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Abstract: We've all made plenty of slippery slope arguments in our day, and we've all pooh-poohed plenty. Do these arguments make sense, and, if so, when? This article tries to go behind the metaphor of the slippery slope to the mechanisms by which one step today may make the next step more likely tomorrow. "Slippery slopes," I argue, can operate through several distinct mechanisms, which need to be discussed separately. And these mechanisms, it turns out, relate to rational ignorance, heuristics, path-dependence, the expressive effect of law, and multi-peaked preferences - important subjects that have received extensive attention recently, but that have not so far been linked to the slippery slope question. I suggest that slippery slopes may indeed sometimes happen (though they aren't logically inevitable). The flip response that "if we can draw a line today, we'll be able to draw the line tomorrow" is correct only if decisionmakers have firm and single-peaked preferences, and unbounded rationality. In the real world, where these conditions don't always hold, one decision can indeed help grease the slope to another, in various ways. And this can happen not just with judicial decisions - where slippery slopes relate in complex ways to the system of precedent - but also with legislative ones, where precedent is not supposed to play a formal role. Understanding the full range of slippery slope mechanisms can help us evaluate the risk of slippage, craft better arguments related to this risk, and perhaps minimize this risk.
Slippery Slopes, First Amendment, Second Amendment, Fourth Amendment, freedom of speech, euthanasia, privacy, abortion, gun control
Abstract: The success of the new electronic media in the "marketplace of marketplaces of ideas" -- where information providers compete for that scarcest of resources, the attention span of modern man -- will turn on how well they can satisfy listeners' desires. This article discusses several (generally little-noticed) free speech issues with an eye towards how First Amendment doctrine can (and sometimes can't) accommodate listeners' concerns. Specifically, it talks about: (1) private speech restrictions in electronic conferences, why they're often a good idea, and why they're generally constitutionally protected; (2) state action questions that arise when edited conferences are run on government-owned computers or by government employees; (3) the surprising potential applicability of some telephone harassment laws to cyberspace; (4) the even more surprising and troubling potential applicability of "hostile public accommodations environment" claims; and (5) the implications for cyberspace of state laws barring the public display of harmful-to-minors material.
Abstract: This article looks at various free speech problems from the perspective of maximizing the value of cyberspace for listeners. In particular, it argues that 1. Private editing of electronic conferences (discussion lists, newsgroups, chat groups, bulletin boards, and the like) is constitutionally permissible, constitutionally protected, and valuable for listeners. 2. Heightened libel liability for edited conferences is inappropriate. 3. Electronic conference editing should be considered "private" even if the conferences are on government- owned computers and are run by government employees, so long as the editing decisions are not attributable to a government agency. 4. Applying telephone harassment statutes and "hostile public accommodations environment" harassment law to online speech is unwise and generally unconstitutional. 5. Existing statutes barring public display of "harmful-to- minors" material -- which have largely been upheld by lower courts in the offline world -- may already bar the posting of such material online. Applying these statutes online, though, would be unconstitutional, because less restrictive alternatives (such as a mandatory rating system) are available.
Abstract: Alice is seven months pregnant, and the pregnancy threatens her life. She has a constitutional right to save her life by hiring a doctor to abort the viable fetus. A person breaks into Katherine's home and seems about to try to kill her (or perhaps seriously injure, rape, or kidnap her). Katherine may protect her life by killing the attacker, even if the attacker isn't morally culpable, for instance if he is insane, and even though recognizing this right may let some people use false claims of self-defense to get away with killing the innocent. Ellen is terminally ill. Under Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, decided in 2006 by the D.C. Circuit, Ellen has a constitutional right to try to save her life by hiring a doctor to administer some kinds of experimental drugs, even though federal law generally bars the use of such drugs. Olivia is dying of kidney failure. A kidney transplant would likely save her life, just as an abortion would save Alice's, lethal self-defense may save Katherine's, and an experimental treatment may save Ellen's. But the federal ban on payment for organs sharply limits the availability of kidneys, so Olivia will likely die if she must wait for a donated kidney (just as Alice, Ellen, and Katherine would be in jeopardy if abortions, experimental treatments, and weapons could only be provided for free). My claim is that all four cases involve the exercise of a person's presumptive right to self-defense - lethal self-defense in Katherine's case, and what I call medical self-defense in the others. This is a constitutional right: Roe and Casey secure not just a pre-viability right to abortion as reproductive choice, but also a separate post-viability right to abortion as medical self-defense when pregnancy threatens a woman's life. And given that Alice has such a right to defend herself by getting an abortion, Ellen and Olivia should have the same right to defend themselves through other medical procedures. It can't be that a woman has a constitutional right to protect her life using medical procedures, but only when doing so kills a viable fetus. And the right is also supported by the long-recognized right to lethal self-defense: the right to protect your life against attack even if it means killing the attacker. The right has constitutional foundations, in substantive due process, state constitutional rights to defend life and to bear arms, and maybe the Second Amendment. But even if it's treated as just a common-law and statutory right, our accepting it should lead us to accept a similar common-law or statutory right to defend one's life against medical threats as well as against human or animal threats. The right of medical self-defense thus offers an extra foundation for the Abigail Alliance holding that there is a constitutional right to use experimental therapies to protect one's life. And it makes the organ sales ban presumptively improper and unconstitutional when the organs are needed to protect people's lives; some concerns about organ markets may justify regulations of such markets, but not prohibition.
