Abstract:
    

Using recent decisions dealing with the constitutionality of the Stolen Valor Act as its starting point, this Essay examines the First Amendment questions raised by statutes prohibiting lies as such, that is, outside the context of fraud and defamation. It evaluates the constitutionality of statutes imposing strict or negligence liability for lying, concluding that the First Amendment does not bar legislatures from adopting such statutes if the statutes are carefully drawn. It then assesses arguments that deliberate falsehoods can be prohibited because they have no social value, concluding that that judgment, while somewhat overbroad, is correct. In reaching that conclusion the Essay offers an interpretation of United States v. Stevens, the recently decided “animal snuff video” case, which some have thought stands as an obstacle to statutes prohibiting lies as such. The Essay also deals with false statements made by those who do not believe the statements to be false, observing that many such statements are “ideologically inflected” in ways that make is unwise, and probably unconstitutional, to regulate their dissemination. A final section briefly discusses statutes prohibiting false statements in political campaigns.

Speech and Markets

from Jotwell by Louis Michael Seidman

Deborah Hellman, Money Talks but it Isn’t Speech, 95 Minn. L. Rev. — (forthcoming 2011), available at SSRN.

Louis Michael Seidman

Is there anything new to say about the constitutionality of campaign finance regulation?  Well, actually, there is, and Deborah Hellman says it in her fine new article “Money Talks but It Isn’t Speech.” The significance of Hellman’s article extends beyond the vexed yet tired issue of campaign finance, however.  Her work is an important intervention in a central – perhaps the central – problem in modern constitutional law.

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As Justice Holmes said …
Oliver Wendell Holmes Jr. on free speech & related matters: selected quotations

Introduction by Ronald K.L. Collins  
First Amendment scholar
05.21.08

Oliver Wendell Holmes Jr.

 

Holmes case tables

 

Modern free-speech jurisprudence begins with the words and wisdom of Oliver Wendell Holmes Jr.

Whatever one may make of that, it is impossible to deny. Whether Holmes was a liberal or a libertarian, a pragmatist or a nihilist, a defender of individual rights or majority will, a social Darwinist or a totalitarian, or a “Jekyll-Holmes and Hyde-Holmes” as law professor Albert Alschuler has branded him, is difficult to say without nuanced elaboration. What is easier to gauge is his enormous impact on how we — laypeople and lawyers alike — think and talk about our system of freedom of expression. This is not necessarily because of the analytical soundness of his opinions, but rather, to echo Judge Richard Posner, because of his “rhetorical skill.” That is, “Holmes was a great judge because he was a great literary artist.”

…

Mindful of all of this and more, the selection of 60 quotes offered below is submitted for the reader’s examination, duly mindful of his or her right to dissent.

Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law

by Daphne Barak-Erez (Tel Aviv University – Buchmann Faculty of Law) and David Scharia (Counter Terrorism Committee Executive Directorate UN Security Council)

forthcoming Harvard National Security Journal, Vol. 2, 2011; via SSRN

Abstract:

In the recent case of Holder v. Humanitarian Law Project, [here] the Supreme court of the United States ruled that a criminal prohibition on advocacy carried out in coordination with, or at the direction of, a foreign terrorist organization is constitutionally permissible: it is not tantamount to an unconstitutional infringement of freedom of speech.

This Article aims to understand both the decision itself and its implications in the context of the global effort to define the limits of speech that aims to support or promote terrorism. More specifically, the Article compares the European approach, which focuses on whether the content of the speech tends to support terrorism, with the U.S. approach, which focuses on criminalizing speakers who have links to terrorist organizations. Both approaches are evaluated against the background of the adoption of Resolution 1624 by the United Nations Security Council in 2005, which called on states to prohibit by law incitement to commit terrorist acts.