Recognizing Assembly Rights in the New Public Forum
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Benedict's Maritime Bulletin
Vol. 11, No. 2 Second Quarter 2013 Dr. Frank L. Wiswall, Jr., Editor-in-Chief Robert J. Zapf, Managing Editor Inside This Issue A ‘‘No-Frills’’ Primer on Iran Sanctions A ‘‘No-Frills’’ Primer on Iran Sanctions By David H. Sump ............................................ 61 By David H. Sump EDITOR’S INTRODUCTION – LOZMAN: THE I. Introduction IMPORTANCE OF THE CONTEXT As almost everyone in the maritime community is By F. L. Wiswall, Jr. ......................................... 63 aware, much of the world is in the midst of severe The Upside Down World of Lozman economic sanctions against Iran. These sanctions have been invoked not only by the United States, but also by By Francis X. Nolan, III, Esq............................ 72 the European Union, the United Nations, and other Lozman’s ‘‘Reasonable Observer’’ and nations around the world. Although the purpose of Where It Will Go From Here these sanctions is to modify the behavior of a ‘‘rogue nation’’ that allegedly is defying international norms and By Brendan Sullivan.......................................... 77 obligations, the sanctions are also visiting great harm Substitute Security, In Rem Jurisdiction, upon the maritime trade community. This article is Appellate Jurisdiction, and Lozman intended to briefly explain the nature and status of the economic sanctions imposed upon Iran, as well as iden- By Samuel P. Blatchley..................................... 83 tify the risks to the maritime community and provide WINDOW ON WASHINGTON solutions for avoiding or minimizing those risks. By Bryant E. Gardner ........................................ 86 II. What Are Sanctions and Why Are They Used? FLOTSAM & JETSAM Economic sanctions are the tools used by the inter- national community to assert pressure and hardship By Phil Berns.................................................... -
Reopening the Public Forum--From Sidewalks to Cyberspace
01O STATE LAW JOURNAL Volume 58, Number 5, 1998 Reopening the Public Forum-From Sidewalks to Cyberspace STEVEN G. GEY* The publicforum doctrine has been afxture offree speech law since the beginning of the modem era of First Amendment jurisprudence. The doctrine serves several functions. It is a metaphorical reference point for the strong protection offree speech everywhere, and it provides specific rules protecting free speech in public places. In this Article, Professor Gey reviews the development of the public forum doctrine. Professor Gey argues that serious problems have developed within the doctrine in recent times due to the Supreme Court's refusal to extend the fidl protection of the doctrine to new forwms that do not resemble the parks and sidewalks of the traditionalpublic forum cases. Professor Gey then reviews Justice Kennedy's recent contributions to the debate over the public forum doctrine, in which Justice Kennedy advocates erpanding the protective scope of the doctrine. Professor Gey draws on Kennedy's suggestions to propose a reinterpretationof public forum doctrine. Under this reinterpretation, the First Amendment would protect speech in a public space unless the speech would significantly interfere with the government's noncommunicative activities in that space. Professor Gey also argues that the reinterpreteddoctrine should extend beyond physical spaces to cover "metaphysical"forums, including any government property that provides an instrunentalty of communication. In the final sections of the Article, Professor Gey considers the application of his theory to two new, "metaphysical"forums: government subsidy programs and government access to the Internet. In many respects, the story of the First Amendment is the story of the public forum doctrine. -
Selecting Scrutiny in Compelled-Speech Cases Involving Non-Commercial Expression
Fordham Intellectual Property, Media and Entertainment Law Journal Volume 31 XXXI Number 1 Article 1 2020 Selecting Scrutiny in Compelled-Speech Cases Involving Non- Commercial Expression: The Formulaic Landscape of a Strict Scrutiny World After Becerra and Janus, and a First Amendment Interests-and-Values Alternative Clay Calvert University of Florida, [email protected] Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Constitutional Law Commons Recommended Citation Clay Calvert, Selecting Scrutiny in Compelled-Speech Cases Involving Non-Commercial Expression: The Formulaic Landscape of a Strict Scrutiny World After Becerra and Janus, and a First Amendment Interests-and-Values Alternative, 31 Fordham Intell. Prop. Media & Ent. L.J. 1 (2020). Available at: https://ir.lawnet.fordham.edu/iplj/vol31/iss1/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Selecting Scrutiny in Compelled-Speech Cases Involving Non-Commercial Expression: The Formulaic Landscape of a Strict Scrutiny World After Becerra and Janus, and a First Amendment Interests- and-Values Alternative Clay Calvert* This Article examines how courts select the standard of scrutiny—strict, intermediate, or something akin to rational basis— in compelled-speech disputes following the United States Supreme Court’s 2018 rulings in National Institute of Family and Life Advocates v. Becerra and Janus v. -
