The Experts below are selected from a list of 32052 Experts worldwide ranked by ideXlab platform
Eugene Volokh - One of the best experts on this subject based on the ideXlab platform.
-
Freedom of Speech and the intentional infliction of emotional distress tort
Social Science Research Network, 2010Co-Authors: Eugene VolokhAbstract:Twenty years ago, Hustler Magazine, Inc. v. Falwell held that even outrageous, severely distressing Speech is constitutionally protected, at least when it deals with a matter of public concern, and is said about a public figure. In this short essay, I argue - in the context of Snyder v. Phelps, which will be argued in Fall 2010 before the U.S. Supreme Court - that the same must apply to all Speech on a matter of public concern. Whatever the merits of the public/private figure distinction when it’s applied to false statements of fact, it ought not be applied to opinions, however outrageous they might be. As the Court held in Hustler, “‘[o]utrageousness’ in the area of political and social discourse has an inherent subjectiveness about it which would allow [government actors] to impose liability on the basis of the [actors’] tastes or views.” And the same is true whether the plaintiff is a public figure or a private one.Likewise, I argue that the other arguments sometimes used to defend liability in Snyder v. Phelps - the invasion of privacy argument, the argument that the defendants’ Speech interfered with plaintiff’s own religious Freedom, and the argument that liability for Speech near funeral picketing rests on the time, place, and manner of Speech and not its viewpoint - can’t suffice to overcome the defendants’ First Amendment arguments. Contemptible as defendants’ Speech is, it can’t be restricted through the vague, content-based, and potentially viewpoint-based emotional distress tort. And this is true even though narrow and content-neutral limits on picketing immediately outside a funeral might well be constitutional.
-
Freedom of Speech and injunctions in intellectual property cases
Duke Law Journal, 1998Co-Authors: Mark A Lemley, Eugene VolokhAbstract:Preliminary injunctions against libel, obscenity, and other kinds of Speech are generally considered unconstitutional prior restraints. Never mind that a libel may inflict truly irreparable harm on you: The most you can hope for is damages, or perhaps a permanent injunction after final adjudication -- not preliminary relief.And yet in copyright and other intellectual property cases, preliminary injunctions are routine. We argue that the prior restraint doctrine has something to say about that, too. Though copyright law (like libel and obscenity law), is a constitutionally permissible Speech restriction, the "First Amendment Due Process" rule against prior restraints applies even to such permissible restrictions.We argue that preliminary injunctions in copyright cases are generally unconstitutional; the one exception is cases where there's no controversy over substantial similarity of expression or fair use (for instance, where the question turns only on whether defendant had the requisite license). We also argue the same about right of publicity cases, trademark cases, and trade secret cases, except possibly cases (such as many trademark cases) that involve commercial advertising. We believe this conclusion is dictated by the Court's prior restraint doctrine, and also makes good First Amendment policy sense.
-
Freedom of Speech and appellate and summary judgment review in copyright cases
1997Co-Authors: Eugene Volokh, Brett McdonnellAbstract:Copyright law, the Supreme Court has said, is a valid Speech restriction. But even valid Speech restrictions (such as libel law, obscenity law, and the like) are still subject to the various "First Amendment Due Process" procedural rules. One of them is the Bose Corp. v. Consumers Union independent appellate review rule: When a jury or a trial judge finds that Speech falls within an unprotected category of Speech, the court of appeals must review that finding de novo, rather than just for clear error. The same also applies on motions for summary judgment and for judgment notwithstanding the verdict. In copyright cases, though, the courts of appeal generally review findings that Speech copies expression, and not just idea, only for clear error. This, we argue, presumptively violates the Bose rule; and, we argue, there's no significant difference between copyright law and the other Speech restrictions that rebuts this presumption. The copyright law clear error review rule must give way to the First Amendment-mandated de novo review rule. From this doctrinal point, we draw two broader points: (1) At least according to First Amendment theory, independent appellate review is supposed to refine the legal tests, making them clearer and more predictable. If that hypothesis is true, this could be particularly valuable for copyright's "idea-expression" dichotomy, which is notoriously vague. (2) On the other hand, if it's false - if we end up being skeptical about the value of independent review in clarifying the idea-expression test -- this might give us reason to think again about independent appellate review, and perhaps First Amendment Due Process more generally.
-
Freedom of Speech permissible tailoring and transcending strict scrutiny
University of Pennsylvania Law Review, 1996Co-Authors: Eugene VolokhAbstract:The Court has long said that content-based Speech restrictions are constitutional if they're narrowly tailored to a compelling state interest. This Article argues that the official doctrine is wrong, both descriptively and normally: There are cases where the Court would and should strike down laws *even though* they're narrowly tailored to a compelling interest. The Article makes two alternative proposals. One is that the Court add a third prong to the strict scrutiny framework: The question must be whether the law is *permissibly tailored* -- whether, even if it's aimed at compelling ends, and even if the means are practically well-suited to those ends, the means still operate in an impermissible way. The other, which the Article most strongly recommends, is that the Court abandon means-ends scrutiny here, and instead shift to a system of categorical rules with categorical exceptions. This system is already in play in other areas of con law, and even in free Speech law generally. And it should operate more effectively than the means-ends scrutiny the Court claims to be using. The Article also suggests (without going into that much detail) that strict scrutiny may have similar flaws in the race classifications area and in the religious Freedom area.