Constitutional Law, Criminal Law, Self-Defense, Medical Ethics, Organ Transplants, Experimental Drugs, Abortion, Substantive Due Process, Unenumerated Rights
Abstract: Proposed "information privacy" rules that give us the power to "control . . . information about ourselves" and to mandate "fair information practices" sound appealing. Why, after all, should a business be able to communicate information about its clients without the clients' permission, and why should the media be able to publish unnewsworthy private information about us for the whole world to see? The difficulty is that the right to information privacy -- the right to control other people's communication of personally identifiable information about you -- is a right to have the government stop people from speaking about you. And the First Amendment (which is already our basic code of "fair information practices") generally bars the government from "control[ling the communication] of information," either by direct regulation or through the authorization of private lawsuits. This article makes two main points: (1) While privacy protection secured by contract turns out to be constitutionally sound, broader information privacy rules are not easily defensible under existing free speech law. (2) Creating new free speech exceptions to accommodate information privacy speech restrictions could give us much more than we bargained for: Most of the justifications given for information privacy speech restraints are directly applicable to other speech control proposals that have already been proposed, and accepting these justifications in the attractive case of information privacy speech restrictions would create a powerful precedent for those other restraints. My chief goal is to consider, as concretely as possible, what these unintended consequences of various justifications for information privacy speech restrictions might be. I ultimately conclude that these consequences are troubling enough that I must reluctantly oppose such information privacy rules. But I hope the article will also be useful to those who are committed to supporting information privacy speech restrictions, but would like to design their arguments in order to minimize the risks that I identify; and even to those who welcome the possibility that information privacy speech restrictions may become a precedent for other restrictions, because they believe the Court has generally gone too far in protecting, say, nonpolitical speech or speech that injures the dignity of others.
Abstract: Proposed "information privacy" rules that give us the power to "control . . . information about ourselves" and to mandate "fair information practices" sound appealing. Why, after all, should a business be able to communicate information about its clients without the clients' permission, and why should the media be able to publish unnewsworthy private information about us for the whole world to see? The difficulty is that the right to information privacy -- the right to control other people's communication of personally identifiable information about you -- is a right to have the government stop people from speaking about you. And the First Amendment (which is already our basic code of "fair information practices") generally bars the government from "control[ling the communication] of information," either by direct regulation or through the authorization of private lawsuits. This article makes two main points: (1) While privacy protection secured by contract turns out to be constitutionally sound, broader information privacy rules are not easily defensible under existing free speech law. (2) Creating new free speech exceptions to accommodate information privacy speech restrictions could give us much more than we bargained for: Most of the justifications given for information privacy speech restraints are directly applicable to other speech control proposals that have already been proposed, and accepting these justifications in the attractive case of information privacy speech restrictions would create a powerful precedent for those other restraints. My chief goal is to consider, as concretely as possible, what these unintended consequences of various justifications for information privacy speech restrictions might be. I ultimately conclude that these consequences are troubling enough that I must reluctantly oppose such information privacy rules. But I hope the article will also be useful to those who are committed to supporting information privacy speech restrictions but would like to design their arguments in order to minimize the risks that I identify, and even to those who welcome the possibility that information privacy speech restrictions may become a precedent for other restrictions because they believe the Court has generally gone too far in protecting, say, nonpolitical speech or speech that injures the dignity of others.
Abstract: Sometimes, when I'm in the middle of a heavy blogging spurt, I ask myself: Shouldn't I be spending this time writing law review articles instead? But maybe, when I'm in the middle of writing a law review article, I should ask myself: Shouldn't I be spending this time blogging instead? My blog gets about 20,000 unique visitors a day; I don't know how many people read my articles, but I'm pretty sure it's very far from 20,000. True, the article readers are presumably more likely to be the ones we want to influence with what we write. But how much more likely? Just how much influence do our law review articles actually get? Given this uncertainty, and the suspicion that a typical law review article's influence is far from vast, just how much should we value our "traditional scholarship", and what fraction of our years should we devote to it? These are not rhetorical questions; I honestly want to know the answer, and I suspect many other academic bloggers do, too. This short article briefly discusses these questions, and also asks how our blogging can advance our scholarship rather than just being a rival use of our time.
Abstract: This article makes several different observations about the Free Speech Clause and intellectual property law, in light of some recent doctrinal developments: (1) the Court's decision about copyright in Eldred v. Ashcroft; (2) the Court's evolving commercial speech jurisprudence in cases such as 44 Liquormart v. Rhode Island, which is relevant to trademark dilution law; (3) the California Supreme Court's right of publicity decision in Comedy III Productions v. Saderup; and (4) the Court's decision in Bartnicki v. Vopper, which indirectly bears on trade secret law.
Intellectual Property, Copyright, Trademark, Trade Secret, Right of Publicity, Constitutional Law, First Amendment, Free Speech
Abstract: Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Never mind that a libel may inflict truly irreparable harm on you: The most you can hope for is damages, or perhaps a permanent injunction after final adjudication -- not preliminary relief. And yet in copyright and other intellectual property cases, preliminary injunctions are routine. We argue that the prior restraint doctrine has something to say about that, too. Though copyright law (like libel and obscenity law), is a constitutionally permissible speech restriction, the "First Amendment Due Process" rule against prior restraints applies even to such permissible restrictions. We argue that preliminary injunctions in copyright cases are generally unconstitutional; the one exception is cases where there's no controversy over substantial similarity of expression or fair use (for instance, where the question turns only on whether defendant had the requisite license). We also argue the same about right of publicity cases, trademark cases, and trade secret cases, except possibly cases (such as many trademark cases) that involve commercial advertising. We believe this conclusion is dictated by the Court's prior restraint doctrine, and also makes good First Amendment policy sense. See also the working paper by Lemley & Volokh "Freedom of Speech and Injunctions in Intellectual Property Cases".
