Harry Kalven, The Proust of the First Amendment

A Review of A Worth Tradition: Freedom of Speech in America by Harry Kalven, Jr

The Skokie Legacy: Reflections on an Easy Case and Free Speech Theory

A Review of Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom by Aryeh Neie

The Press and the Public Interest: An Essay on the Relationship Between Social Behavior and the Language of First Amendment Theory

I would like to explore in this essay one aspect of the contemporary American debate over the theory of freedom of speech and press. The subject I want to address is this: whether the principle of freedom of speech and press should be viewed as protecting some personal or individual interest in speaking and writing or whether it should be seen as fostering a collective or public interest. Sometimes this issue is stated as being whether the first amendment protects a right to speak or a right to hear, though in general the problem seems to be whether we should conceive of the principle as securing speech against government intervention without regard to the potential benefits that speech offers for the larger society, or rather only because of them

Law and the Ideal Citizen

The theme identified for this lecture series is the subject of responsibility. I assume Washington and Lee has selected that topic out of a sense that it has not received sufficient attention, as compared, for example, to the subject of rights. I select rights as the counter-example because we often hear of the two in tandem – rights and responsibilities. As such, the concept of responsibility connotes a sense of obligation as to what is due from us to others and to the community. It is, in that sense, easier to be in favor of rights than it is of responsibility. Rights give us freedom to do as we wish, while responsibilities impose limits or affirmative burdens on us that accompany privileges or benefits we have at our disposal. I wish to discuss the responsibility side of the ledger, though I think it is described more accurately as the formation of character, of our public intellectual character, to be more precise. Although public life, just like private life, certainly is not made up solely of liberty, or freedom, or rights, public life poses a dilemma of the first order to describe of what that life consists. Many have stumbled when they moved from an analysis of negative liberty into the realm of public duties, and many have stumbled even more in analyzing the intellectual and emotional capacities needed by the democratic citizenry. It is commonplace to say that one may far more easily define the limits of power than to prescribe the nature of its exercise

Intellectual and Informational Property Rights: Panel IV - Introduction: Property in Mass Media Law

This is the panel on intellectual and informational property rights. As you can see, there are three panelists other than myself: Ed Kitch, Stephen Carter, and Frank Easterbrook. I want to begin with just a few thoughts on an area that I know something about: press and media law. I would like to say two things about the notion of property and how it arises in the context of a few problems in the area of mass media law

The Future and the First Amendment

It is my honor and pleasure to deliver this year\u27s Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly condensed course. And in the humid warmth of the Tokyo summer night, members of my tired and beleaguered audience would occasionally, and to me quite appropriately, fall fast asleep. I say this out of fondness and understanding for them, who perhaps will someday read this lecture, and out of respect and understanding for you, should you find it necessary this afternoon to follow their example. The goal of my lecture today is to peer into the future, to look at the horizon of our constitutional principle of freedom of the press. But I cannot, and do not, want to leave behind the present. What I propose is to look at several ways in which our present thinking about the First Amendment and the press needs to be, in my judgment, substantially changed

Affirmative Action in Higher Education Symposium: Comment

This issue – affirmative action in higher education – is an issue of enormous significance for the country. So I don\u27t for a second treat this as just another conversation about an important legal question. I think this is one of those issues that define the country. I\u27ll tell you what I did as President of the University of Michigan, and in the course of that I\u27ll try to explain the ways in which we formulated the cases that went to the Supreme Court and resulted in very important clarifications to the Fourteenth Amendment and affirmative action. Then I want to close with a few comments about the current case before the Supreme Court and how I think this issue, at this time, will require somewhat different thinking than in the past

Free Speech and Intellectual Values

In the preface to his book, The Negro and the First Amendment, Harry Kalven observed that the idea of free speech was marked by an unusually keen quest for coherent general theory. Every area of the law, Kalven puzzled, was rife with inconsistency and ambiguity, yet inexplicably there was little tolerance· for anomalies in the field of free speech. As to why this was so, Kalven speculated that free speech is so close to the heart of democratic organization that if we do not have an appropriate theory for our law here, we feel we really do not understand the society in which we live. With New York Times Co. v. Sullivan, Kalven believed that a coherent general theory had finally been reached. In Kalven\u27s view, Justice Brennan\u27s opinion for the Court had for the first time provided our free speech jurisprudence with a central meaning, identifying a core function of free speech rather than simply repeating, as the cases had so often done, the theoretically empty clear and present danger test of Holmes. Kalven thought the Court was in essence pursuing a theory put forward by Alexander Meiklejohn in the late 1940\u27s, and, though the Sullivan opinion nowhere mentioned Meiklejohn or his work, Justice Brennan later subtly agreed with Kalven\u27s attribution

What Once Was Lost Must Now Be Found: Rediscovering an Affirmative Action Jurisprudence Informed by the Reality of Race in America

This academic year has seen college and university students across America calling on their institutions to do more to create campus cultures supportive of African American students and other underrepresented minorities. There have been demands to increase faculty and student diversity, change curricular requirements, and adopt mandatory cultural sensitivity trainings. There have been efforts to rename buildings, remove images, and abandon symbols associating schools with major historic figures who were also proponents of slavery, segregation, or other forms of racism. As in all tumultuous periods for higher education, these events have provoked useful discussions about fundamental principles and brought to the fore some essential truths