Holger Hestermeyer - One of the best experts on this subject based on the ideXlab platform.
-
the first condition of progress Freedom of Speech and the limits of international trade law
Social Science Research Network, 2013Co-Authors: Tomer Broude, Holger HestermeyerAbstract:Can international trade law be utilized to promote the Freedom of Speech in the face of repressive censorship? Even before Google’s abrupt departure from China, associated with Chinese restrictions on Speech, academics and advocates were arguing that WTO dispute settlement can be used to promote Freedom of Speech and access to information in China and elsewhere by targeting internet censorship as an illegal trade barrier. If this were indeed one area in which international trade law might protect a human right in the face of adverse political restrictions, it could serve as a powerful vindication of economic liberalization that is otherwise often considered to contradict or compromise human rights. Through careful analysis of the gaps between human rights and international trade law we take a skeptical perspective towards this line of thinking, arguing instead that international trade disputes relating to censorship (such as a potential "Google" case) are indifferent towards the Freedom of expression and ultimately promote economic interests with little, if any, impact on restricted Speech.
-
the first condition of progress Freedom of Speech and the limits of international trade law
Virginia Journal of International Law, 2013Co-Authors: Tomer Broude, Holger HestermeyerAbstract:Can international trade law be utilized to promote the Freedom of Speech in the face of repressive censorship? Even before Google’s abrupt departure from China, associated with Chinese restrictions on Speech, academics and advocates argued that the World Trade Organization dispute settlement system can be used to promote Freedom of Speech and access to information in China and elsewhere by targeting internet censorship as an illegal trade barrier. If this were indeed one area in which international trade law might protect a human right in the face of adverse political restrictions, it could serve as a powerful vindication of economic liberalization that is otherwise often considered to contradict or compromise human rights. Through careful analysis of the gaps between human rights and international trade law we take a skeptical perspective towards this line of thinking, arguing instead that international trade disputes relating to censorship (such as a potential “Google” case) are indifferent towards the Freedom of expression and ultimately promote economic interests with little, if any, impact on restricted Speech.
Tomer Broude - One of the best experts on this subject based on the ideXlab platform.
-
the first condition of progress Freedom of Speech and the limits of international trade law
Social Science Research Network, 2013Co-Authors: Tomer Broude, Holger HestermeyerAbstract:Can international trade law be utilized to promote the Freedom of Speech in the face of repressive censorship? Even before Google’s abrupt departure from China, associated with Chinese restrictions on Speech, academics and advocates were arguing that WTO dispute settlement can be used to promote Freedom of Speech and access to information in China and elsewhere by targeting internet censorship as an illegal trade barrier. If this were indeed one area in which international trade law might protect a human right in the face of adverse political restrictions, it could serve as a powerful vindication of economic liberalization that is otherwise often considered to contradict or compromise human rights. Through careful analysis of the gaps between human rights and international trade law we take a skeptical perspective towards this line of thinking, arguing instead that international trade disputes relating to censorship (such as a potential "Google" case) are indifferent towards the Freedom of expression and ultimately promote economic interests with little, if any, impact on restricted Speech.
-
the first condition of progress Freedom of Speech and the limits of international trade law
Virginia Journal of International Law, 2013Co-Authors: Tomer Broude, Holger HestermeyerAbstract:Can international trade law be utilized to promote the Freedom of Speech in the face of repressive censorship? Even before Google’s abrupt departure from China, associated with Chinese restrictions on Speech, academics and advocates argued that the World Trade Organization dispute settlement system can be used to promote Freedom of Speech and access to information in China and elsewhere by targeting internet censorship as an illegal trade barrier. If this were indeed one area in which international trade law might protect a human right in the face of adverse political restrictions, it could serve as a powerful vindication of economic liberalization that is otherwise often considered to contradict or compromise human rights. Through careful analysis of the gaps between human rights and international trade law we take a skeptical perspective towards this line of thinking, arguing instead that international trade disputes relating to censorship (such as a potential “Google” case) are indifferent towards the Freedom of expression and ultimately promote economic interests with little, if any, impact on restricted Speech.
Christian M Green - One of the best experts on this subject based on the ideXlab platform.