Abstract: Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Never mind that a libel may inflict truly irreparable harm on you: The most you can hope for is damages, or perhaps a permanent injunction after final adjudication -- not preliminary relief. And yet in copyright and other intellectual property cases, preliminary injunctions are routine. We argue that the prior restraint doctrine has something to say about that, too. Though copyright law (like libel and obscenity law), is a constitutionally permissible speech restriction, the "First Amendment Due Process" rule against prior restraints applies even to such permissible restrictions. We argue that preliminary injunctions in copyright cases are generally unconstitutional; the one exception is cases where there's no controversy over substantial similarity of expression or fair use (for instance, where the question turns only on whether defendant had the requisite license). We also argue the same about right of publicity cases, trademark cases, and trade secret cases, except possibly cases (such as many trademark cases) that involve commercial advertising. We believe this conclusion is dictated by the Court's prior restraint doctrine, and also makes good First Amendment policy sense.
Abstract: During the height of the Clinton-Lewinsky scandal, some lawyer pundits made some rather remarkable observations: Saying certain things about the scandal, they advised people, might be legally punishable. "Be careful what you say," one headline warned, when you discuss "the Starr report and Clinton/Lewinsky matter" in certain ways. Such discussions "ought to be avoided" because of the risk of legal liability. "[I]t?s best to choose carefully who you share your remarks, your jokes, with . . . . ?Attorneys warn us about [legal liability],? she said. Office humor in particular ?is always quicksand? . . . ." "There?s no right [to make certain statements about the Clinton/Lewinsky affair] just because it?s a public issue." "We had quite a few clients calling us when Lewinsky jokes . . . were making the rounds." "People think that if they hear something on TV or the radio they can say it at work [without fear of legal liability]. But that of course is not the case." What body of law, one might ask, would suppress jokes about the President, or discussion of the Starr Report? Not the most publicized free speech restriction of the Clinton years, the Communications Decency Act, which had been struck down 9-0 by the Supreme Court. Rather, this remarkable speech restriction is hostile environment harassment law. Under this doctrine, speech can lead to massive liability so long as it is "severe or pervasive" enough to create a "hostile, abusive, or offensive work environment" for the plaintiff and for a reasonable person based on the person?s race, religion, sex, national origin, disability, age, veteran status, and so on. And these rather vague and broad terms have long been interpreted to cover not just face-to-face slurs or repeated indecent propositions, but also sexually themed jokes and discussions, even ones that aren?t about coworkers or directed to particular coworkers. The prudent employer is wise to restrict speech like this, whether it?s about Clinton, Lewinsky, Starr, or anyone else?not just because of professionalism concerns (which some employers might care more about and others less), but because of the risk that this speech will be found to have been illegal. This article explores, through the lens of four specific Clinton-era cyberspace "harassing speech" controversies, how hostile environment harassment law has rapidly become one of the broadest modern restrictions on speech generally, and on cyberspace speech in particular.
Abstract: During the height of the Clinton-Lewinsky scandal, some lawyer pundits made some rather remarkable observations: Saying certain things about the scandal, they advised people, might be legally punishable. "Be careful what you say," one headline warned, when you discuss "the Starr report and Clinton/Lewinsky matter" in certain ways. Such discussions "ought to be avoided" because of the risk of legal liability. "[I]t's best to choose carefully who you share your remarks, your jokes, with....'Attorneys warn us about [legal liability],' she said. Office humor in particular 'is always quicksand'...." "There's no right [to make certain statements about the Clinton/Lewinsky affair] just because it's a public issue." "We had quite a few clients calling us when Lewinsky jokes...were making the rounds." "People think that if they hear something on TV or the radio they can say it at work [without fear of legal liability]. But that of course is not the case." What body of law, one might ask, would suppress jokes about the President, or discussion of the Starr Report? Not the most publicized free speech restriction of the Clinton years, the Communications Decency Act, which had been struck down 9-0 by the Supreme Court. Rather, this remarkable speech restriction is hostile environment harassment law. Under this doctrine, speech can lead to massive liability so long as it is "severe or pervasive" enough to create a "hostile, abusive, or offensive work environment" for the plaintiff and for a reasonable person based on the person's race, religion, sex, national origin, disability, age, veteran status, and so on. And these rather vague and broad terms have long been interpreted to cover not just face-to-face slurs or repeated indecent propositions, but also sexually themed jokes and discussions, even ones that aren't about coworkers or directed to particular coworkers. The prudent employer is wise to restrict speech like this, whether it's about Clinton, Lewinsky, Starr, or anyone else--not just because of professionalism concerns (which some employers might care more about and others less), but because of the risk that this speech will be found to have been illegal. This article explores, through the lens of four specific Clinton-era cyberspace "harassing speech" controversies, how hostile environment harassment law has rapidly become one of the broadest modern restrictions on speech generally, and on cyberspace speech in particular.
