Protection Of Free Speech Research Articles

“People Crushed by Law Have No Hopes but from Power”: Free Speech and Protest in the 1940s

In a trio of cases handed down on the same day in 1950, the Supreme Court denied constitutional free speech protection to civil rights picketing and labor picketing. The civil rights case, Hughes v. Superior Court, has often been portrayed as an early test case about affirmative action, but it originated in repression of an alliance of radical labor and civil rights activists exasperated by the legislature's repeated failure to enact fair employment law. Seeking a people's law like the labor general strikers and sit-downers of the 1930s and the civil rights sit-inners of the 1960s, they insisted that the true meaning of free speech was the right to speak truth to power. Courts and Congress forced the labor movement to abandon direct action even as it became the defining feature of the civil rights movement. The free speech rights consciousness they invoked challenged the prevailing conservative conception of rights and law. Direct action was a form of legal argument, a subaltern law of solidarity. It was not, as civil rights protest is often portrayed, a form of civil disobedience. What happened during and after the case reveals how the subaltern law and formal law labor and civil rights began to diverge, along with the legal histories of the movements.

Muzzling Anti-Vaxxer FEAR* Speech: Overcoming Free Speech Obstacles with Compelled Speech

As the anti-vax industry continues to stoke fear and incite vaccine resistance, some means must be found to detoxify their false messages. Counterspeech, the preferred mode to deal with unfortunate rhetoric, I demonstrate, is both ineffective and counter-effective when it comes to scientific speech addressing health. I therefore investigate other free speech protections available to shield false anti-vax speech, concluding that while complete protection may exist in the context of political speech without proof of fraud, it is more limited in the context of commercial speech. I then investigate the commercial ties of anti-vax mechanisms used in the strikingly effective outreach targeting insular audiences: the conference and pamphlet vehicles. Research indicates that these vehicles incorporate fingerprints of commercial enterprise, thereby making them eligible for regulation under the doctrine of compelled speech. This approach allows for the requirement of imposing warning labels on pamphlets as well as conference advertising and marketing. This novel approach may provide the salutary benefit not obtainable by counterspeech.

Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime by Thomas C. Mackey

Reviewed by: Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime by Thomas C. Mackey Jonathan W. White (bio) Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime. By Thomas C. Mackey. (Lawrence: University Press of Kansas, 2020. Pp. 200. Cloth, $55.00; paper, $24.95.) In his masterful study of party politics in the Civil War era, The Union Divided, historian Mark E. Neely Jr. observes that the "loyal opposition in the North during the Civil War remains to this day in crying need of analysis."1 In the last two decades, a number of scholarly works on the Civil War–era Democrats have appeared, including Neely's own Lincoln and the Democrats: The Politics of Opposition in the Civil War (2017) and J. Matthew Gallman's The Cacophony of Politics: Northern Democrats and the American Civil War (2021). Several excellent works on disloyalty, antiwar dissent, and civil liberties during the Civil War have also appeared, most notably William A. Blair's With Malice toward Some: Treason and Loyalty in the Civil War Era (2014) and Stephen E. Towne's Surveillance and Spies in the Civil War: Exposing Confederate Conspiracies in America's Heartland (2015). Now, with Thomas C. Mackey's Opposing Lincoln, we have an account of the military commission trial of Clement L. Vallandigham. Vallandigham is notorious today as the most prominent antiwar Democrat in the North during the Civil War. In May 1863, the former congressman was arrested by the Union military and charged with disloyal speech. Following a quick military trial, he was sentenced to imprisonment at hard labor for the duration of the war; however, Lincoln instead chose to banish the "wiley agitator" to the Confederacy. From there, Vallandigham escaped to Canada, where he ran for governor of Ohio in absentia. He lost in a landslide. Vallandigham's story is one that every student of the Civil War should know, and it is ably told by Mackey. In several places, Mackey exhibits great storytelling skill, such as the scene when Vallandigham is turned over to Confederate soldiers in Tennessee. Mackey also deftly explains the constitutional and legal issues facing the Lincoln administration during the war years, helping readers understand Lincoln's thinking on these controversial issues. Indeed, Mackey takes constitutionalism seriously, which is essential for understanding the causes and consequences of the Civil War. The heart of Opposing Lincoln is Vallandigham's military trial, as well as discussion of Lincoln's public letters defending his civil liberties policies. Still, Mackey's slender volume touches on several important historiographical debates, including the adequacy of the Constitution to meet the [End Page 579] crisis of the Civil War, whether the Copperheads posed a real threat to the Union, and the extent to which Lincoln's policies violated the Constitution. In the opening two chapters, Mackey places Vallandigham within his historical context, tracing the politics of the 1850s into the war years. Drawing from the flourishing recent literature on the Midwest in the mid-nineteenth century, Mackey rightly describes Vallandigham as a westerner, rather than simply as a northerner. In explaining Lincoln's view of free speech in wartime, Mackey appropriately describes Lincoln "as a man and lawyer of his times and historical context." After quoting one of Lincoln's arguments, Mackey states, "After reading this statement some moderns will raise the issue of the potential 'chilling effect' on speech and press this policy suggests; but those sensitivities lay in a future that Lincoln could not know" (131). This is sound historical analysis. We ought to strive to understand historical figures within the context of their times. And yet there were strong arguments being made during the war years for more robust protection of free speech, free press, and the right to trial by jury. Mackey analyzes a series of public letters that passed between Lincoln and two groups of Democrats (one in Ohio, and one in New York). He presents Lincoln's arguments in great detail, but the Democrats appear only as foils for Lincoln, rather than as constitutional thinkers in their own right. This is a missed opportunity, for the Democrats' arguments anticipated...

What’s Bad for the Goose is Bad for the Gander: Censorship Is Harmful Whether Done by the Government or Private Industry

This concise piece makes a strong argument for how the principles behind governmental free speech protections are also applicable to private entities. Therefore, while it is legally permissible for organizations such as Amazon and Facebook to engage in censorship, it is generally a bad idea.

Detoxifying Anti-Vaxxer FEAR* Speech and First Amendment Obstacles *False, Fraudulent, Flawed, Fake, Endangering, and Reckless

As the anti-vax industry continues to stoke fear and incite vaccine resistance, some means must be found to detoxify their false messages. Here, I investigate free speech protections available for dissemination of false anti-vax speech, concluding complete protection in the context of political speech without proof of fraud, but limited in the context of commercial speech. I then investigate the commercial ties of anti-vax mechanisms used in the strikingly effective outreach targeting insular audiences: the conference and pamphlet vehicles. Here, research indicates that these vehicles incorporate fingerprints of commercial enterprise, thereby making them eligible for regulation under the doctrine of compelled speech. This approach allows for the requirement of imposing warning labels on conference advertising and marketing and pamphlets, which may provide the salutary benefit that is not obtainable by counter-speech, which has thus far proven ineffective.

Youth Exposure to Marijuana Advertising in Oregon's Legal Retail Marijuana Market.

IntroductionResearch from tobacco and alcohol markets suggests advertising exposure is associated with perceptions of lower risk and increased use among young people. Limiting marketing may be a regulatory approach to prevent potential negative effects of retail marijuana legalization on youth use. This study assessed marijuana advertising exposure reported by youths in Oregon after the start of retail marijuana sales in October 2015.MethodsData from a 2017 school-based survey of Oregon 8th (N = 14,852) and 11th (N = 11,895) graders were used to characterize marijuana advertising exposure. Subgroup differences in reported exposure were assessed by using Pearson χ2 tests and multiple logistic regression.Results About three-quarters of 8th (72.2%) and 11th graders (78.1%) in Oregon reported seeing marijuana advertising in the past month. Youths most frequently reported seeing advertising on storefronts and online, and odds of exposure were significantly higher for girls; lesbian, gay, or bisexual youths; current marijuana users; 8th graders living with an adult who uses marijuana; and youths in school districts with a closer average proximity to retail marijuana stores.ConclusionReporting exposure to marijuana advertising is common among youths in Oregon’s legal retail market. Oregon and other states working to prevent youth marijuana use may want to examine how well their rules are working to prevent youth exposure. Although some sources of youth advertising exposure may be difficult to regulate and enforce (eg, online), others may be within the purview of state authority (eg, billboards, storefronts) depending on state-specific interpretation of free speech protections.

