Speech Clause Research Articles

Opposite Ends: Why the United States and Singapore have Drastically Different Models of Free Speech

This article delves into why the United States and Singapore, despite their shared colonial history, democratic institutions, wealth, and global influence, have drastically different free speech models. This paper will look at three points of comparison: historical context, political theory, and evolution of judicial interpretation. By comparing the current events and the prevalent political theories at the time of drafting the Singaporean and American constitutions, this paper seeks to understand why the nations ratified contrasting free speech clauses.  However, the Constitution is only as meaningful as the courts interpret it, so this paper also explores how the respective Supreme Courts of Singapore and America have evolved their interpretation of the Constitution to shape their contrasting free speech models. While this paper will not argue which model of free speech is more effective, it will outline the underlying reasons for Singapore and America's drastically different free speech models. 

Of Cakes, Websites and Faith-Based Complaints: the Fine Art of Crafting Religion as Speech

Abstract In 303 Creative LLC v. Elenis (2023), for the first time ever, the United States Supreme Court (USSC) explicitly recognised that business commercials now enjoy constitutional, First Amendment-based religious exemptions from providing services to same-sex customers. Not even in its much-maligned decision in Burwell v. Hobby Lobby (2014), which extended in an unprecedented way to for-profit companies statutory (but not constitutional) rights heretofore confined to churches, the Court went this far. But more than this, the decision in 303 Creative LLC also appears to be the symbol of something new: a definitive shift to the Free Speech Clause to the U.S. Constitution as an alternative tool to the Free Exercise Clause for protecting religious liberty. This article explains why this shift in doctrine has happened, why it matters, and how enhanced protections for business religious free speech fits with the agenda of conservative constitutional politics in America.

The Free Speech Clause as a Deregulatory Tool

The Free Speech Clause as a Deregulatory Tool

The Free Speech Clause as a Deregulatory Tool

The Free Speech Clause as a Deregulatory Tool

Social Media and State Action: Click "Like" and Follow This Two-Part Test

The right to free speech was deemed so important by the Framers of the Bill of Rights that they enshrined this right in the Free Speech Clause of the First Amendment. There was, however, no way they could have envisioned how communication would evolve to what it is now in the twenty-first century and the related issues that would arise. The threshold question to all alleged First Amendment violations is whether the action at issue is state action. As means of communication progressively move more online to social media, this question has become more difficult to answer. Many government officials now use social media to espouse their policies and interact with their constituents, which has been beneficial in many senses. But this has also led to many contentious interactions between government officials and private citizens. These contentious interactions have resulted in courts grappling with the question of whether certain actions on social media, such as blocking a person from interacting with an account, constitute state action.
 Most of the federal courts of appeals use a purpose and appearance test to answer this question. This test considers the purpose and appearance of the social media account at issue by weighing several factors to determine whether a government official’s activity while using that account is state or private action. The Sixth Circuit, however, has opted to perform the state-official test to determine whether action taken on social media is state action. This test asks whether certain social media activity is part of an official’s actual or apparent duties or could not have happened in the same way without the authority of their office. This has led to a circuit split as to how to best handle this issue.
 This Comment examines the federal courts of appeals cases utilizing these tests and proposes a solution to this circuit split by creating a two-part test using both the state-official and the purpose and appearance tests. The first part of this two-part test calls for the use of the state-official test. The stateofficial test is a bright-line test that, if satisfied, would find state action without the need to consider the purpose and appearance of a social media account. If no state action is found, however, then the second part of this two-part test uses the more flexible, multi-factor purpose and appearance test to determine if there is state action. By combining these separate tests into a two-part test, in this order, it both takes advantage of their inherent strengths and mitigates their weaknesses. Social media has established itself as a major tool for private citizens and government officials to interact with each other to an extent previously not possible. It is imperative, therefore, that United States courts be prepared to uniformly handle this issue that has occurred numerous times and will continue to occur as long as social media exists.

Comparative judicial federalism

Abstract How does judicial federalism affect an apex court’s articulation of constitutional rights? Despite the growth of scholarship on comparative judicial review, federalism, and rights, comparative judicial federalism is underexplored. Building on an emerging literature, this article tentatively suggests that the authoritative declaration of constitutional rights may vary with a country’s particular species of judicial federalism. It first develops a qualitative framework for comparative judicial federalism, that is, the relationship between local (state) and central (federal) courts. The framework is structured around judicial federalism’s three dimensions: institutional, jurisdictional, and jurisprudential. After justifying these three dimensions, the article deploys them to compare Australia and the United States. It posits that in one context—federal free-speech limits on the common law—Australia’s purportedly modest implied freedom of political communication could resemble the powerful Free Speech Clause of the First Amendment. The relative degree of integration of central and local courts may affect the scope of the federal free-expression norm as articulated by the apex court.

