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Vanderbilt Law Review, Volume 69, Number 1

The Vanderbilt Law Review is pleased to announce the publication of our January 2016 issue:

ARTICLES

Rebecca Haw Allensworth, The Commensurability Myth in Antitrust, 69 Vand. L. Rev. 1 (2016)

Avlana K. Eisenberg, Incarceration Incentives in the Decarceration Era, 69 Vand. L. Rev. 71 (2016)

Emily Hammond & David B. Spence, The Regulatory Contract in the Marketplace, 69 Vand. L. Rev. 141 (2016)

NOTES

Samiyyah R. Ali, The Great Balancing Act: The Effect of the America Invents Act on the Division of Power Between the Patent and Trademark Office and the Federal Circuit, 69 Vand. L. Rev. 217 (2016)

Kelsey Craig, The Price of Silence: How the Griffin Roadblock and Protection Against Adverse Inference Condemn the Criminal Defendant, 69 Vand. L. Rev. 249 (2016)

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FAN 93 (First Amendment News) “What’s Wrong with the First Amendment?” — Steve Shiffrin Book Coming This Summer

The main problem with the First Amendment . . . is that it overprotects speech. 

[T]he First Amendment, as now interpreted, in many ways is profoundly unjust. Silence in the face of that injustice is out of place no matter how invisible that injustice might be to academics, journalists, and citizens who have been raised in a culture that worships the First Amendment.

Steven Shiffrin

That’s right, you read it correctly. Too much free speech protection, a bad thing? Who would have thought it possible?

Yes, you can turn the clock back to the time of Walter Berns and his book Freedom, Virtue and the First Amendment (1957) to find plenty of arguments about why protecting too much free speech is a bad thing. And then there was Father Francis Canavan’s book Freedom of Expression: Purpose as Limit (1984); he, too, had serious reservations about overprotecting speech. David Lowenthal took such criticism to a new level in his book No Liberty for License: The Forgotten Logic of the First Amendment (1997). In that book Professor Lowenthal argued: “[T]he First Amendment, intended as a bulwark of the republic, has become a prime agent of its destruction. For the past three decades and more, the Supreme Court itself has led the nation away from the moderate freedom that the common good requires and generations of liberals have advocated.”

Shiffrin (on left) with First Amendment lawyer Robert Corn-Revere

Shiffrin (on right) with First Amendment lawyer Robert Corn-Revere (ACLU lawyer & law prof. Joel Gora in background) 

Same gospel, different preachers? Hardly! That’s because Berns, Canavan and Lowenthal are all conservative, quite conservative in fact. But Steven Shiffrin, conservative? Never! The emeritus Cornell law professor turned criminal defense lawyer is nothing if not liberal. And he has long flown the First Amendment banner with great pride and vigor in works such as The First Amendment, Democracy, and Romance (1990) and in Dissent, Injustice, and the Meanings of America (1999). Back in the late 1970s, he even once represented me (as co-counsel) in a state taxpayer challenge to a city ordinance banning the opening of any new bookstores.

So what gives? Has he veered over to the dark side? No, for as he sees it the problem is exactly the opposite — many of the new defenders of the First Amendment have forced it over to that side.  He said as much in his 2014 Melville Nimmer lecture at UCLA Law School. In other words, free-speech exceptionalism is an endangered idea; the days of First Amendment celebration are winding down. Simply consider the following from his next book, What’s Wrong with the First Amendment(Cambridge University Press, June-July, 2016):

I have been teaching classes in the First Amendment for nearly forty years. Students love the First Amendment. Like the overwhelming majority of their fellow citizens, they not only celebrate its protection of a basic human right; they celebrate its role as a part of their identity as Americans.

There was a time when those celebrations were justified, but I believe we have come to a point when it is thinkable that the First Amendment does more harm than good. . . . Free speech doctrine downplays the harm that speech can cause. Indeed, its most problematic assumption is that free speech is considered to be so valuable that it almost always outweighs other values with which it comes into conflict. Of course, free speech is ordinarily valuable, but there is no good reason to assume that it invariably should outweigh other values. Nor is that assumption harmless.

Shiffrin finds such First Amendment harms in the following areas:

  • privacy-invading speech
  • emotional distress
  • pre-trial publicity
  • racist speech
  • pornography
  • animal cruelty
  • violent video games
  • certain forms of commercial advertising, and
  • political speech by wealthy corporations.

