Author name: Eli Nachmany

Amicus, Freedom of Expression

Rick Perry Tests the Limits of the Establishment Clause (Again)

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Texas’s policy fails to distinguish itself from past Texas schemes rejected by courts, and it fails to pass muster under the Establishment Clause precedent of the Fifth Circuit and the Supreme Court. Perry’s personal conduct is even more out of bounds. In his advocacy of a purportedly neutral piece of legislation in such sectarian terms, he has crossed the line between accommodation of religion and active advocacy — and it is not the first time the governor has done so.

Amicus, Freedom of Expression

The Equivocal Speech Protections of the Supreme Court’s Alvarez Decision

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The less rigorous test proposed by the concurring justices produced a desirable result in this case, but it seems to portend an approach that gives less than full scrutiny to asserted government interest in content-discrimination….If the Court relies on the Alvarez concurrence’s approach in future cases, it could well give short shrift to what should be its starting presumption: that content-based restrictions on “lies,” like any other form of speech, are justifiable only in extraordinary circumstances.

Amicus, Freedom of Expression

Can Congress Prohibit Lying About Military Decorations?

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In light of the great deference traditionally shown by the Court – and evinced by several Justices in this case – towards the government in military matters, it may well be that the Court overlooks the troubling free-speech consequences of the Act’s overbreadth. In an area of its jurisprudence where it has shown willingness in recent years to give the First Amendment significant teeth, however, the Court would do well to subject the Stolen Valor Act to the full scrutiny it deserves under established doctrine despite the Act’s largely uncontroversial motives.

Amicus, Freedom of Expression

Pushing Back Against Oklahoma's Anti-Sharia Amendment

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At the very least, Judge Matheson’s ruling is a strong statement of the constitutional case against such legislation as the Oklahoma amendment. Couched in the language of Establishment Clause jurisprudence as it is, it makes clear not only that the grounds for the legislation are nonexistent, but also that its effect amounts to unconstitutional discrimination.

Amicus, Freedom of Expression

The First Amendment According to Newt Gingrich

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On the subject of the First Amendment Gingrich trafficks in exaggerations and outright fabrications entirely unworthy of his Establishment respectability and his Big Thinker moniker. His conjuring of a fictitious conspiracy against First Amendment religious values as a predicate for a wide-ranging attack on the very independence of the American judiciary is particularly dangerous, and particularly worthy of exposure.

Amicus, Freedom of Expression

Should Courts Allow a Heckler’s Veto over Student Speech?

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As a legal matter, the ruling is in keeping with courts’ increasingly deferential interpretations of the standards governing school regulation of student speech. Perhaps more so than other recent school speech cases, however, it helps illustrate one of the most problematic aspects of the Supreme Court’s dominant Tinker framework—the possibility that schools can engage in viewpoint discrimination or allow a “heckler’s veto” by suppressing unpopular viewpoints to avoid unpleasantness.

Amicus, Freedom of Expression

A Roadblock for New Cigarette Warning Labels

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Judge Leon’s ruling reflects a legitimate doctrinal concern: even for a particularly disfavored type of commercial speech such as cigarette advertising, there are limits on the extent to which companies can be forced to serve as a conduit for government speech unrelated to the truth of their advertising and completely inimical to their own commercial interests.

Amicus, Freedom of Expression

What Does "Freedom of Assembly" Mean for Occupy Wall Street?

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Whatever their excesses or ideological inconsistencies, they have clearly tapped into a widely felt discontent whose strength is manifested not so much by verbal communication as by the act of gathering together and providing a visible demonstration of solidarity and demographic strength. A stronger conception of the freedom of assembly would capture, better than courts’ current doctrine, the unique benefits which such a movement can bring to the process of American self-government.

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