OPTING WITHIN TRANSLATION STRATEGIES IN LITERARY TEXT TRANSLATION AMONG UNDERGRADUATES

This article epitomises different approaches to translation and explores the results of the application of the most commonly used translational strategies in literary text translation in an academic context, among the third-year students of the undergraduate studies of English and Chinese and English at the University of East Sarajevo. After the relevant theoretical background, the empirical part of the article offers the presentation and discussion of the most commonly used translational strategies in reference to particular structural elements in a literary text, proper nouns restructuring and culture-specific items adaptation. The premise was that the restructuring of specific translation units was carried out with the application of literal translation, original form retention and paraphrasing, along with the possible deviations from the text faithfulness. The text-based approach and convenience sampling method showed that the most complex part was to restructure the omitted introductory elements in subordinate clauses, time/tense variations in back-shifted clauses in indirect speech and the choice of the most proper strategy in the restructuring of proper nouns (particularly toponyms). Further focus was on the examination of intercultural mismatch and translational restructuring of the source language-specific cultural items. As for the restructuring of proper nouns, the respondents mostly opted for foreignisation, considering the option to be the safest ground.<p> </p><p><strong> Article visualizations:</strong></p><p><img src="/-counters-/edu_01/0587/a.php" alt="Hit counter" /></p>

Citizens united and individual sovereignty: A fresh perspective

In recent years super-PACs jumped into the political fray by making significant donations to political parties and candidates thus tilting political outcomes to suit their agendas. Super-PACs raise their money from individuals and corporations and spend it to promote their cause. Numerous commentators studied their impact on the American political landscape and highlighted its implications from a constitutionally driven perspective, anchored in the Free Speech clause of the First Amendment as it applies to corporate persons. In this Essay we analyze the phenomenon from a different vantage point, the prohibition to spend other people’s money in support of a cause which they refuse to endorse. We prove that although contributions made by private donors to super-PACs may sometimes be justified, no such redeeming grace is tenable in the case of contributions made by large public corporations. The distortion is caused by inviting corporations to identify their presumed political preferences by employing the decision rule current in corporate matters of “one share one vote” which allocates disproportionate power to the holders of large blocks of shares. Since political controversies ought to be governed by a different decision rule- “one person one vote” the distortion cannot be remedied through the intermediation of corporate players.

The Influence of Christian Nationalism on U.S. Public Educators’ Speech: Implications from Meriwether vs. Hartop

Public school educators must navigate very complex intersections of the First Amendment’s Establishment, Free Exercise, and Free Speech clauses. The 6th Circuit’s ruling in Meriwether vs. Hartop created a slippery slope that could create a hostile learning environment and be discriminatory speech while trying to balance public-school educators’ sincerely held religious beliefs. This article examines the Meriwether case and court ruling while providing a background of U.S. Christian nationalism and its implications in American public education.

Expressive Conduct and Article 19(1)(a) of the Indian Constitution: A Purposivist Approach

AbstractUnlike the First Amendment of the United States, the quest to develop a grand theory to explain the scope and purpose of the free speech clause of the Indian Constitution has rarely been attempted. In this void, the significant constitutional question of when expressive conduct should trigger free speech protection has not received adequate academic and judicial scrutiny in India despite its global resonance. This article examines the evolution of the current doctrine by the Indian Supreme Court on the issue of expressive conduct and finds that the Court's ad-hoc approach fails to provide a meaningful resolution framework. Analysing the jurisprudence of the US Supreme Court on its First Amendment, it discusses two potential approaches available to the Indian Supreme Court: one based on the speaker's conduct, and the other, based on state purposes. It argues that focusing on state purposes not only provides a principled answer to this conundrum but is also consistent with Indian free speech jurisprudence. Contrary to contemporary scholarship, it demonstrates that the law on Article 19(1)(a) of the Indian Constitution, as moulded by the Indian Supreme Court over decades, has implicitly treated the examination of state purpose as its predominant inquiry. This article concludes with some ideas on the limitations and prospects of adopting such an approach.