-
between blasphemy and critique Freedom of religion and Freedom of Speech
The journal of law and religion, 2014Co-Authors: Christian M GreenAbstract:On Valentine's Day, 1989, novelist Salman Rushdie was driven into hiding in England by a fatwa issued by the Ayatollah Khomeini in Iran decrying his 1988 novel, The Satanic Verses, as “blasphemy against Islam” and demanding Rushdie's execution. Twenty years later, Yale University Press refused to publish cartoon representations of the Prophet Muhammad in political scientist Jytte Klausen's book, The Cartoons That Shook the World. That book analyzed the controversy spawned by a Danish newspaper's publication of the cartoons in 2005 and the republication of the cartoons in several European newspapers in 2008, which led to protests by Muslims around the world. In 2010, Terry Jones, a Christian pastor in Florida, announced plans to publicly burn a Qur'an on the anniversary of the September 11, 2001, terrorist attacks on the United States. Under protest, he cancelled his book-burning plans for the 9/11 anniversary, but he made good on his promise six months later in March 2011, in an incident whose online video dissemination around the world is said to have motivated riots in Afghanistan that resulted in the deaths of twelve people. Throughout this period, with the regularity of a drumbeat, the Organization of Islamic Cooperation (OIC) (formerly the Organization of the Islamic Conference), a coalition of majority Muslim nations at the United Nations, introduced resolutions each year—first in the Human Rights Council (HRC) from 1999 forward and then in the General Assembly from 2005 forward—on “combating defamation of religions” at the UN and in wider global discourse.
-
between blasphemy and critique Freedom of religion and Freedom of Speech
Social Science Research Network, 2013Co-Authors: Christian M GreenAbstract:Review essay covering: Amos Guiora. Freedom From Religion, 2nd ed. Oxford: Oxford University Press, 2013. Paul Marshall and Nina Shea. Silenced: How Apostasy and Blasphemy Codes are Choking Freedom Worldwide. Oxford: Oxford University Press, 2011. Austin Dacey. The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights. Continuum, 2012. Jeremy Waldron. The Harm in Hate Speech. Cambridge, MA: Harvard University Press, 2012. Talal Asad, Wendy Brown, Judith Butler, and Saba Mahmood. Is Critique Secular?: Blasphemy, Injury, and Free Speech, 2nd rev. ed. Fordham University Press, 2013.
Matthew Rimmer - One of the best experts on this subject based on the ideXlab platform.
-
school for scandal the supreme court of the united states trade mark law and Freedom of Speech in the age of trump
Australian Intellectual Property Law Bulletin, 2018Co-Authors: Matthew RimmerAbstract:The Supreme Court of the United States ruling in Matal v Tam in 2017 over the Oregon rock group The Slants sets down a landmark precedent in respect of trade mark law, racism, bigotry, disparagement and Freedom of Speech. The ruling also brought larger implications and ramifications for the protection of Indigenous intellectual property (IP) — both in respect of the contentious Washington Redskins trade mark and more generally. This case note considers the twin trade mark conflicts over The Slants and the Washington Redskins in the US. It questions the reasoning of the Supreme Court on the ruling in Matal v Tam, raising questions about its coherence and its consistency. It contends that the Supreme Court ruling is an exceptional one, which would not be easily translated to other jurisdictions such as Australia, New Zealand and Canada.
-
change the mascot the washington redskins offensive trade marks Freedom of Speech and racism in sport
Australian Intellectual Property Law Bulletin, 2016Co-Authors: Matthew RimmerAbstract:There has been a long history of conflict and disputation in respect of Indigenous Intellectual Property. In the United States, there has often been controversy over representations of Native Americans in trademark law. There has been intensive public and legal debate over offensive trademarks, such as the Washington Redskins. The Navajo activist Amanda Blackhorse has led a campaign to cancel the trademarks of the Washington Football team – the Washington Redskins. She observed: "This is such a huge victory not only for, you know, our group, but for Native Americans all over the nation…. The cancellation of the trademark does not mean that the team has to change their name. Our biggest thing with this is that, you know, their name, the "R" word, does not deserve federal protection. We don’t think that Dan Snyder and the co-owners should make money off of a racial slur, especially a racial slur directed at Native American people." In a study of the impact of native mascots and team names on American Indian and Alaska native youth, Erik Stigman and Victoria Phillips have documented how ‘these stereotypical representations are too often understood as factual representations and thus “contribute to the development of cultural biases and prejudices”’. Opponents to the trademark ran advertisements against the Washington Redskins as part of the ‘Change the Mascot’ campaign. This article previews the Supreme Court of the United States’ possible consideration of a dispute over offensive trademarks, Freedom of Speech, and racism in sport. It suggests that it would be worthwhile the Supreme Court of the United States to hear a combined case dealing with the question of offensive trademarks. It argues that that it is within the power of the United States Patent and Trademark office to regulate offensive trademarks. Furthermore, it highlights the need for the United States Government to provide effective protection for Indigenous Intellectual Property. First, this piece considers the legal dispute in respect of the Washington Redskins trademarks. Second, it examines the parallel conflict dealing with The Slants trademarks. Finally, this study examines the political responses to the controversy over offensive trademarks in the United States Congress, the White House, and the Presidential race.
