Who\u27s Talking? Disentangling Government and Private Speech

Several different constitutional rules apply to government actions that influence the content of speech. The government has far more discretion to determine speech content when the government itself is the speaker than when it regulates private speakers. Specifically, in the former circumstance, the government can discriminate according to viewpoint, whereas in the latter circumstance it cannot. While the application of the rules may be obvious when either the government or private entities speak alone, increasingly, through various different types of interactions, government and private groups or individuals are speaking together. This circumstance complicates the crucial constitutional determination, which is: who\u27s talking? This Article sets out the analysis necessary to make the speaker determination when government and private entities speak together. The different rules that limit government influence on the content of government and private speech exist because of the different constitutional values that attach to them. These values suggest characteristics that render government speech legitimate. Only when these characteristics exist in a government/private speech interaction should the more lenient constitutional rules-rules that allow viewpoint discriminatory government influence over speech content-apply. Otherwise, the more strict rules should limit government influence over speech content. This Article examines a number of different types of government/private speech interactions, identifying how variations in their structures determine the government\u27s constitutional discretion to influence speech content

Regulating Marijuana Advertising and Marketing to Promote Public Health: Navigating the Constitutional Minefield

Marijuana legalization, at least to some extent, is now a reality in half of the United States. This shift reflects on one hand the good reasons to decriminalize marijuana use and to legalize and regularize its cultivation, distribution, and retail sale. However, legalization also introduces substantial public health dangers and injects the potent tool of advertising and marketing to promote marijuana into the struggle for persuasive influence between sellers aimed at increasing profits and regulators trying to minimize the damages to public health. Limits on advertising and marketing to reduce adverse public health consequences are difficult to impose because of the increasingly aggressive interpretations of the protections for advertising articulated by the Supreme Court. Regulators must understand the types of regulations that will provoke constitutional challenges, and how a court’s analysis of each type of regulation will proceed. This Article is the first to provide detailed analysis and concrete, step-by-step guidance for regulators seeking to balance the electoral mandate to provide access to marijuana products with their ongoing and urgent responsibilities to protect public health. It provides regulators with the knowledge they need to understand the constitutional implications of a wide range of options, and to make choices that implement their public health objectives without provoking expensive legal challenges

Book Review of: Growing a Constitution, Reviewing A Republic of Statutes by William Eskridge and John Ferejohn

Book review: A republic of statutes: The New American Constitution. William N. Eskridge, Jr. and John Ferejohn. New Haven: Yale University Press. 2010. Pp. viii + 582. Reviewed by Leslie Gielow Jacobs

Sex Discrimination in Newscasting

This Note argues that the current judicial deference to viewer surveys used by television stations in newscasting employment decisions is unwarranted. Part I explores how different treatment of women newscasters constitutes sex-plus discrimination. Part II demonstrates that viewer surveys almost always reflect sexual stereotypes that are impermissible under title VII, and argues that such surveys should be presumptively inadmissible as evidence to rebut a claim of sex discrimination. Indeed, mere use of these surveys may in and of itself establish a prima facie case of sex discrimination. Part III contends that sex discrimination in the news industry resulting from the use of viewer surveys cannot be justified under any of the recognized title VII defenses. Part IV discusses the policy considerations involved in the use and scrutiny of viewer surveys. It concludes that if courts are unwilling to prohibit the use of surveys generally as discriminatory per se, they should at least subject particular surveys that are challenged as discriminatory to judicial scrutiny

Bush, Obama and Beyond: Observations on the Prospect of Fact Checking Executive Department Threat Claims Before the Use of Force

Part of Symposium: Presidential Power in the Obama Administration: Early Reflection

Bush, Obama and Beyond: Observations on the Prospect for Fact Checking Executive Department Threat Claims Before the Use of Force

This piece looks at the recurring problem of inflated threat claims offered by executive branch actors to persuade the Nation to consent to the use of force. It sets out the experience of the Bush Administration’s use of incorrect threat claims to persuade the country to consent to the use of force in Iraq as a backdrop to evaluating the President Obama’s use of threat claims to support the continuing use of force in Afghanistan. Although comparison of threat advocacy by the Bush and Obama administrations must be imperfect, it allows for some observations about the extent to which the structures and incentives that have in the past allowed executive branch officials to assert unverified threats as certain and sufficient to justify the use of force have changed or remain the same. Because the structures and incentives that allow for the possibility of unverified threat claims have not changed significantly, and because significant legal changes to address the systematic problems are unlikely, this piece proposes that citizens can impose some minimal level of contemporaneous accountability on executive department threat claims offered to persuade them to consent to the use of force by keeping a several basic recognitions about executive department advocacy, intelligence information, and the incentives that impact oversight of executive branch activities in mind

Incitement Lite for the Nonpublic Forum

The incitement exception set out in Brandenburg v. Ohio defines the authority of the government, acting in its sovereign capacity, to impose criminal punishment on speakers because the content of their advocacy may persuade listeners to commit crimes. Nonpublic forum managers have much greater flexibility than the government-as-sovereign to restrict the private speakers they invite onto their property because the content of their speech may persuade listeners to engage in harmful conduct. In nonpublic forum management, speakers experience no sanctions and, unlike the government-as-sovereign, nonpublic forum managers may close their forums to all private speakers to avoid unwanted speech. This piece argues that, in the context of the nonpublic forum, where the heavy threat of criminal punishment does not exist, some form of “incitement lite,” with elements adjusted to fit the different balance of government authority and individual speech rights and impacts, may better implement the spirit that animates and explains the exception