Assumptions About “Terrorism” and the Brandenburg Incitement Test

The incitement standard announced in Brandenburg v. Ohio, which bars government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity, is one of the most speech-protective tests in the Supreme Court’s jurisprudence. However, terrorist advocacy – glorification of violence, spreading of propaganda, and recruitment of individuals to their cause – is putting pressure on the Brandenburg standard. Scholars have suggested working around Brandenburg’s incitement standard to counter the dangerous influence of terrorist advocacy, especially online advocacy. Although scholars’ concern with the harms of terrorism is understandable, their willingness to alter Brandenburg in the context of terrorist advocacy ignores the important role that the imminence requirement plays in preventing government officials from using national security crises to suppress dissent. This essay explores the history leading to the Brandenburg standard to illustrate how the lack of an imminence requirement allows officials to arbitrarily target the speech of disfavored groups. It further explores how altering Brandenburg based on the nebulous concept of “terrorism” heightens the risk of arbitrary punishment of speakers

Katrina and the Rhetoric of Federalism

The public\u27s desire to assign blame for government\u27s inadequate response to Hurricane Katrina has largely focused on the federal government\u27s slow and seemingly inept response to the storm. In their own defense, federal officials cast federalism--the system that divides power among federal, state, and local governments--as the main culprit underlying their inadequate response to hurricane victims. Had power and authority not been split among three different units of government, the argument goes, the federal government might have been able to act more quickly to save lives and prevent suffering. In effect, federal authorities claim to have been hamstrung by a federalist system that relies on states and localities as first responders. As a consequence, some officials have called for greater federal control of disaster response and relief efforts

Reinvigorating Autonomy: Freedom and Responsibility in the Supreme Court\u27s First Amendment Jurisprudence

Part I of this Article explores the conception of autonomy that scholars have generally attributed to the Court and discusses problems with that conception. Part II sets forth an alternative, Kantian conception of autonomy and discusses its implications for a system of laws regulating free expression. Part III analyzes the Court\u27s free speech jurisprudence and its autonomy rationale. It specifically examines both the Court\u27s distinction between content-based and content-neutral regulations of speech and its approach to low-value speech, demonstrating that they reflect a Kantian notion of autonomy. Finally, Part IV discusses the implications of Kantian autonomy for hate speech regulation, specifically focusing on the Court\u27s controversial decision in R.A.V. v. City of St. Paul. This final Part demonstrates that a Kantian notion of autonomy may be able to bring people on both sides of the debate closer together regarding autonomy\u27s place in the Court\u27s free speech jurisprudence

Introduction: The Difficult First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances

Discussing the First Amendment

Despite its many good qualities, Eternally Vigilant nevertheless suffers from a flaw common to First Amendment scholarship--a tendency to give short shrift to study of the social, psychological, historical, and political factors that influence the Court\u27s decision making and, thus, free speech doctrine. Discussion including these influences would facilitate an even greater understanding of free speech doctrine and the principles that underlie it

The First Amendment, The University and Conflict: An Introduction to the Symposium

Universities across the country have experienced a dramatic increase in free speech conflicts - i.e., an experience of discord between individuals or groups of speakers. These conflicts occur in various forms. For example, members of university communities (e.g., students, staff, or faculty) have protested controversial speakers. Some have called for universities to disinvite controversial speakers. Others have heckled or shouted down speakers. Finally, some members of university communities - usually students - have protested university officials\u27 or other students\u27 expression by occupying buildings, camping or interrupting meetings in order to disseminate their message. It is common to view resolution of these conflicts through a First Amendment lens. That is, when such conflicts arise, we tend to ask whether or how the First Amendment protects the original speaker\u27s rights or, conversely, we frame the conflict as involving one group of speakers censoring another. It is not altogether clear, however, that a First Amendment frame sufficiently addresses these conflicts

The First Amendment, The University and Conflict: An Introduction to the Symposium

This Symposium addresses our continuing issues with campus speech conflicts. It aims to help us recognize that speech conflicts are not abstract disputes between ideas – Justice Holmes’s famous rhetoric notwithstanding. Rather our words and ideas represent underlying conflicts between very real people and groups. The speech we use may cause, exacerbate, or resolve conflicts. Sometimes the Supreme Court’s free speech doctrine can aid our understanding and resolution of these conflicts. Other times it cannot. Regardless, simply relying on a First Amendment frame – i.e., claiming that it is one’s right to express oneself in a par-ticular way – may be unhelpful to resolving a conflict, even if that claim is substan-tively correct. This gathering of free speech experts, dispute resolution experts, and campus administrators aims to provide a framework for discussing campus speech conflicts that works both within and beyond the First Amendment frame

Bringing Structure to the Law of Injunctions Against Expression

Part I of this Article reviews the Court\u27s cases regarding injunctions against speech, focusing first on the increasing elevation of rhetoric (as opposed to analysis) in the Court\u27s prior restraint decisions. Part I also reviews the Court\u27s other decisions involving injunctions and demonstrates that they too contain little, if any, analysis concerning the appropriateness of injunctive relief against expression. Part II examines Madsen\u27s interaction with the Court\u27s previous decisions and discusses how Madsen furthers the incoherence of the Court\u27s previous cases. Part III explains that content discrimination principles, although superficially attractive, are inappropriate with injunctive relief because the content-based/content-neutral distinction\u27s function as a proxy for illegitimate motive does not hold with injunctions as it does with statutes. Part IV suggests that a more direct search for illegitimate motives might be appropriate in the context of injunctions. It further explicates the manner in which courts can accomplish this. Finally, Part V discusses whether certain miscellaneous issues particular to injunctive relief, such as the contempt power, the collateral bar rule, and interim relief, still justify a rule of special antipathy toward all or some injunctions

Some Reflections on the Symposium: Judging, the Classical Legal Paradigm and the Possible Contributions of Science

One theme running through the many excellent contributions to this symposium involves the myriad influences on judicial decision-making. As Professor Wrightsman notes, Supreme Court Justices\u27 personal characteristics may affect their ability to influence colleagues and, consequently, the outcome of Supreme Court decisions. Professor Ruger observes that judges have both attitudinal and jurisprudential preferences that may change over time, affecting legal outcomes differently as time passes. Professor Sisk similarly notes that judges\u27 personal values and experiences influence their decision-making. These observations are consistent with those of numerous other scholars, who find wide-ranging and diverse influences on the judicial resolution of legal issues

State Secrets & Executive Accountability

This essay, part of a symposium on executive power, examines use of the state secrets privilege in the Obama administration. Specifically, it views the Obama administration’s approach to the state secrets privilege through the lens of “explanatory accountability” – i.e., the notion that executive officials must explain and justify their decisions or face negative consequences.Although President Obama entered office criticizing the Bush administration’s overly broad assertions of the state secrets privilege, Obama officials nevertheless continued the Bush administration’s actions in various lawsuits. In response to sharp criticism, however, the Obama administration eventually revealed a new policy promising greater accountability and individualized decision-making regarding assertions of the state secrets privilege. In other words, the Obama administration embraced the notion of explanatory accountability by adopting the new policy.While the Obama policy shows promise and moves toward greater accountability regarding assertions of the privilege – at least on paper – it is simply too vague to serve as an adequate mechanism of explanatory accountability. Furthermore, nothing in the policy requires Obama officials to justify their actions outside of the executive branch, thus allowing them to continue the Bush administration’s trend of broadly asserting the state secrets privilege with little or no justification. Such actions will continue unless the state secrets privilege is substantially altered to give courts the tools to serve as adequate accountability mechanisms. Pending congressional legislation may provide courts with such tools