Speech Rights Research Articles

The Conspiracy Origin of the First Amendment

Contemporary emerging scholarship on the First Amendment right of assembly is based primarily on either normative arguments arising from post-World War Two cases or constitutional originalism that looks to the Framers’ intent. This scholarship continues to treat the advent of substantive First Amendment rights in the World War One era as isolated to the speech right. That is an incomplete picture because the formative First Amendment cases were assembly cases just as much as they were speech cases. This Article fills that historical gap and, from it, generates a doctrinal argument in favor of the assembly right.Historically, it shows that the seminal WWI cases were part of a milieu that entailed the socio-political control primarily of groups, not individuals’ speech. The mechanism was membership crime — criminal conspiracy in federal and state courts, and criminal syndicalism at the state level. This Article recovers assembly as a core First Amendment right, not secondary to speech. Doctrinally, the Article shows that at the advent of the substantive First Amendment it was assembly, rather than speech, that was often the primary right at issue. Indeed, even Brandenburg v. Ohio was an assembly case before it was a speech case. The Article therefore presents what it calls the “Brandenburg for groups” test, which would protect groups — even some criminal conspiracies — if they pose no imminent likelihood of substantive crime. This test responds to emerging scholarship on the assembly right, most notably the debate between John D. Inazu and Ashutosh Bhagwat on the utility of Brandenburg v. Ohio to protect that right. It traces a constitutionally and normatively appropriate line between protected and unprotected assembly that is currently lacking but is necessary to protect the democratic function of groups while continuing to ensure public safety.

Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity

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

A Study on the Limits of Employers' Free Speech Rights to Communicate with Labor Unions or Union Members and Unfair Labor Practices

A Study on the Limits of Employers' Free Speech Rights to Communicate with Labor Unions or Union Members and Unfair Labor Practices

Gay Rights in Russia? Russia's Ban on Gay Pride Parades and the General Principle of Proportionality in International Law

The Russian Federation, along with several of its constituent republics and regions, has recently enacted laws prohibiting Gay Propaganda and restricting the adoption of children to countries which recognize same sex marriage. The Russian laws have been adjudicated and found constitutional, as reasonable restrictions on fundamental rights necessary to secure state interests in protecting the family and ensuring reproduction. At the same time, the Russian laws are violations of Russia's international obligations to respect the fundamental right of free speech under the European Convention of Human Rights and the International Covenant on Civil and Political Rights. This article examines the application of the proportionality principle in Russian constitutional law and international human rights law to explain why the results differ. It also explains the political dynamics which shape and will shape the construction of LGBT rights in Russia.

Beyond the Schoolhouse Gate: Students' First Amendment Speech Rights in the Digital Age

Since 1969, the U.S. Supreme Court has given four rulings on student First Amendment speech rights cases that occurred on school campuses. The so-called information age has changed these geographical boundaries of student speech. Recently, the U.S. Supreme Court declined to review student free-speech rights cases on the Internet, outside of school. Lower courts have not ruled consistently on this issue. Clarity and guidance is needed for school administrators, parents, and students.

Zechariah Chafee’s Free Speech Theories

Zechariah Chafee achieved prominence during the post-World War I era, when he forcefully argued for a broader protection of free speech rights. He criticized what he saw to be wartime excesses of the Wilson administration in the civil liberties area, and he tried to steer the courts on a more pro-civil libertarian approach when ruling upon convictions brought under the Espionage and Sedition acts. In so doing, Chafee became the first major American scholar of the First Amendment.

Being Social: Why the NCAA Has Forced Universities to Monitor Student-Athletes' Social Media

On June 21, 2011, the National Collegiate Athletic Association (NCAA) charged the University of North Carolina at Chapel Hill (UNC) with a number of NCAA legislation violations, including “not adequately and consistently monitor[ing] social networking activity that visibly illustrated potential amateurism violations within the football program[.]” While the NCAA’s bylaws regarding member institution conduct indirectly impacts social media oversight, the NCAA’s lack of a social media monitoring policy creates uncertainty as to how member institutions should deal with potential violations of a non-existing policy. Coupled with concerns about their public image, tort liability, and their student-athletes’ safety, NCAA member institutions must develop a social media monitoring policy that does not infringe on constitutional free speech rights or more specific social media privacy laws. Ultimately, monitoring publicly available social media might be the safest and the best way to protect the institutions’ interests without violating their student-athletes’ legal rights.

