Opinions & Commentaries

April 14, 2017

Public school students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines (1969). Such rights must, however, be considered in the context of “the special characteristics of the school environment.” This means that while public school students possess free speech rights at school, school officials can regulate speech more as educators than governments can as sovereign.

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February 15, 2017

The secondary effects doctrine allows government officials to treat patently content-based laws as content-neutral. The animating logic is that government officials are not suppressing speech because of its content but because of adverse side effects associated with the speech, such as increased crime or decreased property values.

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Collectively, this bundle of rights, largely developed by U.S. Supreme Court decisions, defines the “freedom of the press” guaranteed by the First Amendment. What we mean by the freedom of the press is, in fact, an evolving concept. It is a concept that is informed by the perceptions of those who crafted the press clause in an era of pamphlets, political tracts and periodical newspapers, and by the views of Supreme Court justices who have interpreted that clause over the past two centuries in a world of daily newspapers, books, magazines, motion pictures, radio and television broadcasts, and internet content.

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Overbreadth is a supremely important concept in First Amendment law and a key tool for constitutional litigators. A law is too broador overbroadwhen it not only covers speech that ought to be proscribed but also penalizes speech that should be safeguarded.   

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The First Amendment may protect profanity directed against another. Then again, such intemperate speech may fall into a narrow, traditionally unprotected category of expression known as “fighting words.”

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Defamation refers to false statements of fact that harm another’s reputation. It encompasses both libel and slander. Libel generally refers to written defamation, while slander refers to oral defamation.

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Chilling effect refers to a phenomenon where individuals or groups refrain from engaging in expression for fear of running afoul of a law or regulation. Chilling effects generally occur when a law is either too broad or too vague. Individuals steer far clear from the reaches of the law for fear of retaliation, prosecution, or punitive governmental action.

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