Abstract: Speech, some argue, should sometimes lose its First Amendment protection because it's really just conduct. These arguments have been made for a wide range of speech: (1) racially and sexually offensive speech in workplaces, universities, and places of public accommodation; (2) speech that informs people how certain crimes can be committed; (3) speech that teaches children harmful ideas; (4) speech that lobbies against housing for the disabled; (5) speech that advocates crime; (6) doctors' speech recommending medicinal marijuana to their patients; (7) speech that urges political boycotts; and even (8) public porfanity. This article will discuss several such "this speech is really conduct" theories. First, it responds to the argument that generally applicable laws, which apply to speech alongside other conduct, should be free from First Amendment scrutiny even when they cover speech because of its persuasive, informative, or offensive content. The article argue that such an argument is unsound, and inconsistent with many leading free speech cases. Restrictions that are content-based as applied should be treated the same way as restrictions that are content-based on their face. Second, the article responds to the argument that various kinds of speech should be punishable because they are part of an illegal course of conduct, speech brigaded with action, or speech act[s] rather than pure speech; such arguments often quote Giboney v. Empire Storage & Ice Co. (1949). The article criticizes Giboney, and concludes that if such an illegal course of conduct doctrine should be recognized, it should be narrow indeed - so narrow that it wouldn't apply to most of the cases where Giboney is cited. Third, the article discusses, and to some extent critiques, Professor Kent Greenawalt's view that certain kinds of statements are situation-altering utterances and thus unprotected conduct. Finally, the article confronts the uncharted zones of free speech - criminal agreements, criminal solicitation, much verbal aiding and abetting, professional speech, and the like - and suggests that these zones are best dealt with by recognizing properly bounded First Amendment exceptions (as the Court has done with regard to libel, incitement, fighting words, and the like), and not by relabeling the speech as conduct.
Abstract: Many recent free speech controversies - over contract murder manuals, secret Patriot Act subpoenas, contributory copyright infringement, encryption and decryption algorithms, Web pages that contain bombmaking information, discussion of gaps in security systems, publication of the names of abortion providers, boycott violators, crime witnesses, and police officers, and more - turn out to be special cases of a general problem: How should First Amendment law treat crime-facilitating speech, a term I define to mean (1) any communication that, (2) intentionally or not, (3) conveys information that (4) makes it easier or safer for some listeners or readers to (a) commit crimes, torts, acts of war, or suicide, or (b) to get away with committing such acts? Surprisingly, scholars have not focused much on these broad questions, and the Supreme Court has never squarely confronted them either in their general form or in their specific applications. This article begins by drawing the link between the many different examples of crime-facilitating speech - a link that's important to recognize, since it means that the decision in any of those cases may affect the decisions in others. It then explains why restrictions on crime-facilitating speech can't be easily justified under existing First Amendment doctrine, and goes on to discuss the various distinctions that might form the building blocks of a possible new First Amendment exception. One seemingly appealing distinction - between speech intended to facilitate crime, and speech that is merely said with knowledge that some readers will use it for criminal purposes - turns out to be less helpful than might at first appear. Many other possible distinctions end up being likewise unhelpful, though a few are promising. The article ultimately suggests that crime-facilitating speech ought to be constitutionally protected unless (1) it's said to a person or a small group of people when the speaker knows the listeners are likely to use the information for criminal purposes, (2) it's within one of the few classes of speech that has almost no noncriminal value, or (3) it can pose truly extraordinary harm (on the order of a nuclear attack or a plague) even when it's also valuable for lawful purpose; but I hope its analysis will be helpful even to those who would reach a different conclusion. Finally, the article notes that, while crime-facilitating speech cases arise in all sorts of media, and should be treated the same regardless of the medium, the existence of the Internet does make a difference here. Most importantly, by making it easy for people to put up mirror sites of banned material as a protest against such bans, the Internet makes restrictions on crime-facilitating speech less effective, both practically and (if they're cast in terms of purpose rather than mere knowledge) legally.
First Amendment, Free Speech, Freedom of Speech, Crime, Aiding and Abetting
Abstract: People often argue that symbolic expression - especially flag burning - isn't really "speech" or "press," and that the Court's decisions protecting symbolic expression are thus illegitimate. But it turns out that the original meaning of the First Amendment likely includes symbolic expression. Speech restrictions of the Framing era routinely treated symbolic expression the same as literal "speech" and "press." Constitutional speech protections of that era did so as well, though the evidence on this is slimmer. And the drafting history of the phrase "the freedom of speech, or of the press," coupled with the views of leading commentators from the early 1800s, suggests that the First Amendment's text was understood as protecting "publishing," a term that at the time covered communication of symbolic expression and not just printing. Though the Court has never relied on this evidence, even originalists ought to accept the Court's bottom line conclusion that the First Amendment covers symbolic expression.
