Regulating Political Parties under a Public Rights First Amendment

The recently-enacted McCain-Feingold campaign finance law pushes to the fore the questions of whether and to what extent the First Amendment allows government to regulate the electoral activities of political parties. One of the new law\u27s primary components is its attempt to eliminate so-called soft money - unlimited donations to national political parties that the Democrats and Republicans have used to circumvent legal limits on campaign contributions? One congressional opponent of the new law called it the death knell for political parties\u27 role in elections. Not surprisingly, both major parties have attacked McCain-Feingold. Most Republicans in Congress opposed the legislation, and some of them are leading a constitutional challenge to the law. Democrats, while largely supportive in Congress, encouraged the Federal Election Commission to weaken the law\u27s effects through rule-making. While opinions differ about whether McCain-Feingold will prevent circumvention of contribution limits, the two major parties strongly assert that the law will impede their functioning and thereby disable democracy

The First Amendment, The Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate

This article proposes a major expansion in the scope of First Amendment law and offers a fresh way of understanding the public-private distinction. It contends that the Supreme Court should invoke the First Amendment to enjoin nongovernmental behavior that substantially impedes public political debate during times of war and national emergency. As the article explains, the present campaign against international terrorism has seen employers, property owners, and media corporations restrict political discussion more frequently and aggressively than the government has. If political debate is the most important object of First Amendment protection – which the article contends it is – then all assaults on political debate offend the First Amendment. However, under the conventional limitation of constitutional law to state action, nongovernmental censors stand beyond the amendment’s reach. To solve this dilemma, the article thoroughly analyzes and critiques the public-private distinction that undergirds the state action limitation in Constitutional Law. The article argues that courts should reconceive the distinction, which makes no sense in the abstract, as differentiating between institutions and natural persons. Such a reconception would allow courts to make nongovernmental institutions honor expressive rights, although some institutions – notably media organizations – would be able to present instrumental reasons for immunity from First Amendment obligations. The last part of the article proposes concrete standards for applying the First Amendment to the types of nongovernmental censorship that have occurred over the past two years

Symposium Introduction: Napster: Innocent Innovation or Egregious Infringement

Napster is gone for now, but the fissures it opened in our understanding of intellectual property will challenge lawyers for a long time. The basic idea behind Napster was a simple outgrowth of the Internet\u27s premise of linking computers to facilitate the wide-spread exchange of information. The Napster Web site, with its peer-to-peer file sharing technology, created a sort of clearing house for information, specifically the sound files known as MP3s. Thousands upon thousands of users could sign on to the Napster site at any given time, offer MP3 files for downloading, and in turn download any files that any of the other users had to offer. For music lovers, the system provided opportunities to sample music they might not have known well enough to risk purchasing and to download familiar music in a format that allowed them to store hundreds of songs on portable players. The music industry, however, saw Napster as a sinister force that would let users own music without buying it. As such, the industry believed, Napster implicated a core purpose of copyright law: to protect artists\u27 ability to profit from their creation

Religious Argument, Free Speech Theory, and Democratic Dynamism

Political theorists have long debated whether liberal democratic norms of public political debate should constrain political arguments grounded in religious beliefs or similar conscientious commitments. In this article, Professor Magarian contends that normative insights from free speech theory have salience for this controversy and should ultimately lead us to reject any normative constraint on religious argument. On the restrictive side of the debate stand prominent liberal theorists, led by John Rawls, who maintain that arguments grounded in religion and other comprehensive commitments threaten liberal democracy by offering illegitimate grounds for government action and destabilizing democratic politics. On the permissive side stand leading advocates for religious liberty, who deny that religious arguments pose any threat to liberal democracy and insist that normative constraints on religious argument deny religious believers’ political autonomy. Both sides proceed from their premises about whether religious argument threatens liberal democracy to their conclusions about whether norms of public political debate should constrain religious argument. Professor Magarian agrees with the restrictive premise that religious argument poses a meaningful threat to liberal democracy, and he accordingly rejects the logic of the permissive position. He finds deeper fault, however, with the restrictive theorists’ move from consciousness of danger to advocacy of normative constraint. Drawing upon two prominent free speech controversies – the debates over First Amendment protection for Communist advocacy and the First Amendment’s proper role in balancing values of political dynamism and political stability – Professor Magarian derives normative lessons that counsel against constraints on religious argument. Based on the Communist speech controversy, he contends that even political advocacy that existentially threatens liberal democracy adds distinctive value to liberal democratic political discourse. Based on the stability-dynamism controversy, he contends that political conditions in the contemporary United States and the nature of religious advocacy make religious argument, at the margin, more beneficial than threatening to our political culture. As a corollary to his rejection of normative constraints on religious argument, Professor Magarian contends that our norms of public political debate should also freely permit substantive political criticism of religious arguments and doctrines

