Constitutional Law: Free Speech: Distribution of Circulars

Even today, the U.S. Supreme Court's decision in Terminiello v. City of Chicago (1949) strikes students of constitutional law as a vexing factual situation. The problems the case posed for the High Court are all the more daunting considering its historical context, directly following the nation's confrontation with Nazism and standing on the cusp of the Cold War against Communism. In the broader view, most observers would locate the decision within the ascendance of liberal protection for free speech rights occurring over the second half of the twentieth century. But progressive accounts should not be allowed to mask the contemporary momentousness for the justices hearing the case. Indeed, in this constitutional conflict over the speech of a rabble-rousing priest was lodged a sober question about the polity's health at that time and the preferred response to the nation's need.

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THE POLITICS OF FREE SPEECH

Social Philosophy and Policy ◽

10.1017/s026505250421202x ◽

2004 ◽

Vol 21 (2) ◽

pp. 23-47

Author(s):

Scott D. Gerber

Keyword(s):

Deliberative Democracy ◽

Free Speech ◽

Constitutional Law ◽

Hate Speech ◽

Freedom Of Speech ◽

The United States ◽

Commercial Speech ◽

Free Theory ◽

Legal Theorist ◽

The U.S

Freedom of speech long has been regarded as one of the “preferred freedoms” in the United States: one of the freedoms the U.S. Supreme Court deems “implicit in the concept of ordered liberty.” However, what freedom of speech does—and should—mean is a highly charged question in American constitutional law. I will explore this question by examining how several prominent constitutional theorists have proposed particular approaches to free speech law in order to further their political objectives. I will examine the free speech theories of the nation's leading feminist legal theorist (regarding pornography), critical race theorists (regarding hate speech), libertarian (regarding commercial speech), and legal republican (regarding deliberative democracy). I also will discuss the principal criticisms of each of these theories, whether the courts have been influenced by any of them, and, in conclusion, whether it is possible to advance a nonpolitical (i.e., a purely law-based or value-free) theory of free speech.

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Your Good Name

Liars ◽

10.1093/oso/9780197545119.003.0007 ◽

2021 ◽

pp. 89-105

Author(s):

Cass R. Sunstein

Keyword(s):

Supreme Court ◽

Free Speech ◽

Constitutional Law ◽

Breathing Space ◽

The Us ◽

Us Supreme Court ◽

The Law ◽

Modern Era ◽

Do So

Can people protect their reputations? What if someone is circulating vicious lies about them? The US Supreme Court has given broad protection to libelous statements, saying that it must do so in order to allow “breathing space” for free speech. That idea is a cornerstone of the law of free speech. But in the modern era, and in light of the potentially devastating effects of falsehoods on individual lives and democracy itself, constitutional law should be updated. People should be allowed to demand retractions when they have been libeled, and they should also be able to obtain at least a modest amount of compensation. Much more needs to be done to allow people to protect their good name.

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Constitutional Law: Labor Law: Recent Ramifications of the Application of Free Speech Doctrines to the Protection of Picketing

Michigan Law Review ◽

10.2307/1282500 ◽

1942 ◽

Vol 40 (8) ◽

pp. 1200

Author(s):

William H. Kinsey

Keyword(s):

Free Speech ◽

Constitutional Law ◽

Labor Law

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REASON, THE COMMON LAW, AND THE LIVING CONSTITUTION

Legal Theory ◽

10.1017/s1352325211000164 ◽

2011 ◽

Vol 17 (4) ◽

pp. 279-300

Author(s):

Matthew Steilen

Keyword(s):

First Amendment ◽

Free Speech ◽

Constitutional Law ◽

Large Scale ◽

Common Law ◽

Recent Book ◽

Alternative Account ◽

What Works ◽

The Common ◽

Judicial Action

This article reviews David Strauss's recent book, The Living Constitution. The thesis of Strauss's book is that constitutional law is a kind of common law, based largely on judicial precedent and commonsense judgments about what works and what is fair. In defending this claim, Strauss argues that central constitutional prohibitions of discrimination and protections of free speech have a common-law basis and that the originalist should consequently reject them. The review disputes this contention. It examines Strauss's account of the common law and argues that it cannot support our First Amendment protections of subversive advocacy, as Strauss says it does. The review then offers an alternative account of the common law based on the “classical” common-law theory associated with Coke and Hale. The latter account does support our protections of subversive advocacy but is much less appealing to those distrustful of ambitious and large-scale judicial action.

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