The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law最新文献

{"title":"The Sounds of Silence: Reconsidering the Invocation of the Right to Remain Silent Under Miranda","authors":"Mark S. Strauss","doi":"10.2139/SSRN.1105472","DOIUrl":"https://doi.org/10.2139/SSRN.1105472","url":null,"abstract":"In Miranda v. Arizona, the Supreme Court required that prior to any custodial interrogation a suspect must be informed that he has the right to remain silent and the right to an attorney and that no interrogation can occur until the suspect waives these rights. Although these protections seem on first blush to effectively empower a suspect to choose whether to speak to the police, many have deemed Miranda a spectacular failure. There are numerous critics of the Miranda decision and its progeny on a variety of levels, but what has received too little attention is whether the most basic protection of the Miranda decision operates effectively. That is, how can a suspect effectively assert the right to remain silent and do the police appropriately respect such an assertion? This paper attempts to answer that question by considering what constitutes an assertion of the right to remain silent. Although Miranda suggested that if an individual indicates in any manner at any time that he wishes to remain silent, the interrogation must cease, subsequent cases have required a more explicit invocation of the desire not to speak. Relying on Davis v. United States, a Supreme Court decision addressing the invocation of the right to counsel, the bulk of lower courts require that a suspect unambiguously invoke the right to remain silent. Such a transposition of the requirements for asserting the right to counsel with the right to remain silent is wrong as a matter of law, unwise as a matter of policy and threatens to eviscerate the core protection of Miranda. This article argues that the requirement that the right to remain silent be unambiguously asserted is inconsistent with the guarantees of Miranda. The passage of time since Miranda and Davis has revealed one indisputable fact: rarely do suspects invoke their rights. Only 20 per cent initially assert their rights rather than waive them and almost no suspects assert their rights after a valid waiver. While some suspects undoubtedly want to talk to the police, this paper argues that these statistics have a more nefarious explanation: courts have made is extremely difficult for suspects who want to assert their rights to do so. By cataloguing the state and federal cases since Davis that has addressed the right to remain silent, I attempt to demonstrate how the lower courts have gone to extraordinary lengths to classify even seemingly clear invocations as ambiguous statements which can be ignored by the police. As a result, Miranda's promise that suspects freely determine whether and when they wish to submit to custodial interrogation is an empty one.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"19 1","pages":"773"},"PeriodicalIF":0.0,"publicationDate":"2008-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91155539","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":"Falsity, Insincerity and the Freedom of Expression","authors":"M. Spottswood","doi":"10.2139/ssrn.1081630","DOIUrl":"https://doi.org/10.2139/ssrn.1081630","url":null,"abstract":"Three decades ago, the Supreme Court announced that false statements of fact are devoid of constitutional value, without providing either a reasoned explanation for that principle or any supporting citations. This assertion has become one of the most frequently repeated dogmas of First Amendment law and theory, endlessly repeated and never challenged. Disturbingly, this idea has provided the theoretic foundation for a regime in which some speakers can be penalized for even honestly believed factual errors. Even worse, this dogma is flat wrong. False statements often have value in themselves, and we should protect them even in some situations where we are not concerned with chilling truthful speech. When false statements are spoken sincerely, they are a useful and necessary part of argumentation, which is a powerful means of increasing human knowledge. When confronted with honest errors, proponents of competing beliefs have a natural impulse to contest them; in so doing, they unearth and disseminate facts that deepen the understanding of both speakers and listeners. False speech, therefore, is valuable because it is an essential part of a larger system that works to increase society's knowledge. The benefits of false speech evaporate, however, when we move from honest errors to deliberate lies. Insincere speech tends to corrode, rather than further, argument. It is associated with a number of practices that deprive argument of its knowledge-promoting features. We may sometimes wish to protect insincere speech to avoid chilling truthful speech, but we should always do so cautiously. After providing a summary of the existing law and scholarship concerning false speech, this Article analyzes the harms and benefits of false, insincere, and misleading speech. This question will be approached from the perspective of social veritistic epistemology, which will permit a detailed assessment of the consequences of various types of deceptive speech for the state of societal knowledge. I will conclude by suggesting some ways in which existing First Amendment doctrine could be reformed in order to better account for the constitutional value of false speech. Ultimately, it is insincerity, not falsity, which has no essential part of any exposition of ideas, and is of slight social value as a step to truth. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"16 1","pages":"1203"},"PeriodicalIF":0.0,"publicationDate":"2008-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85433082","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 On/Off Switch","authors":"P. Heymann","doi":"10.1126/scisignal.772001tw11","DOIUrl":"https://doi.org/10.1126/scisignal.772001tw11","url":null,"abstract":"The only point I want to make is very simple, but its implications are immensely important. The writers of a Constitution that carefully separated powers out of fear of executive authority and who, even then, saw that it could only be ratified after a Bill of Rights was added, could not have intended that the President be given unilateral control of an on/off switch for both of these sets of protections against executive power. I could stop there. I. ARTICLE II I am persuaded that a presidential signing statement, an interpretation of a new law, is just one of a number of forms by which the President can direct executive branch activity, with certain advantages and disadvantages to each. I take seriously the argument that the President, under an extension of the principles of Marbury v. Madison,1 has a responsibility to direct subordinates not to enforce at least some statutes on the grounds that they are plainly unconstitutional. I wonder whether this logic would not take us, as well, to the obligation of executive subordinates not to enforce any presidential directives or statutes they regard as unconstitutional - a consequence that nobody recommends. I am not at all sure that a distinction can be drawn between his protection of Article ? powers, such as the appointment power,2 and his protection of the Bill of Rights. I recognize that the precedents have drawn no such distinction, although the former seems to pose more of a conflict of interest. Still, no chain of reasoning in terms of premises that start with the normal priority of the Constitution over statutes3 can convince me that the President was given independent control of an on/off switch labeled \"war\" or \"no war\" against individuals or groups - a switch that empowers him to set aside vast portions of the Constitution and, in particular, those portions that were intended to control his powers. That simply cannot be. If, as history and policy both dictate, the executive enjoys highly exceptional powers and independence in times of \"war,\" Congress and the courts have to control that switch. My argument thus does not require concluding that, in times of armed conflict between the United States and another state, the President lacks extraordinary powers. My argument does not even require me to insist that any such conflict be something recognizable as very similar to a past war before Congress can agree, in a way that is likely to bind the courts, that the President has the extraordinary powers that Lincoln and Roosevelt exercised. My argument is simply that, except for a short period of time after a dangerous emergency arises and before Congress can act, the President cannot exercise war powers except with the consent of Congress. The reason is very simple. In the Constitution, the Framers allocated to Congress powers which were very carefully withheld from the President4 and the Framers gave the people liberties which were very carefully protected from the President.5 There may be rare ","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"26 1","pages":"55"},"PeriodicalIF":0.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74435457","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":"Presidential Signing Statements and the Rule of Law as an “Unstructured Institution\"","authors":"P. Shane","doi":"10.31228/osf.io/gb2dc","DOIUrl":"https://doi.org/10.31228/osf.io/gb2dc","url":null,"abstract":"The George W. Bush administration's use of signing statements embodied a disturbingly thin and formalist view of the rule of law that goes hand-in-hand with its vision of the separation of powers. Its signing statement practice was notable both for the extremity of the constitutional vision that these statements typically asserted—especially with regard to the so-called \"unitary executive”—and with regard to their sheer volume, unmatched in the entire history of the executive. To understand the latter phenomenon, the Bush signing statements need to be understood not just as an expression of a constitutional philosophy, but also as an effort to institutionalize through faux law a highly presidential ethos as a fundamental element of the spirit with which the government conducts business.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"5 1","pages":"231"},"PeriodicalIF":0.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74942222","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 Presidential Signing Statements Controversy","authors":"R. Cass, P. Strauss","doi":"10.7916/D8BK1C9Z","DOIUrl":"https://doi.org/10.7916/D8BK1C9Z","url":null,"abstract":"INTRODUCTION Presidential signing statements have come out of obscurity and into the headlines. Along with salutary attention to an interesting issue, the new public visibility of signing statements has generated much overblown commentary. The desire to make these little-known documents interesting to the public - and to score points in the inevitable political battles over any practice engaged in by a sitting President - has produced a lot of discussion that misleads the public and has tended to obscure the significant issues surrounding the use of signing statements. Reflection may help put the discussion in a more useful perspective. We offer these views as the joint product of persons who have served under different Presidents and are identified as Republican and Democrat (one in each camp) and as enthusiasts for fairly strong and relatively modest views of presidential authority under the Constitution (also one in each camp). Presidents long have said what they think of the bills they sign