Mindful of such matters, Shiffrin admonishes: “A commitment to freedom of speech need not commit us to this unwholesome path. Other Western countries, for example, have not taken this course despite their own commitments to the free speech principle.” There is, of course, more, much more. But we will have to wait for the book to come out before venturing there.

Judge Steve Shiffrin’s thesis as you will (and there will be more of that, to be sure, in the days ahead). But my sense is that this book could well mark a tipping point in the liberal ethos once wed to the First Amendment. That ethos has been in flux owing to the thinking of scholars such as C. Edwin Baker, Owen Fiss, Burt Neuborne, Tamara Piety, and Robert Post, among others.

Stay tuned — more to come in early summer.

Related Posts

FAC 4: “Steve Shiffrin, the Dissenter at the First Amendment Table,” May 12, 2014

→ FAN 40: “Steve Shiffrin & Bob Corn-Revere debate ‘What’s Wrong with the First Amendment?,'” Nov. 12, 2014

Seana Shiffrin, Speech Matters: On Lying, Morality, and the Law (Princeton University Press, 2014)

Competition in the Marketplace of Ideas

This year could well be the year of robust competition in the marketplace of free-speech ideas, what with the forthcoming publication of Floyd Abrams’s Why the First Amendment Matters (Yale University Press) and Robert Corn-Revere’s The Mind of the Censor and the Eye of the Beholder: The First Amendment and the Censor’s Dilemma (Cambridge University Press).

512N0oiVlWL._SX331_BO1,204,203,200_Other Forthcoming Books

  1. Mary Katharine Ham & Guy Benson End of Discussion: How the Left’s Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (Crown Forum, July 12, 2016)
  2. Joanna Williams, Academic Freedom in an Age of Conformity: Confronting the Fear of Knowledge (Palgrave Macmillan, July, 2016)
  3. Katharine Gelber, Free Speech After 9/11 (Oxford University Press, June 2016)
  4. Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (Yale University Press, May 24, 2016)

9th Circuit Uses Heightened Scrutiny in Commercial Speech Case Read More

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More on the Natural-Born Citizen Clause

I want to make some additional observations on Ted Cruz’s eligibility to serve as President.

The op-ed in today’s Washington Post that concludes Cruz is not eligible is unpersuasive.  First, the piece presumes that we must use an originalist approach in resolving the issue without defending that assumption.  Second, even accepting that assumption as valid, the analysis is still flawed.  The author asserts that Blackstone held that natural-born meant “born within the country.”  She then says that those who take a different view “rely on three radical 18th-century British statutes” that were “revolutionary” departures from his view.

I’m confused about what work “radical” does in this passage.  Something is either a statute or it is not.  And these statutes were part of the background law when the Constitution was ratified.  To me, “radical” is the author’s way of saying “Please ignore these laws because they undercut my conclusion.”  This is not, I submit, a great argument. Parliament, after all, was free to alter the common law.

 

One final suggestion.  The Framers were quite hypocritical in imposing a limitation on future generations that they refused to apply to themselves.  If they really felt that there was a prospect of some foreign-born Manchurian Candidate becoming President, why were they so certain that did not apply to anyone who was a citizen before 1788?

UPDATE:  I deleted the part of the post about the fact that the Clause did not matter until long after the Founding because it was not well-written and was just confusing people.

 

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Delaware’s Latest Show of Corporate Savvy

corp_logo_180x175Delaware continues to be the savviest seller in the world of corporate charters and related services, thanks to a combination of judicial vision and legislative elegance supported by all the state’s leadership and citizens alike.  The most recent example appears in the intersection of two technical corners–strike suit merger litigation and forum selection bylaws.

As detailed in this Wall Street Journal article of Wednesday, Delaware’s Chancery Court, led by Vice Chancellor Travis Laster, has been cracking down on frivolous shareholder suits challenging mergers.  The cases tend to be settled quickly based on corporate governance promises. Most of the cash that changes hands goes to plaintiffs’ lawyers while defense lawyers and boards seem to accept paying this “merger tax” as an investment in the certainty that that there will be no future litigation.