Subjects, citizens, or civic learners? Judicial conceptions of childhood and the speech rights of American public school students

This article, based on a qualitative analysis of 81 legal opinions, considers the relationship between judicial conceptions of childhood and the speech rights of American public school students. The author presents six main principles from the opinions and examines the relationship between them and conceptions of childhood. The article shows that the opinions reflect three primary conceptions of childhood: as a period walled off from adulthood in which children are subjects; as a period of becoming in which children are civic learners; and as a period akin to adulthood in which adults and children, as well as their respective rights, are fundamentally the same. The article concludes that judicial conceptions of childhood have helped produce a body of law that reflects and perpetuates society’s inconsistent and ambivalent beliefs regarding childhood.

A interpretação da imunidade do art. 150, vi, d, da Constituição Federal em conformidade com o Estado Democrático de Direito

The present paper addresses the matter of fiscalimmunity granted to books, journals, newspapers, magazinesand the paper destined to their print, interpreting the immunityas a way of guaranteeing fundamental rights. Its scope concernsthe study about the Democratic State of Law, as well as theconstitutional rights of free speech and universal access toculture. It also exposes the actual focus given to such immunityand its interpretation according to the Democratic State of Law,addressing its importance, relevance and complexity.

"Can You Hear me Now...Good!" Feminism(s), the Public/Private Divide, and Citizens United v. FEC

This essay offers a critique -- inspired by feminism(s) -- of Citizens United v Federal Election Commission, 558 U.S. 310 (2010), a case which ruled that restrictions on direct expenditures of funds from corporate treasuries to support or oppose candidates for political office were unconstitutional restrictions on corporations' rights of free speech. In response, the essay proposes a two-pronged feminist attack against Citizens United. The first prong is to acknowledge the dangers facing women and other disadvantaged groups which emerge due to corporate privatization of the public sphere and to argue, as an antidote, for a robustly construed public domain. Whereas early feminists identified as a threat to women the divide between public and private, Citizens United underscores a newer threat -- namely the elimination of that divide. The second prong is to deploy feminism's well known rejection of abstraction in favour of context. This approach helps demonstrate how Citizens United propels its pro-corporate outcome by erasing context and instead deploying a strategy of denying tremendously significant legal distinctions -- most crucially between living human beings and artificial legal entities.

Undermining or Promoting Democratic Government? An Economic and Empirical Analysis of the Two Views of Public Sector Collective Bargaining in American Law