into law and for two centuries have issued formal statements when they find something particularly noteworthy.2 Even though conflicts over signing statements have arisen from time to time for more than 175 years, the practice of issuing these statements remained little known and little noticed until the past few years.3 Recently, from the public's vantage, everything seems to have changed. Newspaper exposes two years or so ago made it appear that President George W. Bush had greatly expanded the use of these statements beyond the practices of his predecessors, and concern over this characterization prompted both a Senate hearing (while the Senate remained Republican)4 and an American Bar Association (ABA) resolution condemning misuse of presidential signing statements.5 The bar association's resolution followed a much talked-about report by a blue-ribbon ABA task force and highly publicized statements from its chair, Neil Sonne«, tying the ABA' s initiative to constrain signing statements to concerns about the Bush administration.6 Subsequent to the Republicans' loss of control in Congress, the controversy continued with no lowering of the sound level. The House of Representatives has held hearings on the use of signing statements;7 a bill has been filed to prevent the use of any funds for signing statements;8 the Congressional Research Service has produced a report on signing statements' constitutional and institutional implications;9 the Government Accountability Office (GAO), at the urging of congressional Democrats, has studied their actual implementation;10 and this symposium has been held. News reports and statements by politicians have cast the use of signing statements as a threat to our constitutional system and its division of powers among the branches of government.11 Mr. Sonnett and other ABA leaders, for example, declared that any use of signing statements to assert the unconstitutionality of elements of a statute, or to direct an interpretati","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"68 1","pages":"11-25"},"PeriodicalIF":0.0,"publicationDate":"2007-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90382544","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":"Religious Tests in the Mirror: The Constitutional Law and Constitutional Etiquette of Religion in Judicial Nominations","authors":"P. Horwitz","doi":"10.2139/SSRN.897816","DOIUrl":"https://doi.org/10.2139/SSRN.897816","url":null,"abstract":"The Religious Test Clause of the United States Constitution states that \"no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.\" Although it is the only place in the main text of the Constitution that mentions religion, it has been habitually ignored - until now. In the past several years, a spate of lower federal court nominations and two Supreme Court nominations - the successful nomination of Chief Justice John Roberts and the abortive nomination of Harriet Miers - have occasioned public debate over whether the Religious Test Clause forbids Presidents and/or Senators from supporting, opposing, or even questioning nominees on the basis of religion. More broadly, these events have been the occasion for discussions about whether and how religion may be raised in the public debate surrounding judicial nominees. Because the Roberts and Miers nominations present neat mirror images of each other, with religion used as a disqualification in one nomination and a qualification in the other, it is an opportune moment to assess what the Religious Test Clause has to say about these cases, and about the use of religion in the federal judicial nomination process more generally. This article, a contribution to a Symposium on \"Religion, Division, and the Constitution,\" is the first to fully examine these questions. After discussing the invocation of the Religious Test Clause in the recent nomination controversies, it looks carefully at the text and history of the Religious Test Clause. It argues that the Religious Test Clause precludes Congress or the President from imposing a formal test oath on would-be federal office-holders that would require them to avow or disavow, under oath, allegiance to a particular faith or set of religious doctrines. And that is all it does. A President may select nominees on the basis of their faith if he chooses; a Senator may question a nominee on his or her faith or religiously derived beliefs, or support or oppose a nominee on that basis. Thus, those public officials, public figures, and commentators who argued during the recent nomination process that the Religious Test Clause barred certain actions or inquiries were wrong. I argue that this conclusion is not only descriptively accurate; it is also normatively sound. There are many plausible reasons why a President or Senator might validly inquire into the faith, or religiously derived beliefs, of a nominee. To silence such inquiries because of the dangers of intermixing religion and politics ultimately disserves the broader principle that religion ought to be a fully welcome part of discussion in the public sphere. In addition, the broad reading of the Religious Test Clause, by constitutionalizing an area of politics, unduly limits the scope of popular responsibility for the political process. The best remedy for abuses of religion in the judicial nomination process lies in the realm of ordinary politics, and not in","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"21 1","pages":"75"},"PeriodicalIF":0.0,"publicationDate":"2006-04-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83245542","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":"Symbolic Counter-Speech","authors":"H. Wasserman","doi":"10.2139/SSRN.439080","DOIUrl":"https://doi.org/10.2139/SSRN.439080","url":null,"abstract":"In this article, Professor Wasserman