The Chickens Have Come Home To Roost: Individualism,Collectivism And Conflict In Commercial Speech Doctrine

The Supreme Court of the United States has spent more than two decades constructing its commercial speech doctrine but has failed to articulate a principled approach, which has created disarray in the definition and protection of commercial speech. Analysis of the Court's conception of commercial speech protection, using individualist and collectivist political philosophies, concludes that the Court's commercial speech doctrine has suffered from a fundamental internal conflict arising from the difficulty in choosing one or the other of those political philosophies. That conflict will continue-as will the Court's inability to express a coherent commercial speech doctrine-until the Court makes an overt choice between collectivist and individualist approaches to the protection of commercial speech. The principled solution is for the Court to adopt a strict scrutiny approach to commercial speech, thus giving it protection commensurate with that given ideological speech.     

Content and Viewpoint Discrimination: Malleable Terms Beget Malleable Doctrine

Recent scholarship has demonstrated that the Supreme Court of the United States has defined poorly and inconsistently applied two core First Amendment concepts-content and viewpoint discrimination. This article systematically explores the malleability of the Court's speech discrimination principles. Using data from The Supreme Court Compendium that categorize the ideological voting behavior of justices on the Court, the article studies decisions in three socially divisive areas of law in which content and viewpoint discrimination have been central issues of significant cases. Analysis shows that the Court's weak definitions and inconsistent applications leave the content and viewpoint concepts especially ripe for manipulation. The article concludes, therefore, by suggesting a new method of analysis that would offer more consistency.     

“Executing the Powers With Which it is Intrusted”: Justifications,Definitions and Limitations of Government Speech

Federal, state and local governments have realized that an effective way to counter an undesirable private message is to swallow it up within the government's own speech. So far, the Supreme Court of the United States has acquiesced, including its February 2009 opinion in Pleasant Grove City v. Summum. This article explores the roots, definition and limits of government speech through a close examination of not only Summum but two other recent Supreme Court opinions granting the government a right to communicate even when others contend that the speech conflicts with their own messages. The article concludes that the government speech doctrine needs further explanation with regard to its justification and contours. The rational basis test and political process may not be sufficient to contain government speech within desirable bounds; instead, government speech should be subjected to judicial scrutiny to ensure it remains germane and proportional.     

The Jurisprudence of Precision: Contrast Space and Narrow Tailoring in First Amendment Doctrine

The United States Supreme Court often requires that laws regulating free speech be narrowly tailored. The narrow tailoring requirement lacks analytical rigor in the Court's opinions, however. This article analyzes narrow tailoring in the context of Alan Garfinkel's model of "contrast space," which facilitates an examination of the precise range of alternatives the Court considers in its decisions. The article offers suggestions for improving narrow tailoring jurisprudence with a more precise account of the process.     

Opinion Construction in the Roberts Court

The Supreme Court's main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court's disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties’ merits filings, amicus briefs, and lower‐court opinions between the 2005 and 2014 terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties’ briefs and filings, amicus curiae briefs, and lower‐court opinions on the Court's majority opinion language. This article provides both macro– and microlevel analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual justice. In the aggregate, this article finds that, of the three resources analyzed, the Court tends to use language from parties’ merits briefs most frequently, then wording from lower‐court opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources.     

Tobacco sampling, public policy and the law

Cigarette and snuff sampling is a rapidly growing form of tobacco promotion. This article advocates prohibiting tobacco sampling in view of the unique public health risk provoked by sampling. Smokers begin their smoking careers as children, and children are recipients of tobacco samples. Sampling encourages tobacco experimentation, which often produces an addiction similar to morphine and cocaine; the public is generally unaware of the extreme risk of addiction. A recent Supreme Court opinion (Posadas) makes it clear that cigarette advertising can be outlawed. Furthermore, Congress, through the Cigarette Labeling and Advertising Act and Smokeless Tobacco Education Act, has not preempted or removed the power of states to ban sampling.     

From Sullivan to Nike: Will the Noble Purpose of the Landmark Free Speech Case Be Subverted to Immunize False Advertising?

In deciding not to rule in Nike, Inc. v. Kasky, the Supreme Court of the United States passed up an ideal opportunity to answer an urgent question that derives from two legacies of New York Times v. Sullivan: When speech implicates both the commercial speech doctrine and the political speech doctrine, how should that speech be assessed in terms of First Amendment protection? This analysis focuses upon the essential principles emphasized in Sullivan's landmark assessment of the societal value in protecting some false speech in the discussion of public issues. Concerns over the Nike case's implications for corporate expression must be weighed against the societal interest in preventing false commercial speech from being immunized by attaching it to a public issue.     

Public Broadcast Stations' Exclusion of Candidates from Debates: A Step Toward Political Independence?

