{"title":"The Supreme Court and Freedom of Expression, 2010–2011","authors":"Donald Fishman","doi":"10.1080/08997225.2012.10556389","DOIUrl":"https://doi.org/10.1080/08997225.2012.10556389","url":null,"abstract":"(2012). The Supreme Court and Freedom of Expression, 2010–2011. Free Speech Yearbook: Vol. 46, No. 1, pp. 107-123.","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116476720","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}
{"title":"The Delay of Tax-Exemption to Chill Pro-Israel Speech: Z STREET v. Shulman, Commissioner of Internal Revenue Service","authors":"Daniel S. Brown","doi":"10.1080/08997225.2012.10556387","DOIUrl":"https://doi.org/10.1080/08997225.2012.10556387","url":null,"abstract":"The Internal Revenue Service (IRS) wants to know: “Does your organization support the existence of the land of Israel?” When government officials ask this question to an applicant for tax exempt status, other questions must be asked. For example, given the power and authority of the federal government, what might be the correct response? In what way does our response influence the status of our application for tax exemption as a charitable non-profit organization? What words and thoughts ought we not express? In a surprising move that seems aimed at silencing the political expression of nonprofit Jewish and pro-Israel organizations, the IRS has delayed and may deny the awarding of tax exempt status to at least one pro-Israel non-profit group. Representatives of the nonprofit organization Z STREET argue in court documents that they are in the cross-hairs of the Obama administration because their mission and goals contradict the policies of President Barack Obama’s Middle East policy. More specifically, the current administration favors a two-state solution to the Middle East hostilities, whereas Z STREET is founded to support the principle of a single Israeli state as the foundation for peace in the Middle East. Denial of tax exemption because an organization is seriously out of step with widely-accepted public policy has long been a practice of the IRS. The Supreme Court entered the fray and fashioned the judicial test of “public policy” for tax exemption in Bob Jones University v. United States, a 1982 decision that involved racial discrimination in admission policies of the South Carolina institution. Because racial discrimination in education is counter to established public policy, so the Court reasoned, Bob Jones University, a private university that received no government assistance, should be denied a tax exemption. This paper argues in part that the IRS is misapplying the Bob Jones “public policy test” to the President’s “administration policy” on Middle East peace negotiation processes. This misapplication of the public policy test has tremendous potential to create a chilling effect on discussion and debate regarding United States foreign policy.","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"113 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120947965","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}
{"title":"The Cheerleader and the Athlete: A Sad Tale About the Dismal State of Student Speech Rights","authors":"Dale A. Herbeck","doi":"10.1080/08997225.2012.10556386","DOIUrl":"https://doi.org/10.1080/08997225.2012.10556386","url":null,"abstract":"In Tinker v. Des Moines Independent Community School District (1969), the United States Supreme Court extended freedom of speech to public school students. Writing for a 7-to-2 majority, Justice Abe Fortas famously proclaimed that neither students nor teachers “shed their constitutional right to freedom of speech or expression at the schoolhouse gate” (506). Recognizing that these rights are necessarily limited, the Court added that there were instances “where students in the exercise of First Amendment rights collide with the rules of school authorities” (507). In an effort to define these circumstances, Justice Fortas explained that student speech could be limited by demonstrating that it would “substantially interfere with the work of the school or impinge upon the rights of other students” (508). Particular attention must be paid, the opinion continued, to distinguish between legitimate regulation of disruptive student speech and efforts to “avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint” (509). To insure that school officials did not engage in any content-based discrimination, Justice Fortas called on federal judges to independently review the facts and determine whether there was sufficient evidence to justify suppressing student speech. Since Tinker was the first decision to extend speech rights to public school students, it was celebrated as a ringing affirmation of the importance of the freedoms guaranteed by the First Amendment to the United States Constitution. According to the majority opinion, “students in public schools [had rights] that were previously thought to belong only to adult citizens” (Arum 61). Over time, however, court decisions have steadily undermined the bold proclamation of student speech rights in Tinker. Although the Supreme Court has neither overruled nor qualified the holding, lower court decisions have systematically diluted this landmark decision (Miller 640). A judgment that was intended to protect student speech rights is now invoked to justify limits on student expression. Any number of cases might be used to illustrate this unfortunate trend. One case, however, has received considerable attention in recent months. In Doe v. Silsbee Independent School District (2010), the Fifth Circuit Court of Appeals summarily dismissed the free speech claim of a Texas high school student. Although few were surprised by the outcome, the treatment of student speech rights contained in the decision is so distressing that it deserves extended discussion. In that spirit, this analysis offers a brief summary of the facts in Doe v. Silsbee, summarizes the Fifth Circuit’s reasoning, and concludes by arguing the court wrongly decided the case. Since the decision is part of a larger trend, this case study provides new insight into the dismal state of free speech in public schools.","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"83 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126890162","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}