The WSJ piece suggests that the Chancellors’ crackdown may simply lead plaintiffs’ lawyers to file such suits in other forums.  But this overlooks one of the most important developments in recent Delaware corporate law, with which the savvy Delaware judges are keenly attuned.  If plaintiffs’ lawyers start filing increasing numbers of suits outside the Chancery Court,  more and more boards would unilaterally adopt bylaws barring such cases from any forum but Delaware.

The Delaware legislature recently authorized boards to do just that and courts elsewhere are bound to respect such arrangements and transfer any filed cases over to Delaware (as the Oregon Supreme Court did at year end in Roberts v. Triquint Semiconductor, Inc.).

True, in the past, Delaware boards and defense lawyers settle the frivolous cases and may find value in the finality. To that extent, the Chancellors’ crackdown on settlements may lead them to prefer litigating in courts more willing to give a rubber stamp, perhaps states eager to compete with Delaware in the corporate chartering and services business.

Except the Delaware judges are signaling a new world where boards need not fear these suits and crave their settlement as much as in the past.  If so, that makes Delaware more attractive and favors its selection for forum.  That increases board incentives to adopt Delaware forum bylaws.

A clearly virtuous effect of this combination of legislative, judicial, and directorial innovation is to make the merits matter more.  For Delaware, it is yet another way to cement the state’s deserved reputation as an attractive place to be incorporated.  And it does so primarily in the name of quality corporate law administration, rather than being either pro-management or pro-shareholder.

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What is the Best Constitution in the World?

Consider this a poll.  There are many folks who are critical of the American Constitution.  If you are in this camp, I’m wondering what you would call the best global constitution. (Mind you, I don’t mean what country is governed best, as that could be largely unrelated to its constitution.)  Is it Germany? Canada? Britain?  Someplace else.  And feel free to explain why.

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Using Secret Materials for Interpretation

Greetings from the AALS! I wanted to post about something that I’m thinking about in relation to a paper idea.

Many Supreme Court opinions are ambiguous or susceptible to different readings.  The Justices discuss the issues in confidence until the decision comes down, and then decades later the papers from those deliberations become available.  What a wonderful resource, you would think, in understanding what a particular opinion is supposed to mean.

Except courts don’t use those materials.  In other words, it is seen as inappropriate to cite the “work product” of the Court to ascertain the meaning of a decision.  This, of course, is unlike the interpretation of statutes, which often look to legislative history.  Ah, you might say, legislation is different.  Those discussions are public, and that makes them fair game in a way that confidential deliberations are not.

Except that when courts interpret the Constitution, they do use the secret deliberations of the Framers in construing that text.  Why is that appropriate when citing the Court’s work product is not?  (I’m talking about lawyers and courts.  Historians can cite anything they want.)  What is the principled distinction between these two?

Granted, the work product of the Court may often be unhelpful in shedding light on a decision.  But right now you can’t use them even if they were helpful.  Do decisions always speak for themselves?

Two last thoughts.  One is that the first case that extensively cited the deliberations of the convention was Dred Scott, which suggests that perhaps that practice should be reexamined.  Second, there is one case where the Justices do cite extrinsic materials to construe a case–Brown.  The Court has cited the briefs in Brown to determine what Brown, which tells you something about Brown’s place in the constitutional canon.

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AALS, Professor Dan Markel, and the Scholarly Tradition

This week is the annual law professor conference in New York City. The AALS conference is always a wonderful ritual of learning, discussion, and friendship. Indeed, it was the one time of the year that guaranteed a lunch, dinner, or chat with brilliant criminal law theorist and incredible friend Dan Markel. When Dan was murdered in the summer of 2014, I wrote this post for Forbes about his life’s lessons. For colleagues who are going to AALS this year, CoOp will be having a Markelfest in his honor tomorrow night. I wish that I could be there to celebrate Dan and his passion for scholarship and the world of ideas. We miss you, Dan.

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AALS and Markelfest happy hour

For those of you attending AALS in New York this week, Prawfsblawg is hosting a MarkelFest! Happy Hour from 8:30 p.m.-?? on Thursday (Jan. 7) at Bridges in the Hilton (entrance on the 54th Street side). This will be on the public side of the bar. Please come join us to meet our readers, remember Dan, and carry on the social tradition that he enjoyed so much.