The First Amendment Structure for Speakers and Speech
RHODES (DO NOT DELETE) 4/2/2014 12:09 PM The First Amendment Structure for Speakers and Speech Charles W. “Rocky” Rhodes* ABSTRACT A noticeable trend in the Roberts Court’s free speech decisions is heightened attention to the dimensions of the First Amendment. From holding false factual statements, violent video games, and animal cruelty depictions are covered by the First Amendment, to determining that a legislator’s vote, the government’s acceptance of a monument, and a law school’s refusal to allow access to military recruiters are not, the Court has highlighted the importance of evaluating both the scope of the First Amendment and the appropriate attribution of communicative efforts. But the Court has failed to announce an overarching structural framework for resolving these prefatory coverage and attribution issues, instead compartmentalizing speech and speaker concerns into separate doctrinal strands. This Article illustrates the interrelationship of these speech and speaker issues and their amenability to a structural framework based upon historical traditions and contemporary communicative utility. Linguistic communications presumptively fall within First Amendment coverage except when historically treated as outside the guarantee’s scope or when traditionally viewed as attributable to the government or polity. The presumption, though, is reversed for nonlinguistic communicative attempts; founding-era traditions indicating the form’s predominant expressiveness are necessary to presume coverage. Yet even communicative efforts outside the First Amendment’s presumptive scope may be covered based on contemporary insights regarding the expressive value of the *Vinson & Elkins LLP Research Professor & Professor of Law, South Texas College of Law. An earlier version of this Article was presented at the 2013 Freedom of Expression Scholars Conference hosted by the Information Society Project at Yale Law School. -
First Amendment
FIRST AMENDMENT RELIGION AND FREE EXPRESSION CONTENTS Page Religion ....................................................................................................................................... 1063 An Overview ....................................................................................................................... 1063 Scholarly Commentary ................................................................................................ 1064 Court Tests Applied to Legislation Affecting Religion ............................................. 1066 Government Neutrality in Religious Disputes ......................................................... 1070 Establishment of Religion .................................................................................................. 1072 Financial Assistance to Church-Related Institutions ............................................... 1073 Governmental Encouragement of Religion in Public Schools: Released Time ...... 1093 Governmental Encouragement of Religion in Public Schools: Prayers and Bible Reading ..................................................................................................................... 1094 Governmental Encouragement of Religion in Public Schools: Curriculum Restriction ................................................................................................................ 1098 Access of Religious Groups to Public Property ......................................................... 1098 Tax Exemptions of Religious Property ..................................................................... -
Lozman V. Riviera Beach, 568 U
(Slip Opinion) OCTOBER TERM, 2017 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus LOZMAN v. CITY OF RIVIERA BEACH, FLORIDA CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 17–21. Argued February 27, 2018—Decided June 18, 2018 After petitioner Lozman towed his floating home into a slip in a marina owned by the city of Riviera Beach, he became an outspoken critic of the City’s plan to use its eminent domain power to seize waterfront homes for private development and often made critical comments about officials during the public-comment period of city council meet- ings. He also filed a lawsuit alleging that the City Council’s approval of an agreement with developers violated Florida’s open-meetings laws. In June 2006 the Council held a closed-door session, in part to discuss Lozman’s lawsuit. He alleges that the meeting’s transcript shows that councilmembers devised an official plan to intimidate him, and that many of his subsequent disputes with city officials and employees were part of the City’s retaliation plan. Five months after the closed-door meeting, the Council held a public meeting. -
Compelled Commercial Speech and the First Amendment
