Too Much Free Speech?

Notes

Notes Introduction 1.McConnell v. Federal Election Commission, 540 U.S. 93, 259 (2003) (Scalia, J., dissenting). Chapter One. Corporations as Speakers 1. Available at www.whitehouse.gov/photos-and-video/video/2010-state-unionaddress (accessed January 24, 2012). 2. First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), upheld a Boston bank’s First Amendment right to make a political contribution in connection with a voter referendum. 3. For example, Pacific Gas & Elec. Co. v. Public Utilities Commission of California, 475 U.S. 1, 33–3 5 (1 986) (Rehnquist, dissenting). 4. The Snow-Jeffords Amendment was approved by Congress as an alternative to the categorical ban on corporate and union electioneering, should the categorical ban be struck down. The amendment permitted electioneering by ideological organizations in corporate form—the NRA, for example. The Court’s categorical opinion in Citizens United made the amendment irrelevant and thus played no part in the Court’s decision; it would have functioned much like the Austin case, which the Court overruled. 5.For example, White v. Regester, 412 U .S. 755 (1 973). 6. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), involved Margaret McIntyre’s claim that she had a right to distribute an inadvertently anonymous leaflet opposing a school bond issue at a public meeting on the bonding proposal. Her failure to identify herself on the leaflet was a criminal act under Ohio law. The Supreme Court held that the law violated the First Amendment. 7. a century of lawmaking for a new nation: u.s. congressional documents and debates, 1774–1875, Annals of Congress, House of Representatives, 1st Congress, 1st Session, of debates in congress, amendments to the constitution , J une 8, 1783, 451. 8. Poe v. Ullman. 367 U.S. 497, 542 (1961) (Harlan, J., dissenting). Chapter Two. Government and Its Speech Forum 1. Available at http://www.summum.us/philosophy/principles.shtml (accessed January 24, 2012). 2. alexander meiklejohn, free speech and its relation to self-government 26–27 (1 948). Chapter Three. Expressive Conduct Unleashed 1.The following discussion of Hurley is drawn in part from R. Bezanson and M. Choe, Speaking out of ἀ in Air: A Comment on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 25COMM/ENT (2003),and is an adaptation of a chapter in the author’s previous book, art and freedom of speech (University of Illinois Press, 2009). 2. Charles Simic, Making It New, the new york review of books, at 10,August 10, 2006; citing hugo ball, flight out of town 6 4 (1996). 3. The council itself applies for and receives a permit from the city every year to organize and conduct the parade. Through 1992, however, the city allowed the council to use the city’s official seal and directly funded the parade. Id. Ball at 560–61. 4. Kevin Dwyer, “Do Your Job”: A Talk with Wacko Hurley, South Boston Online, http://www.southbostononline.com [archives] (accessed July 29, 2006). 5. Id. at 561. 6. At the time of the Hurley case, the Supreme Court was still following its longstanding custom of not identifying the Justice who is asking the question. That practice has since changed. 7. j. l . aust in, how t o do t hings wit h wor ds 6 (J. O. Urmson and Marina Sbisà, eds) (1975, 2d ed.). 8. Austin refers to verifiable statements of fact–statements thatdo nothing in themselves , or that have no necessary force–as “constative” statements. Id. at 1–3. 9. Some background discussion of Austin’s speech-act theory is in order here. When Austin began the Harvard lecture series documented in the book, How To Do ἀ ings With Words, he crafted a dichotomy between a performative and constative statement, suggesting that no overlap existed between the two senses of speech. See id., at 1–11. By the end of the lecture series, Austin rejects this dichotomy in favor of a more generalized speech-act theory that tracks the various degrees of illocutionary force effected by various statements: 260 . notes to pages 56–140 We said long ago that we needed a list of “explicit performative verbs”; but in the light of the more general theory we now see that what we need is a list of illocutionary forces of an utterance. The old distinction, however, between primary and explicit will survive the sea change from the performative/constative...