Issue 2 - March 2009 The Future of Free Expression in a Digital Age

The Future of Free Expression in a Digital Age

In the twenty-first century, at the very moment that our economic and social lives are increasingly dominated by information technology and information flows, the judge-made doctrines of the First Amendment seem increasingly irrelevant to the key free speech battles of the future. The most important decisions affecting the future of freedom of speech will not …

Read Article Read More

Issue 2 - March 2009 Can Freedom of Speech Bear the Twenty-First Century’s Weight?

Can Freedom of Speech Bear the Twenty-First Century’s Weight?

My central claim in response to the issue that has been posed for this panel is that free political debate has, in fact, not outlived its usefulness. I concede that free political debate is under siege, as of course I must in view of the pressures that ever-more-insistent calls for ever-more-draconian regulation of campaign finance …

Read Article Read More

Issue 2 - March 2009 Campaign Finance Regulation and the Marketplace of Emotions

Campaign Finance Regulation and the Marketplace of Emotions

This essay examines the validity, in light of new empirical research, of the free speech theory the U.S. Supreme Court uses to justify the doctrines it currently employs to assess the constitutionality of campaign finance regulations. The Court’s model, which Professor McDonald terms the theory of ‘stimulated democratic deliberation,’ assumes that an unlimited quantity of …

Read Article Read More

Issue 2 - March 2009 The Constitutional Logic of Campaign Finance Regulation

The Constitutional Logic of Campaign Finance Regulation

This essay explores the potential implications of the creation of a distinct “election period” through the BCRA reforms to campaign finance law. The idea of a separate set of rights of expression during the immediate pre-election period is a relative newcomer to American law, but is a central feature of campaign finance law in other …

Read Article Read More

Issue 2 - March 2009 The Regulation of Extremist Speech in the Era of Mass Digital Communications: Is Brandenburg Tolerance Obsolete in the Terrorist Era?

The Regulation of Extremist Speech in the Era of Mass Digital Communications: Is Brandenburg Tolerance Obsolete in the Terrorist Era?

Both the general theme of this symposium and the specific topic of this panel give me the opportunity to stress how conservative we civil libertarians are! We do not think the Constitution should stay “in tune with the times” by diluting its human rights protections in times that are seen as especially dangerous. And, of …

Read Article Read More

Issue 2 - March 2009 Words “Which By Their Very Utterance Inflict Injury”: The Evolving Treatment of Inherently Dangerous Speech in Free Speech Law and Theory

Words “Which By Their Very Utterance Inflict Injury”: The Evolving Treatment of Inherently Dangerous Speech in Free Speech Law and Theory

In 1942, Chaplinsky v. New Hampshire, a unanimous Supreme Court in an opinion written by Justice Frank Murphy, upheld the conviction for a Jehovah’s Witness named Walter Chaplinksy for violating a New Hampshire statute involving verbal abuse. To the extent that Chaplinsky is understood as standing for the proposition that speech tending to incite an …

Read Article Read More