Entering Liberty\u27s Refuge (Some Assembly Required) Panel Discussion on Engaging Liberty\u27s Refuge: Introduction

This brief discussion of a book I greatly admire, by an author I am fortunate to know as a colleague and a friend, cannot hope to capture all of the book’s important and interesting contributions. I will simply describe three of the book’s primary facets. Liberty’s Refuge is, first, a work of intellectual history: Inazu seeks to recover from history’s tall grass a legally respected Anglo-American tradition of assembly. The book is also a work of constitutional interpretation and legal analysis: Inazu aims to revitalize the right of assembly for our time, critiquing the legal decisions that he sees as having buried or distorted assembly and charting a path toward renewed constitutional protection for assembly. Finally, the book is a work of normative political and legal theory: Inazu’s legal analysis reflects his powerful normative commitment to the autonomy of groups—assemblies of all manner, size, and repute—that counter the state’s power and allow individuals to define themselves through engagement with others. That all sounds rosy, and in many ways, it is. But Inazu’s argument leads him into challenging and highly fraught terrain

Conflicting Reports: When Gun Rights Threaten Free Speech

This Article catalogs and analyzes collisions between free speech and gun rights. The most important and hotly debated of those collisions is the clash between the First Amendment rights to assemble and speak in public political protests and the asserted Second Amendment right to carry firearms openly in public places. Beyond protests, public university students’ First Amendment rights to speak and learn clash with the asserted Second Amendment right to carry concealed weapons on university campuses; First Amendment interests in robust political deliberation clash with Second Amendment interests in promoting and securing the right to keep and bear arms; and First Amendment interests in disclosures of information clash with privacy interests grounded in the Second Amendment. In addition, debates about how to address rampant gun violence have led Second Amendment advocates to urge restricting the expressive content of entertainment media as a way of avoiding gun regulations

Hobby Lobby in Constitutional Waters: Two Life Rings and an Anchor

Hobby Lobby\u27s challenge to the contraception coverage provision of the Patient Protection and Affordable Care Act is the first Supreme Court case to test an application of RFRA to a federal law. For an introductory case, Hobby Lobby pushes RFRA·s conceptual envelope. Never before, under any constitutional or statutory provision, has the Court exempted a private, for profit business from the obligation to obey a generally applicable law. Most successful religious accommodation claims, whether constitutional or tatutory, have involved individual religious believers or groups of similarly situated believers. Religious institutions have occasionally but less frequently brought successful accommodation claims. Whatever the Court decides in Hobby Lobby will affect the contours of religious accommodation law for years to come

Speaking Truth to Firepower: How the First Amendment Destabilizes the Second

When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the new right’s scope, limits, and content. Following Heller, commentators routinely draw upon the First Amendment’s protections for expressive freedom to support their proposals for Second Amendment doctrine. In this article, Professor Magarian advocates a very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment’s legal potency. Professor Magarian first criticizes efforts to draw direct analogies between the First and Second Amendments, because the two amendments and their objects of protection diverge along critical descriptive, normative, and functional lines. He then contends that the longstanding debate about whether constitutional speech protections primarily serve collectivist or individualist purposes models a useful approach for interpreting the Second Amendment. Under that approach, the language of the Second Amendment’s preamble, which Heller all but erased from the text, compels a collectivist reading of the Second Amendment. The individual right to keep and bear arms, contrary to the Heller Court’s fixation on individual self-defense, must serve some collective interest. Many gun rights advocates urge that the Second Amendment serves a collective interest in deterring – and, if necessary, violently deposing – a tyrannical federal government. That theory of Second Amendment insurrectionism marks another point of contact with the First Amendment, because constitutional expressive freedom serves the conceptually similar function of protecting public debate in order to enable dynamic political change. Professor Magarian contends, however, that we should prefer debate to violence as a means of political change and that, in fact, the historical disparity in our legal culture’s attention to the First and Second Amendments reflects a longstanding choice of debate over insurrection. Moreover, embracing Second Amendment insurrectionism would endanger our commitment to protecting dissident political speech under the First Amendment. The article concludes that our insights about the First Amendment leave little space for the Second Amendment to develop as a meaningful constraint on government action