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FAN 92 (First Amendment News) Another License-Plate Case — Wooley v. Maynard Defense Raised in Cert. Petition

For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently or actually “asserting as true” the message. — Justice William Rehnquist, dissenting Wooley v. Maynard (1977)

In the bizarre words of the Tenth Circuit, Mr. Cressman “cannot demonstrate that the Native American image is, in fact, speech to which he objects.” — Ilya Shapiro, Cato Institute amicus brief (2015)

ah-ok-plate2The case is Cressman v. Thompson. The issue raised in the Petitioner’s cert. petition to the Supreme Court is presented this way: “Oklahoma compels Keith Cressman [a United Methodist pastor] to display an image of the ‘Sacred Rain Arrow’ sculpture from his vehicle – via his standard license plate – although he objects to displaying that image. . . . The question presented is whether [consistent with Wooley v. Maynard] the State can compel citizens to display images that are objectionable to them?”

Nathan Kellum is the counsel of record for the Petitioner.

Judge Jerome Holmes

Judge Jerome Holmes

The Tenth Circuit answered the question posed above in the affirmative. Here is how Judge Jerome A. Holmes put it:”In this case, we must decide whether Oklahoma’s depiction of a Native American shooting an arrow towards the sky on its standard vehicle license plates compels Appellant Keith Cressman to speak in violation of his First Amendment rights. . . . Having determined that the Native American image is sufficiently expressive to qualify as symbolic speech, we now turn to determining whether, in relation to this speech, Mr. Cressman has established that the State has compelled him to adhere to a “view he finds unacceptable.” Wooly. Throughout this litigation, the only reason Mr. Cressman has offered for objecting to the Native American image is what he views as its links to pantheistic Native American folklore. However, a reasonable person would not derive this meaning from the image. Instead, in light of the relevant facts and history of the license plate redesign process, those viewing the image would likely connect the image to Oklahoma’s Native American history and culture. Yet, Mr. Cressman has repeatedly stated, both before this court and the district court, that he does not object to this message. His lack of objection to the only message that a reasonable observer would discern from the image is fatal to his compelled-speech claim; he has not been compelled to express a view he otherwise would not. Because Mr. Cressman must identify some message that he finds objectionable, and because he in fact does not object to the only message reasonably conveyed by the Native American image, we hold that he has not been compelled to speak in violation of his First Amendment rights.” (footnote omitted).

Judge Carolyn McHugh

Judge Carolyn McHugh

Judge Carolyn B. McHugh wrote a separate concurring opinion: “[B]ecause I do not agree the resolution of this case turns on whether the license plate at issue constitutes pure or symbolic speech, I write separately. . . . In my opinion, the analytical framework adopted by the majority and in our prior decision in this matter, Cressman v. Thompson, 719 F.3d 1139 (10th Cir. 2013) (Cressman I), has been supplanted by the United States Supreme Court’s decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc. (2015).  . . . As I read Walker, there is no longer any question that Oklahoma was engaged in overnment speech when it selected the slogan and graphic depicted on its standard license plate. And because the license plate, as a whole, is government speech designed to deliver a message from the State of Oklahoma, I see no reason to begin our analysis by assessing whether the graphic alone constitutes speech, or whether that speech is symbolic or pure. Everyone, even Mr. Cressman, agrees Oklahoma selected a standard plate design that was intended to convey a message promoting the state. Thus, it is speech. . . Accordingly, I would hold that the Oklahoma license plate is speech, albeit government speech. . . . Having determined the license plate is speech, I would conclude that this case turns not on whether Mr. Cressman objects to the image, as opposed to the words, depicted on the license plate, but rather on the application of traditional First Amendment principles governing compelled speech.”

Petitioner’s Arguments: In his cert. petition to the Court, Mr. Vellum made the following main arguments:

  1. “The Tenth Circuit’s Decision Disregards Supreme Court Precedent and Creates a Circuit Conflict in Holding Widely-Produced Images are Not Pure Speech.”
  2. “The Tenth Circuit’s Decision Breaks with Supreme Court Precedent and Adds More Divergence to an Existing Circuit Split in Holding Symbolic Speech is Protected to the Extent it Presents an Identifiable Message to the Reasonable Observer.”
  3. “The Tenth Circuit’s Decision Flouts Supreme Court Rulings in Holding State Can Compel Citizens to Convey Symbolic Speech Unless the Basis for Objection Matches the Inference Drawn by the Reasonable Observer.”

