Archive for August 2010
Government Speech and Justice Souter (1): Introduction
What Is Government Speech?
Simply put, when government itself speaks, rather than regulating the speech of private persons, its speech is immunized from any meaningful First Amendment scrutiny, including the prohibition against engaging in viewpoint discrimination.
Under the doctrine, government becomes a “market participant” in the marketplace of ideas rather than a regulator of that marketplace, and its First Amendment immunity is analogous to the dormant Commerce Clause immunity of state and local governments when they are market participants. Hughes v. Alexandria Scrap Corp., 426 U.S.794, 809-10 (1976).
The Government Speech Doctrine and the Tenure of Justice Souter
Justice David Souter, who replaced Justice William Brennan, was seated on October 3, 1990, and retired on June 29, 2009. As it turns out, Justice Souter’s tenure coincided exactly with the birth and development of the government speech doctrine in the Supreme Court. Rust v. Sullivan, 500 U.S. 173 (1991), was handed down in 1991, and the most recent government speech decision, Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), was handed down in 2009. Read the rest of this entry »
Gun Control, the Second Amendment and Section 1983 After McDonald v. Chicago
Introduction
From a section 1983 perspective, here are some things to look for in the aftermath of the Supreme Court’s recent decision in McDonald v. Chicago, 130 S. Ct. — (2010).
The Second Amendment and Section 1983
McDonald held that the Second Amendment right of a person to possess a gun in his home for self-defense, as announced in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), is also protected against abridgment by state and local governments. That is, the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it to the states and local governments.
Consequently, individuals may use section 1983 to bring Second Amendment damages actions against state and local government officials and against local governments themselves (but not states–see Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)) that enact gun control laws.
Practical Hurdles
However, there are some practical hurdles for plaintiffs to consider if section 1983 Second Amendment-based damages actions are contemplated. Read the rest of this entry »