There are two divergent views on the role of public sector collective bargaining in American law. The first, and generally older, view is that public sector collective bargaining undermines democratic government, allowing organized employees to interfere with the administration of the law for their own personal benefit at the expense of the general population and taxpayer. Under this view, courts have characterized public employee union membership as disloyal, inimical to proper discipline, inefficient, and detrimental to public welfare to rationalize the enforcement of public sector yellow-dog contacts and discriminatory discharges. On the question of whether legislatures can either allow or prohibit public sector collective bargaining, judges adhering to this negative view of public sector collective bargaining have found that it is an unconstitutional interference with freedom of contract or an unconstitutional delegation of legislative power. The second view is that public sector collective bargaining is an essential part of our democratic government. Under this view, collective bargaining is a fundamental human right included in our cherished constitutional rights of free speech and association, and an essential counterbalance to corporate interests in a pluralistic society. Supporters would argue that, on the whole, public sector collective bargaining improves democratic outcomes and government administration by giving workers a voice in the outcome. Public sector unions represent important public policy interests in collective bargaining and legislative lobbying and act as a check on government monopsony power in employment. These countervailing views of public sector collective bargaining find representation, not only in legal doctrine and opinions, but also in the public policy and economic arguments surrounding this debate. The detractors argue that unions are merely labor cartels that are both inefficient and inequitable, raising wages and benefits at the expense of consumers and taxpayers and imposing inefficient and inflexible work rules. Public employee collective bargaining is doubly bad because it often exploits a government monopoly on services and gives public employee interests an elevated status in public policy debates. These views have found ready representation in the recent debates over legislation to prohibit or restrict public sector collective bargaining in Wisconsin, Ohio, Indiana, and other states. The proponents of public sector collective bargaining argue that public employee voice in the provision of government services is valuable and improves the provision of government services and administration of the law. Public sector unions represent important public policy interests in collective bargaining and legislative lobbying and act as a check on narrow taxpayer interests and government monopsony power in employment. Moreover, unions, in both the private and the public sectors, foster a healthy middle class, promote greater equality in the distribution of income and wealth, and promote the representation of the views of workers in legislative debates. Many of the broader claims of these two views are subject to empirical analysis. One of the points of public sector unions is to raise employee wages and benefits over what they would have been in the absence of a union; but are they raised above comparable levels in the private sector at the expense of taxpayers, or do they promote comparable wages that attract good public servants and long-run administrative interests rather than short-term budget cutting interests? Do public sector unions impose work rules and restrictions that interfere with the provision of government services, or do they provide an employee voice that improves government services and the administration of the law? In this essay, I will present an outline of the economic arguments both for and against public sector unions, and the empirical evidence supporting or refuting those arguments. My intent is to provide an empirical context for the larger debate regarding public policy with respect to public sector collective bargaining and the larger constitutional debate over this institution.

Tobacco endgame strategies: challenges in ethics and law

There are complex legal and ethical tradeoffs involved in using intensified regulation to bring smoking prevalence to near-zero levels. The authors explore these tradeoffs through a lens of health justice,...

Privacy, Speech, and the Law

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

The Communications Issues Facing the Second Obama Administration - Challenges in an Age of Change

The regulation of the communication media in the United States has been marked by an interplay between venerable statutory law, administrative agency and constitutional free speech rights. As the media landscape goes through vast changes due to greater viewer chose, the integration of previously separate technologies and the application of rules to a changing technical marketplace, the President, Congress, courts and administrative agencies must find their way through this thicket. The re-election of President Barack Obama, his administration is confronted with a number of important issues from traditional broadcast to broadband telephony. This article covers the major issues that will have to be determined over the next few years.

A First Amendment-Inspired Approach to Heller's 'Schools' and 'Government Buildings'

Although the Supreme Court in Heller strongly suggested that the Second Amendment protects a right to armed self-defense outside the home, it carved out an enigmatic exception to this right: the government may prohibit weapons in "sensitive places such as schools and government buildings." This Article focuses on Heller’s enumerated sensitive places — schools and government buildings — and begins with the premise that these terms allow some room for interpretation. By its mention of "schools," did the Supreme Court mean to leave undisturbed gun bans in primary and secondary schools only, or also on university campuses? In its reference to "government buildings," did the Court mean to suggest that the government may act with impunity whenever it bans armed self-defense on its property, or are there some types of public property — particularly national parks and remote lands home to dangerous wildlife — where a combination of low security risks and historical practices limits the government’s authority as property owner? Building on a growing body of scholarship that has looked to the First Amendment as a guidepost for mapping out the boundaries of the post-Heller Second Amendment, this Article demonstrates how the Court's public-forum and student-speech doctrines caution against an expansive reading of Heller’s enumerated sensitive places. The Supreme Court has held that students do not forfeit the First Amendment's core protections when they step onto campus, and it has also suggested that adult college students enjoy broader free speech rights than do students in primary and secondary schools. The Supreme Court also has held that the government's ownership of property does not automatically entail the power to prohibit free speech activities, and on certain types of public property historically open for speech and expression, the public enjoys broad First Amendment rights. Moreover, even in nonpublic forums where the government enjoys broad discretion to curtail speech, it cannot engage in viewpoint discrimination. These First Amendment principles suggest that the Second Amendment's core right to armed self-defense, in some form, might be available to adult students at public universities and to the general public on certain types of public property where armed self-defense historically has been permitted, such as national parks and remote lands that are home to dangerous wildlife.

