Still No Angels: An Assessment on Madisonian Originalism & Free Speech Jurisprudence.docx (original) (raw)
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"Preface", in "Freedom of Speech and Religion in the United States Constitution"
Freedom of Speech and Religion in the United States Constitution, CH BECK: Warszawa, 2024
Reading the court decisions included in this book should allow us to confront the opinions and points of view presented in the high legal culture of a large and stable democratic state, but also with the official behavior of outstanding and carefully selected judges, and with the way they carry out their public mission. Their voice is expected to resound fully in the following pages, since the book, written in the copy and paste technique, contains a selection of the best and most interesting cases. They deal with freedom of speech and religious freedom, but are also meant to introduce the European reader to the intellectual work of a lawyer of Anglo-American legal systems on these issues. The book is intended to let the judges speak. Their opinions have been stated and noted, and the opinions are authoritative and are source texts. They have been and will continue to be subject to interpretation. All the same, familiarity with the court decisions collected in this book should come in handy for any reader: if he chooses to read even just a few pages of this book, I trust he will not waste time.
Origins and applications of free speech in America
Karoli Mundus, 2022
The American idea of free speech has been highly contentious from its early days. Furthermore, since its codified entry into the United Sates Constitution, the ideal has been, redefined, expanded, and allocated. Originally applied to the press, the term now covers almost all instances of performative action, spoken and unspoken. But now, the internet, and social media, are casting new doubt upon the ability of “free speech” to remain in a position of an absolute right. This paper outlines the philosophical origins of the term and traces its changing application through the two centuries of the American system. It then examines free speech in the contemporary lens of social media, and the changing definition of “public square.” Finally, it argues that ultimately, continued existence of this right requires the public acceptance of messy, robust, and sometimes uncomfortable process. It remains to be seen if dedication to this principle can withstand an increasingly hostile social environment.
2019
In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course. Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and unpopular political movements. Since Brandenburg, the Court’s jurisprudence has turned towards free-speech absolutism. Today, free-speech discourse focuses on the right of what is said without discussing what the effect of that discourse is. Rather than allowing the “market” to decide what is and is not acceptable within public discourse, ...
Originalist Reflections on Constitutional Freedom of Speech
2019
In this brief Article, I would like to offer some reflections on the First Amendment freedom of speech and press guarantee from an originalist perspective. This area seems to me to be one that is particularly difficult for originalists, and I think that there is insufficient acknowledgment of that
Free Speech and Democracy: A Primer for Twenty-First Century Reformers
U.C. Davis Law Review, 2021
Left unfettered, the twenty-first-century speech environment threatens to undermine critical pieces of the democratic project. Speech operates today in ways unimaginable not only to the First Amendment's eighteenth-century writers but also to its twentieth-century champions. Key among these changes is that speech is cheaper and more abundant than ever before, and can be exploited -by both government and powerful private actors alike -as a tool for controlling others' speech and frustrating meaningful public discourse and democratic outcomes. The Court's longstanding First Amendment doctrine rests on a model of how speech works that is no longer accurate. This invites us to reconsider our answers to key questions and to adjust doctrine and theory to account for these changes. Yet there is a more or less to these re-imagining efforts: they may seek to topple, or instead to tweak, current theory and doctrine. Either route requires that reformers revisit the foundational questions underlying the Free Speech Clause: what, whom, and how does it protectand from whom, from what, and why? Part I of this Article discusses the threats to public discourse and democracy posed in the twenty-first-century speech environment, as well as the failure of traditional First Amendment theory and doctrine to adequately address these threats. Part II compares the advantages and † Copyright © 2021 Toni M. Massaro & Helen Norton. * Regent's Professor and Milton O. Riepe Chair in Constitutional Law, University of Arizona James E. Rogers College of Law. Warm thanks to Barbara A. Babcock, Genevieve Leavitt, Carol Rose, and Andrew Woods for their very thoughtful comments.
THEORIZING THE FIRST AMENDMENT: FROM ROGER WILLIAMS TO LARRY FLYNT
Studies in Law, Politics, and Society (journal), 2011
This chapter argues that the theoretical core of the First Amendment can be found in the concept of disestablishment, and that the meaning of disestablishment can be, and has been, extended from the religious sphere to the secular. It explores the historical development of rights of conscience and dissent, and the application of those rights to various changing historical circumstances, such as the development of political parties and the struggle over slavery. It then turns to an application of this analysis to several contemporary First Amendment controversies, including campaign finance and sexual expression.