The Cato Institute filed an amicus brief submitted by Ilya Shapiro (joined by Jayme Weber). In that brief, Mr. Shapiro made the following points:

1.  “The Court Should Grant Certiorari to Clarify the Meaning of ‘Symbolic Speech'”

         A. “The Court Has Never Applied the Term ‘Symbolic Speech’ to Anything Other than Expressive Conduct

        B. “Visual Art Is Pure Speech, Not Expressive Conduct”

        C. “Circuit Courts Are Split on Whether “Pure Speech” Is Reserved for Words”

2. “The Court Should Grant Certiorari to Establish that a Person’s Reasons for Objecting to Compelled Speech  are Immaterial to the Question Whether He is Being Compelled to Speak”

      A. “Visual Art Is Inherently Open to Interpretation; No Single Interpretation Is Authoritative”

     B. “Cressman’s Reasons for Objecting to the Image Are Irrelevant.”

     C. “As in Religious-Freedom Claims, Courts Should Not Evaluate the Reasons Behind an Objection to a  Speech Compulsion”

 See also: Ilya Shapiro & Jayme Weber, “Free Speech Doesn’t Depend on the Eye of the Beholder,” Cato at Liberty, Dec. 30, 2015

Idaho A.G. to Appeal “Ag-Gag” Ruling

imagesThey’re called “ag-gag” laws (Mark Bittman writing in the NYT coined the term in 2011.)  Under such laws, it is a crime to secretly videotape industrial feedlots and slaughterhouses. Likewise, it is a crime to do so for the purpose of exposing pollution and animal mistreatment and abuse in large-scale farming operations. “Ag-gag” laws have been proposed in some 20 states. While such measures have failed in states such as Arkansas, California, Indiana, and Tennessee (among other states), they remain pending in yet many other states. Eight states — such as Idaho, North Carolina,Utah and Wyoming — have enacted such laws.

The Animal Legal Defense Fund, People for the Ethical Treatment of Animals, the American Civil Liberties Union of Idaho, and the Center for Food Safety challenged Idaho’s Ag-Gag law (Section 18-7042, Idaho Code) in the District Court for the District of Idaho. The court in Animal Legal Defense Fund v. Otter (Aug. 3, 2015) struck the law down on First Amendment grounds. Last August, Chief Judge B. Lynn Winm found the law to be impermissibly content-based and was drafted in ways designed to “suppress speech critical of the agricultural industry” rather than to “protect private property as the State claims.”

The Idaho law is deeply distressing because it is aimed entirely at protecting an industry, especially in its worst practices that endanger people, at the expense of freedom of speech. It even would criminalize a whistle-blower who took a picture or video of wrongdoing in the workplace. I am confident that this law will be struck down under Ninth Circuit and Supreme Court precedents. — Erwin Chemerinsky, March 17, 2014

The Reporters Committee, joined by 15 other news organizations, filed an amicus brief (authored by Charles A. Brown & Bruce D.Brown) in which it argued that the Idaho statute weakens food safety guarantees at the same time it stifles free speech. Professor Chemerinsky also filed an amicus brief in the case.

 Idaho’s Attorney General is appealing the case to the Ninth Circuit.

See Eugene Volokh, “Thoughts on the court decision striking down Idaho’s ‘ag-gag’ law,” The Volokh Conspiracy, Aug. 6, 2015

See Alan K. Chen & Justin Marceau, “High Value Lies, Ugly Truths, and the First Amendment,” Vanderbilt Law Review (2015) (discussing video-recording & ag-gag laws, among other things)

11th Circuit Strikes Down City Tattooing Law

& the words were made in flesh

& the words were made in flesh

Here is how Judge Jill Pryor’s opinion in Buehrle v. City of Key West (11th Cir., Dec. 29, 2015) begins: “The City of Key West, Florida has barred Brad Buehrle from opening a tattoo establishment in the City’s designated historic district, pursuant to an ordinance strictly limiting the number of tattoo establishments permitted to operate there. Mr. Buehrle contends that the act of tattooing is entitled to First Amendment protection and that the ordinance is an unconstitutional restriction on his freedom of expression. The district court granted summary judgment to the City, agreeing with Mr. Buehrle that tattooing constitutes artistic expression protected by the First Amendment but nevertheless finding the ordinance to be a reasonable time, place, and manner restriction. We agree with the district court’s conclusion that tattooing is protected artistic expression, but we reverse the summary judgment because, on the record before us, the City has failed to show that the ordinance is a reasonable time, place, and manner restriction.”

