Pub Date : 2020-07-02DOI: 10.1080/21689725.2020.1837648
Margaret Franz
ABSTRACT Restrictions on assembly, all of which disproportionately target Black, Indigenous, and People of Color, demonstrate that the freedom to assemble depends on state-defined temporal, behavioral, and spatial boundaries of political practice. This essay analyzes how the migrant caravans organized by Pueblo Sin Fronteras (PSF) push against the state-derived boundaries on assembly. Specifically, it focuses on two tactics deployed by the caravans: (1) using the term caravan and caravana to describe border crossing, and (2) media practices that turned undocumented border crossing into border refusal. These tactics contested the nation-state sovereignty required to mark its jurisdiction, and thus, to decide on the correct place and form of politics. In the end, the essay argues that the caravan expanded what it means to freely assemble by turning undocumented migration into protest. Communication scholars should pay attention to this expansion because it illuminates alternate ways of being political that push against the legacy of nation-state sovereignty and colonization.
摘要对集会的限制，所有这些都不成比例地针对黑人、原住民和有色人种，表明集会自由取决于国家定义的政治实践的时间、行为和空间边界。本文分析了Pueblo Sin Fronteras（PSF）组织的移民商队是如何在集会上突破国家边界的。具体而言，它侧重于大篷车部署的两种策略：（1）使用大篷车和大篷车一词来描述越境，以及（2）将无证越境变成拒绝越境的媒体做法。这些策略对民族国家主权提出了质疑，民族国家主权是标记其管辖权所必需的，从而决定了正确的政治位置和形式。最后，文章认为，商队通过将无证移民转变为抗议，扩大了自由集会的意义。传播学学者应该关注这一扩展，因为它阐明了反对民族国家主权和殖民化遗产的政治方式。
{"title":"Contesting the place of protest in migrant caravans","authors":"Margaret Franz","doi":"10.1080/21689725.2020.1837648","DOIUrl":"https://doi.org/10.1080/21689725.2020.1837648","url":null,"abstract":"ABSTRACT Restrictions on assembly, all of which disproportionately target Black, Indigenous, and People of Color, demonstrate that the freedom to assemble depends on state-defined temporal, behavioral, and spatial boundaries of political practice. This essay analyzes how the migrant caravans organized by Pueblo Sin Fronteras (PSF) push against the state-derived boundaries on assembly. Specifically, it focuses on two tactics deployed by the caravans: (1) using the term caravan and caravana to describe border crossing, and (2) media practices that turned undocumented border crossing into border refusal. These tactics contested the nation-state sovereignty required to mark its jurisdiction, and thus, to decide on the correct place and form of politics. In the end, the essay argues that the caravan expanded what it means to freely assemble by turning undocumented migration into protest. Communication scholars should pay attention to this expansion because it illuminates alternate ways of being political that push against the legacy of nation-state sovereignty and colonization.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"54 1","pages":"181 - 189"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2020.1837648","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46399926","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-02DOI: 10.1080/21689725.2020.1838843
A. Vats, M. Dutta
The chief spokespersons for this more refined sentiment against persons and voices that are new and unfamiliar to the campus and intellectual discourse are not the purveyors of gutter hate speech. They are polite and polished colleagues. The code words of this backlash are words like merit, rigor, standards, qualifications, and excellence. Increasingly we hear those who are resisting change appropriating the language of freedom struggles. Words like intolerant, silencing, McCarthyism, censors, and orthodoxy are used to portray women and people of color as oppressors and to pretend the powerful have become powerless.
{"title":"Locating freedom of speech in an era of global white nationalism","authors":"A. Vats, M. Dutta","doi":"10.1080/21689725.2020.1838843","DOIUrl":"https://doi.org/10.1080/21689725.2020.1838843","url":null,"abstract":"The chief spokespersons for this more refined sentiment against persons and voices that are new and unfamiliar to the campus and intellectual discourse are not the purveyors of gutter hate speech. They are polite and polished colleagues. The code words of this backlash are words like merit, rigor, standards, qualifications, and excellence. Increasingly we hear those who are resisting change appropriating the language of freedom struggles. Words like intolerant, silencing, McCarthyism, censors, and orthodoxy are used to portray women and people of color as oppressors and to pretend the powerful have become powerless.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"54 1","pages":"156 - 180"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2020.1838843","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43405899","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-07-02DOI: 10.1080/21689725.2020.1838846
Ashwini Falnikar
ABSTRACT The mainstream media and communication discourses in India in the present times engender ‘media violence’ embedded in the dominant productions of ‘Hinduism’ together with aspirations for neoliberal development. The media violence engenders indigenous forms of racism and colonialism. This article attempts to examine the nature of these productions through critical theories of postcoloniality and decolonial approaches put into conversation with theories of journalism. Through the examination of the instances of selective silencing of journalistic voices, and erasures embedded within the journalistic practices, this article argues for critical theories of press freedom. The productions of racial superiority and internal colonialism in India only begin to make sense when read together with the interplays of religion, class, caste, and global reach of the privileged sections of Indian society, namely the civil society. Against the backdrop of the historical role of the press in India in freedom struggle against colonial rule, the history of press censorship after independence, the civil society voices that are amplified in the neoliberal restructuring of news media, and the Dalit movements that expose the Brahminical dominance in the imaginary of the ‘Indian culture’, the meanings of race and coloniality in India unfold.