US Food and Drug Administration–Approved Laboratory Tests After Caronia

In the January 2013 edition of the ARCHIVES, I described, in ‘‘Food and Drug Administration Approval of Laboratory Tests,’’ 1 the US Food and Drug Administration’s (FDA’s) off-label drug conundrum, and how it might apply (or chaos it might cause) were the FDA to begin approving laboratory tests. The month before the article’s January publication, the United States Court of Appeals for the Second Circuit handed down its opinion in United States versus Caronia, a case directly addressing the off-label issue, and for which a brief discussion as to its potential effect on FDA-approved laboratory tests is appropriate. In Caronia, a physician who had been convicted of health care fraud cut a deal to lighten his sentence and joined a Department of Justice (DoJ) sting operation during which he recorded pharmaceutical representative Alfred Caronia making ‘‘truthful, nonmisleading’’ statements about the uses of a narcolepsy drug, Zyrem. Caronia’s statements contained information pertaining to the use of the drug ‘‘that had been studied in clinical trials but were not approved [by the FDA].’’ 3 Caronia was tried and convicted of the crime of ‘‘conspiring to introduce a misbranded drug into interstate commerce.’’ 3 Caronia received a criminal sentence, which he appealed. Many legal experts have been concerned for some time that the FDA’s schizophrenic stance on off-label speech violates free speech protected by the First Amendment. Criminalizing truthful, nonmisleading speech by pharmaceutical representatives—speech that essentially anybody else is able to say—has produced an unsustainable tension, finally addressed by the Second Circuit in Caronia’s appeal. The Second Circuit concluded that ‘‘the government clearly prosecuted Caronia for his words—for his speech’’ and ‘‘slapped down [the] FDA’s and DoJ’s long-standing contention that the Food, Drug & Cosmetic Act (FDCA) makes it illegal for drug companies and their employees to communicate about an off-label use.’’ 3 Indeed, the Second Circuit went even further, asserting that ‘‘it is in the public interest for drug companies to discuss off-label uses with physicians.’’ 3 The Second Circuit’s Caronia decision has the potential to significantly change the FDA’s stance on approving laboratory tests. The court’s decision, dealing with First Amendment free speech rights, does not directly address laboratory tests. The FDA’s strained designation of laboratory tests as ‘‘medical devices,’’ a designation used entirely to assert control over them, remains intact. The FDA’s ability to grant approval of laboratory tests, including the promotion of so-called companion tests, also remains intact; this is so even as one struggles to determine just exactly how a molecular test could be ‘‘configured to work specifically in [non-small cell lung cancer] patients.’’ 1 Caronia changed the paradigm, freeing drug vendors to speak openly, with First Amendment protection, about FDA-approved and FDA-nonapproved (‘‘off-label’’) uses for drugs and medical devices. The success of ‘‘companion tests’’ has depended on the pre-Caronia environment allowing the FDA to restrict speech about alternative, offlabel tests; however, now that Caronia allows truthful, nonmisleading speech about these other tests, the marketing appeal of the companion test may rapidly wane. Taken in full, the holding could eliminate the newly minted companion test entirely, by eliminating the FDA-produced monopoly incentives that come with a test being labeled a companion test. Because Caronia is the ninth straight First Amendment case the FDA has brought and lost, and only applies to 3 states, it is unlikely the Obama administration will attempt Supreme Court review. For the FDA, the Caronia ‘‘decision was the Nightmare Before Christmas.’’ 4 Robert Temple, deputy director for clinical science at the FDA’s Center for Drug Evaluation and Research was ‘‘horrified’’ that the Second Circuit has held that a drug vendor’s truthful, nonmisleading speech is protected speech under the First Amendment. Other stakeholders in FDA litigation have generally had a ‘‘subdued’’ response to Caronia, noting that ‘‘it will be a long time before we figure out the true meaning of the case.’’ 3 Some stakeholders termed Judge Debra Ann Livingston’s Caronia’s dissent, referencing the famous Arsenic and Old Lace, ‘‘well-reasoned;’’ however, Richard Epstein demolishes it, noting, ‘‘[s]he is surely correct to write that, even if there is no law forbidding the consumption of arsenic, ‘this would not endow Abby and Martha with a First AmendAccepted for publication February 12, 2013. Published as an Early Online Release March 15, 2013. From the Department of Pathology and Laboratory Medicine, The University of Texas Health Science Center at Tyler. The author has no relevant financial interest in the products or companies described in this article. doi: 10.5858/arpa.2013-0020-ED Reprints: Timothy Craig Allen, MD, JD, Department of Pathology and Laboratory Medicine, The University of Texas Health Science Center at Tyler, 11937 Hwy 271, Tyler, Texas 75708-3154 (e-mail: timallenmdjd@gmail.com/timothy.allen@uthct.edu).

