Introduction to The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights (Oxford Univ. Press, 2018)

2018 ◽  
Author(s):  
Timothy Zick
Keyword(s):  
Free Speech ◽  
Constitutional Rights ◽  
Speech Clause

The Dynamic Free Speech Clause

2018 ◽  
Author(s):  
Timothy Zick
Keyword(s):  
Free Speech ◽  
Constitutional Rights ◽  
Relational Dynamics ◽  
Free Exercise ◽  
Second Amendment ◽  
The Press ◽  
The Common ◽  
Rights Discourse ◽  
The Right ◽  
Speech Clause

This book examines the relational dynamics between the U.S. Constitution’s Free Speech Clause and other constitutional rights. The free speech guarantee has intersected with a variety of other constitutional rights. Those intersections have significantly influenced the recognition, scope, and meaning of rights ranging from freedom of the press to the Second Amendment right to bear arms. They have also influenced interpretation of the Free Speech Clause itself. Free speech principles and doctrines have facilitated the recognition and effective exercise of constitutional rights, including equal protection, the right to abortion, and the free exercise of religion. They have also provided mediating principles for constructive debates about constitutional rights. At the same time, in its interactions with other constitutional rights, the Free Speech Clause has also been a complicating force. It has dominated rights discourse and subordinated or supplanted free press, assembly, petition, and free exercise rights. Currently, courts and commentators are fashioning the Second Amendment right to keep and bear arms in the image of the Free Speech Clause. Borrowing the Free Speech Clause for this purpose may turn out to be detrimental for both rights. The book examines the common and distinctive dynamics that have brought free speech and other constitutional rights together. It assesses the products and consequences of these intersections, and draws important lessons from them about constitutional rights and constitutional liberty. Ultimately, the book defends a pluralistic conception of constitutional rights that seeks to leverage the power of the Free Speech Clause but also to tame its propensity to subordinate, supplant, and eclipse other constitutional rights.

Introduction

2018 ◽  
Author(s):  
Timothy Zick
Keyword(s):  
Free Speech ◽  
Subject Matter ◽  
Freedom Of Speech ◽  
Constitutional Rights ◽  
Rhetorical Devices ◽  
Bidirectional Relationship ◽  
Governmental Power ◽  
Speech Clause ◽  
Over Time

The Introduction accomplishes several things. It emphasizes the central subject matter of the book, which is the relationships between freedom of speech and other (“non-speech”) constitutional rights. The Introduction also discusses different conceptions of constitutional rights—as textual guarantees, trumps of governmental power, and rhetorical devices. It emphasizes the relational character of rights and introduces the concept of Rights Dynamism, which is the process by which rights intersections occur. The Introduction highlights the bidirectional relationship between freedom of speech and non-speech rights, noting that interactions between these rights have influenced interpretation of both the Free Speech Clause and the rights it has interacted with over time. It describes the facilitative and mediating functions of freedom of speech, as well as the conflicts between free speech and non-speech guarantees. Finally, it introduces the concept of Rights Pluralism, which is defined and defended more fully in the book’s final chapter.

Rights Speech

2018 ◽  
Author(s):  
Timothy Zick
Keyword(s):  
Free Speech ◽  
Constitutional Rights ◽  
Critical Importance ◽  
Careful Scrutiny ◽  
Different Types ◽  
Speech Clause ◽  
Constitutional Discourse

Chapter 2 examines the regulation of “rights speech”—communications about or concerning the recognition, scope, or exercise of constitutional rights. It categorizes and discusses the constitutional implications of different types of rights speech (ideological, informational, and consultative communications) and rights speakers (private, professional, and governmental). The chapter highlights the critical importance of the Free Speech Clause to both healthy and robust constitutional discourse and, in many cases, the effective exercise of constitutional rights. It advocates careful scrutiny, under the Free Speech Clause, of rights speech regulations affecting private and professional communications and offers suggestions for limiting the potential harms of governmental rights speech. The chapter also advocates focusing greater attention on the underlying rights that are affected by rights speech regulations.