Equal Treatment and the Free Speech Clause

The traditional Free Speech Clause burden is a law that directly impedes speech interests and that courts can remedy through invalidation. This model is simple in theory and remedy, but it accounts for surprisingly few cases. Instead, a substantial – and growing – number of cases involve what this Article calls “layered speech regulations”: laws that first impede speech broadly (layer 1), and then exempt some speech or speakers (layer 2). As the Court recently made clear in Barr v. AAPC, challenges to layer 2 attract scrutiny under the Free Speech Clause just like challenges to layer 1. In its analysis, however, the Court has brushed over the fact that such layered speech regulations allow rather than restrict speech with their layer 2 provisions. As a result, layer 2 challenges create a Free Speech Clause paradox, as invalidating the law does not allow the challenger to speak, while leaving it in place authorizes censorship through artful drafting. This Article resolves the paradox of layer 2 challenges by showing that such challenges rely on a mandate of equal treatment within the Free Speech Clause, and links that mandate to broader issues that plague freedom of speech law. After demonstrating the Court’s reliance on the equal treatment mandate, the Article provides two doctrinal grounds for the mandate: one concerned with coercion, and one concerned with how the Equal Protection Clause changed the shape of First Amendment protections. With the speech right in layer 2 cases triggered by unequal treatment, the remedy is equal treatment – striking layer 2 to vindicate the speech right and using legislative intent to determine if layer 1 can be severed. This approach resolves the Free Speech Clause and the Article III problems created by layer 2 challenges. It also has substantial implications for the Free Speech Clause more broadly. Specifically, it demonstrates how much room remains to legislatures to correct unequal treatment, including through redistributive regulation beneficial in today’s environment of digital speech, contrary to the common trend of comparing the Free Speech Clause to Lochner. Finally, it reveals the doctrinal changes required to bring the prohibition against content-based regulations in line with the Free Speech Clause’s equal treatment mandate.

Free Speech Skepticism.

If the free speech clause of the First Amendment is interpreted to mean that speech is to be granted special protection not accorded to other forms of conduct, then a free speech principle, distinct from a principle of general liberty, must be posited and must receive a distinct justification. A defense of a free speech principle must explain why the harm principle either does not apply in the case of speech or applies with less force than in the case of all other forms of human conduct. In this article, I argue that none of the defenses of the right to free speech on offer succeeds in showing why even significantly harmful speech is deserving of special protection not afforded non-speech conduct. More work needs to be done to justify a free speech principle and, until such work is done, the belief in the existence of a free speech principle that undergirds and justifies our current free speech practices is no more than an article of faith.

Freedom of Expression and its Restrictions in Europe

Freedom of expression is not an absolute right and has limitations set up by international human rights treaties. The general clause of its limitation falls within the scope of the ‘rights of others’ as provided, for instance, in the European Convention of Human Rights. The role of the courts is to balance freedom of expression and the rights of others, performing a three-step test of legality, necessity, and proportionality of any restriction. However, according to the well-established case law of the European Court of Human Rights, some forms of expression do not enjoy protection under free speech clauses. Therefore, the European Court of Human Rights dismisses claims as manifestly inadmissible under Article 17. This ‘abuse’ clause is invoked when a particular claim is based on undermining the democratic values of a liberal state. The purpose of the abuse clause is to preserve the self-sustainability of the Convention. This paper aims to analyze whether fake news and disinformation campaigns fall under the scope of Article 17.

Your Shirt or Your Vote: Why Texas’s Electioneering Law Unconstitutionally Infringes on Voters’ Freedom of Speech