Government-operated broadcast stations are in an anomalous situation in their continuing struggle for political independence. Not only must government stations meet the informational needs of their audiences, the stations must address the market-induced failures of commercial broadcasting. Controlling their programming is one facet of meeting these obligations. Nevertheless, government stations have been accused of violating the First Amendment when they have exercised their editorial discretion to exclude candidates from debates sponsored by the stations. This article explores political candidates' rights of access to debates in light of a United States Supreme Court decision that held that government stations may use subjective criteria to exclude candidates from debates. Although the Court's decision reinforced government stations' First Amendment rights to exercise editorial discretion, the decision did not significantly advance public broadcasting's struggle for political independence.     

Justices,Political Actors,or Both: An Exploration of the Brandenburg Line Through the Regime Theory Lens

Regime theory seeks to explain decisions by the Supreme Court of the United States by noting that justices tend to decide cases in ways that align with the prevailing political ideology. The theory emerged from political science literature and has not been explored regarding communication law. This article tests regime theory against the progression of seven Supreme Court precedents that led to the threatening speech test established in Brandenburg v. Ohio. The test is traditionally viewed as the fruit of about a half-century of deliberate judicial evolution. The analysis found regime theory helped explain the Court's progression and decisions in this line of cases, but contained some notable weaknesses.     

Facebook Threats: the Missed Opportunities of Elonis V. United States

When the Supreme Court of the United States reversed the conviction of a man who posted vile, threatening messages on Facebook, it concluded that the federal law used to prosecute him lacked the necessary level of intent. In effect, the Court stopped there, saying it was “not necessary to consider any First Amendment issues.” In considering the Court's adoption of judicial minimalism in Elonis v. United States, this article suggests that, even within that framework, there existed chances to explore relevant issues. This included advancing a better understanding of the seriousness of cyber threats. In spite of embracing the importance of context in evaluating this and other cases, the Court rejected the opportunity to provide important perspective. Proscribing true threats does not compromise free speech values; it enhances them. The ideas of free speech and civilized speech can coexist.,     

Libertad de expresión y discurso homofóbico en méxico: ¿es correcta la teoría constitucional de la suprema corte?

The article discusses a recent decision by the Mexican Supreme Court whereby damage resulting from the use of discriminatory language may in certain cases appropriately counterweight freedom of speech. The ruling expresses thesis at three different levels, all of them relevant from the viewpoint of constitutional theory. First, it expresses a vision of the kind of exercise the Court should deploy when reviewing sentences in amparo: it is a maximizing vision that the author considers to be fundamentally correct. At a second and third level, with different degrees of specificity, it proposes a particular constitutional reading for the revision of the case at hand. On this count and given the relevant historic-constitutional context, the article celebrates the Court's willingness to counterweight free speech with antidiscrimination-based considerations, though in terms of the sub-rules of decision used to pin down the general reading it identifies both successes and failures.     

Supreme Court Ruling Creates More Standing Room in the Already Heated Global Greenhouse Gas Movement

This article reviews the recent April 2, 2007 Supreme Court decision in the Massachusetts v. EPA, a highly important case regarding greenhouse gases. The case centered on the Court's review of EPA's denial of a petition to regulate greenhouse gas emissions from new motor vehicles. The Court required EPA to reconsider its denial. The Court found that. 1) the petitioners have standing to challenge EPA's denial of their petition; 2) the Court has the authority to review the denial of the petition; and 3) the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles. This article looks specifically at the Court's analysis of standing and jurisdiction by Justice Stevens, who wrote the Court's majority opinion, and two dissenting opinions by Justices Roberts and Scalia. Most interesting is how the closely divided Justices (5 to 4 decision) viewed, very differently, the issues regarding standing, the evidence that emissions from new motor vehicles are causing global warming and harm to Massachusetts, and the agency's judgment in denying the petition. Lastly, the article speculates on the impact of the decision and the current activities taking place at the state and regulated community level involving future regulation, litigation, and opportunities by various companies and coalitions to reduce greenhouse gas emissions. The article then presents five broad areas where companies that emit greenhouse gases should need to maintain or increase awareness to better position themselves in the global greenhouse gas movement.     

Supreme Court Preview:Reed v. Town of Gilbert to Address Content Neutrality in Sign Regulation

Abstract

For the first time in two decades, the U.S. Supreme Court is scheduled in the 2014–2015 term to review the thorny planning and legal subject of local government regulation of outdoor signs and billboards and the core First Amendment requirement that regulations of speech be ”content neutral“. In basic terms, the content‐neutrality doctrine prohibits the government from regulating a speaker's content or message–including messages on outdoor signs. In Reed v. Town of Gilbert, the Court will be asked to decide whether Gilbert, Arizona's sign code, which distinguishes among several categories of signs, including religious, political, and ideological signs, meets the content neutrality requirement. In so doing, the Court may provide direction on how far local governments can go in regulating speech based on message, and the Court can resolve a longstanding division among the federal appellate courts over the meaning of content neutrality     

A Doctrine at Risk: Content Neutrality in a Post-Reed Landscape

Although the Supreme Court of the United States has deployed the content-neutrality doctrine at least twenty-three times in the last decade, two recent cases — McCullen v. Coakley and Reed v. Town of Gilbert — demonstrate that disagreement among the justices over the meaning of the doctrine is endangering its utility for First Amendment jurisprudence. This article describes the manifestations of this disagreement and suggests that without further clarification about the doctrine's nature, purpose and application, the venerable First Amendment canon may soon either lose practical tenability or disintegrate into constitutional oblivion. Such an outcome, the article suggests, is both ill advised and avoidable. By taking several practical steps, the Supreme Court can go a long way toward preserving the doctrine's usefulness for upholding legitimate government interests and protecting the freedom of expression.     