First Amendment, Freedom of Speech, Symbolic Expression, Expressive Conduct, Flag Burning
Abstract: The "best interests of the child" standard - the standard rule applied in custody disputes between two parents - leaves family court judges ample room to consider a parent's ideology. Parents have had their rights limited or denied partly based on their advocacy of racism, homosexuality, adultery, nonmarital sex, Communism, Nazism, pacifism and disrespect for the flag, fundamentalism, polygamy, or religions that make it hard for children to "fit in the western way of life in this society." Courts have also penalized or enjoined speech that expressly or implicitly criticizes the other parent, even when the speech has a broader ideological dimension. One parent, for instance, was ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic," because the other parent was homosexual. Others have lost rights based partly on telling their children that the other parent was damned to Hell. One mother was stripped of custody partly because she accurately told her 12-year-old daughter that her ex-husband, who had raised the daughter from birth, wasn't in fact the girl's biological father. Courts have also restricted a parent's religious speech when such speech was seen as inconsistent with the religious education that the custodial parent was providing. The cases generally rest on the theory (sometimes pure speculation, sometimes based on some evidence in the record) that the children will become confused and unhappy by the contradictory teachings, and be less likely to take their parents' authority seriously. This article argues these restrictions are generally unconstitutional, except when they're narrowly focused on preventing one parent from undermining the child's relationship with the other. But the observations that lead to this rule are likely, I think, to prove more interesting to readers than the rule itself: (1) The best interests test lets courts engage in viewpoint-based speech restriction. (2) The First Amendment is implicated not only when courts issue orders restricting parents' speech, but also when courts make custody or visitation decisions based on such speech. (3) Even when the cases involve religious speech, the Free Speech Clause is probably more important than the Religion Clauses. (4) If parents in intact families have First Amendment rights to speak to their children, without the government restricting the speech under a "best interests" standard, then parents in broken families generally deserve the same rights. (5) Parents in intact families should indeed be free to speak to their children - but not primarily because of their self-expression rights, or their children's interests in hearing the parents' views. Rather, the main reason to protect parental speech rights is that today's child listeners will grow up into the next generation's adult speakers. (6) Attempts to limit restrictions to speech that imminently threatens likely psychological harm (or even cause actual psychological harm) to children may seem appealing, but will likely prove unhelpful.
Free Speech, First Amendment, Family Law
Abstract: The best interests of the child standard - the standard rule applied in custody disputes between two parents - leaves family court judges ample room to consider a parent's ideology. Parents have had their rights limited or denied partly based on their advocacy of racism, homosexuality, adultery, nonmarital sex, Communism, Nazism, pacifism and disrespect for the flag, fundamentalism, polygamy, or religions that make it hard for children to fit in the western way of life in this society. Courts have also penalized or enjoined speech that expressly or implicitly criticizes the other parent, even when the speech has a broader ideological dimension. One parent, for instance, was ordered to make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic, because the other parent was homosexual. Others have lost rights based partly on telling their children that the other parent was damned to Hell. One mother was stripped of custody partly because she accurately told her 12-year-old daughter that her ex-husband, who had raised the daughter from birth, wasn't in fact the girl's biological father. Courts have also restricted a parent's religious speech when such speech was seen as inconsistent with the religious education that the custodial parent was providing. The cases generally rest on the theory (sometimes pure speculation, sometimes based on some evidence in the record) that the children will become confused and unhappy by the contradictory teachings, and be less likely to take their parents' authority seriously. This article argues these restrictions are generally unconstitutional, except when they're narrowly focused on preventing one parent from undermining the child's relationship with the other. But the observations that lead to this rule are likely, I think, to prove more interesting to readers than the rule itself: (1) The best interests test lets courts engage in viewpoint-based speech restriction. (2) The First Amendment is implicated not only when courts issue orders restricting parents' speech, but also when courts make custody or visitation decisions based on such speech. (3) Even when the cases involve religious speech, the Free Speech Clause is probably more important than the Religion Clauses. (4) If parents in intact families have First Amendment rights to speak to their children, without the government restricting the speech under a best interests standard, then parents in broken families generally deserve the same rights. (5) Parents in intact families should indeed be free to speak to their children - but not primarily because of their self-expression rights, or their children's interests in hearing the parents' views. Rather, the main reason to protect parental speech rights is that today's child listeners will grow up into the next generation's adult speakers. (6) Attempts to limit restrictions to speech that imminently threatens likely psychological harm (or even cause actual psychological harm) to children may seem appealing, but will likely prove unhelpful.
Abstract: Should states have constitutional sovereign immunity in copyright and patent lawsuits? In Florida Prepaid, the Court said the answer is "yes," but many have argued that this is (even setting aside the various textual, originalist, or precedential arguments) just plain silly. A simple analogy, critics suggest, proves this: Why should government-run UCLA be treated differently from privately-run USC? This short (8-page) article points to two alternative analogies that suggest sovereign immunity in such cases may not be so odd or unjust after all. First, why should state-run UCLA be treated differently from the federally-run Department of Defense? The federal government has long asserted its sovereign immunity in copyright and patent cases, subject only to a Takings-Clause-based lawsuit for just compensation in the Court of Federal Claims. This, as it happens, is pretty close to what is left after Florida Prepaid for state infringements. Second, why should state infringements of intellectual property be treated differently from state infringements of real or personal property? Governments routinely interfere with private property rights, subject only to a Takings-Clause-based lawsuit for just compensation; and intellectual property hawks often argue that intellectual property rights should be entitled to the same respect as other property rights are. And Florida Prepaid leaves intellectual property owners in pretty much the same situation as other property owners. The article concludes that state sovereign immunity might or might not be constitutionally mandated or wise -- but that simple analogies between state government infringements and private infringements can't go far to resolve this matter.
Abstract: This article makes two observations about the intellectual diversity rationale for race-based affirmative action: (1) Race as Proxy: The rational uses race as proxy for people's attitudes, something that equal protection jurisprudence generally condemns. It's hard to see how this use of race as proxy is different from other, impermissible uses. (2) Religion as Proxy: The intellectual diversity arguments in favor of race-conscious decisions would also apply to religion-conscious decisions, especially given the lack of devoutly religious perspectives in many academic environments. If we believe that the end of intellectual diversity doesn't justify the means of religious discrimination, this suggests the same may be true for race.
