While the substance of constitutional rights is always important, it is often the procedures surrounding the protection and enforcement of those rights that give them teeth – or defang them. From the landmark case of New York Times v. Sullivan to the recently decided Susan B. Anthony List v. Driehaus, the procedures required before one can burden speech, or raise a successful defense under the First Amendment, are critical to the effective scope of the constitutional right. This panel will explore the various procedural safeguards applied – or not applied – in the context of the Freedom of Speech. What level of proof is required before speech may be restricted based on an otherwise valid interest? When will a private party have standing to challenge a restriction on speech that may not yet be final but that has immediate adverse consequences, such as requiring a party to defend an investigation or rebut a preliminary government finding in the midst of an election campaign? What safeguards should exist in administrative processes, such as IRS tax exemption rulings, where discretion may be used to punish speech or otherwise favor one viewpoint over another? These and other examples all illustrate that even where the substance of First Amendment rights is well established, procedural loopholes or protections can reduce or enhance the effectiveness of those rights.
The Federalist Society's Free Speech & Election Law Practice Group presented this panel on "How First Amendment Procedures Protect First Amendment Substance" on Friday, November 14, during the 2014 National Lawyers Convention.
- Prof. Aaron H. Caplan, Loyola Law School, Los Angeles
- Prof. Robert A. Destro, The Catholic University of America Columbus School of Law
- Mr. Todd P. Graves, Graves Garrett LLC
- Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, The George Washington University Law School
- Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, University of California, Los Angeles School of Law
- Moderator: Hon. David R. Stras, Associate Justice, Minnesota Supreme Court
- Introduction: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC; and Chairman, Free Speech & Election Law Practice Group