Rights Pluralism

2018 ◽  
Author(s):  
Timothy Zick
Keyword(s):  
Free Speech ◽  
Freedom Of Speech ◽  
Constitutional Rights ◽  
Constitutional Democracy ◽  
Speech Clause

Chapter 8 is both a summary of the book’s findings concerning the intersections between freedom of speech and non-speech rights and a defense of a conception of our system of rights—Rights Pluralism. The chapter describes the concept of Rights Pluralism and explains its relationship to constitutional democracy. The central premise is that liberty is most secure when governments are subject to multiple, independent, and robust constitutional checks. As the book demonstrates, the Free Speech Clause performs critical functions with respect to Rights Pluralism, including facilitating the recognition and exercise of non-speech constitutional rights and mediating discourse about rights. But as the book has also shown, a magnetic and perpetually expanding Free Speech Clause can also have detrimental effects on the premise and reality of the Constitution’s system of rights. We must recognize, exercise, and defend both freedom of speech and non-speech rights with equal vigor. The chapter suggests an agenda that will support Rights Pluralism.

Advocacy of Illegal Drug Use

2015 ◽  
pp. 108-121
Keyword(s):  
Drug Use ◽  
First Amendment ◽  
Free Speech ◽  
United States Supreme Court ◽  
Supreme Court Decision ◽  
Illegal Drug ◽  
United States Supreme ◽  
Student Speech ◽  
Illegal Drug Use ◽  
Speech Clause

This chapter examines the Morse v. Frederick (2007) case – the most recent United States Supreme Court decision about students' right to free speech under the Free Speech Clause of the First Amendment. It discusses the test created in the case for determining the extent of school-censorship authority over student speech. This test, known as the Morse test, allows schools to censor student speech if the speech advocates illegal drug use. The ultimate goal of the chapter is to analyze the Morse v. Frederick case in order to determine if it gives schools any authority to censor students' off-campus speech.

School-Sponsored Speech

2015 ◽  
pp. 97-107
Keyword(s):  
United States ◽  
First Amendment ◽  
Free Speech ◽  
The United States ◽  
United States Supreme ◽  
Student Speech ◽  
Speech Clause

This chapter examines the Hazelwood v. Kuhlmeier (1988) case – the United States Supreme Court's third review of students' speech rights under the Free Speech Clause of the First Amendment. It discusses the test created in the case for analyzing when schools can regulate students' speech. This test, referred to as the Hazelwood test (also known as the Kuhlmeier test) authorizes schools to censor school-sponsored student speech. The chapter discusses the Supreme Court's approach to student speech in the Hazelwood v. Kuhlmeier (1988) case. The ultimate goal of the chapter is to analyze the case in order to determine if it authorizes schools to censor students' speech while they are outside the schoolhouse gate.

Lewd, Vulgar, Plainly-Offensive, and Obscene Speech

2015 ◽  
pp. 84-96
Keyword(s):  
United States ◽  
School District ◽  
First Amendment ◽  
Free Speech ◽  
The United States ◽  
United States Supreme ◽  
Student Speech ◽  
Free Speech Rights ◽  
Speech Clause

This chapter focuses on the Bethel School District No. 403 v. Fraser (1986) case – the United States Supreme Court's second review of students' speech rights under the Free Speech Clause of the First Amendment. It discusses the test created in the case for determining when schools can regulate students' speech. This test, referred to as the Bethel test or the Fraser test authorizes schools to censor students' speech if the speech is vulgar, lewd, plainly offensive or obscene. The chapter also discusses the Supreme Court's decision on the scope of students' free speech rights. The ultimate goal of the chapter is to analyze the Bethel School District No. 403 v. Fraser case in order to determine if it empowers schools to censor off-campus student speech.

Material and Substantial Disruption/Infringement of Rights

2015 ◽  
pp. 62-83
Keyword(s):  
School District ◽  
First Amendment ◽  
Free Speech ◽  
United States Supreme Court ◽  
Supreme Court Decision ◽  
Community School ◽  
Student Speech ◽  
School Authority ◽  
Des Moines ◽  
Speech Clause

This chapter focuses on the Tinker v. Des Moines Independent Community School District (1969) case – the first United States Supreme Court decision about student speech under the Free Speech Clause of the First Amendment. It discusses the two tests established in Tinker v. Des Moines Independent Community School District for determining the scope of school authority over student speech. These tests are the “material and substantial disruption” test and the “infringement-of-rights” test. The ultimate goal of the chapter is to analyze the Tinker v. Des Moines Independent Community School District case in order to determine if it authorizes schools to censor off-campus student speech.

The Origins of the Free Speech Clause

1991 ◽  
Vol 29 (1) ◽  
pp. 48-82 ◽  
Author(s):  
Stephen A. Smith
Keyword(s):  
Free Speech ◽  
Speech Clause
Sign in / Sign up

Export Citation Format

Share Document