Abstract: Some speech risks inciting or aiding serious crimes. Other speech risks causing only minor crimes. Some searches and seizures are aimed at catching kidnappers, others at catching bookies. Should constitutional doctrine draw lines that turn on crime severity? And if it should, how should these lines be drawn? Commentators and judges have often urged that the first question be answered yes. And yet the trouble with a yes answer is that it requires courts to answer the second question - which isn't easy, given how bitterly people often disagree about the severity of various crimes (for instance, white-collar crimes, drug crimes, copyright infringement, or even burglary). Surprisingly, this matter has rarely been discussed broadly, cutting across various constitutional provisions, such as free speech, the Fourth Amendment, the right to jury trial, and the Eighth Amendment. This Essay tries do so. It identifies four possible approaches to judging crime severity in constitutional doctrine. It discusses the pluses and minuses of each approach. And it concludes that two simple answers - that such severity distinctions are always improper, and that they are unproblematic - are mistaken.
criminal law, constitutional law, criminal procedure, first amendment, freedom of speech, fourth amendment, search and seizure, eighth amendment, jury trial, excessive fines, cruel and unusual punishments
Abstract: What may government officials and other actors (businesses, organizations, or individuals) do to prevent speech that they think to be evil and dangerous? Some possible actions are uncontroversial; others clearly violate the First Amendment. But in between lie practices that are contested: May government officials argue that its political opponents are unwillingly helping evil? May private parties properly use their economic power to retaliate against those whose views they disapprove of? May the government subpoena library and bookstore records to help uncover a political criminal's or terrorist's identity? These practices may deter - even without legally prohibiting - certain kinds of speech, and they may even be intended to deter such speech. Yet not all deterrence of speech, especially through nongovernmental action, is improper. This essay briefly inquires when such practices really deserve to be labeled McCarthyism, and to be forbidden by the First Amendment, by statute, or by social norm.
Free Speech, Constitutional Law, McCarthyism
Abstract: Should courts carve out religious exemptions from generally applicable rules? Does the Constitution command this? If it doesn't, should legislatures enact statutes that fill the gap? These might be called primary questions of religious freedom law, and they have been much debated. To some extent, they have recently been resolved by legislatures: Religious exemption statutes (commonly known as RFRAs) now bind the federal government and the governments of several states. But between these oft-discussed primary questions and the likewise heavily debated specific questions related to particular proposed exemptions--exemptions from antidiscrimination laws, weapons laws, drug laws, compelled testimony laws, and the like--lies a range of intermediate questions. How does RFRAs' across-the-board strict scrutiny of governmental burdens on religion apply to government employment, government property, or government-run schools? What exactly does "least restrictive means of furthering [a] compelling governmental interest" mean? How should courts deal with laws aimed at protecting nontraditional private rights, such as the right to be free from marital status discrimination in housing? Does it violate the Free Speech Clause to give more protection to religiously motivated speech than to nonreligiously motivated speech? These intermediate questions have been comparatively underdiscussed even in the pre-Smith era; and in any case the answers to them might well be different under the state RFRA regime than under the constitutional exemption regime. In this article, I want to briefly identify--though definitely not resolve--some of these relatively blank spots on the religious freedom map, and perhaps provide something of a plan for future research. For each of these areas, I will also suggest some concrete cases that I think pose particularly tough challenges--what computer programmers call a "test suite" that can be used to check whether a particular proposed doctrine makes sense.
Abstract: Does the Constitution require discrimination against religious schools and against parents who choose them? This question is the heart of the Establishment Clause debate over school choice. May the government treat government-run schools, secular private schools, and religious schools equally, supporting children's education regardless of the religiosity of the school to which the children go? Or must the government exclude religious schools from this generally available benefit? Casting the matter in terms of discrimination frames the issue in a stark light, but such a characterization is accurate: Discrimination is indeed what it's all about. Fair-minded people may argue that the Constitution does require such discrimination; not all discrimination is bad. But there should be no denying that a constitutional rule excluding religious schools from generally available benefits rests on the theory that discrimination is constitutionally mandated.
Abstract: When should religious objectors get exemptions from generally applicable laws? For years, the two competing answers were "when courts say so, as a matter of constitutional law" (Sherbert v. Verner and Wisconsin v. Yoder) and "only when legislatures say so, as a matter of specific statutory provision" (Employment Division v. Smith). The federal Religious Freedom Restoration Act and its more recent state equivalents have been billed as ways of restoring the first model of "constitutional exemptions." This article argues, though, that the RFRAs actually implement a third model -- a "common-law" exemption approach in which exemption decisions are made initially by courts but are ultimately revisable by legislatures -- and that this approach is actually normatively superior to both of the other models. The article - explains how state RFRAs differ from the Sherbert regime; - explains how they track the traditional common-law development of other subconstitutional claims of right; - argues that this insulates state RFRAs from some of the criticisms of the Sherbert regime levied by Smith; - suggests that drafters of state RFRAs should abandon their current reliance on the "strict scrutiny" test; - argues that viewing religious exemption claims through a common-law lens helps show the fallacy of the Sherbert constitutional exemption framework; - suggests that the "common-law" rights model might be profitably applied to rights claims even outside the religious freedom context.