{"title":"Hindu nationalism and media violence in news discourses in India","authors":"Ashwini Falnikar","doi":"10.1080/21689725.2020.1838846","DOIUrl":"https://doi.org/10.1080/21689725.2020.1838846","url":null,"abstract":"ABSTRACT The mainstream media and communication discourses in India in the present times engender ‘media violence’ embedded in the dominant productions of ‘Hinduism’ together with aspirations for neoliberal development. The media violence engenders indigenous forms of racism and colonialism. This article attempts to examine the nature of these productions through critical theories of postcoloniality and decolonial approaches put into conversation with theories of journalism. Through the examination of the instances of selective silencing of journalistic voices, and erasures embedded within the journalistic practices, this article argues for critical theories of press freedom. The productions of racial superiority and internal colonialism in India only begin to make sense when read together with the interplays of religion, class, caste, and global reach of the privileged sections of Indian society, namely the civil society. Against the backdrop of the historical role of the press in India in freedom struggle against colonial rule, the history of press censorship after independence, the civil society voices that are amplified in the neoliberal restructuring of news media, and the Dalit movements that expose the Brahminical dominance in the imaginary of the ‘Indian culture’, the meanings of race and coloniality in India unfold.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"54 1","pages":"250 - 260"},"PeriodicalIF":0.0,"publicationDate":"2020-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2020.1838846","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44611438","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-02-06DOI: 10.1080/21689725.2021.1884113
J. Bernstein, Cameron W. Armstrong
ABSTRACT We explore student attitudes toward freedom of speech on campus using a think-aloud method, in which students are exposed to source material on a subject and “think aloud” as they work through the controversies. We gain an in-depth picture of how students understand and make judgments about who should and should not be allowed to speak on campus. Utilizing the think-aloud method to examine various cases of invited speakers on campus, we learn that students have difficult times differentiating legal and political reasons for preventing certain campus speakers. We also find that students tend to be more restrictive than a civil libertarian might like, albeit in (usually) internally consistent and sympathetic ways. We conclude by suggesting interventions that could help students better understand the way First Amendment rights are typically adjudicated and balanced against other lofty goals.
{"title":"Using think-alouds to understand how students balance free speech and inclusion","authors":"J. Bernstein, Cameron W. Armstrong","doi":"10.1080/21689725.2021.1884113","DOIUrl":"https://doi.org/10.1080/21689725.2021.1884113","url":null,"abstract":"ABSTRACT We explore student attitudes toward freedom of speech on campus using a think-aloud method, in which students are exposed to source material on a subject and “think aloud” as they work through the controversies. We gain an in-depth picture of how students understand and make judgments about who should and should not be allowed to speak on campus. Utilizing the think-aloud method to examine various cases of invited speakers on campus, we learn that students have difficult times differentiating legal and political reasons for preventing certain campus speakers. We also find that students tend to be more restrictive than a civil libertarian might like, albeit in (usually) internally consistent and sympathetic ways. We conclude by suggesting interventions that could help students better understand the way First Amendment rights are typically adjudicated and balanced against other lofty goals.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"55 1","pages":"22 - 43"},"PeriodicalIF":0.0,"publicationDate":"2020-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2021.1884113","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46031873","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-01-02DOI: 10.1080/21689725.2020.1742759
C. Smith
ABSTRACT This essay suggests using harassment law as a mechanism for remedying defects in “true threat” and “viewpoint protection” language which places an undue burden of proof on those trying to quell hate speech on campuses. The essay reviews noted failures and their causes in “true threat” and “viewpoint protection” rulings. Currently, the First Amendment of the Constitution protects freedom of expression unless it presents “a clear and present danger,” is treasonous, obscene, libelous or slanderous. The initial “clear and present danger” standard laid out by Justice Holmes in the Schenck decision has been refined in several cases to create an even heavier burden of proof. Currently, based particularly on the Brandenburg v. Ohio and Virginia v. Black rulings, to be prosecutable, speech must be a “true threat,” which means person-specific, imminent, and possible. However, the Supreme Court has also protected hate speech by defining it as “viewpoint” in such case as Indiana v. Hess, Snyder v. Phelps, and Matal v. Tam. This essay concludes by exploring ways to circumvent the “true threat” and “viewpoint” standards by relying on harassment rulings and extending these precedents from the workplace to campus learning environments.
