First Amendment Institutions proposes a new approach to enforcing First Amendment laws by arguing that institutions who exercise First Amendment freedoms should have more autonomy to regulate their own affairs, as the courts and a “top-down rules” approach insufficiently account for the complexity of real-world situations. Author Paul Horwitz suggests that such an approach would enhance these institutions’ role in social and political life, thus making the state a part of our social framework as opposed to an overbearing sovereign.  --  Horwitz, the Gordon Rosen Professor of Law at the University of Alabama School of Law, is joined by critical commenter Marc DeGirolami, Associate Professor of Law at St. John’s University School of Law, to discuss the book.

First Amendment Institutions - Faculty Book Podcast

This audio broadcast series provides commentary by authors and others on important new books and works of legal scholarship. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. We hope these broadcasts, like all of our programming, will serve to stimulate discussion and further exchange on the topics they address.

News

In this episode, Russell Weaver, Professor of Law and Distinguished University Scholar at Louis D. Brandeis School of Law, University of Louisville, and Steve Friedland, Senior Scholar and Professor of Law at Elon University School of Law, discuss Prof. Weaver’s new book From Gutenberg to the Internet: Free Speech, Advancing Technology, and the Implications for Democracy.In From Gutenberg to the Internet, Prof. Weaver argues that the history of free expression is inextricably intertwined with advances in speech technology. However, until recently, most forms of communication were limited and controlled by so-called ''gatekeepers'' who had the power to limit or control the ability of ordinary individuals to communicate with each other. With the advent of the Internet and new forms of technology (e.g., personal computers, iPhones, etc.), people have a much greater capacity to communicate with each other. Although both governments and private entities have attempted to control discourse over the Internet, new technologies have enabled ordinary individuals to more easily communicate with each other and to participate in the political process. As a result, Weaver argues, the internet is reshaping political debate and political action for good and for bad.  While enabling greater participation, it has also led to so-called “fake news” and the creation of opportunities for governments and people to meddle in the elections of other countries.Our conversation will begin with Prof. Weaver’s short introduction to his book, and will be followed by Prof. Friedland’s comments to which Prof. Weaver will respond. The two authors will then engage in a bit of a back-and-forth dialogue. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. We hope these broadcasts, like all our programming, will serve to stimulate discussion and further exchange on the topics they address.

From Gutenberg to the Internet: Free Speech, Advancing Technology, and the Implications for Democracy - Faculty Division Bookshelf

In this episode of Bookshelf, Prof. Keith Whittington, the William Nelson Cromwell Professor of Politics at Princeton University, and Prof. Frederick Schauer, the David and Mary Harrison Distinguished Professor of Law at the University of Virginia, discuss Prof. Whittington’s new book Speak Freely: Why Universities Must Defend Free Speech. In Speak Freely, Prof. Whittington argues that universities have a distinctive and important mission in American society, one that has been recently challenged due to campus free speech debates. Prof. Whittington articulates the university as that which assembles and nurtures an open and diverse community of scholars, teachers, and students dedicated to the production and dissemination of knowledge. Moreover, he asserts,  the robust protection of free speech and civil discourse is essential to that mission. In Speak Freely, Whittington argues that a better understanding of the relationship between the critical functions of the university and the principles of free speech can help guide us in resolving the difficult challenges that confront the members of modern universities. Our conversation begins with Prof. Whittington’s short introduction to his book, and is followed by Prof. Schauer’s comments to which Prof. Whittington will respond. The two authors will then engage in a bit of a back-and-forth dialogue.  As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. We hope these broadcasts, like all our programming, will serve to stimulate discussion and further exchange on the topics they address.

Speak Freely: Why Universities Must Defend Free Speech - Faculty Division Bookshelf

In The Democratic Coup d’Etat, Prof. Ozan Varol challenges the conventional public understanding of the coup d’etat, which often evokes the image of a militarized group of elites who seek to overthrow an existing government in order to consolidate power. Often, we consider coups contrary--and even more a threat--to democracy. Prof. Varol argues that coups do not always match that public understanding, and often are used to establish a democracy or advance democratic principles. He traces democratic coups throughout history--from 5th century BC Athens, to actions in the American colonies against corrupt British officials, to the democracy-building revolts against military regimes in countries like Guinea-Bissau, Portugal, and Colombia in the 20th century. In his historical analysis, Prof. Varol explores questions regarding the political nature of coups and the differences in military powers which can lead to the fostering or suppressing of democratic societies. In this episode, Prof. Ozan Varol of Lewis & Clark Law School and Prof. Tom Ginsburg of the University of Chicago Law School discuss The Democratic Coup d'Etat. The Democratic Coup d'Etat is available here.

The Democratic Coup d'Etat - Faculty Division Bookshelf

In his new book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship, Prof. Lash presents the history surrounding the addition of the Privileges or Immunities Clause of the Fourteenth Amendment in 1868. This exhaustively researched book follows the evolution in public understanding of “the privileges and immunities of citizens of the United States,” from the early years of the Constitution to the critical national election of 1866. For the first 92 years of our nation's history, nothing in the American Constitution prevented states from abridging freedom of speech, prohibiting the free exercise of religion, or denying the right of peaceful assembly. The suppression of freedom in the southern states convinced the Reconstruction Congress and the supporters of the Union to add an amendment forcing the states to respect the rights announced in the first eight amendments. But rather than eradicate state autonomy altogether, the people embraced the Fourteenth Amendment that expanded the protections of the Bill of Rights and preserved the Constitution's original commitment to federalism and the principle of limited national power.Pressor Kurt Lash, Guy Raymond Jones Chair in Law and Director, Program in Constitutional Theory, History, and Law is joined by critical commenter Elizabeth Price Foley, Professor of Law at the Florida International University School of Law.

The Fourteenth Amendment and the Privileges and Immunities of American Citizenship

Limited Government and the Bill of Rights takes a novel approach to the constitutional connection between the Bill of Rights and principles of limited government.  Author Patrick Garry proposes that the Bill of Rights should be viewed primarily as limiting the power of government rather than protecting of the autonomy interests of individuals.   He argues that this limited government approach is ultimately the best way to maximize individual liberty, and limits judicial overreach by denying Courts the power to create and enforce expansive, autonomy-based rights.  --  Professor Garry, Professor of Law and Director of the Hagemann Center for Legal & Public Policy Research at the University of South Dakota School of Law, is joined by critical commenter Lee Strang, Professor at the University of Toledo College of Law, to discuss the book.

First Amendment Institutions - Faculty Book Podcast

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