Abstract: Much has been written about the law of lethal self-defense, but comparatively little has been written about nonlethal self-defense. And very little has been written on what is likely the most significant restrictions on nonlethal self-defense - restrictions on possessing and carrying stun guns and irritant sprays, which are indeed almost always nonlethal. Seven states and several cities, for instance, totally ban private possession of stun guns, even in the home. And that’s so even though in all those states gun possession in the home is perfectly legal. This article discusses the most common such nonlethal weapon restrictions: (1) general bans on possession or carrying, (2) bans on possession by minors (including older minors), (3) bans on possession by felons (including nonviolent felons), (4) bans on possession or carrying in public universities, public housing, and public transportation systems, and (5) bans on carrying in public parks and in places that sell alcohol. All of these, it argues, are generally bad policy, though the case against them is stronger as to some restrictions than others. It also argues that many such restrictions should be seen as unconstitutional under the right to bear arms, whether federal or state (at least 40 state constitutions secure an individual right to bear arms). It argues that they should be seen as unconstitutional under the right to defend life, which is expressly secured by 21 state constitutions and that might be implicitly secured by the federal constitution. And it argues that when a law allows possession of deadly weapons and not nondeadly weapons, then people who have religious beliefs that forbid deadly force (even in self-defense) but allow nondeadly force should get religious exemptions from such rules, in the roughly half the states that have presumptive religious exemption regimes.
Criminal Law, Self-Defense, Constitutional Law, Right to Keep and Bear Arms, Religious Freedom
Abstract: Should courts carve out religious exemptions from generally applicable rules? Does the Constitution command this? If it doesn't, should legislatures enact statutes that fill the gap? These might be called primary questions of religious freedom law, and they have been much debated. To some extent, they have recently been resolved by legislatures: Religious exemption statutes (commonly known as RFRAs) now bind the federal government and the governments of several states. But between these oft-discussed primary questions and the likewise heavily debated specific questions related to particular proposed exemptions - exemptions from antidiscrimination laws, weapons laws, drug laws, compelled testimony laws, and the like - lies a range of intermediate questions. How does RFRAs' across-the-board strict scrutiny of governmental burdens on religion apply to government employment, government property, or government-run schools? What exactly does "least restrictive means of furthering [a] compelling governmental interest" mean? How should courts deal with laws aimed at protecting nontraditional private rights, such as the right to be free from marital status discrimination in housing? Does it violate the Free Speech Clause to give more protection to religiously motivated speech than to nonreligiously motivated speech? These intermediate questions have been comparatively underdiscussed, even in the pre-Smith era; and, in any case, the answers to them might well be different under the state RFRA regime than under the constitutional exemption regime. In this article, I want to briefly identify - though definitely not resolve - some of these relatively blank spots on the religious freedom map and, perhaps, provide something of a plan for future research. For each of these areas, I will also suggest some concrete cases that I think pose particularly tough challenges - what computer programmers call a "test suite" that can be used to check whether a particular proposed doctrine makes sense.
Abstract: Should the law punish those who fail to help the victims of crimes that they witness, or at least report the crimes to the police? Some have argued that the coercive and normative force of such requirements will motivate some otherwise Bad Samaritans to turn into Good Samaritans. No-one claims this effect would be very strong, but, the argument goes, even a little bit helps. But these debates have ignored a countervailing force, which this article calls the "anticooperative effect." Many people may at first hesitate to intervene or report (out of fear, panic, mistake, hurry, misguided loyalty, or a desire not to get involved), but later feel remorse. Without duty-to-rescue/report laws, these Remorseful Samaritans may belatedly report the crime, or at least answer questions if the police come to their door. But they might refuse to cooperate if they know that their initial failure to help or report has already made them into criminals; the duty-to-rescue/report law might thus deter some people from reporting. And while this effect may be diminished by revising the laws somewhat (which itself would be a significant outcome of considering this effect), such revisions would also diminish any benefits that the laws might have. More broadly, this short article hopes to focus attention on anticooperative effects -- of criminal laws as well as of tort doctrines -- which should generally be considered alongside more familiar effects, such as the normative, deterrent, coercive, and incapacitative effects. The legal system often relies on public cooperation, and this cooperation can be much harder to get from people whom the law has marked (even mildly) as outlaws.
Abstract: Basic con law classes are meant to teach students some fundamental legal skills: Considering contentious moral questions from all sides, even those sides for which one has a visceral revulsion. Using the various modalities of interpretive argument -- interpretation focused on text, original meaning, the interplay of political structures, changed circumstances, precedent, and the implications of "fundamental," though unwritten, values within the American ethos. Thinking about how law can check power. Arguing articulately about the clash between solemn constitutional guarantees and eminently worthy countervailing government interests. The Second Amendment turns out to be a surprisingly useful tool for all these purposes: 1. Second Amendment arguments tend to run counter to traditional political divides, and can thus help teach students to make arguments that they'd normally oppose. 2. The Amendment, unburdened as it is with much Supreme Court baggage, is a particularly good tool for discussing the entire range of interpretive modalities. 3. The Second Amendment was seen by the Framers as a basic part (perhaps the most basic part) of the checks and balances on federal government power. 4. The Amendment particularly starkly presents the clash between textually secured constitutional rights and eminently legitimate government interests is rarely presented more starkly than in the Second Amendment. 5. The Amendment can enrich our understanding of other provisions, such as the Free Speech Clause and the criminal justice provisions. 6. Finally, the Amendment can remind students that constitutional protections needn't be all good: that the Constitution can sometimes be the subject of criticism and not just veneration. Our goal here is not to demonstrate the True Meaning of the Second Amendment. Rather, it's to show how the debates about the Amendment's possible meanings can enliven and improve the con law class.