John Stuart Mill's Harm Principle and Free Speech: Expanding the Notion of Harm

AbstractThis article advocates employing John Stuart Mill's harm principle to set the boundary for unregulated free speech, and his Greatest Happiness Principle to regulate speech outside that boundary because it threatens unconsented-to harm. Supplementing the harm principle with an offense principle is unnecessary and undesirable if our conception of harm integrates recent empirical evidence unavailable to Mill. For example, current research uncovers the tangible harms individuals suffer directly from bigoted speech, as well as the indirect harms generated by the systemic oppression and epistemic injustice that bigoted speech constructs and reinforces. Using Mill's ethical framework with an updated notion of harm, we can conclude that social coercion is not justified to restrict any harmless speech, no matter how offensive. Yet certain forms of speech, such as bigoted insults, are both harmful and fail to express a genuine opinion, and so do not deserve free speech protection.

Punx up, bros down: Defending free speech through punk rock pedagogy

This article positions punk rock pedagogy, or the educative dimensions of punk rock subculture, as an exemplar for combatting hate speech. This analysis contrast institutional efforts to protect free speech (which are rooted in free speech absolutism) with the ways by which punks protect one another from bigotry. This paper argues that the punk approach more closely reflects how free speech protections are framed in international human rights law.

Enhancing the salience of free speech rights increases differential perceived free speech protections for criminal acts against Black versus White targets

AbstractHate crime charges offer enhanced sentences for prejudice‐motivated acts in recognition of the injury that extends beyond the victim to other members of the targeted group. The present study builds upon and extends previous work illuminating how anti‐Black prejudice influences application of free speech protections to justify criminal acts against Black (vs. White) targets, which subsequently reduces support for hate crime charges for the act by investigating the potential effects of environmental cues that increase the salience of free speech rights. The present work tested the main and interactive effects of act target (Black vs. White), anti‐Black prejudice, and the salience of freedom of speech on perceived free speech protections for a prejudice‐motivated criminal act and the consequent influence on support for hate crime charges. Replicating previous findings, greater anti‐Black prejudice predicted more perceived free speech protections for Black‐targeted acts, which predicted less support for hate crime charges. Low‐bias participants viewed Black‐ versus White‐targeted acts as less protected by free speech rights and more deserving of hate crime charges; high‐bias participants viewed the two acts similarly. Making the right to free speech (compared to protections from search and seizure) salient amplified differential perceptions of free speech protections based on prejudice and target group, which predicted support for hate crime charges. This work holds implications for justification processes and highlights the importance of studying culture‐specific values.

“Undemocratic, Barbaric, and Scholastically Wholly Unwise:” Conscientious Educators Under Fire from the Great War through the Present

On matters of teacher loyalty and conscience, World War I marked a legal watershed in the United States. During this conflict, schools became seminaries of patriotism and teachers had to promote loyalty and allegiance to the government. Throughout the nation, overzealous school boards imposed state‐legislated loyalty oaths upon teachers. In cities and rural communities, many teachers were accused of disloyalty, regardless of personal beliefs, and stripped of their positions. Teachers who criticized the war faced intense scrutiny and often were dismissed on the flimsiest of charges. Some teachers chose to litigate the matter in courts of law. Some were successful, and some were not. This pattern has continued during subsequent wars. In terms of free speech protections for public schoolteachers, the law has been applied inconsistently. Whereas college and university teachers have had some degree of constitutionally protected free speech because of the ideal of academic freedom, the same does not apply to public schoolteachers. This article traces a number school trials as well as court cases from World War I to the present. It examines how the judiciary has adjudicated acts of conscience during wartime in the nation's public schools. It remains an unsettled issue in need of constitutional redress.

