First Amendment Expansionism

In recent years, many litigants have found the First Amendment to be a useful tool. One could mention pornography actors, tattoo artists, death row inmates, and corporate interests from small photography shops to meat trade associations to cigarette manufacturers to pharmaceutical companies. All have raised First Amendment claims in the last few years, and nearly all of them have met with some level of success. These claims are examples of what has been called First Amendment opportunism, where litigants raise novel free speech claims that may involve the repackaging of other types of legal arguments. To the extent that many such claims have succeeded in the courts, they are also examples of what I will call First Amendment expansionism, where the First Amendment’s territory pushes outward to encompass ever more areas of law. Here, I will consider one recent case that epitomizes both phenomena. What explains them, however, is another matter. Although many forces contribute to both First Amendment opportunism and First Amendment expansionism, the two phenomena may say something about the nature of speech and the nature of rules

Speech, Intent, and the Chilling Effect

Speaker’s intent requirements are a common but unremarked feature of First Amendment law. From the “actual malice” standard for defamation to the specific-intent requirement for incitement, many types of expression are protected or unprotected depending on the state of mind with which they are said. To the extent that courts and commentators have considered why speaker’s intent should determine First Amendment protection, they have relied upon the chilling effect. On this view, imposing strict liability for harmful speech, such as defamatory statements, would overdeter, or chill, valuable speech, such as true political information. Intent requirements are necessary prophylactically to provide “breathing space” for protected speech. This Article argues that, although the chilling effect may be a real concern, as a justification for speaker’s intent requirements, it proves unsatisfactory. It cannot explain existing intent requirements, and the difficulties of measuring and remedying chilling effects cast doubt on whether they could ever provide the sole justification for the choice of one intent requirement over another. The inadequacy of the chilling effect leaves the problem of speaker’s intent in need of further explanation and raises more general concerns about the use of deterrence-based arguments in constitutional law

Use Your Words: On the Speech in Freedom of Speech

Freedom of speech occupies a special place in American society. But what counts as “speech” is a contentious issue. In countless cases, courts struggle to distinguish highly protected speech from easily regulated economic activity. Skeptics view this struggle as evidence that speech is, in fact, not distinguishable from other forms of activity. This Article refutes that view. It argues that speech is indeed distinct from other forms of activity, and that even accounts that deny this distinction actually admit it. It then argues that the features that make speech distinctive as a phenomenon also make it distinctive as a normative matter. This does not mean that the skeptics are all wrong. It does, however, mean that they are wrong that freedom of speech is conceptually impossible. Speech is special in a way that makes it a plausible basis for a right of freedom of speech

On Clear and Present Danger

Justice Oliver Wendell Holmes’s dissent in United States v. Abrams gave us the “marketplace of ideas” metaphor and the “clear and present danger” test. Too often unremarked is the contradiction between the two. At the same time that Holmes says “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” he also says that “the present danger of immediate evil” permits Congress to restrict the expression of opinion. When the anticipated harm comes about through acceptance of the speaker’s idea, then the imposition of the clear and present danger test stops the operation of the marketplace of ideas. The market is not free if the clear and present danger test intervenes right when an idea gains traction. If the marketplace of ideas and the clear and present danger test are in tension with each other, either one of them could be identified as the problem. The marketplace of ideas has received a great deal of criticism, but mostly about various forms of market failure. Less common is a rejection of the basic idea that, as human beings and subjects of the state, individuals have a strong interest in receiving information so that they may make their own decisions about what constitutes a good life and what constitutes good policy. Whether a completely unregulated speech market actually provides adequate information is another matter, but the basic claim to information is commonly accepted. If it remains so, then the clear and present danger test is an intervention that overrides this claim to information in some contexts. As such, it requires some justification. For many years, the clear and present danger test received its share of criticism. Recently, however, few have focused on its difficulties. This is, perhaps, because technically speaking it is no longer a current doctrinal standard, having been superseded in the context of incitement and subversive advocacy by the test set forth in Brandenburg v. Ohio (and perhaps, with some uncertainty as to their remaining force, cases such as Yates v. United States, Scales v. United States, and Noto v. United States). Yet the clear and present danger test is still with us. It is the shaping force behind Brandenburg and the dominant popular articulation of when incendiary or objectionable speech loses its protection. It informs state laws on unlawful assembly and breach of the peace. Also, when courts encounter speech for which the Supreme Court has not developed a clearly articulated standard, they often fall back on the principles of clear and present danger or Brandenburg, whether they make sense in the given area or not. If the clear and present danger test still exerts force, it also still carries the mysteries it has had since the beginning. The most frequent criticisms are that it is hard to apply and easy to manipulate. But problems in application are only the last of several along the line from conceptualizing to implementing the standard. In many ways, it raises as many questions as it answers. This Article addresses some of these questions