The Free Speech Clause of the First Amendment grants citizens the right to speak their mind and to stand up for what they believe in. Because this right does not cease at written or spoken word, the Supreme Court has interpreted the First Amendment expansively to protect an individual’s right to engage in expressive conduct and expressive association. This includes the right to express opinions and associate with groups and organizations, like Black Lives Matter, whose views may be controversial. Like other constitutional rights, this right is not absolute; states are allowed to impose some regulations on speech. However, Supreme Court precedent emphasizes the precept that states may not interfere with one’s right to engage in expressive conduct and expressive association when it does not invade the rights of others and is unaccompanied by disturbance and disorder. When it comes to Election Day, it is undeniable that states have a legitimate interest in regulating and preserving the election process—to prevent voter fraud and intimidation. This usually includes regulating what voters can and cannot wear inside polling places, so that voters may focus on the important decisions on the ballot. However, as this Article will discuss, even in recognizing the special purpose of the polling place, the Supreme Court did not intend for freedom of speech protection to completely stop at the polls. Voters should not have to decide: Your shirt or your vote! This Article will analyze the constitutionality of Texas’s electioneering statute. In predicting that the Supreme Court would likely invalidate this statute on its face and as-applied, this Article encourages the Texas legislature to rewrite its electioneering statute. To achieve this goal, this Article will propose new statutory language that would render Texas’s political apparel ban constitutional, by providing an objective, workable standard of what apparel must stay out from what apparel can come in.

A Limited Government Model of the First Amendment

It is the goal of A Limited Government Model of the First Amendment to propose a new approach to the Bill of Rights in general and the First Amendment Speech Clause in particular. Instead of focusing on the particular freedoms specified in each amendment and precisely defining the scope of each freedom, this Article seeks to arrive at a simpler and more comprehensive approach. It argues that each amendment within the Bill of Rights can be understood within the context of a larger goal—namely, limiting the power of government. The idealistic hope behind the Bill of Rights may have been to achieve a protection of individual liberty, but because the Framers did not know how to specifically go about doing that, they crafted a Bill that focused not on the substance of each right but on limiting the power of government in certain areas. Limited government became the means by which liberty would be preserved. This Article strives to understand the Bill of Rights through an understanding and application of this limited government model. It is hoped that a more simple, consistent and comprehensive jurisprudential model can be developed, one that is more in tune with the original intent of the framers and ratifiers of the Bill of Rights. A limited government model of the Free Speech Clause, for instance, may provide a better understanding and application of that clause than would a judicial approach aimed at protecting the kind of speech activities that might preserve and enhance individual autonomy.

The Constitutional Right of Local Self-Government

The Assembly Clause is the ugly duckling of the First Amendment. Brooding in the shadow of the heralded Free Speech Clause and the venerated Religion Clauses, the “right of the people peaceably to assemble” has been described even by its friends as “forgotten,” a “historical footnote in American political theory and law.” Not once over the past thirty years has the Clause been the subject of the Supreme Court’s attention. Instead, like a sleep-deprived parent of quadruplets, the Court has consistently muddled the right to assemble with “the First Amendment’s other guarantees of free expression.” The Court has not been alone in treating the Assembly Clause as redundant. From the day that Congress first debated putting the right to assemble into the Constitution, critics have asked why, if the Constitution protects the freedom of speech, anyone would “think it necessary, at the same time, to allow the right of assembling?” This question goes well beyond the First Amendment: forty-seven state constitutions also have assembly clauses, four of which predate the 1789 version. This Article offers a surprising answer. For over one hundred years before the First Amendment was drafted, American activists advanced what they called their right to “assemble” to defend their right to govern themselves. This rhetorical right first emerged to combat a seventeenth-century attempt by the British Crown to eliminate the town meetings and provincial assemblies by which the colonists had long legislated on their own behalf. Decades later, when the British government again attempted to restrict the powers of America’s local and provincial assemblies, colonial activists again responded by invoking their right to assemble their own governments and to use those governments’ powers to redress their grievances. By the time the American colonists drafted their first assembly clauses in the 1770s, the right to assemble was thus invoked to defend not merely the act of assembling, but also the assemblies that could exercise coercive legal powers to solve their constituents’ problem. In other words, the state and federal assembly clauses were interpreted to protect not a redundant right of expression, but a novel right of self-government. This Article describes the history of how American colonists first developed and constitutionalized the right to assemble. It argues that the right to assemble was invoked as a right to meaningfully participate in enacting needed legislation, whether directly, by representative, or by the threat of coercive behavior. Although the Article does not adopt the originalist position that the original intent or public meaning of this right has been permanently fixed into the constitutional order, it does argue that the historical context surrounding the early assembly clauses uncovers untapped possibilities for how the federal and state assembly clauses could be interpreted in the present. In an era when politicians choose their voters, millions of taxpayers are formally or effectively disenfranchised, and countless representative governments are inhibited from redressing their constituents’ grievances, revitalizing a constitutional protection of self-government seems invaluable.

