Governmental Speech and the Constitution: The Limits of Official Partisanship (original) (raw)
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DEFINING GOVERNMENT SPEECH: RECENT APPROACHES AND THE GERMANENESS PRINCIPLE
In the last decade, the U.S. Supreme Court and lower federal courts have fashioned the principle that the First Amendment does not limit the government's ability to determine the content of its own messages. The U.S. courts of appeal have devised three major approaches to distinguishing government speech from private speech. Significant questions remain about the government speech doctrine.
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.
The Federalist Papers Separation of Powers: Philosophy of Reason
https://betsyrossblog.wordpress.com/the-federalist-papers-separation-of-powers-philosophy-of-reason/, 2017
In an endeavor to impart reason and commonsense, the federalist papers were written to persuade the people that the new Constitution was necessary in order to create a government that would provide for stability and prosperity. The Federalist papers were a collection of 85 essays, written Fundamentally it was a political campaign to support the ratification of the Constitution and convince the people, and therefore the State's legislators, to sign the ratification of amendments. The essays were also written to support and illustrate the rationale of the necessity of the new Constitution, to establish a new government with powers in equal measure, in order to bring a democratic balance, and thereby create stability and unity to guide and govern the states. There were many who felt that they should abide by the Articles of Confederation, on which they already based the law and structure of government. James Madison was the driving force behind the validity and importance of the separation of powers. "The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasoning's on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents." Publius, The Influence of the State and Federal Governments Compared., The N.Y. Packet, January 29, 1788, at Federalist No. 46. (ascribed to Madison). Note - Scribner's error on last page. Date should be 1788 not 1878.