Judicial Candidates’ Right to Lie

, the Supreme Court struck down a law forbidding certain judicial campaign speech. A decade later, the Court in United States v. Alvarez ruled that factually false statements do not constitute categorically unprotected expression under the First Amendment. Together, these two holdings, along with the Court’s wider protection of political expression and disapproval of content-based restrictions, cast serious doubt on states’ ability to ban false and misleading speech by judicial candidates. Commonly known as the misrepresent clause, this prohibition has intuitive appeal in light of judges’ responsibilities and still exists in many states. Given the provision’s vulnerability to challenge, however, states may be able to avert chronic fabrication by judicial candidates only by removing its ultimate source—judicial elections themselves

The Indefinite Deflection of Congressional Standing

Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. While scholars divide over the normative propriety of such suits, the Court has never issued a definitive pronouncement on their viability. Nevertheless, the Court’s rulings when the issue has arisen have displayed a distinct pattern. While the Court has not formally repudiated suits of this nature, neither has it issued a decision that hinges on the presence of congressional standing. On the contrary, the Court has repeatedly passed on opportunities to affirm its validity. This Article concludes that the Court consciously avoids recognizing legislative standing, but has left the door very slightly ajar in the event that an unanticipated case arises

Private Concerns of Private Plaintiffs: Revisiting a Problematic Defamation Category

Part I of the Article traces the route to the Court\u27s decision to add the public/private concern inquiry to the complex4 body of defamation doctrine, as well as the potential impact of this distinction beyond the context in which it was first promulgated. Part II reviews courts\u27 efforts to categorize defamatory speech in a rational way, seeking to demonstrate that this goal has inevitably eluded them. From a broader perspective, Part III examines the Court\u27s longstanding ambivalence toward elevating speech of a presumably public nature over other expression. Against this backdrop, the Court\u27s decision to distinguish between public and private concerns in defamation amounts to an avoidable choice, not an obligatory standard. At the same time, as Part IV shows, withdrawal of this element from defamation doctrine would not require wholesale abolition of the public/private distinction in free speech jurisprudence. The Article concludes that restoration of the regime that prevailed prior to the public/private concern criterion would restore a more defensible balance to the constitutional law of defamation

The Stubborn Survival of the Central Hudson Test for Commercial Speech

This Article examines the persistence of the Central Hudson standard in the face of multiple challenges as well as larger implications of its survival. Part I provides a brief overview of the Court’s commercial speech doctrine and the spectrum of criticism of Central Hudson for its allegedly excessive or inadequate protection of expression. Part II surveys a series of developments, especially in the last decade, that threaten to supersede Central Hudson’s “intermediate” standard of scrutiny for commercial speech restrictions. In response, Part III explains how none of these phenomena have resulted in the abandonment of the Central Hudson regime. Notably, lower courts have devised a variety of strategies for avoiding constructions of Supreme Court decisions that would overthrow Central Hudson. The Article concludes that Central Hudson’s longevity represents more than judicial inertia, a doctrinal quirk, or a meaningless framework. Rather, the standard has served to maintain a degree of stability in an area that has witnessed shifting ideological predilections. In this respect, it is like other important criteria and concepts whose evolving interpretations have not defeated their legitimacy