Evolution of an Interprofessional Patient Skills Course with the Incorporation of Simulation Scenarios

A university level interprofessional patient care skills course including Nursing, Radiologic Sciences, and Respiratory Care students has evolved over 20 years. The course includes a lecture and laboratory portion with specific content and skills focused on principles common to the three disciplines. Students are placed in interprofessional groups during lab to practice and learn together including a simulation scenario on each week’s content. This educational strategy has enhanced the students’ teamwork and communication skills and prepared them to apply these skills to clinical practice. Further research is needed to look at IPE undergraduate healthcare course outcomes related to teamwork

Establishment of Best Practice Skills for Advanced Practice Nurses

Over the past two decades, nursing researchers have defined nurses’ perceptions of evidence-based practice as well as facilitators and barriers to its implementation . This project seeks to take the next step through a current assessment of registered and advanced-practice nurses’ assimilation of evidence-based practice as well as a current literature review of the research to clinical use gap. This is a cross-sectional, retrospective project. Through analysis of two self-administered questionnaires to both registered and advanced-practice clinical nurses as well as literature review findings, five recommendations for advanced-practice nurses were created. Ultimately, the goal of this project seeks to establish evidenced-based practice implementation strategies for advanced-practice nurses to effectively bridge research to the bedside. Areas of evidence-based practice implementation that remain unanswered or weakly executed provide a direction for research moving forward

Pearl Kendrick, Grace Eldering, and the Pertussis Vaccine

State health department laboratories are crucial to the development of public health research

Left gaze bias in humans, rhesus monkeys and domestic dogs

While viewing faces, human adults often demonstrate a natural gaze bias towards the left visual field, that is, the right side of the viewee’s face is often inspected first and for longer periods. Using a preferential looking paradigm, we demonstrate that this bias is neither uniquely human nor limited to primates, and provide evidence to help elucidate its biological function within a broader social cognitive framework. We observed that 6-month-old infants showed a wider tendency for left gaze preference towards objects and faces of different species and orientation, while in adults the bias appears only towards upright human faces. Rhesus monkeys showed a left gaze bias towards upright human and monkey faces, but not towards inverted faces. Domestic dogs, however, only demonstrated a left gaze bias towards human faces, but not towards monkey or dog faces, nor to inanimate object images. Our findings suggest that face- and species-sensitive gaze asymmetry is more widespread in the animal kingdom than previously recognised, is not constrained by attentional or scanning bias, and could be shaped by experience to develop adaptive behavioural significance

Risk Factors for Anthroponotic Cutaneous Leishmaniasis at the Household Level in Kabul, Afghanistan

Cutaneous leishmaniasis is a vector-borne protozoan disease that is characterized by cutaneous lesions which develop at the site of the insect bite. Lesions can vary in severity, clinical appearance, and time to cure; in a proportion of patients lesions can become chronic, leading to disfiguring mucosal leishmaniasis or leishmaniasis recidvans. Albeit not fatal, cutaneous leishmaniasis can have a significant social impact as it may lead to severe stigmatisation of affected individuals when lesions or scars occur on the face and exposed extremeties. Over the last 10–20 years there has been an increase in the number of leishmaniasis cases reported in South Asia, particularly in Afghanistan. Little is known about the household-level risk factors for infection and disease. Here we confirm previous reports that had shown the association of cutaneous leishmaniasis with age and clustering of cases at the household-level. Additionally, we show that risk of cutaneous leishmaniasis is associated with household construction (i.e. brick walls) and design (i.e. proportion of windows with screens)