introduces, defines, and explores a new form of expression, labeled symbolic counter-speech. Symbolic counter-speech is an outgrowth of two free expression concepts: the right and opportunity to communicate through symbols and the Brandeisian imperative of counter-speech as the acceptable answer to objectionable speech. Symbolic counter-speech responds to a symbol on its own terms, countering the message presented by a particular symbol while using that symbol as the vehicle or medium for the contrary message. Symbolic counter-speech includes a range of expressive actions, from silent non-participation with a symbol or symbolic ceremony to confrontation of the symbol with a different, contrary symbol to attacks on the original symbol by destroying it or altering it to create a new message. Professor Wasserman considers symbolic counter-speech in the post-September 11 environment, when the United States has fallen back into to what Vincent Blasi labeled a pathological period, a period in which commitment to free speech wanes and in which government is especially likely to engage in systemic suppression. Although there have not been widespread governmental restrictions on expression, the primary feature of previous pathologies, there has been a dramatic increase in government and private patriotic symbolism and expression and of intolerance for objections to that patriotism. This has been particularly true with regard to the American flag and its complementary symbols, such as the Pledge of Allegiance, the national anthem and God Bless America. The focus of this paper is the increase in patriotic symbolism, along with incidents of counter-speech to that symbolism, at professional and collegiate sporting events, the primary forum in American society in which crowds of adults regularly engage in patriotic expression. Finally, the concept of symbolic counter-speech and these examples of flag-related symbolic counter-speech illustrate the inconsistency between principles and traditions of freedom of speech and the movement for flag preservation, which logically would eliminate all symbolic counter-speech directed against the flag and its complements.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"20 1","pages":"367"},"PeriodicalIF":0.0,"publicationDate":"2004-01-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73155056","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":"Constitutional Theory in a Nutshell","authors":"T. Baker","doi":"10.2139/SSRN.450740","DOIUrl":"https://doi.org/10.2139/SSRN.450740","url":null,"abstract":"The purpose and function of this article is to provide the intelligent novice a beginner's guide to the considerable body of scholarly writings about the theory of American constitutional law. This article is all about trying to make some sense of in-class discussion and out-of-class readings in treatises and law reviews of a peculiar dialect of legalese that might be called \"con law prof talk.\" Constitutional theory helps us to master our subject. It helps us to understand Supreme Court decisions and helps us to cope with the elaborate and often conflicting opinions of the Justices. It allows us to distinguish between a good argument and a bad argument. Constitutional theory helps us to understand where an argument is coming from and where it might take us. It helps us to see the big picture. We better understand how a doctrine came to be and how it might evolve. We see how different doctrines are related and how they fit into the overall organization of constitutional law. Constitutional theory allows us to talk about our subject with each other. It is the patois that constitutional law professors write and speak to other professors and to their students. If we manage to gain some perspective from the vantage of constitutional theory, we will better understand constitutional law. At least, that is what a con law prof would tell you while sober. This article provides a nutshell description of the leading theories and identifies some of the leading theorists on the Constitution. The unit of currency here is the academic law review article, not the Supreme Court decision. The citations here provide illustrative examples of the vast body of literature. The discussion provides preliminary sketches of an intellectual landscape that is vast and often foreboding to the beginner. This article is organized around three basic interpretative questions: Who has the authority to interpret the Constitution? What are the legitimate sources of meaning for interpreting the Constitution? How is the Constitution interpreted within different theoretical approaches? The discussion then briefly identifies some of the basic tenets of the prominent contemporary schools of legal philosophy about the Constitution: liberal theory; conservative theory; feminist theory; critical race theory; and postmodern theory. Finally, a somewhat self-consciously introspective conclusion will ask rhetorically: does theory matter? (The answer is a faux-Zen bit of con law prof talk: \"It depends. . . .\")","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"96 1","pages":"57"},"PeriodicalIF":0.0,"publicationDate":"2003-12-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89249482","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":"Spheres of Autonomy: Reforming the Content Neutrality Doctrine in First Amendment Jurisprudence","authors":"S. Heyman","doi":"10.2139/SSRN.439525","DOIUrl":"https://doi.org/10.2139/SSRN.439525","url":null,"abstract":"In recent decades, the doctrine of content neutrality has become the cornerstone of First Amendment jurisprudence. In the leading case of Police Department v. Mosley (1972), the Supreme Court declared that speech may \"never\" be regulated because of its content, for that would be \"the essence of . . . censorship.