By Matt Giffin

  • Rick Perry Tests the Limits of the Establishment Clause (Again)

    Amicus, By Matt Giffin, First Amendment November 4, 2012 at 9:43 pm 0 comments

    Texas’s policy fails to distinguish itself from past Texas schemes rejected by courts, and it fails to pass muster under the Establishment Clause precedent of the Fifth Circuit and the Supreme Court. Perry’s personal conduct is even more out of bounds. In his advocacy of a purportedly neutral piece of legislation in such sectarian terms, he has crossed the line between accommodation of religion and active advocacy — and it is not the first time the governor has done so.

     
  • The Equivocal Speech Protections of the Supreme Court’s Alvarez Decision

    By Matt Giffin, First Amendment August 15, 2012 at 4:14 pm 3 comments

    The less rigorous test proposed by the concurring justices produced a desirable result in this case, but it seems to portend an approach that gives less than full scrutiny to asserted government interest in content-discrimination….If the Court relies on the Alvarez concurrence’s approach in future cases, it could well give short shrift to what should be its starting presumption: that content-based restrictions on “lies,” like any other form of speech, are justifiable only in extraordinary circumstances.

     
  • Can Congress Prohibit Lying About Military Decorations?

    By Matt Giffin, First Amendment March 19, 2012 at 8:23 pm 1 comment

    In light of the great deference traditionally shown by the Court – and evinced by several Justices in this case – towards the government in military matters, it may well be that the Court overlooks the troubling free-speech consequences of the Act’s overbreadth. In an area of its jurisprudence where it has shown willingness in recent years to give the First Amendment significant teeth, however, the Court would do well to subject the Stolen Valor Act to the full scrutiny it deserves under established doctrine despite the Act’s largely uncontroversial motives.

     
  • Pushing Back Against Oklahoma's Anti-Sharia Amendment

    At the very least, Judge Matheson’s ruling is a strong statement of the constitutional case against such legislation as the Oklahoma amendment. Couched in the language of Establishment Clause jurisprudence as it is, it makes clear not only that the grounds for the legislation are nonexistent, but also that its effect amounts to unconstitutional discrimination.

     
  • The First Amendment According to Newt Gingrich

    By Matt Giffin, First Amendment December 7, 2011 at 1:46 pm 2 comments

    On the subject of the First Amendment Gingrich trafficks in exaggerations and outright fabrications entirely unworthy of his Establishment respectability and his Big Thinker moniker. His conjuring of a fictitious conspiracy against First Amendment religious values as a predicate for a wide-ranging attack on the very independence of the American judiciary is particularly dangerous, and particularly worthy of exposure.

     
  • Should Courts Allow a Heckler’s Veto over Student Speech?

    By Matt Giffin, First Amendment November 22, 2011 at 11:20 am 4 comments

    As a legal matter, the ruling is in keeping with courts’ increasingly deferential interpretations of the standards governing school regulation of student speech. Perhaps more so than other recent school speech cases, however, it helps illustrate one of the most problematic aspects of the Supreme Court’s dominant Tinker framework—the possibility that schools can engage in viewpoint discrimination or allow a “heckler’s veto” by suppressing unpopular viewpoints to avoid unpleasantness.

     
  • A Roadblock for New Cigarette Warning Labels

    By Matt Giffin, First Amendment November 13, 2011 at 12:54 am 1 comment

    Judge Leon’s ruling reflects a legitimate doctrinal concern: even for a particularly disfavored type of commercial speech such as cigarette advertising, there are limits on the extent to which companies can be forced to serve as a conduit for government speech unrelated to the truth of their advertising and completely inimical to their own commercial interests.

     
  • What Does "Freedom of Assembly" Mean for Occupy Wall Street?

    By Matt Giffin, First Amendment November 5, 2011 at 9:01 pm 5 comments

    Whatever their excesses or ideological inconsistencies, they have clearly tapped into a widely felt discontent whose strength is manifested not so much by verbal communication as by the act of gathering together and providing a visible demonstration of solidarity and demographic strength. A stronger conception of the freedom of assembly would capture, better than courts’ current doctrine, the unique benefits which such a movement can bring to the process of American self-government.

     
  • Copwatch Blocked in France

    A French court last week ordered internet service providers in the country to block all access to a “Copwatch” site after vigorous complaints by the government and police organizations against the site and its users. An unusually harsh imposition of internet censorship even by the more restrictive standards of France, […]

     
  • Cyberbullying and the Tinker Standard

    By Matt Giffin, Education, First Amendment October 17, 2011 at 12:43 am 0 comments

    In the wake of several recent high-profile tragedies, several states have enacted or toughened laws aimed at suppressing the phenomenon of cyberbullying. On one hand, new legislation often represents the much-needed updating of outdated stalking and harassment laws to reflect the prevalence of online communication. Although such laws can suffer […]