The Boomerang Effect of Some Counterterrorism (CT) Measure: A Mathematical Game-Theoretic Model

The freedom of expression, universally acknowledged as both a fundamental and foundational human right, is not only the cornerstone of democracy but indispensable to a thriving civil society. Indeed, the freedom of expression is considered the “foundational human right” of the greatest importance; hence its suppression on the advent of any CT measure cannot beoverlook in any liberal society. However, since the event of the bombing of the World Trade Centre in USA in September 11 th2001 by the Al-Qaida terrorist organization, most democratic governments have responded to terrorist attacks with such CTmeasures that curtail or suppress the freedom of expression and other fundamental rights and liberties of its citizenry; all in theguise of countering terrorism. The decrease in privacy and the concomitant increase in security agency’s surveillance powers areother important CT policies adopted by various liberal societies. How this policy of reacting to terrorist attacks with restrictionson free-speech protections affect the likelihood of terrorism and CT measures, has dominated front burners of public discourseover the last decades. In this study, we develop a two-person two-period dynamic game-theoretic analysis of an interactionbetween security agency and terrorist organization; to study the possible security implications of adopting policies that curtail orsuppress free-speech protections and other fundamental rights of citizens as CT measure. The study shows that in a world inwhich democratic governments respond to major security threat such as terrorism with restrictions on freedom of expression andother fundamental rights and liberties of its citizens, such policies seems to have serious moral vulnerability and boomerangeffect of endangering government effort at preventing terrorism and thus engender more terrorist attacks by garnering unduesupport for the terrorist. The analysis suggests that a commitment to “respecting the fundamental rights and liberties” of thecitizenry in times of duress can be of immense security-advantage. That is, if liberal societies would remain faithful to theirfundamental values in the aftermath of terrorist attacks and other security threat, such a strategy possibly has the propensity todecreasing the probability of further terrorist attack, reduce cost of CT measure and hence a boost to government CT measures.

Rethinking the Myth of the Modern First Amendment

This chapter for an edited volume, The Free Speech Century, seeks to dispel an an enduring origin myth about the emergence of free speech in America: namely, that the triumph of free speech in America was a straightforward reaction to the repressive patriotism of the First World War. On this generally accepted account, a handful of forward-thinking judges and academics spawned the contemporary commitment to the judicial protection of free speech in response to the convictions of antiwar agitators for condemning conscription and criticizing the war effort. In reality, the roots of free speech in the United States are more complicated, and they are both more radical and more conservative than the traditional liberal account allows. Yes, many interwar progressives believed expressive freedom was necessary to bolster and legitimate the exercise of state power. A handful even trusted the courts to demarcate the boundaries of protected expression. But most were harsh critics of the judiciary, and few were eager to invest courts with the authority to invalidate democratically enacted legislation. The shepherds of the modern First Amendment were a peculiar amalgamation of radical labor activists and conservative lawyers, not the New Dealers to whom we ordinarily ascribe the production of the postwar constitutional order.

Top 10 video game cases (US): how video game litigation in the US has evolved since the advent of Pong

Video game litigation in the United States is neither new nor infrequent, and video game developers can learn valuable lessons from cases won, and lost, by others before them. This article examines the evolution of United States intellectual property law from historically narrow roots to classifying video games as an art form deserving broad free speech protection. This article examines seminal cases in a variety of IP areas, including not only copyrights, but also reverse engineering, derivative works, patents, trademarks, rights of publicity, the Digital Millennium Copyright Act, contracts, and freedom of speech. These cases explore the factual and legal limits of American jurisprudence in video game law, including how one's own expression can be limited by the rights of others, permissible and fair use and of others' IP, and the impact these cases have had in the industry. As video games have leveled up into a multi-billion dollar industry, the law has leveled up, too, and this article is the primer you need to level up with it.