Later in her opinion, Judge Pryor added: “We have never addressed whether tattooing is a protected form of artistic expression. The Ninth Circuit encountered this issue in Anderson v. City of Hermosa Beach (2010), where it held that tattooing was protected speech and that Hermosa Beach constitutionally could not ban tattoo establishments from operating in the city. We join the Ninth Circuit in holding that the act of tattooing is sheltered by the First Amendment, in large part because we find tattooing to be virtually indistinguishable from other protected forms of artistic expression. As our sister circuit observed, ‘[t]he principal difference between a tattoo and, for example, a pen-and-ink drawing, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. . . . [A] form of speech does not lose First Amendment protection based on the kind of surface it is applied to.'”

. . . .

Judge Jill Pryor

Judge Jill Pryor

“The First Amendment,” she added, “requires more. We are not at liberty simply to ‘presume the evidence’ needed to sustain the ordinance. Peek-A-Boo Lounge, 337 F.3d at 1267. ‘[T]he government bears the burden of showing that the articulated concern has more than merely speculative factual grounds.’ Flanigan’s Enters., Inc. v. Fulton Cty., 242 F.3d 976, 986 (11th Cir. 2001). The City failed to satisfy this burden. On the record before us, the City has presented insufficient evidence that it had a reasonable basis for believing that its ordinance would actually serve the significant governmental interests it propounds. Perhaps, if the district court chooses to permit the introduction of new evidence on remand, the City can produce the kind of evidence that would satisfy its burden, but so far it has not done so.”

Judges Stanley Marcus and William Pryor joined the opinion.

Counsel for Plaintiff-Appellee: Wayne Larue Smith & Brett Tyler Smith

See also Damon Root, “Federal Court Rules Tattooing a Constitutional Right Under the First Amendment,” Reason.com, Jan. 15, 2016

Campus Free-Speech Watch

 “Virginia Professors Adopt Statement Championing Academic Freedom, Free Speech,” The College Fix, Jan. 5, 2015

“The university is the one institution where such open, diverse, free and lively discussion may occur,” states the resolution. “Academic freedom should be promoted, protected, advanced and cherished by all levels of the university and college community.”

The resolution, approved unanimously in November, was penned by political science Professor Garrett Ward Sheldon, who told The College Fix in an email this week that “restricting, censoring and punishing speech is clearly an attempt to control people’s thinking and actions.”

“The most important part of this resolution … is that the proper response to bad ideas is not to forbid or suppress them (which is impossible anyway) but to REFUTE them with good, reasonable ideas,” Sheldon said. “That’s what the academy is all about: teaching people to think, question, engage, debate, discuss, and resolve differences intellectually.”

“The argument that some words are so bad or hurtful that they should be forbidden, prohibited, and punished or sanctioned, is used by all political, social and religious extremists,” he added. “They often will say ‘Well, we respect freedom of speech, except in this clearly bad area’ (racism, sexism, insults, etc.) The danger with that, as the Supreme Court has stated, such restrictions create a ‘chilling effect’ or ‘self-censorship’ on all speech and harm free discourse, learning and progress.” . . . . 

Sheldon said UVa-Wise’s faculty were inspired by other, similar resolutions passed in support of free speech and academic freedom, such as those at the University of Chicago and Princeton.

