Leading up to Justice Kennedy’s fateful 5-4 decision, there was plenty of debate on both sides, and the proponents of same-sex marriage emphasized that they just wanted to be treated the same as heterosexual couples. They even coined the deceptively simple slogan, “Marriage Equality.” That was then.
Graduation season is well underway. With all the excitement and regalia of the annual event, it might be easy to overlook the commencement address, an American tradition as old as the graduation ceremony itself. These addresses—and, in particular, the speakers invited by high schools and colleges to deliver them—have at this point become a regular source of controversy, protest, and even, on occasion, borderline violence.
If there was any hope left that a Putin-led Russia might still transition to a democracy with a stable rule of law and truly independent civil society, Karen Dawisha’s Hayek Book Prize nominated Putin’s Kleptocracy would seem to have squashed it. Indeed, Dawisha argues that Putin basically rules through and with a criminal conspiracy whose goals are to “control privatization, restrict democracy, and return to Russia to Great Power (if not superpower) status.” She cites as powerful evidence the penalties imposed by the United States in April 2014 following the Russian invasion of Crimea. The American government didn’t primarily target…
In March the Supreme Court will hear a case in which a Texas group is appealing the state’s refusal to style vanity license plates that include an image of the Confederate flag. The plaintiff’s argument rests on First Amendment rights: because Texas allows other citizens to choose images for license plates, the state is violating the right to free speech by suppressing this group’s preference. Another license plate case is being hammered out in the lower courts in North Carolina. There the ACLU is suing on behalf of a plaintiff who wants a pro-abortion vanity license plate, given that the state permits pro-life licenses.
One might think that these cases should be decided the same way, but Corey Brettschneider and Nelson Tebbe suggest otherwise in a characteristically thoughtful oped in The New York Times. The authors argue that messages on license plates are a mixture of private and public speech. Thus the Court should balance the private interest in free expression with the public interest in permitting the government to control its own messages. They conclude that Texas can suppress the vanity plate bearing an image of the Confederate flag but that North Carolina must permit the pro-choice sentiment because the Confederate flag is a symbol contrary to the constitutional values of equal protection of the law, while pro-abortion sentiments endorse a legally guaranteed constitutional right.
I respectfully disagree. Although the government has no obligation to provide the opportunity for messages on vanity plates (and if I were a legislator, I would not vote to have them), it should not discriminate among messages based on their content once it opens up this space.
This next podcast is with the Danish journalist Flemming Rose, foreign news editor at Jyllands-Posten, on the controversy he ignited in 2005 when he published cartoons satirizing the prophet Mohammed. His new book, The Tyranny of Silence, offers his reflections on the conflagration that ensued, including a jihadist’s attempt to murder one of the cartoonists with an axe. Rose received the protection of Danish security services after threats were made on his life. Not bowing to intimidation, Rose has spent the last decade highlighting the dangers of foregoing a commitment to freedom of speech. Our interview delves into these experiences…
Recently, the Minnesota Supreme Court upheld the appeal of a man convicted and sentenced to a one-year prison term for having aided the suicides of two depressed people through advice and encouragement he had offered them over the Internet.
The grounds on which the appellant successfully challenged his conviction were that the statute under which he had been prosecuted and convicted — and which proscribed ‘encouraging, advising or assisting another in committing suicide’ — violated his First Amendment right to free speech.
Update 3/23/14: I mistakenly assumed that petitioners appealed the Free Speech and Free Exercise clause. I now see that they only appealed the compelled speech issue. Here is the only question presented:
Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.
Of course the Justices can also grant the Free Exercise issue, even though it was not mentioned in the Cert petition. I’ll leave the remainder of the post as is.
Currently pending before the Supreme Court is the certiorari petition in Elane Photography v. Willock, which involves a case where a photographer refused to photograph a same-sex civil commitment ceremony. While much of the attention to this case focuses on religious liberty, Eugene Volokh and Ilya Shapiro have a great Op-Ed arguing that forcing Elane to photograph a same-sex wedding, against her wishes, would not only implicate religious liberty, but free expression. They would be forcing her to speak–or more precisely create art in the form of photographs:
One of the great advantages of the ever-increasing plethora of rights conferred upon us by government (except that of keeping the product of our own labor) is that it requires lawyers to adjudicate between them when they conflict, as they so often do. It prevents unemployment among the ever-increasing number of lawyers: and you have only to consider the career of Robespierre to know where the disgruntlement of lawyers may lead.
The Liberty Forum for August is an attempt to answer the question if the courts should assume a more prominent role in reining in the administrative state. Joseph Postell's lead essay argues that Today’s administrative state, therefore, makes a mess of the constitutional separation of powers and its careful adjustment of incentives, checks and balances. In such a system, what role can and should the courts play in reviewing agency decision-making? Here is where a deeper understanding of the courts’ historical role in administration is most needed. Excellent responses from Gary Lawson and Mark Seidenfeld question Postell's argument in favor of heightened…
The next Liberty Law Talk is with Paul Horwitz on his new book, First Amendment Institutions. Horwitz challenges the dominant legal perspective on free speech in American law, which focuses on speaker and state. Instead of this acontextual approach, Horwitz poses that speech is impossible without the institutions that both form it and give it the opportunity to be heard. Institutions are the "scaffolding" of the individual's right to free speech and should be accorded greater autonomy from the state in their self-government. Horwitz would include many state institutions in this category. Thus, the law, in regulating or permitting speech,…