Medios de comunicación y publicidad privada: Comentarios desde los estándares internacionales de derechos humanos

Through international standards on human rights related with freedom of speech and human rights and companies, and in the context of the Chilean concentration on media property, the authors develop an analysis of the results of the study about media and private advertising in the case of the collusion of drugstores in the prices of medicaments.

Owning a Voice: Broadcasting Policy, Spanish Language Media, and Latina/o Speech Rights

Using the sale of Univision in 2007 to a consortium of private equity firms as our case study, this article demonstrates how the regulation of Spanish-language broadcasting has codified exclusionary definitions of media diversity and naturalized English-language citizens as the primary members of the televisual public sphere in the United States. We situate the regulation of Spanish-language broadcasting within the troubled history of media diversity initiatives and alongside the ascent of neoliberal policy-making to highlight how regulators have been unwilling to recognize the importance of linguistic diversity to a multicultural and multiracial society. Drawing on participatory democratic theory, we argue that the regulation of Spanish-language broadcasting has infringed on the political rights of Latino citizens.

Islamophobia, Hateful Speech, and the Need to Practice Democratic Virtues

This essay examines the relationship between hateful speech and its potential and realized harmful effects socially and politically vulnerable groups, particularly Muslims, in a democratic society. I critically evaluate the assumption that free speech is an absolute value of secularism and the corresponding definition of Muslims as religious “others” in European and American democratic culture. Instead of arguing strictly for the legal regulation of hateful speech, however, I contend that the cultivation of civic virtues—specifically charity and solidarity—may counteract the harmful effects of such speech, and can lend moral justification for the right of free speech.

"Can You Hear me Now...Good!" Feminism(s), the Public/Private Divide, and Citizens United v. FEC

This essay offers a critique -- inspired by feminism(s) -- of Citizens United v Federal Election Commission, 558 U.S. 310 (2010), a case which ruled that restrictions on direct expenditures of funds from corporate treasuries to support or oppose candidates for political office were unconstitutional restrictions on corporations' rights of free speech. In response, the essay proposes a two-pronged feminist attack against Citizens United. The first prong is to acknowledge the dangers facing women and other disadvantaged groups which emerge due to corporate privatization of the public sphere and to argue, as an antidote, for a robustly construed public domain. Whereas early feminists identified as a threat to women the divide between public and private, Citizens United underscores a newer threat -- namely the elimination of that divide. The second prong is to deploy feminism's well known rejection of abstraction in favour of context. This approach helps demonstrate how Citizens United propels its pro-corporate outcome by erasing context and instead deploying a strategy of denying tremendously significant legal distinctions -- most crucially between living human beings and artificial legal entities.