Legal Defiance: Government-Sanctioned Graffiti Walls and the First Amendment

The caricature face of Maine Governor Paul LePage, wearing a Ku Klux Klan hood and surrounded by the words homophobe, moron, and racist greeted every passerby of the Portland Water District (PWD) in Portland, Maine on September 6, 2016. The image sparked a controversial exchange between local government entities, a rarity since the City ofContinue reading “Legal Defiance: Government-Sanctioned Graffiti Walls and the First Amendment”

Managing Dissent

In his insightful new book, Managed Speech: The Roberts Court’s First Amendment (2017), Professor Greg Magarian criticizes the Roberts Court for adopting a “managed speech” approach in its First Amendment cases. According to Professor Magarian, that approach gives too much power to private and governmental actors to manage public discourse, constrain dissident speakers, and instillContinue reading “Managing Dissent”

Public Employee Speech and Magarian’s Dynamic Diversity

The Supreme Court under Chief Justice John Roberts has been praised in many quarters as a committed ally of free speech. Certainly, a number of Roberts Court decisions do protect speech. Putting aside the Court’s controversial campaign finance decisions—the merits of which divide even free speech advocates—the Roberts Court’s speech-protective decisions include several cases inContinue reading “Public Employee Speech and Magarian’s Dynamic Diversity”

A Half-Hearted Defense of the Categorical Approach

One of Professor Magarian’s more impressive achievements in Managed Speech is paying the Roberts Court the compliment of providing a theory that runs through its various First Amendment cases. The book shows us surprising and hidden connections between disparate opinions by the Justices of the Court, and between different areas of First Amendment law. Importantly,Continue reading “A Half-Hearted Defense of the Categorical Approach”

Four Principles for Digital Expression (You Won’t Believe #3!)

At the dawn of the Internet’s emergence, the Supreme Court rhapsodized about its potential as a tool for free expression and political liberation. In ACLU v. Reno (1997), the Supreme Court adopted a bold vision of Internet expression to strike down a federal law – the Communications Decency Act – that restricted digital expression toContinue reading “Four Principles for Digital Expression (You Won’t Believe #3!)”

Candides and Cassandras: Technology and Free Speech on the Roberts Court

John Roberts assumed his position as Chief Justice of the United States just prior to the commencement of the October 2005 Term of the Supreme Court. That was seven years after Google was incorporated, one year before Facebook became available to the general public, and two years before Apple released the first iPhone. The twelveContinue reading “Candides and Cassandras: Technology and Free Speech on the Roberts Court”

Public Unions Under First Amendment Fire

Unions today are under First Amendment fire, with the compelled speech doctrine as the weapon of choice. Conservative interests are waging a legal war against agreements that include “fair-share service fees,” under which public-sector unions are permitted to charge nonunion members to pay their share of the costs of collective bargaining. Espousing libertarian theories ofContinue reading “Public Unions Under First Amendment Fire”