{"title":"Introduction to the Commentaries on Snyder v. Phelps: The Problems and Promises of Protecting Abhorrent Speech","authors":"Susan Balter-Reitz","doi":"10.1080/08997225.2012.10556377","DOIUrl":"https://doi.org/10.1080/08997225.2012.10556377","url":null,"abstract":"","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125131016","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}
{"title":"The Litigious Abyss between Academic Freedom and Freedom of Speech Response to John Durham Peters' Courting the Abyss","authors":"C. Smith","doi":"10.1080/08997225.2009.10556356","DOIUrl":"https://doi.org/10.1080/08997225.2009.10556356","url":null,"abstract":"","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122295289","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}
{"title":"The Fighting Words Doctrine: A History of Balancing Order And Liberty","authors":"J. Hanson, Ross Richendrfer, Matt Schissler","doi":"10.1080/08997225.2009.10556351","DOIUrl":"https://doi.org/10.1080/08997225.2009.10556351","url":null,"abstract":"","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134475542","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}
{"title":"The Supreme Court and Freedom of Expression, 2008–2009","authors":"P. Siegel","doi":"10.1080/08997225.2009.10556352","DOIUrl":"https://doi.org/10.1080/08997225.2009.10556352","url":null,"abstract":"The 2008-2009 Term was not brimming with cases related to the Yearbook’s subject matter. Indeed, the two most anticipated First Amendment cases resulted in a non-decision and a decision that purposely postponed the constitutional issues. In the first, court watchers were a bit surprised when the justices requested a second round of briefs and arguments in a case that asked if a 90-minute film highly critical of Hillary Clinton’s campaign for the presidency (the film was produced at a time when most pundits assumed she would win the Democratic nomination) was just an unusually long political advertisement, thus subject to the panoply of federal election campaign laws governing funding and public disclosure of donors. Whereas in the first round litigants addressed the matter of how the film should be treated under current law, the justices asked explicitly that both sides now address whether the case should be the vehicle for overturning at least a couple of Supreme Court precedents. The case was re-argued in September, 2009, several weeks before the Court’s traditional opening session. The second case, with which we will begin our more elaborate review momentarily, found the FCC defending itself against the charge that its sanctioning of FOX Television for on-air epithets uttered by Cher and Nicole Richie may have exceeded its authority. But the Court ruled only on a narrower statutory question, leaving the First Amendment issues to another day. Rounding out the relevant cases from the 2008-2009 Term are two decisions involving associational interests related to government employees’ payroll deductions going to labor unions’ litigation (in Maine) and political (in an Iowa case) expenses, and an Establishment Clause case from Utah over the display on public land of a monument to the Ten Commandments. We begin with the Fox Television case.","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133535669","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}
{"title":"The Case of the Contentious Metaphor: The Marketplace of Ideas as Modernist Mystery","authors":"R. A. Parker","doi":"10.1080/08997225.2009.10556342","DOIUrl":"https://doi.org/10.1080/08997225.2009.10556342","url":null,"abstract":"A curious anomaly haunts our constitutional discourse. Viewed through a literary lens, it rises to the status of mystery; for in law as in art, mysteries abide. Its origins are Holmesian—not in the logical inferences of Sir Arthur Conan Doyle’s fictional detective Sherlock Holmes, but in the terse jurisprudential aphorisms of U.S. Supreme Court Justices Oliver Wendell Holmes, Jr. and William O. Douglas. Its form is rhetorical and tropological—in the terms “free trade in ideas” and “marketplace of ideas” coined by the aforementioned jurists. The anomaly itself is historical: While judges embrace these metaphors, jurisprudential scholars repudiate them. Numerous critics (for example, Baker, “Scope” 979; Barron 1641; Bosmajian 49-72) have noted the anomaly; none has offered an explanation for it. This essay attempts to answer the question: Why does our 21st century U.S. Supreme Court champion the claim that maintaining a free marketplace of ideas is a primary value of the First Amendment to the U.S. Constitution, when mere invocation of the metaphor is dismissed with derision and contempt in the legal literature? While the course of analysis flows through the bedrock of arguments for, and indictments of, the trope, it attempts neither to weigh systematically the pros and cons of marketplace justifications for free speech nor to test the consequences of their employment. Instead, this essay focuses upon the rhetorical functions the metaphor performs in the rough-and-tumble process of making and justifying judicial decisions. Thus it aims to unveil the mystery; it proceeds not as a whodunit but rather as a whydunit. This investigation proceeds according to Kenneth Burke’s “conditions for ‘mystery’”: a “pronounced social distinction” between “two classes (or ‘kinds’) of people” (Rhetoric 115) resulting in a “trained incapacity” of each to grasp what the other sees (Permanence 49). Communication scholars can provide “interpretive frameworks” which may “overcome ‘trained incapacities’ by broadening the focus of what is considered when ‘communication’ is studied” (Goodall, Wilson, and Waagen 85 n. 2). Specifically, this essay proposes that judges often focus upon that which legal scholars miss. It sheds light on judges’ linguistic (tropological) and argumentative strategies in constructing justifications for judicial decisions regarding rights of free expression, contrasting these with the strategies of academic critics. Jurists’ reliance upon metaphor constitutes a more abstract condition: “Metaphor happens when the concrete image of a familiar reality is suddenly perceived in a new and unfamiliar way that links it with an unknown reality, thus permitting us to grasp at least partially the unknown, and adding a dimension of mystery to the familiar” (Halloran 106, emphasis added).","PeriodicalId":439135,"journal":{"name":"Free Speech Yearbook","volume":"380 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132975429","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}