  1. Robby Soave, “America’s Great Free Speech Battleground,” The Daily Beast, Jan. 6, 2016
  2. Laurentian University says removing prof from course about breaking rules, not freedom of speech,” CBC News, Jan. 6, 2016
  3. Bob Kellogg, “Judge drops student’s free speech lawsuit,NE News Now, Jan. 5, 2016
  4. Catherine J. Ross, “Strangling the Free Mind,” USA Today, Jan. 4, 2016
  5. Speech, Safety and Seinfeld: College Policies on Free Speech,” UWire, Jan. 2, 2016

411Z6ULItfL._SX329_BO1,204,203,200_New & Forthcoming Books

  1. Richard Hasen, Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections (Yale University Press, Jan. 2016)
  2. Wayne Batches, The Right’s First Amendment: The Politics of Free Speech & the Return of Conservative Libertarianism (Stanford University Press, March 30, 2016)
  3. Kimberly Strassel, The Intimidation Game: How the Left Is Silencing Free Speech (Twelve, April 19, 2016)
  4. Tom Slater, editor, Unsafe Space: The Crisis of Free Speech on Campus (Palsgrave Macmillan, April 27, 2016)

Forthcoming Scholarly Articles

  1. Jonathan Adler, “Compelled Commercial Speech and the Consumer ‘Right to Know,'” Arizona Law Review (2016)
  2. Laura M. Weinrib, “Freedom of Conscience in War Time: World War I and the Civil Liberties Path Not Taken,” Emory Law Journal (2016 forthcoming)
  3. John A. Humbach, “The Constitution and Revenge Porn,” Pace Law Review (2016)
  4. Daniel A. Horwitz, “A Picture’s Worth a Thousand Words: Why Ballot Selfies Are Protected by the First Amendment,” Science & Technology Law Review (2016)
  5. Dorlin A. Armijo, “Online Free Speech or Materially Supporting Terrorism?,” Science & Technology Law Review (2015)
  6. Jennifer Herbst, “Off-Label ‘Promotion’ May Not Be Merely Commercial Speech,” Temple Law Review (2016)

Notable Blog Posts 

Eugene Volokh, “The First Amendment, the right of publicity, video games and the Supreme Court,” The Volokh Conspiracy, Jan. 4, 2016

“The ‘right of publicity’ gives people considerable exclusive control over the commercial use of their name, likeness and other identity attributes. But obviously, that control can’t be complete . . . . But what are the boundaries of that right? The Court has never made that clear, and lower courts are hopelessly divided. . . .”

“This is why the Supreme Court petition in Electronic Arts v. Davis (you can read the relevant documents here) is so interesting. “Petitions for certiorari” — requests that the Court review a lower court decision — are generally longshots. But this petition, which the Court is considering Friday, is both very important and unusually likely to be heard. . . .”

“Prof. Jennifer Rothman (Loyola L.A., and author of Rothman’s Roadmap to the Right of Publicity) and I co-wrote an amicus brief on behalf of 31 law professors supporting the petition . . . .”

“If you want to see more about the five tests — the transformative use test, the transformative work test, the relatedness test, the predominant purpose test and the balancing test — see the brief, which is signed by Profs. Jack Balkin, Erwin Chemerinsky, Mark Lemley, Martin Redish, Steven Shiffrin, Geoffrey Stone, Rebecca Tushnet and many more.”

See FAN 83, “Paul Smith Files Cert. Petition in Right of Publicity Case,” Nov. 4, 2015

News, Op-eds & Blog Posts

  1. Hans von Spakovsky, “How Lawmakers Stopped Part of Obama’s Assault on First Amendment,” The Daily Signal, Jan. 5, 2016
  2. Michael Barone, “No, Economist, the First Amendment does give people ‘a free pass to go round saying hateful things,‘” Washington Examiner, Jan. 5, 2016
  3. Fighting attacks on free speech in ’16,” Daily Chronicle, Jan. 5, 2016
  4. David Moshman, “Martin Luther King on the First Amendment,” Huffington Post, Jan. 4, 2016
  5. Hady Karl Mawajdeh, “Dallas Attorney Involved In A First Amendment Case About Hip-Hop,” KUT.org, Jan. 4, 2016
  6. Kaitlyn Schallhorn, “Mizzou Administrator: First Amendment Isn’t a ‘Free Pass to Go Round Saying Hateful Things,’” The Blaze, Jan. 4, 2016
  7. Gene Policinski, “What a strange year for First Amendment freedoms,” The Spectrum, Jan. 3, 2016
  8. Maxine Bernstein, “Federal judge finds Portland mayor, city violated local activist’s First Amendment rights,” The Oregonian, Dec. 31, 2015

The Court’s 2015-2016 First Amendment Docket

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