How First Amendment Procedures Protect First Amendment Substance
39 Pages Posted: 3 Mar 2016 Last revised: 19 Mar 2016
Date Written: March 2, 2016
A panel of scholars, judges, and practitioners appeared at the 2014 National Lawyers Convention of the Federalist Society to discuss the many ways that court procedures relate to First Amendment rights. Free speech cases involve many unique procedural concepts such as the prior restraint doctrine (forbidding certain speech-restrictive procedures), the relaxation of ordinary standing and ripeness rules when a law is challenged for overbreadth, the allocation of the burden of proof in defamation matters, and the guarantee of independent appellate review. The panel explored how these and other rules can affect how free speech cases are litigated, spurring a lively discussion of the proper role of witnesses at trial in free speech cases.
The panelists were Erik S. Jaffe, Aaron H. Caplan, Robert A. Destro, Todd P. Graves, Alan B. Morrison, Eugen Volokh, and The Hon. David R. Stras.
Suggested Citation: Suggested Citation