Secular Invocations and the Promise of Religious Pluralism

The Supreme Court has considered the constitutionality of “legislative prayer” twice, once in the 1983 case of Marsh v. Chambers and once in the 2014 case of Town of Greece v. Galloway. Although both of those cases upheld challenged invocation practices on the basis that such practices predated the adoption of the First Amendment, they also placed additional limits on the nature of such prayer programs, including that they be non-discriminatory, as Justice Kennedy explained in Town of Greece. In response to Justice Kennedy’s non-discrimination mandate, hundreds of secular individuals in the wake of Town of Greece asked to give and indeed have given secular invocations before legislatures and town boards across the country. These invocations have tended to stress a series of common themes, including the importance of reason, nature, science, diversity, and equality. By articulating an approach to life that denies the existence of a god or gods or other higher powers, these secular invocations contribute importantly to religious pluralism in public life. Although most of these secular invocations have gone smoothly, many have caused significant controversy. Several jurisdictions have recently adopted policies excluding nonbelievers from giving invocations, and these bans have given rise to three federal appellate court cases. Notably, both the D.C. Circuit and the Third Circuit have held that such secularist exclusion policies are not unconstitutional under the Religion Clauses. This Article, prepared for the Fall 2020 Roger Williams University Law School’s “Is This a Christian Nation?” conference, describes the Supreme Court’s jurisprudence regarding legislative prayer, explains the phenomenon of secular invocations, and argues that these secular invocations are critically important from the perspective of religious pluralism. The Article then describes the cases that have evaluated the constitutionality of secular exclusion polices and argues that these policies violate two fundamental First Amendment principles, namely that the government may not treat religious denominations differently under the Religion Clauses, and that the government may not discriminate on the basis of the viewpoint of speakers under the Free Speech Clause.

The Sound of Constitutional Silences: Interpretive Holism and Free Speech under Article 19 of the Indian Constitution

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.

Evidentials and their pivot in Tibetic and neighboring Himalayan languages

AbstractThis paper focuses on a specific type of perspective-indexing constructions in Tibetic and neighboring languages, namely a type of verbal marker that is consistently construed from the perspective of the speaker in statements, the addressee in questions, and the source (= the original/reported speaker) in reported speech clauses. As these markers indicate how one obtained the information profiled in a sentence and may thus be viewed as a type of evidential, they cannot at the same time establish reference to any participant of the current speech act and thus by default reflect the perspective of the ‘informant’ of the respective sentence type. If we define the encountered distinctions in relation to a cause-effect vector in the sense ofDeLancey (1986), these languages all contain what we may call an ‘insider’ marker indicating access to the entire vector including its causal origin and an ‘outsider’ marker indicating access only to its effect end. Whereas the insider markers typically occur when the informant is the subject and the outsider markers when s/he is not, the present paper discusses the different ways in which Tibetic and neighboring languages deviate from this basic pattern, and argues that these differences reflect the fact that the markers in the latter languages were only secondarily evidentialized in reported speech clauses, likely due to contact with Tibetic.

Trump's Lies: The Unconstitutionality of Government Propaganda

Government propaganda—the government’s deliberate dissemination of false claims on matters of public interest—has increasingly become a source of concern in the United States. Not only does the current presidential administration disseminate propaganda at a rate unprecedented in the modern era, so that Americans now live in an age of government-created “alternative facts,” but the internet and social media have made it possible to find receptive audiences with alarming speed and accuracy. This surge of government propaganda poses troubling questions for the health of our democracy, which requires political accountability and the valid consent of the governed to thrive. Although the crucial role that speech plays in our democratic self-rule is a major reason it merits First Amendment protection, the Free Speech Clause as currently interpreted has no part to play in combating government propaganda. Under the government speech doctrine, the Free Speech Clause does not apply to government speech, including government propaganda. It is time to revisit that conclusion. This Article argues that government propaganda, although government speech, ought to be regarded as covered by, and in violation of, the Free Speech Clause. Admittedly, this proposal is radical for two reasons. First, with few exceptions, the free speech tradition in the United States is averse to regulating harmful speech. Such regulations are believed to invite government abuse and to chill private speech. However, neither of these concerns are triggered when the government is the object rather than the enforcer of speech regulations. The second radical aspect of this proposal is bringing government speech into the purview of the Free Speech Clause. Nevertheless, government propaganda sufficiently undermines the core goals of free speech such that the Free Speech Clause ought to address it.