First Amendment potluck

This essay argues that the marketplace‐of‐ideas metaphor for law is inadequate to deal with contemporary problems in free expression because many of the entailments of the metaphor are destructive of communication and community. After a review of how metaphors work in the world and the law, the essay reviews the history of the marketplace metaphor, critiques the metaphor and its entailments, and makes a case for a potluck supper metaphor that would be more helpful in resolving contemporary conflicts over freedom of expression.     

Lawyer Advertising and the First Amendment

A current Supreme Court case concerning lawyer advertising, In re R.M.J., is analyzed in the context of a discussion of the diverse state regulations governing lawyer advertising and solicitation. The article considers the regulations in terms of their constitutionality, their tendency to impede effective advertising, and the effect they have on the legal profession's provision of information to potential clients about the nature, availability, and cost of legal services. Analysis of the major commercial speech cases, from Virginia State Board of Pharmacy to Central Hudson, indicates that many state rules infringe on attorneys' First Amendment rights.     

Taking Liberties with the First Amendment

Law and Philosophy -     

First Amendment Protection for Online Platforms

The United States is home to some of the largest online platforms in the world, in part due to Section 230 of the Communications Decency Act of 1996. Section 230 provides platforms with extraordinarily broad immunity from lawsuits arising from user content. The statute is under unprecedented scrutiny, and Congress already has amended the statute to weaken its protections. This Article examines the First Amendment protections that would remain for online platforms if Congress were to entirely eliminate Section 230. After reviewing pre-Internet cases involving offline distributors such as bookstores and newsstands, this Article concludes that although the First Amendment would offer some protections to platforms, these protections would be limited and likely would require platforms to significantly alter their operations and business models.     

The Checking Value in First Amendment Theory

The author examines the sources and premises of the idea that free expression has value in part because of the function it performs in checking the abuse of official power (the "checking value") and explores how this checking value difyers from those values that have dominated First Amendment analysis since 1919. In addition, the author traces in some detail the uneven influence the checking value has had recently in three areas of First Amendment adjudication: civil actions f o r defamution; disputes arising from efforts by journalists to protect or establish relationships with news sources; and claims b y nonjournalists to a constitutional or statutory right to communicate directly to the public over major print or broadcast outlets. The author argues that the checking value must receive open, systematic consideration if it is to play a consistent part in adjudication and speculates on how such consideration of the checking value might help one think about a wide range of additional First Amendment questions.     

The First Amendment Originalism of Justices Brennan,Scalia and Thomas

Originalism holds that the U.S. Constitution should be interpreted based on the original intent or original meaning of the Constitution, that original intent is not only relevant but authoritative, and that judges are obligated to follow the framers’ original intent and meaning when resolving cases. Normative questions surrounding originalism's merit have produced one of the great constitutional debates of recent decades. This article compares and contrasts the First Amendment originalism of three justices: William Brennan, Antonin Scalia and Clarence Thomas. It examines every First Amendment opinion prior to the 2011 term written by the justices that contains originalism. The article concludes that all three justices used originalism to support a wide variety of arguments in a wide variety of First Amendment cases. In addition, the analysis demonstrates that Justices Scalia and Thomas more frequently supported the First Amendment in opinions in which they used originalism, a finding that contradicts the idea that originalism is associated with judicial restraint. The article contends that, with a few minor exceptions, none of the justices used originalism in a consistent way. Finally, the article offers perspectives on originalism's influence on current First Amendment jurisprudence and the limitations of using originalism for constitutional interpretations.     

First Amendment Limits on Government Holiday Displays

Abstract

“No holiday season is complete . . . without one or more First Amendment challenges to public holiday displays.” While Santa, Rudolph, and Frosty typically appear at city hall without controversy, government holiday displays that include religious symbols—such as a Christian creche, a Jewish menorah, or a Muslim star and crescent—are more likely to attract legal scrutiny under the Establishment Clause of the First Amendment to the U.S. Constitution. For governments that sponsor holiday displays with religious symbols, the resulting litigation can be costly. If the court concludes that the challenged display violates the Constitution, the government must pay the plaintiff’s costs and attorney fees. And even longstanding displays can be challenged—mere tradition is not a defense.     

Imperial paradigms: First Amendment theory,legal interdisciplinarity and reductionism

Increasingly, legal scholars are bringing the theories and vocabularies of other disciplines to bear upon legal issues, including First Amendment theory. While legal interdisciplinarity has many advantages, it also raises questions when scholars attempt to “reduce” legal theory to the conceptual frameworks of other disciplines. This article examines two such attempts, one by a feminist legal scholar, the other by an advocate of the economic analysis of law. The article critiques these approaches and explores some possible limits of interdisciplinary First Amendment scholarship.     

First Amendment influence in argentine republic law and jurisprudence

The First Amendment to the United States Constitution has influenced the development of freedom of expression in a number of countries, including the Argentine Republic. This article focuses on law as it came to affect mass media beginning with assumptions from the 16th century, when Argentina was under Spanish domination, and continues through the 1853–60 constitutional conventions that marked the initiation of First Amendment influence in Argentine law and jurisprudence. The article explains how the de facto governments that ruled Argentina from 1862 to 1983 gave direction to law and court decisions affecting the mass media, including film censorship, press penal responsibility, prior restraint, state of siege and the right to reply. The article concludes by analyzing how these laws and court decisions have influenced media and Argentine society, especially in fostering self‐censorship.     

Violence as Obscenity: Offensiveness and the First Amendment

Many efforts have been made to restrict minors' access to violent media content basing the definition of the content to be restricted on the legal definition of obscenity, which requires the content to be offensive. Without exception, such restrictions have been found to violate the First Amendment, partly because the laws have defined the violence to be restricted with reference to its offensiveness, while the purpose of the laws has been to protect children from the harms believed to be caused by exposure to such content. This has created a problematic lack of fit between the content to be restricted and the purpose of restrictions. This article examines whether restricting minors' access to offensive violent media content to protect them from its offensiveness makes it any more likely such restrictions will survive First Amendment scrutiny.