\" If this view were taken literally, however, it would disable government from regulating speech even when necessary to prevent serious injury to individuals or society. In response to this concern, the Court has carved out several exceptions to the neutrality doctrine. Yet the Justices have never succeeded in explaining the rationale for these exceptions, or in squaring them with the general principle of content neutrality. As a result, the Court's First Amendment opinions often seem arbitrary and unpersuasive. Far from illuminating free speech problems, the doctrine of content neutrality, when taken as the central concern of the First Amendment, only makes them more obscure. The time has come to reconsider the content neutrality doctrine. In this Essay, I argue that content neutrality is an important element of free speech jurisprudence, but that it should not be regarded as \"the first principle of the First Amendment.\" Instead, it should be understood within a broader normative framework. The neutrality doctrine is rooted in an underlying conception of autonomy. When individuals act within the scope of their own autonomy, government may not intrude into this realm by regulating the content of thought or expression. Nor may government interfere with the collective autonomy of citizens by imposing unjustified restrictions on public debate. Some acts of speech, however, should be regarded as invading the autonomy or rights of others. In such cases, the rationale for content neutrality no longer holds; in regulating speech, the government is not invading the autonomy of speakers, listeners, or the community, but instead is protecting the rightful freedom of others. After developing this view, the Essay explores the shortcomings of content neutrality when it is treated as the central principle of the First Amendment, divorced from the normative framework that is developed here. Focusing on judicial efforts to deal with hate speech in R.A.V. v. City of St. Paul, and with pornography in American Booksellers Association v. Hudnut, I argue that the courts' increasing reliance on the content discrimination doctrine to resolve difficult First Amendment problems only obscures the crucial substantive issues at stake, and leads to hypertechnical decisions that are inaccessible to the public. This approach not only gives short shrift to other values affected by speech, it also fails to persuasively articulate and defend the values that underlie the First Amendment itself. Finally, the Essay discusses how the theory and doctrine of content neutrality should be reformed in order to avoid these difficulties while preserving its legitimate role in First A","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"1 1","pages":"647"},"PeriodicalIF":0.0,"publicationDate":"2003-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88664263","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":"You Can't Ask (or Say) That: The First Amendment and Civil Rights Restrictions on Decisionmaker Speech","authors":"Helen L. Norton","doi":"10.2139/SSRN.444980","DOIUrl":"https://doi.org/10.2139/SSRN.444980","url":null,"abstract":"Many antidiscrimination statutes limit speech by employers, landlords, lenders, and other decisionmakers in one or both of two ways: (1) by prohibiting queries soliciting information about an applicant's disability, sexual orientation, marital status, or other protected characteristic; and (2) by proscribing discriminatory advertisements or other expressions of discriminatory preference for applicants based on race, sex, age, sexual orientation, or other protected characteristics. This Article explores how we might think about these laws for First Amendment purposes. Part I outlines the range of civil rights restrictions on decisionmaker speech, while Part II identifies the antidiscrimination and privacy concerns that drive their enactment. Part III explores in some detail whether - and, if so, how - these civil rights laws fit within the Supreme Court's current commercial speech jurisprudence. I conclude that the restricted speech is most appropriately characterized as unprotected commercial expression because it skews, rather than educates, listeners' choices by facilitating illegal discrimination and deterring applicants from pursuing important opportunities. By sorting these communications according to their ability to contribute to listeners' paramount interest in informed decisionmaking, the Court's modern commercial speech doctrine most directly explains why these laws (like consumer protection statutes prohibiting deceptive and misleading representations) do not run afoul of free speech values. Because commercial speech doctrine is currently the subject of controversy and thus may be subject to change, Part IV goes on to assess other potential First Amendment approaches to this problem. I pose a series of queries at various points along the continuum of First Amendment protections: Is decisionmaker speech unprotected because it is more like discriminatory conduct than expression? If it is speech, is its value nevertheless sufficiently low to warrant something less than full protection? If it is fully protected expression, does the government's regulation of it nonetheless survive strict scrutiny? These approaches offer different ways to describe the same phenomenon: a specific context where speech is so closely tied to discriminatory action as to justify its regulation.","PeriodicalId":83315,"journal":{"name":"The William and Mary Bill of Rights journal : a student publication of the Marshall-Wythe School of Law","volume":"826 1","pages":"727"},"PeriodicalIF":0.0,"publicationDate":"2003-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76942261","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}