Dolly and Alice

The opinion of the United States Court of Appeals for the Federal Circuit, In re Roslin Institute, rejecting patent claims to mammals cloned from somatic cells, was rendered about a month before the United States Supreme Court''s decision in Alice Corp. v. CLS Bank International. The Alice opinion explicitly sets out the standard for determining whether an invention falls within statutory patentable subject matter. Thus one is thus left to wonder what the Roslin opinion might have looked like had it been decided only a few weeks later, after the Alice decision was published, with the benefit of the Supreme Court''s further direction on patentable subject matter. In this essay I explore whether in hindsight the Alice standard might have dictated a different outcome in Roslin, suggesting how the two-part test articulated by the Supreme Court in Alice might apply to a ‘products of nature’ analysis for cloned mammals. Drawing on that analysis, I then use the Roslin case as a vehicle to highlight certain issues with the Supreme Court''s current subject matter jurisprudence as applied to biotechnology. By juxtaposing Dolly with Alice, it becomes clear that the Supreme Court has revivified a number of dormant biotechnology patent problems in the guise of subject matter analysis.     

The Arendtian Dread: Courts with Power

Hannah Arendt was fearful not only of a populist President speaking in the name of the people and unbound by legality. She was also concerned that popular support could be harnessed by those responsible for limiting it. In other words, she was fearful of the American Supreme Court relying on popular support. This is the meaning of her obscure depiction of the American Supreme Court as “the true seat of authority in the American Republic” but unfit to power. I argue that Arendt's characterization of authority as requiring “neither coercion nor persuasion” means that the Court's source of legitimacy is expertise rather than public support. Yet the current dominant understanding among American Justices as well as scholars is that public support is the source of the Court's authority. In Arendt's mind, such an understanding means that the Court has become the seat of power. The corruption of the Court's authority and constitutional law as a language of expertise capable of resisting public opinion will inevitably follow.     

Justice Brennan,Justice Harlan and New York Times co. v. Sullivan: A case study in supreme court decision making

New York Times Co. v. Sullivan is arguably the most important free speech case ever decided by the Supreme Court. This case, the Court's first substantive treatment of libel law, delineated a new approach toward the treatment of free speech. Because the Court attempts to present a unified front when it cuts broad swaths in the law, a unanimous or near‐unanimous opinion was very important in Times v. Sullivan.For a time in the deliberations, however, it appeared that Justice William Brennan would not win even a bare majority for his propositions. This article examines the deliberations in the case, providing not only a renewed understanding of the importance of Times v. Sullivan, but also giving a rare glimpse of how the Court operates and how process affects result.     

Northern Ireland Dimensions to the First Decade of the United Kingdom Supreme Court

This article focuses on the relationship between the United Kingdom Supreme Court and Northern Ireland over the course of a constitutionally significant period of time, namely the first decade of the Court's existence. It does this by exploring what difference the Court has made to the law of Northern Ireland, what significance the cases from Northern Ireland have had for the law in other parts of the United Kingdom, and what part has been played in the Court's work by the sole Justice from Northern Ireland, Lord Kerr of Tonaghmore, and by the Attorney General for Northern Ireland, John Larkin QC. It concludes that the Court has established itself as an indispensable component of the legal system of Northern Ireland.     

The Ad That Changed Libel Law: Judicial Realism and Social Activism in New York Times Co. v. Sullivan

The 1964 decision by the Supreme Court of the United States in New York Times Co. v. Sullivan transformed libel law by extending constitutional protection to the publication of false and defamatory statements about public officials made without actual malice, that is, without knowledge of falsity or reckless disregard for the truth. Less well recognized is the decision's advancement of advocacy advertising and unhindered news coverage as a means to counter racism in the United States. Civil rights history, increasing visibility of advocacy advertisements and the Court's reliance on thin legal precedent suggest the decision embodies judicial realism and social activism.     

U.S. Army Corps of Engineers v. Hawkes Co.: Supreme Court Expands Rights of Regulated Parties to Challenge Agency Decisions

This article analyzes the potential impacts of the Supreme Court's recent decision in U.S. Army Corps of Engineers v. Hawkes Co. Prior to this decision, federal agency action that merely provided information could not be challenged because of the Administrative Procedure Act allowed parties to challenge only “final agency action.” The Court recognized that some actions that merely provide information can be final because they have legal consequences. To understand the extent to which the Hawkes decision expands the right to challenge agency action, the article compares the Hawkes decision with the Court's decision in Sackett v. Environmental Protection Agency, where the Court also discussed the issue of “final agency action.” The article concludes that the Court's reasoning regarding what type of consequences make an action “final” is the key to understanding what regulatory action can now be challenged.