The Supreme Court has long distinguished content-based speech restrictions, which are almost never upheld (when they’re imposed by the government as sovereign rather as proprietor, and deal with speech outside the established First Amendment exceptions), from content-neutral speech restrictions, which will often be upheld if they leave open ample alternative channels for communication. And the […]
Archive | 2010
Content Discrimination and the First Amendment (Including the “Secondary Effects” Doctrine)
A post on Humanitarian Law Project and content discrimination reminded me that I’d never blogged my summary of the content-based/content-neutral speech restrictions under current First Amendment law. So here it is, extracted from my First Amendment textbook. (Note that all this assumes that the government is regulating speech acting as sovereign — not as proprietor, […]
Freedom of Speech and Generally Applicable Statutes
Today’s Holder v. Humanitarian Law Project says something that’s important for speech restrictions generally. Some laws ban a wide range of conduct that causes a certain kind of harm, and include speech that tends to causes the harm — and thus triggers the law — because of what the speech communicates. Thus, for instance, A […]
Holder v. Humanitarian Law Project
The Court just handed down its decision in Holder v. Humanitarian Law Project. There’s a lot there that’s important for free speech law, even for contexts far outside national security and anti-terrorism laws. And while the Court rejected the free speech claim (6-3, with the majority consisting of the conservatives plus Justice Stevens), there’s some […]
Adam Levitin on Interchange Price Controls:
Adam Levitin defended the Durbin Amendment imposing interchange price controls on debit cards on The Huffington Post Friday. From reading the post, it is not clear if he is just defending price controls in the abstract or whether he is actually defending the particularities of the Durbin Amendment. My reading is that this piece is […]
More on Libertarianism and Antidiscrimination Laws
Sheldon Richman responds to my Cato Unbound essay here, criticizing my position as being insufficiently libertarian, although he otherwise shares many of my underlying premises. And Jason Kuznicki responds to my essay here, supporting Title II from a Hayekian perspective, while, unlike me, expressing no noticeable qualms about the vast expansion of the antidiscrimination edifice […]
Material Support Statute Upheld
This morning the Supreme Court upheld the constitutionality of the federal law barring “material support” to designated terrorist organizations, at least as applied to the type of support the plaintiffs sought to provide in this case. Chief Justice Roberts wrote for the Court in Holder v. Humanitarian Law Project, joined by the Court’s conservatives and […]
Kagan and DeShaney
By Jonathan H. Adler on June 21, 2010 9:05 am in Judicial Nominations, Kagan Nomination, Supreme Court
Linda Greenhouse has an interesting column on then-Supreme Court clerk Elena Kagan’s cert memo for Justice Thurgood Marshall on whether to accept cert in DeShaney v. Winnebago County Social Services Department. UPDATE: I’m reminded that the WSJ‘s Jess Bravin has an earlier report on Kagan’s involvement with DeShaney in May.
Is Originalism for Progressives?
By Jonathan H. Adler on June 21, 2010 9:01 am in American Constitution Society, Constitutional Theory, Originalism, Uncategorized
In remarks at this weekend’s annual convention, American Constitution Society executive director Caroline Fredrickson reportedly characterized originalism as a “choking weed,” part of a “noxious brew” of ideology promoted by the Federalist Society. Was this remark a categorical rejection of originalism, or simply a rejection of those modes of originalism employed by conservatives? Her reported […]
Jeff Milyo, Guest-Blogging
I’m delighted to report that Prof. Jeff Milyo, the Middlebush Chair of Social Science at the University of Missouri and a senior fellow at the Cato Institute, will be guest-blogging for us this coming week, about his Institute for Justice report, Mowing Down the Grass Roots: How Grassroots Lobbying Disclosure Suppresses Political Participation. Prof. Milyo […]
Property Rights & Climate Change at AALS
By Jonathan H. Adler on June 20, 2010 11:29 pm in Climate Change, Energy, Environment, Property Rights
I presented on a plenary panel discussing the implications of global warming for property law at the AALS Mid-Year meeting earlier this month. My thesis, in short, was that concerns about global climate change do not justify abandoning or reconceiving traditional property norms. To the contrary, I suggested, environmental problems generally – and the threat […]
Climate Policy Panel at ACS
By Jonathan H. Adler on June 20, 2010 11:02 pm in American Constitution Society, Climate Change, Energy, Environment
On Saturday I participated in a panel on climate change policy, “Environmental Protection in a Climate of Change,” at the American Constitution Society’s National Convention in Washington, D.C. In addition to yours truly the panel featured Vicki Arroyo of the Georgetown Climate Center, Interior Department Deputy Solicitor Rachel Jacobson, and Andrew Light of the Center […]
Sunday Song Lyric
Donna Summer’s “Last Dance” (written by Paul Jabara) won both a Golden Globe and Academy Award in 1978. So one might not expect it to provoke much controversy in 2010 — at least that’s what folks at Wendy’s thought when it included the song in a kids meal “Car Karaoke” music CD. Not so fast. […]
Privacy: Failed Model No. 3
This post excerpts my book’s discussion of the third failed privacy model. (If you just can’t wait to see all three, or my idea for a better solution, I’ve posted a free copy of the chapter here.) If requiring a predicate is the lawyer’s solution; the third failed approach is the bureaucrat’s solution. It is […]
Federalism and Judicial Enforcement of Constitutional Property Rights
In a recent post on Prawfsblawg, NYU lawprof Rick Hills – a major federalism scholar – argues that federalism concerns justify strictly limiting federal court enforcement of constitutional property rights: SCOTUS’ decision yesterday in Stop the Beach Renourishment v. Florida Dep’t of Environmental Protection once more illustrates the axiom already established by many other decisions: […]