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October 18, 2019|Chaplinsky v. New Hampshire, Chisholm v. Georgia, Cohen v. California, Freedom of Speech, Iancu v. Brunetti, James Wilson, Thomas Reid

The Supremes Ride the Spiral Down

by Hadley Arkes|

Photo by Grachev Alexey (shutterstock.com)
The conservatives have joined the Left on the Court in creating a spiral of relativism that promises to bore down ever further.

July 16, 2018|Chaplinsky v. New Hampshire, Freedom of Speech, Matal v. Tam, Millennials, Political Correctness

Is Relativism the Best Constitutional Defense of Free Speech? A Conversation with Hadley Arkes

by Hadley Arkes|

adobe.com
Hadley Arkes discusses the rights and duties of freedom of speech.

January 31, 2017|Freedom of Speech, Title IX, Violence against Speech on Campus

Protecting Freedom of Speech on College Campuses

by Mike Rappaport|

In a  recent post, I discussed the use of left wing institutions by the right.  Here I want to discuss a specific idea for promoting a so called right wing idea – protection of free speech on college campuses from violence and other disruption – by using the methods that the left has employed in the past. A common problem on both public and private campuses is that violent and disruptive protesters prevent right wing (and other controversial) speakers from giving speeches and presentations on campuses.  In addition to preventing the events from being conducted in an orderly fashion, the threat…

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July 24, 2015|Abood v. Board of Education, Freedom of Speech, Friedrichs v. California Teachers Association, Harris v. Quinn, Public Sector Unions

Overruling Abood Will Correct a Travesty

by Mark Pulliam|

My first two posts in this series discussed, respectively, the origins of the concept of “exclusive representation” in the NLRA and the Supreme Court case law leading up to Abood in 1977.   In this post, I will analyze the decision in Abood (which, it will be recalled, was roundly criticized in Harris v. Quinn (2014) and may be overruled in Friedrichs). 

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April 8, 2014|Freedom of Speech, McCutcheon v. FEC, Originalism

Originalism and McCutcheon

by Mike Rappaport|

Mike Ramsey writes that the opinions of the plurality and Justice Thomas in McCutcheon v. FEC do not employ an originalist methodology. Regarding Justice Thomas’s opinion, Mike writes:

The question is not whether, as a matter of some abstract principle, contributions are or are not speech.  I doubt there is a single answer to that question, and I doubt even more strongly that we can reach agreement upon one.  But in any event, that isn’t the question an originalist asks.  The question is (or ought to be) whether “the freedom of speech” in the founding era included campaign contributions.  (I’m not sure we can answer that question either, based on the historical record, but that is a separate problem). Whether the founding era’s view makes analytic sense to us (or to any individual Justice) should be irrelevant.

Mike is certainly correct that one needs historical evidence and originalist analysis about this matter.  Unfortunately, there is relatively little written on the original meaning of the freedom of speech, with the principal exception in recent years of several pieces by Eugene Volokh.  (I have toyed with writing on the subject, but have not done so as of yet.)  It is difficult for the justices to write originalist opinions without such scholarship.  Thus, they either rely on doctrine, as Chief Justice Roberts’s plurality opinion does, or argue for a change in doctrine, assuming the general doctrinal framework, as Thomas’s concurrence does.

How would one analyze the question from an originalist perspective?  Let’s put aside for now whether there is an enumerated power to support the legislation, an issue I plan to discuss in a future post.  Do the aggregate limitations at issue in McCutcheon abridge the freedom of speech?

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January 7, 2014|Centralization, Corporatism, Dieudonné M’Bala M’Bala, Freedom of Speech, Manuel Valls, socialism, Spontaneous Order

Illusions of Control in the Omnicompetent French State

by Theodore Dalrymple|

Should there be any limitation on the freedom of public expression, and if so why, how and when imposed? The question has become acute in France where the Minister of the Interior, Manuel Valls, has declared his intention of seeking to silence a stand-up comedian, Dieudonné M’Bala M’Bala, because of his increasingly anti-Semitic tirades. M. Valls, hitherto the most popular minister in President Hollande’s government, has managed to corner himself by an astonishing lack of adroitness, having fallen prey to the illusion of many politicians in a highly centralized state, namely that they can control what happens in society.

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September 12, 2013|Campaign Finance, Freedom of Speech

Is Money Speech?

by Mike Rappaport|

One of the arguments made against treating spending during campaigns as protected by freedom of speech is that money is not speech.  In this neat, two minute video, Eugene Volokh explains that even though money is not speech, spending during a campaign should still should be protected.

September 13, 2012|Akhil Amar, Freedom of Speech

Amar on Freedom of Speech

by Mike Rappaport|

Over at the Volokh Conspiracy, Akhil Amar has a long post on freedom of speech.  Akhil takes issue with the post by Richard Posner that had criticized Scalia and Garner for not following the narrow Blackstonian understanding of freedom of the press as the original meaning.  Readers will remember that I had criticized Posner on the same grounds.  As I did, Akhil relies in part on Eugene Volokh’s scholarship on the original meaning of the First Amendment. Akhil raises a separate issue, which he and others have discussed before: While it is possible that freedom of the press was intended to…

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September 3, 2012|Freedom of Speech, Originalism, Posner, Scalia

Posner on Scalia and Garner’s Reading Law II: Originalism and Freedom of Speech

by Mike Rappaport|

Continuing my commentary on Judge Posner’s critique of Scalia and Garner, I now move to Posner’s discussion of Scalia, originalism, and freedom of speech:

So, in a preemptive defense against accusations that textual originalism is political, the book gives examples of liberal decisions that Scalia has written or joined . . . In United States v. Eichman, for example, he voted to hold a federal statute forbidding the burning of the American flag unconstitutional, and it was certainly a vote against his ideological grain. But it is a curious example for a textual originalist to give. The relevant constitutional provision—“Congress shall make no law abridging … the freedom of speech”—does not mention non-verbal forms of political protest, and Scalia and Garner insist that legal terms be given their original meaning lest the intent of the legislators or the constitution-makers be subverted by unforeseen linguistic changes. . . . That approach is inconsistent with interpreting “freedom of speech” to include freedom to burn flags, since the eighteenth-century concept of freedom of speech was much narrower than the modern concept, and burning cloth is not a modern technological innovation. According to William Blackstone, whom Scalia and Garner treat as an authority on American law at the time of the Constitution, freedom of speech forbids censorship in the sense of prohibiting speech in advance, but does not prohibit punishment after the fact of speech determined by a jury to be blasphemous, obscene, or seditious. And so an understanding of free speech that embraces flag burning is exceedingly unoriginalist. It is the product of freewheeling Supreme Court decisions within the last century.

Judge Posner has a plausible interpretation of Freedom of Speech here, but he is much too confident about it, and consequently, his criticism of Scalia and Garner here is wide of the mark.  It is certainly possible, as Judge Posner suggests, that freedom of speech does not include the symbolic act of burning a flag.  But recent work by First Amendment expert Eugene Volokh argues persuasively that symbolic acts may have been covered by the language “the freedom of speech, or of the press.”

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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