Homonegativity, perceived free speech protections, and perceptions of harm predict judgments of hateful acts motivated by sexual prejudice.

Homonegativity, perceived free speech protections, and perceptions of harm predict judgments of hateful acts motivated by sexual prejudice.

Brief of Amici Curiae Scholars of Constitutional Law, First Amendment Law, and Media Law in Support of the Defendant in United States v. Terry J. Albury

Amici are seventeen professors whose research and teaching primarily focus on constitutional law, First Amendment law, and media law. The professors have an interest in ensuring the continued operation of a free, fair, and robust press in the United States. The sentencing of Terry Albury requires this Court to determine what criminal punishment should appropriately be imposed on a government employee who disclosed to a journalist information of significant public interest to his fellow citizens. In making that determination, this Court can and should consider the important First Amendment interests at stake. It is for this Court, at sentencing, to craft a punishment that properly weighs the constitutional protection of free speech and the public interest in the newsworthy disclosure at issue in this case against any actual harm to national security caused by Mr. Albury’s act of conscience. To aid the Court in making this determination, amici draw the Court’s attention to several factors that underscore the important interests that should weigh in the sentencing decision.

From Town Square to Twittersphere: The Public Forum Doctrine Goes Digital

Government officials like President Donald J. Trump and Maryland Governor Larry Hogan are increasingly using popular social media sites like Twitter and Facebook to connect and interact with their constituents and to solicit public comment on matters of public importance – whether on officially-designated government platforms (like https://www.facebook.com/GovLarryHogan/) or on unofficial platforms used for the same purposes. In recent years, government officials have increasingly turned to social media platforms like Twitter and Facebook in place of (and in addition to) actual town halls and other real-space forums to solicit public participation in policy formulation and to engage with their constituents. When such interactions between government officials and their constituents occur in real space like town halls, they fall comfortably within the scope of the First Amendment's public forum doctrine, which provides strong protections for freedom of speech and assembly, and prohibits government officials from discriminating against or silencing speakers based on their viewpoint. However, when such interactions take place in cyberspace -- on social media sites like Twitter and Facebook -- the application of the First Amendment's public forum is somewhat less clear. Social media sites like Twitter and Facebook are privately owned, which raises issues for the application of the First Amendment’s public forum doctrine. The public forum doctrine (which provides the greatest protection for free speech in general, as well as against content and viewpoint discrimination) traditionally applies to government-owned or government-controlled -- not privately-owned -- property. The private ownership of social media sites also raises issues for the application of the First Amendment's state action doctrine, which provides that the restriction of speech by and through private actors does not implicate the First Amendment except in narrow, limited circumstances. This Article examines whether and to what extent government officials' use of social media sites to interact with their constituents constitutes a public forum and what this forum analysis means for the ability of government officials to block or censor constituents on their social media sites. Such issues have recently arisen in the context of President Donald Trump’s blocking of constituents with whom he disagrees on his @realDonaldTrump/Twitter account. Similar issues have arisen in the context of Maryland Governor Larry Hogan’s and Virginia County Commissioner Phyllis Randall's blocking of constituents on their Facebook pages, in response to being asked challenging questions. The recent Supreme Court case of Packingham v. North Carolina sheds some light on the application of the public forum doctrine to social media sites and the use and misuse of such sites by government officials. In particular, Justice Kennedy’s opinion for the Court in Packingham extends his functional, expansive conception of the public forum doctrine to non-traditional forums that function as forums for public discourse. In Part I of this Article, I examine in detail the circumstances surrounding recent incidents in which government officials have blocked constituents from following them on Twitter and from commenting on their Facebook pages. Part II undertakes an analysis of the historical development of the public forum doctrine, its recent development in the digital age, as well as the government speech doctrine and the contrast between public forums and government speech. In Part III, I apply the forum analysis developed in Part II to the recent incidents of government officials' blocking constituents from accessing their social media sites, with an in-depth analysis of the Trump/Twitter lawsuit in particular, and conclude that such social media sites constitute public forums in which viewpoint discrimination is illegal. Part IV provides suggestions to government officials for developing policies governing social media accounts that comply with the dictates of the First Amendment, and a brief conclusion follows.