CAN YOU HANDLE THE TRUTH? COMPELLED COMMERCIAL SPEECH AND THE FIRST AMENDMENT Jennifer M. Keighley* ABSTRACT As information disclosure policies become a more popular and widespread regulatory tool, speakers are increasingly challenging such policies as a violation of their freedom of speech. The First Amendment limits on compelled commercial speech, however, have received little elaboration since the Supreme Court’s 1985 decision in Zauderer v. Office of Disciplinary Council. The new challenges to information disclosure policies threaten to unsettle the compelled commercial speech doctrine without appropriate recognition of the First Amendment values at stake, and to impose significant limits on the state’s ability to compel the inclusion of factual information in commercial speech in the service of the substantial state interests. While Zauderer indicates that compelled commercial disclosures are subject to rational basis review, questions remain about what interests can justify such disclosures, the types of disclosures that can be compelled, and what forms of speech qualify as commercial speech. I conclude that compelled factual disclosures affecting speech whose context and content is commercial should be subject to rational basis scrutiny as long as (1) the disclosure serves the state’s interest in an informed public, and (2) the disclosure informs the audience instead of spreading the government’s normative message. I will develop this conclusion by looking to recent First Amendment challenges to (1) the FDA’s Final Rule requiring tobacco packages and advertisements to include warning labels that have graphic images of the consequences of tobacco addition, and (2) city laws requiring organizations providing services to pregnant women to disclose the scope of their services. -
Making the Case for a Shift in Political Speech Jurisprudence
CORE Metadata, citation and similar papers at core.ac.uk Provided by University of Michigan School of Law University of Michigan Journal of Law Reform Volume 44 2011 Emphasizing Substance: Making the Case for a Shift in Political Speech Jurisprudence Anastasia N. Niedrich University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the First Amendment Commons, Law and Politics Commons, and the Supreme Court of the United States Commons Recommended Citation Anastasia N. Niedrich, Emphasizing Substance: Making the Case for a Shift in Political Speech Jurisprudence, 44 U. MICH. J. L. REFORM 1019 (2011). Available at: https://repository.law.umich.edu/mjlr/vol44/iss4/7 This Note is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. EMPHASIZING SUBSTANCE: MAKING THE CASE FOR A SHIFT IN POLITICAL SPEECH JURISPRUDENCE Anastasia N. Niedrich* Politicalspeech is vital to a functioning democracy and is highly protected. That much is hardly disputed. What courts, legal scholars, and those seeking to convey a politicalmessage do dispute is how politicalspeech should be identified and pro- tected, and who should decide what constitutespolitical speech. This Note looks at the history of political speech doctrine and critiques two intent-based approaches that have been proposed by First Amendment scholars to define political speech. -
Immigration, Retaliation, and Jurisdiction
University of Chicago Legal Forum Volume 2020 12/01/2020 Article 19 2020 Immigration, Retaliation, and Jurisdiction Daniel E. Simon Follow this and additional works at: https://chicagounbound.uchicago.edu/uclf Part of the Law Commons Recommended Citation Simon, Daniel E. (2020) "Immigration, Retaliation, and Jurisdiction," University of Chicago Legal Forum: Vol. 2020 , Article 19. Available at: https://chicagounbound.uchicago.edu/uclf/vol2020/iss1/19 This Article is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized editor of Chicago Unbound. For more information, please contact [email protected]. Immigration, Retaliation, and Jurisdiction Daniel Simon† I. INTRODUCTION When federal officials told Ravidath Ragbir that they were deport- ing him because of his immigration activism, no one could stop them.1 This unreviewability was by design — a feature, rather than a bug, of our immigration laws. Federal law curtails the ability of aliens facing removal from the United States to seek relief through habeas corpus: No federal court may exercise habeas jurisdiction over a claim by an alien challenging her removal, regardless of whether that claim is stat- utory or constitutional in nature.2 While this limitation presents broader problems for immigrants in detention, its impact is particularly pronounced in the context of selective or retaliatory enforcement. Ragbir’s case demonstrates the dangers of this general rule. Rag- bir — an alien deportable as a result of a federal wire fraud conviction — has spent years organizing for more lenient immigration policies. That advocacy led a senior official from Immigration and Customs Enforce- ment to admit that he was deporting Ragbir because of his advocacy. -
The Unsettling Well-Settled Law of Freedom of Association