Abstract: The Second Amendment, many argue, has a unique structure: A purpose or justification clause followed by an operative clause. But if one looks at contemporaneous state constitutions, the Amendment proves to be quite commonplace -- many constitutional rights are structured exactly the same way, e.g., "The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty . . . ." (Rhode Island Constitution) This short (18-page) article asks what these analogous state provisions tell us about interpreting the Second Amendment in a way that takes both its clauses seriously. Part of the answer, the article suggests, is that constitutional rights will often (and for good reason) be written in ways that are to some extent overinclusive and to some extent underinclusive with respect to their stated purposes.
Abstract: Copyright law, the Supreme Court has said, is a valid speech restriction. But even valid speech restrictions (such as libel law, obscenity law, and the like) are still subject to the various "First Amendment Due Process" procedural rules. One of them is the Bose Corp. v. Consumers Union independent appellate review rule: When a jury or a trial judge finds that speech falls within an unprotected category of speech, the court of appeals must review that finding de novo, rather than just for clear error. The same also applies on motions for summary judgment and for judgment notwithstanding the verdict. In copyright cases, though, the courts of appeal generally review findings that speech copies expression, and not just idea, only for clear error. This, we argue, presumptively violates the Bose rule; and, we argue, there's no significant difference between copyright law and the other speech restrictions that rebuts this presumption. The copyright law clear error review rule must give way to the First Amendment-mandated de novo review rule. From this doctrinal point, we draw two broader points: (1) At least according to First Amendment theory, independent appellate review is supposed to refine the legal tests, making them clearer and more predictable. If that hypothesis is true, this could be particularly valuable for copyright's "idea-expression" dichotomy, which is notoriously vague. (2) On the other hand, if it's false - if we end up being skeptical about the value of independent review in clarifying the idea-expression test -- this might give us reason to think again about independent appellate review, and perhaps First Amendment Due Process more generally.
Abstract: The Court has long accepted that the government has a strong interest in shielding children from speech that's supposedly unsuitable for them, for instance speech that's sexually explicit or profane. But the Court has also long accepted that such speech does have substantial First Amendment value. The question thus becomes: How is the Court to reconcile the strong claim of government interest with the strong claim of First Amendment right? The conventional answer, which the Court followed in the recent cyberspace indecency case (Reno v. ACLU), is that the court must apply "strict scrutiny" -- must uphold the law if and only if it's the least restrictive means of serving the government interest. In this article, I make four claims: 1. Though the Court's result in Reno was right, its application of strict scrutiny was less than candid. 2. Under a more accurate application of strict scrutiny, the Court might well have had to uphold the Communications Decency Act. In my view, this suggests that strict scrutiny is itself an unsound test for such cases. 3. There are several different alternatives for dealing with speech restrictions aimed at shielding children; the best one is probably something analogous to the Court's "undue burden" (or, more precisely, "substantial burden") test. 4. This criticism of the Court's "strict scrutiny" approach also applies to other kinds of speech restrictions. Strict scrutiny is generally an unsound approach to free speech cases; I offer some suggestions for a possible framework to replace it.
Abstract: The Court has long accepted that the government has a strong interest in shielding children from speech that's supposedly unsuitable for them, for instance speech that's sexually explicit or profane. But the Court has also long accepted that such speech does have substantial First Amendment value. The question thus becomes: How is the Court to reconcile the strong claim of government interest with the strong claim of First Amendment rights? The conventional answer, which the Court followed in the recent cyberspace indecency case (Reno v. ACLU), is that the court must apply "strict scrutiny" -- must uphold the law if and only if it's the least restrictive means of serving the government interest. In this article, I make four claims: 1. Though the Court's result in Reno was right, its application of strict scrutiny was less than candid. 2. Under a more accurate application of strict scrutiny, the Court might well have had to uphold the Communications Decency Act. In my view, this suggests that strict scrutiny is itself an unsound test for such cases. 3. There are several different alternatives for dealing with speech restrictions aimed at shielding children; the best one is probably something analogous to the Court's "undue burden" (or, more precisely, "substantial burden") test. 4. This criticism of the Court's "strict scrutiny" approach also applies to other kinds of speech restrictions. Strict scrutiny is generally an unsound approach to free speech cases; I offer some suggestions for a possible framework to replace it.
Abstract: This article analyzes the meaning of the California Civil Rights Initiative, the California anti-race/sex-preferences constitutional amendment. No grand meta-theories, just detailed clause-by-clause analysis.
Abstract: The Court has long said that content-based speech restrictions are constitutional if they're narrowly tailored to a compelling state interest. This Article argues that the official doctrine is wrong, both descriptively and normally: There are cases where the Court would and should strike down laws *even though* they're narrowly tailored to a compelling interest. The Article makes two alternative proposals. One is that the Court add a third prong to the strict scrutiny framework: The question must be whether the law is *permissibly tailored* -- whether, even if it's aimed at compelling ends, and even if the means are practically well-suited to those ends, the means still operate in an impermissible way. The other, which the Article most strongly recommends, is that the Court abandon means-ends scrutiny here, and instead shift to a system of categorical rules with categorical exceptions. This system is already in play in other areas of con law, and even in free speech law generally. And it should operate more effectively than the means-ends scrutiny the Court claims to be using. The Article also suggests (without going into that much detail) that strict scrutiny may have similar flaws in the race classifications area and in the religious freedom area.
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