{"title":"Circumventing the “true threat” and “viewpoint” protection tests to deal with persistent campus hate speech","authors":"C. Smith","doi":"10.1080/21689725.2020.1742759","DOIUrl":"https://doi.org/10.1080/21689725.2020.1742759","url":null,"abstract":"ABSTRACT This essay suggests using harassment law as a mechanism for remedying defects in “true threat” and “viewpoint protection” language which places an undue burden of proof on those trying to quell hate speech on campuses. The essay reviews noted failures and their causes in “true threat” and “viewpoint protection” rulings. Currently, the First Amendment of the Constitution protects freedom of expression unless it presents “a clear and present danger,” is treasonous, obscene, libelous or slanderous. The initial “clear and present danger” standard laid out by Justice Holmes in the Schenck decision has been refined in several cases to create an even heavier burden of proof. Currently, based particularly on the Brandenburg v. Ohio and Virginia v. Black rulings, to be prosecutable, speech must be a “true threat,” which means person-specific, imminent, and possible. However, the Supreme Court has also protected hate speech by defining it as “viewpoint” in such case as Indiana v. Hess, Snyder v. Phelps, and Matal v. Tam. This essay concludes by exploring ways to circumvent the “true threat” and “viewpoint” standards by relying on harassment rulings and extending these precedents from the workplace to campus learning environments.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"54 1","pages":"109 - 93"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2020.1742759","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41961690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-01-02DOI: 10.1080/21689725.2020.1728357
M. Eisenstadt
ABSTRACT The Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission was decided on the narrow ground that the Colorado Civil Rights Commission violated the First Amendment’s Free Exercise Clause because of hostility toward the owner of Masterpiece Cakeshop. This decision failed to answer a cardinal question of constitutional law, whether or not the First Amendment’s Free Speech Clause could undermine nondiscrimination law. In Justice Anthony Kennedy’s majority opinion, he seized on one particular comment made by a Commissioner about religious freedom that justified ruling against the Commission for its use of discriminatory rhetoric. According to Justice Kennedy, the Commission violated the Free Exercise Clause by describing religious expression as despicable and as merely rhetorical. In this report, I argue that Justice Kennedy’s opinion demands heightened attention for two reasons. First, to describe religious freedom as a justification for prejudice as merely rhetorical is a gross underestimation of the power of rhetoric and provides moral encouragement to anti-LGBTQ+ activists using the legal system to advance a heteronormative agenda. Second, Justice Kennedy’s claim that rhetoric is insubstantial and insincere calls into question the role of the Court, the meaning of the law, and the relationship between the law and rhetoric.
{"title":"Perspective by incongruity: Law and rhetoric in Masterpiece Cakeshop v. Colorado Civil Rights Commission","authors":"M. Eisenstadt","doi":"10.1080/21689725.2020.1728357","DOIUrl":"https://doi.org/10.1080/21689725.2020.1728357","url":null,"abstract":"ABSTRACT The Supreme Court’s ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission was decided on the narrow ground that the Colorado Civil Rights Commission violated the First Amendment’s Free Exercise Clause because of hostility toward the owner of Masterpiece Cakeshop. This decision failed to answer a cardinal question of constitutional law, whether or not the First Amendment’s Free Speech Clause could undermine nondiscrimination law. In Justice Anthony Kennedy’s majority opinion, he seized on one particular comment made by a Commissioner about religious freedom that justified ruling against the Commission for its use of discriminatory rhetoric. According to Justice Kennedy, the Commission violated the Free Exercise Clause by describing religious expression as despicable and as merely rhetorical. In this report, I argue that Justice Kennedy’s opinion demands heightened attention for two reasons. First, to describe religious freedom as a justification for prejudice as merely rhetorical is a gross underestimation of the power of rhetoric and provides moral encouragement to anti-LGBTQ+ activists using the legal system to advance a heteronormative agenda. Second, Justice Kennedy’s claim that rhetoric is insubstantial and insincere calls into question the role of the Court, the meaning of the law, and the relationship between the law and rhetoric.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"54 1","pages":"128 - 135"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2020.1728357","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43183595","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-01-02DOI: 10.1080/21689725.2020.1743197
M. Park
ABSTRACT This article offers an analysis of how, and to what extent, public institutions of higher learning, as agents of one sovereign, could assert free speech rights against the federal government, another sovereign. This work expands the First Amendment and government speech discourse by contributing a novel examination of Supreme Court precedent and the Court’s language addressing the expressive activities of universities under academic freedom. This work also situates itself theoretically in the Madisonian conception of the First Amendment Free Speech Clause, and makes the case that public universities should be recognized as institutions that occupy a special constitutional status within the doctrine. The article’s significance is underscored by the fact that the current political climate raises the specter of increased regulation and policing of the expressive activities of universities.
