Freedom of Thought, Offensive Fantasies and the Fundamental Human Right to Hold Deviant Ideas: Why the Seventh Circuit Got it Wrong in Doe v. City of Lafayette, Indiana

[Excerpt] “A precarious balance and considerable tension exists between two competing legal interests – the essential, First Amendment-grounded human right to freedom of thought, on the one hand, and the desire to prevent harm and injury that might occur if thought is converted to action, on the other. To understand this tension, it is useful to start by considering three different and disturbing factual scenarios. This article examines and critiques the majority opinion of the Seventh Circuit Court of Appeals in City of Lafayette. The majority held that the city’s ban of John Doe, a convicted sex offender, from its parks because he once fantasized about molesting children while watching them play in the park does not violate the First Amendment right to freedom of thought. The July 2004 en banc opinion reversed the result of an earlier vacated decision by a three-judge panel of the same court just thirteen months before. […] Part II of this article provides background on the right to freedom of thought, including a discussion of recent United States Supreme Court analysis on this right. Part III then describes, analyzes, and critiques the Seventh Circuit’s 2004 en banc opinion holding that the City of Lafayette did not violate John Doe’s right to freedom of thought. Importantly, Part III contends there are at least four separate reasons, each grounded in First Amendment jurisprudence tied to freedom of expression, why the majority erred in its conclusion. These reasons go far beyond those articulated in the dissenting opinion in City of Lafayette and thus suggest new and additional rationales for reversal. Next, Part IV demonstrates the dangerousness of the precedent set by the majority’s reasoning as it might apply to other scenarios, including the first two hypothetical fact patterns laid out at the beginning of this article. Finally, the article concludes in Part V that the United States Supreme Court should accept certiorari in this case and reverse the Seventh Circuit’s decision.

The Jurisprudence of Transformation: Intellectual Incoherence and Doctrinal Murkiness Twenty Years After Campbell v. Acuff-Rose Music

Examining recent judicial opinions, this Article analyzes and critiques the transformative-use doctrine two decades after the U.S. Supreme Court introduced it into copyright law in Campbell v. Acuff-Rose Music. When the Court established the transformative-use concept, which plays a critical role in fair-use determinations today, its contours were relatively undefined. Drawing on an influential law-review article, the Court described a transformative use as one that adds “new expression, meaning or message.” Unfortunately, the doctrine and its application are increasingly ambiguous, with lower courts developing competing conceptions of transformation. This doctrinal murkiness is particularly disturbing because fair use is a key proxy for First Amendment interests in copyright law. This Article traces the evolution of transformative use, analyzes three key paradigms of transformative use that have gained prominence in the post-Campbell environment, and offers suggestions for a jurisprudence in which transformative use is a less significant component of the fair-use analysis

Protecting the Cellular Citizen-Critic: The State of Political Speech from Sullivan to Popa

The 1999federal appellate court decision of United States v. Popa suggests the startling emergence of a nascent First Amendment right to engage in anonymous and racist telephonic harassment of government officials. Professor Calvert suggests that this decision sadly reflects the state of political discourse in the United States today, namely a dialectical free-for-all directly contrary to the vision of philosopher-educator Alexander Meiklejohn, a vision advanced by the United States Supreme Court in New York Times Co. v. Sullivan but rejected by the shout-and- attack cultures of cable news channel political talk shows and call-in radio programs. The Popa decision also serves to jeopardize the constitutionality of a number of state laws substantially mirroring the federal anti-harassment statute it held unconstitutional as applied. Professor Calvert argues that the Popa decision\u27s initial impression of being a victory for freedom of expression belies its real significance as a signal of a stunning defeat for, and the deterioration of, rational, deliberative discourse

Weaponizing Proof of Harm in First Amendment Cases: When Scientific Evidence and Deference to the Views of Professional Associations Collide in the Battle Against Conversion Therapy