The Supreme Court & Science: A Case in Point

When it comes to science and technology, Supreme Court justices resemble lay people in robes, often ill-equipped to grasp fully the implications of the important cases they are asked to decide on scientific subjects. The justices approach science not in the abstract, of course, but from within the doctrinal area in which the particular dispute arises, whether intellectual property, criminal law, or the First Amendment's protection of free speech. The Supreme Court's abortion jurisprudence offers a particularly interesting and consequential example of the Court's encounter with science: a prolonged encounter, since from the beginning, the Court viewed women's claim to reproductive freedom through a medicalized lens. In recent years, states wishing to curb access to abortion have claimed health justifications for placing novel and onerous restrictions on abortion providers. In Whole Woman's Health v. Hellerstedt, decided in June 2016, the Court invalidated one such effort, a Texas law, on the ground that the claimed health benefits were insufficient to justify the predictably massive shrinkage of the medical infrastructure necessary for women to be able to exercise their constitutional right to terminate a pregnancy. Evidence-based law met evidence-based medicine in a decision that demonstrated a new willingness by the Court to insist on good science in the area of abortion, and perhaps beyond.

Fake News, Internet and Metaphors (to Be Handled Carefully)

The metaphor of the free marketplace of ideas is frequently referred to as a crucial argument to support a liberal view of freedom of speech and contrast the enforcement of measures aimed at preventing fake news. This metaphor is subject to critical remarks for three different reasons. First of all, whilst it may be the case that the problem of scarcity of technical resources does not affect the Internet, our attention and time continue to be scarce “products”. Secondly, it is reasonable to ask whether the marketplace of ideas metaphor is well suited to the scope (and limits) of protection for free speech under the European constitutionalism paradigm. Thirdly, metaphorical language fits in very well with legal reasoning, but it should be handled properly (and with care).

Hate Speech Is in the Eye of the Beholder

The present research investigated how levels of anti-Black prejudice may influence differential perceived free-speech protections (FSPs) for hurtful acts targeting Black or White people. Because hate crime designation (HCD) requires evidence of a prejudice-motivated intention to harm individuals, we investigated how anti-Black prejudice and race of the target interact to influence HCD for the act and how greater perceived FSPs may predict less willingness to label the act a hate crime. Across two studies, anti-Black bias was associated with more perceived FSPs for Black-targeted acts, which predicted less HCD. Low anti-Black prejudice participants viewed Black- versus White-targeted acts as less protected by free-speech rights and more likely to be a hate crime. In Study 1 (but not Study 2), high anti-Black prejudice participants displayed the opposite pattern. This work holds implications for theories of motivated justification and psychological understanding of public discourse regarding free speech.

Motive, Action, and Confusions in the Debate over Hate Crime Legislation

In this article I argue that the objections against hate crimes defined as separate offenses and in terms of group animus are misguided and are based upon a mistaken view of human action that does not see motives as constituent parts of complex actions. If we are going to have hate crimes legislation, there are no good formal reasons keeping us from having distinct offenses for hate crimes or from having ones defined in terms of group animus. My goal is to clear up a number of action-theoretical confusions that have led some theorists and jurists to raise objections that draw attention away from the real crux of the debate over hate crime legislation. Initially, I defend several considerations that weigh against an understanding of hate crimes legislation as being concerned exclusively or even primarily with character, belief, or motive. These considerations in turn help undercut the related concern that hate crime legislation violates free speech protections.