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Discuss at least three different content-based rationales the courts have used to come to this conclusion and illustrate each of the three different rationales with decisions made or sanctioned by the Supreme Court of the United States.

answer all questions. The page limits are just that—limits. You can write more but we stop reading. You may answer a question in fewer than the page limits if you believe you have answered the question accurately and fully. We do not read your minds—we read only what you put on paper, so be sure to discuss completely all of the issues raised (e.g., if you believe something does not apply, note that in writing). The only “trick” in any of these questions is that you need to recognize all of the issues that need to be discussed lurking in the hypothetical situations.

1. Government 1st Amendment Restriction Rationales:

“Congress (government) shall make no law…” is all well and good, but we all know that there is lots of law that does abridge speech and the courts have upheld it as constitutional. Discuss at least three different content-based rationales the courts have used to come to this conclusion and illustrate each of the three different rationales with decisions made or sanctioned by the Supreme Court of the United States. In discussing each rationale, be sure to talk about how the Court has handled the “no law” language of the First Amendment. (Limit 1 1/2 pages: 40 points)

2. Market Place of Ideas:

In Abrams, Mr. Justice Holmes analogizes a “marketplace of ideas” to the free marketplace of goods and services. Of course, the justice was analogizing to the kind of early 20th century U.S. model of an unrestrained-by-government market with which he was familiar. Assume now that the Abrams case took place not in 1919, but last week in 2015. Discuss the analogy a contemporary Mr. Justice Holmes might make and how it might be different from a 1919 model. (Limit 1 1/2 pages: 40 points)

3. U.S. Constitutional Interpretation:

Justice Scalia believes the proper way to interpret the Constitution, including the First Amendment, is to look at the original intent of the founding fathers. His approach in the most recent 2nd Amendment case upholding the right of individual gun owners to be free of most government regulation is a classic example (“citizens were expected to have rifles in their homes in 1787”).

Justice Breyer disagrees, saying that there are additional or non-enumerated rights in the Constitution that deserve protection, and that the way to interpret the Constitution is to look both to the history since the Constitution was adopted and to contemporary times and current ideas (“stopping gun-related violence in America’s cities is a legitimate reason for banning handguns and other weapons by states and local authorities”).

Wrong, says Scalia, this opens the door to unbridled “results-oriented” decisions that cannot be justified under law.

Discuss. Using the First Amendment and examples from media law, what’s the problem with Justice Scalia’s approach? What problems arise with an approach like Breyer’s? Come to some, reasonable middle-ground approach, citing appropriate legal doctrines and court cases. (Limit 1 pages: 30 points)


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