This Article uses the U.S. Court of Appeals for the Eleventh Circuit’s divided decision in Otto v. City of Boca Raton in late 2020 as a springboard for examining battles in First Amendment jurisprudence over proof of causation of harm and the level of deference owed to the judgments of learned societies. A two-judge majority held in Otto that a pair of local ordinances banning speechbased conversion therapy on minors violated the First Amendment, with those measures failing the rigorous strict scrutiny standard of review. Crucial to the majority’s ruling was its conclusion that insufficient evidence exists that conversion therapy—also known as sexual orientation change efforts (SOCE)—harms minors. Conversely, the Otto dissent found “strong evidence” of injury and, in so doing, afforded significant deference to the views of several learned organizations such as the American Academy of Pediatrics. The dissent, in turn, would have upheld the measures under strict scrutiny. This Article explores how this cleft in Otto regarding proof of causation of harm and the deference due to learned organizations, particularly when conducting scientific experiments is impossible because of ethical concerns, reflects the U.S. Supreme Court’s game case of Brown v. Entertainment Merchants Association. This Article contends that Brown’s stringent mandate of proving a direct causal link between regulated speech and the harm attributed to it allows conservative-leaning judges, including the ones in the Otto majority who were appointed by former President Donald J. Trump, to weaponize the First Amendment in the clash over conversion therapy. The legacy of Justice Antonin Scalia’s majority opinion in Brown thus stretches beyond regulating entertainment-oriented media products, such as video games, to fundamentally impact larger cultural and legal battles over sexual orientation and the dignity of LGBTQ minors

Scrutiny-Determination Avoidance in First Amendment Cases: Laudable Minimalism or Condemnable Evasion?

This Article examines the United States Supreme Court’s practice in First Amendment cases of not resolving the precise level of scrutiny that applies to measure a statute’s validity. Rather than opting for one of two tiers of scrutiny — one more rigorous than the other—the Court sometimes dodges the issue. It does this by concluding that a statute would not pass muster under the more lenient standard, thereby rendering it unnecessary to decide which test was, in fact, more appropriate. The Court thus adopts an “assuming-without-deciding” logic in such cases, simply supposing the lesser standard applies without definitively holding as much. In turn, when lower courts confront uncertainty regarding the correct level of scrutiny, they too sometimes avoid picking one standard of review by embracing this “it wouldn’t make any difference anyway” brand of reasoning. This Article addresses why the Supreme Court engages in this practice. Additionally, it considers how this variety of procedural minimalism, which it dubs scrutiny-determination avoidance, affects doctrinal development of the pivotal division between content-based and content-neutral laws. First Amendment scrutiny selection hinges largely on that distinction. Furthermore, this Article analyzes what the implementation of this minimalistic tack may indicate about the practical differences between the strict and intermediate scrutiny standards in their real-world application

The Government Speech Doctrine in Walker’s Wake: Early Rifts and Reverberations on Free Speech, Viewpoint Discrimination, and Offensive Expression

This Article examines the immediate effects on free expression of the U.S. Supreme Court’s 2015 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. involving the government speech doctrine. In Walker, a sharply—and largely partisanly—divided Court upheld, in the face of a First Amendment challenge, Texas’s decision denying a private organization’s application for a specialty license plate featuring Confederate battle flag imagery. This Article initially reviews the government speech doctrine and Walker. It then analyzes Walker’s impact on cases that, like it, involve specialty license plate programs. Next, this Article explores lower court efforts stretching Walker’s test for government speech to four very different settings: 1) a public school program that allows banners promoting private businesses to hang on school fences in exchange for monetary donations to the school; 2) highway welcome centers and rest areas offering tourist-oriented literature and advertisements published by private entities; 3) an outdoor lunch program held on public property featuring private food-truck vendors; and 4) the process of federal trademark registration for allegedly disparaging names. Finally, this Article synthesizes the lower courts’ analyses in these diverse scenarios, identifying both themes and problems with the doctrine in a post-Walker world