections examine this measure in its various aspects before the final section switches to the world of “actually existing neoliberalism” with a discussion of the various reforms of the economic governance structure of the European Union in recent years, particularly the “Fiscal Compact”, which amounts to the real world equivalent of a balanced-budget amendment.

Ideological Divisiveness in Criminal Procedure Cases

Limited scholarly attention has been devoted to an understanding of ideology in criminal procedure cases decided by appellate courts. This study focuses on U.S. Supreme Court outcomes and develops a measurement of ideological divisiveness in the voting patterns of the justices for the decisions announced for the 1994–2014 terms of the Court. The analysis approaches the issue of ideological divisiveness in voting patterns through development of a Case Ideology Divisiveness score that is a weighted measure of vote divisiveness (the average justice deviation from the majority opinion) and depth of divisiveness (the number of unique concurring and dissenting opinions filed). The score is reported for criminal procedure, civil rights, First Amendment, and due process cases. The analysis then examines the score for 16 categories of criminal procedure case types and reports mean comparison data. Trends and implications are discussed.

The health capability paradigm and the right to health care in the United States.

Against a backdrop of non-ideal political and legal conditions, this article examines the health capability paradigm and how its principles can help determine what aspects of health care might legitimately constitute positive health care rights-and if indeed human rights are even the best approach to equitable health care provision. This article addresses the long American preoccupation with negative rights rather than positive rights in health care. Positive health care rights are an exception to the overall moral range and general thrust of U.S. legal doctrine. Some positive rights to health care have arisen from U.S. Constitutional Eighth Amendment cases and federal and state laws like Medicare, Medicaid, the State Children's Health Insurance Program, the Emergency Medical Treatment and Active Labor Act, and the Patient Protection and Affordable Care Act. Finally, this article discusses some of the difficulties inherent in implementing a positive right to health care in the U.S.

Rights of Passage: On Doors, Technology, and the Fourth Amendment

The importance of the door for human civilization cannot be overstated. In various cultures, the door has been a central technology for negotiating the distinction between inside and outside, private and public, and profane and sacred. By tracing the material and symbolic significance of the door in American Fourth Amendment case law, this article illuminates the vitality of matter for law’s everyday practices. In particular, it highlights how various door configurations affect the level of constitutional protections granted to those situated on the inside of the door and the important role of vision for establishing legal expectations of privacy. Eventually, I suggest that we might be witnessing the twilight of the “physical door” era and the beginning of a “virtual door” era in Fourth Amendment jurisprudence. As recent physical and technological changes present increasingly sophisticated challenges to the distinctions between inside and outside, private and public, and prohibited and accepted visions, the Supreme Court will need to carefully articulate what is worth protecting on the other side of the door.