University of Connecticut OpenCommons@UConn Connecticut Law Review School of Law 2010 The Unsettling Well-Settled Law of Freedom of Association John D. Inazu Follow this and additional works at: https://opencommons.uconn.edu/law_review Recommended Citation Inazu, John D., "The Unsettling Well-Settled Law of Freedom of Association" (2010). Connecticut Law Review. 85. https://opencommons.uconn.edu/law_review/85 CONNECTICUT LAW REVIEW VOLUME 43 NOVEMBER 2010 NUMBER 1 Article The Unsettling “Well-Settled” Law of Freedom of Association JOHN D. INAZU This Article argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. These indefensible categories matter deeply to groups that have sought to maintain an unpopular composition and message in the face of anti-discrimination laws. These groups have been denied associational protections. They have been forced to change their composition—and therefore their message. They no longer exist in the form they once held and desired to maintain. The Roberts categories of intimate and expressive association are at least partly to blame. These categories set in place a framework in which courts sidestep the hard work of weighing the constitutional values that shape the laws that bind us. This Article exposes the problems inherent in these categories and calls for a meaningful constitutional inquiry into laws impinging upon group autonomy. It suggests that the Court eliminate the categories of intimate and expressive association and turn instead to the right of assembly. Our right to assemble—to form relationships, to gather, to exist as groups of our choosing—is fundamental to liberty and genuine pluralism. -
First Amendment Rights, but in a New and Remarkably Different Light
TAKING IT TO THE STREETS: Banners and Manners I. Introduction In the wake of the September 11th terrorist attacks, an American citizenry united in grief, fear, and defense of country, joined in a spontaneous display of patriotism. Across America, her great national emblem, the United States flag, and its colors, became ubiquitous, appearing everywhere — from cars to homes, buildings to clothes. The President of the United States, on September 21, 2001, addressed the nation: "The only way to defeat terrorism as a threat to our way of life is to stop it, eliminate it and destroy it where it grows."[fn1] This declaration of a "war" on terrorism heightened the patriotic fervor, and, according to the California Department of Transportation ("CalTrans"), resulted in the proliferation of flags on California's highways. Highway 17 in Santa Cruz, California, was no exception. Private individuals hung flags from the highway's overpasses. On November 27, 2001, Amy Courtney and Cassandra Brown, concerned over the public's apparent failure to question the prospect of going to war, hung a responsive banner adjacent to a flag reading, "At What Cost?"1 This language began the 9th Circuit's discussion of the age-old question of first amendment rights, but in a new and remarkably different light. As this passage indicates, the question of one's freedom of speech and expression was now measured against the strong, national sentiment brought about by an event of national terrorism. Questions of the public fora, governmental speech, and time place and manner restrictions were now particularly pertinent as examined in light of this overwhelming national loss, and the resultant sentiment that the nation should speak with one voice. -
Toward a More Explicit, Independent, Consistent and Nuanced Compelled Speech Doctrine
TOWARD A MORE EXPLICIT, INDEPENDENT, CONSISTENT AND NUANCED COMPELLED SPEECH DOCTRINE Vikram David Amar* Alan Brownstein** Cases involving what the Court calls “compelled speech” are decided haphazardly and inconsistently, without any attempt to formalize the anal- yses into rules of decision. One resulting and abiding shortcoming of the current state of affairs is that compelled speech has remained essentially an all-or-nothing domain of constitutional decision-making. Based on a somewhat inscrutable and seemingly selective consideration of various fac- tors, compelled speech claims are either embraced and subjected to strict scrutiny review, or rejected as not implicating the right not to be compelled to speak at all. No detailed identification of the circumstances that warrant more or less rigorous standards of review has been recognized. This lack of rigorous doctrinal structure has led to more compelled- speech litigation and, perhaps more problematically, an increased willing- ness of courts to expand the scope of the case law in this area. In this Arti- cle, we propose to lay out a foundation and direction for developing dis- tinctive compelled speech doctrine. While our analysis and suggestions take account of important judicial holdings in many compelled speech cases, we are not attempting to draw a doctrinal line that connects or explains all of the Court’s decisions in a harmonious or intelligible way. Indeed, after we explain the circumstances under which the specter of government compul- sion of speech should be considered very troubling (warranting rigorous review) and those under which it should not (justifying a more flexible standard akin to intermediate level scrutiny or something more deferential still), we will argue that some decisions were wrongly decided.