{"title":"Sovereignty and First Amendment rights of higher education institutions: An affirmative and institutional approach","authors":"M. Park","doi":"10.1080/21689725.2020.1743197","DOIUrl":"https://doi.org/10.1080/21689725.2020.1743197","url":null,"abstract":"ABSTRACT This article offers an analysis of how, and to what extent, public institutions of higher learning, as agents of one sovereign, could assert free speech rights against the federal government, another sovereign. This work expands the First Amendment and government speech discourse by contributing a novel examination of Supreme Court precedent and the Court’s language addressing the expressive activities of universities under academic freedom. This work also situates itself theoretically in the Madisonian conception of the First Amendment Free Speech Clause, and makes the case that public universities should be recognized as institutions that occupy a special constitutional status within the doctrine. The article’s significance is underscored by the fact that the current political climate raises the specter of increased regulation and policing of the expressive activities of universities.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"54 1","pages":"110 - 127"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2020.1743197","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47950879","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-01-02DOI: 10.1080/21689725.2020.1742761
Joshua Guitar
ABSTRACT Edward Snowden’s revelations ignited public discourse on whistleblowing and whistleblower protection legislation. Given the polemics over whistleblower distinctions throughout mediated exchanges between US officials and the press, this manuscript constitutes a synchronic ideographic analysis of pertinent, recognized ideographs as they were operationalized in relation to whistleblowing within the Snowden discourse. While news media and the public agreed that Snowden operated as a whistleblower, the US government adamantly denied this classification. Instead, US officials manufactured a media trial, and in three distinct phases, purged whistleblowing from the public forum, rhetorically criminalized Snowden as a threat to national , and utilized whistleblowing as a means to propagate the war on and defend covert surveillance. These processes afforded US officials the ability to funnel whistleblowers through private channels, effectively neutralizing the public power of whistleblowers. It is argued that removing whistleblowers from the public forum, while packaged as a protective measure for whistleblowers, operates as a defensive measure for state officials and authoritarianism writ large as it disarms a democratic populace of a foundational tool of free speech and dissent.
{"title":"is (not) a whistleblower: Ideographs, whistleblower protections, and restrictions of speech","authors":"Joshua Guitar","doi":"10.1080/21689725.2020.1742761","DOIUrl":"https://doi.org/10.1080/21689725.2020.1742761","url":null,"abstract":"ABSTRACT Edward Snowden’s revelations ignited public discourse on whistleblowing and whistleblower protection legislation. Given the polemics over whistleblower distinctions throughout mediated exchanges between US officials and the press, this manuscript constitutes a synchronic ideographic analysis of pertinent, recognized ideographs as they were operationalized in relation to whistleblowing within the Snowden discourse. While news media and the public agreed that Snowden operated as a whistleblower, the US government adamantly denied this classification. Instead, US officials manufactured a media trial, and in three distinct phases, purged whistleblowing from the public forum, rhetorically criminalized Snowden as a threat to national , and utilized whistleblowing as a means to propagate the war on and defend covert surveillance. These processes afforded US officials the ability to funnel whistleblowers through private channels, effectively neutralizing the public power of whistleblowers. It is argued that removing whistleblowers from the public forum, while packaged as a protective measure for whistleblowers, operates as a defensive measure for state officials and authoritarianism writ large as it disarms a democratic populace of a foundational tool of free speech and dissent.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"54 1","pages":"1 - 27"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2020.1742761","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46992533","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-01-02DOI: 10.1080/21689725.2020.1742762
Adrienne E. Hacker-Daniels
ABSTRACT This essay examines the case American Legion v. American Humanist Association in which the Supreme Court decided (in a 7–2 decision) that a monument in Bladensburg, Maryland, known as the Peace Cross, does not represent governmental promotion of religion, and therefore is not in violation of the Establishment Clause. The origins of the First Amendment are discussed followed by a discussion of significant Supreme Court precedents, providing a meaningful framework for an understanding of the First Amendment issues at stake in this case. With that background, the major tenets of the Peace Cross case are examined, including majority/concurring and dissenting opinions. Finally, a perspective of this case is situated as contradistinctive to another current artifact, in which the latter engenders an untenable, harmful and violative relationship between the Establishment Clause and the Free Exercise Clause.
{"title":"Is it too heavy of a constitutional cross to bear? Making sense of the decision in American Legion v. American Humanist Association","authors":"Adrienne E. Hacker-Daniels","doi":"10.1080/21689725.2020.1742762","DOIUrl":"https://doi.org/10.1080/21689725.2020.1742762","url":null,"abstract":"ABSTRACT This essay examines the case American Legion v. American Humanist Association in which the Supreme Court decided (in a 7–2 decision) that a monument in Bladensburg, Maryland, known as the Peace Cross, does not represent governmental promotion of religion, and therefore is not in violation of the Establishment Clause. The origins of the First Amendment are discussed followed by a discussion of significant Supreme Court precedents, providing a meaningful framework for an understanding of the First Amendment issues at stake in this case. With that background, the major tenets of the Peace Cross case are examined, including majority/concurring and dissenting opinions. Finally, a perspective of this case is situated as contradistinctive to another current artifact, in which the latter engenders an untenable, harmful and violative relationship between the Establishment Clause and the Free Exercise Clause.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"54 1","pages":"136 - 147"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2020.1742762","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47446350","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2020-01-02DOI: 10.1080/21689725.2020.1742763
Bradley Queen
ABSTRACT This essay responds to the holding in National Institute of Family and Life Advocates (NIFLA) v. Becerra (2018), arguing that the signal contribution of the majority opinion is its attempt to move commercial speech further into the absolute realm of protected public discourse. In finding the California FACT Act to be unconstitutional, the 5–4 majority uses a fractured commercial speech standard to define NIFLA’s marketplace communications as protected ideological speech. In so doing, Justice Thomas, author of the majority opinion, considers only the state’s speech – its compelled disclosures – and does not assess the rhetorical properties of NIFLA’s commercial communications. But the majority concludes nevertheless that NIFLA’s speech is impervious to publicly interested legislation, despite well-documented evidence of misleading and harmful advertising. Ultimately, it is argued that the question of whether NIFLA’s right to free speech has been violated cannot be squarely addressed if the speech with which the state’s disclosures dialogue remains nebulous. NIFLA seems to undermine the longstanding conception of commercial speech as a form that legitimates both the interests of speakers and the informational interests of publics, with the latter sustained when necessary by governmental initiatives that enable informed choice-making by regulating deceptive information in commercial marketplaces.
{"title":"The First Amendment v. reproductive rights: Crisis pregnancy centers, commercial speech, and marketplaces of misinformation","authors":"Bradley Queen","doi":"10.1080/21689725.2020.1742763","DOIUrl":"https://doi.org/10.1080/21689725.2020.1742763","url":null,"abstract":"ABSTRACT This essay responds to the holding in National Institute of Family and Life Advocates (NIFLA) v. Becerra (2018), arguing that the signal contribution of the majority opinion is its attempt to move commercial speech further into the absolute realm of protected public discourse. In finding the California FACT Act to be unconstitutional, the 5–4 majority uses a fractured commercial speech standard to define NIFLA’s marketplace communications as protected ideological speech. In so doing, Justice Thomas, author of the majority opinion, considers only the state’s speech – its compelled disclosures – and does not assess the rhetorical properties of NIFLA’s commercial communications. But the majority concludes nevertheless that NIFLA’s speech is impervious to publicly interested legislation, despite well-documented evidence of misleading and harmful advertising. Ultimately, it is argued that the question of whether NIFLA’s right to free speech has been violated cannot be squarely addressed if the speech with which the state’s disclosures dialogue remains nebulous. NIFLA seems to undermine the longstanding conception of commercial speech as a form that legitimates both the interests of speakers and the informational interests of publics, with the latter sustained when necessary by governmental initiatives that enable informed choice-making by regulating deceptive information in commercial marketplaces.","PeriodicalId":37756,"journal":{"name":"First Amendment Studies","volume":"54 1","pages":"71 - 92"},"PeriodicalIF":0.0,"publicationDate":"2020-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/21689725.2020.1742763","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42275616","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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