Flag Burning and Desecration

The current five-vote majority on the Supreme Court may be the most divisive, anti-democratic court in American history. No one expects the justices to be a-political, but to say that there is 'no Constitutional right to vote' as they did in Bush v. Gore, is to go against everything America stands for. Overruling Democracy disputes the majority's awful rulings on third parties, race, high schools and corporations.

"In an era when political philosophers from John Rawls to Michael Walzer to Jurgen Habermas appeal to consensus as the basis of political legitimacy, Steven Shiffrin makes compelling the contrary case that dissent is the lifeblood of democracy, and that freedom of speech is its essential guarantor. This refreshing and accessible tour through the logic and purposes of the First Amendment, buttressed by a host of applications to commercial speech, political speech, and hate speech, is valuable reading for all those interested in the dynamics of democratic politics."--Ian Shapiro, Yale University

"Shiffrin, one of the academy's leading first-amendment scholars, weaves into his account critiques of many of the arguments made by contemporary scholars, not to mention often devastating analyses of current Supreme Court doctrine. His analysis of the hash of current doctrine regarding regulation of advertising is particularly telling."--Sanford Levinson, University of Texas at Austin

"What emerges from this fundamental reorientation is . . . a well rendered account of an embattled national vision: a vision of what it might mean to be an engaged participant in civic life, to be an independent thinker, and ultimately to be an American."--Robin West, Georgetown University

"This book will reinforce Shiffrin's position as one of the leading, if not the leading, theorist of a progressive understanding of free speech."--Frederick Schauer, Harvard University

"Fighting Words is an outstanding book. It deserves not only all the accolades it undoubtedly will receive, but also the widest possible readership."--Lee C. Bollinger, Provost, Dartmouth College "At last we have a cogent comparison of the treatment of free speech questions in the United States and Canada. With his demonstrated gift for clarity, Greenawalt provides a detailed account of the contrasting approaches to hate speech, obscenity, workplace harassment, and campaign spending in two liberal democracies. This work will enlighten even those who disagree with the positions it takes on the issue. It will be of use to experts, students, and general readers."--Martha Minow, Harvard Law School "This is an exceptionally thoughtful and readable study of the most urgent free speech controversies of our time. By linking the analysis to the conflicting demands of justice toward individuals and communities, and doing so with scrupulous fairness, Greenawalt will lead many readers to rethink their vision of the good society."--Norman Dorsen, Stokes Professor of Law, New York University School of Law "A lucid and subtle discussion. Greenawalt shows keen understanding of the temptations to regulate speech while defending its freedom resourcefully and generously."--George Kateb, Princeton University "All of Kent Greenawalt's work is characterized by meticulous care and scrupulous fairness in argument. These talents of admirable balance and professional craft are especially apparent in this book, and their application to some of the most controversial free speech issues of our times is a needed addition to the literature."--Frederick Schauer, Frank Stanton Professor of the First Amendment, Harvard University "By comparing American and Canadian perspectives, Greenawalt sheds light on how different constitutional cultures can reach different results on the same fundamental questions. This is a valuable work for anyone seeking to understand the most pressing free speech issues of our time."--Geoffrey R. Stone, Provost, University of Chicago "Kent Greenawalt's important, insightful book provides thoughtful, lucid, well-balanced analyses of the most challenging contemporary free speech controversies. He carefully and sensitively examines and answers arguments, from across the political spectrum, for restricting allegedly harmful expression."--Nadine Strossen, President, American Civil Liberties Union

At a time when age-old political structures are crumbling, civil strife abounds, and economic uncertainty permeates the air, loyalty offers us security in our relationships with associates, friends, and family. Yet loyalty is a suspect virtue. It is not impartial. It is not blind. It violates the principles of morality that have dominated Western thought for the last two hundred years. Loyalties are also thought to be irrational and contrary to the spirit of Capitalism. In a free market society, we are encouraged to move to the competition when we are not happy. This way of thinking has invaded our personal relationships and undermined our capacities for friendship and loyalty to those who do not serve our immediate interests. As George P. Fletcher writes, it is time for loyal bonds, born of history and experience, to prevail both over impartial morality and the self-interested thinking of the market trader. In this extended essay, George P. Fletcher offers an account of loyalty that illuminates its role in our relationships with family and friends, our ties to country, and the commitment of the religious to God and their community. Fletcher opposes the traditional view of the moral self as detached from context and history. He argues instead that loyalty, not impartial detachment, should be the central feature of our moral and political lives. Writing as a political "liberal," he claims that a commitment to country is necessary to improve the lot of the poor and disadvantaged. This commitment to country may well require greater reliance on patriotic rituals in education and a reconsideration of the Supreme Court's extending the First Amendment to protect flag burning. Given the worldwide currents of parochialism and political decentralization, the task for us, Fletcher argues, is to renew our commitment to a single nation united in its diversity. Bringing to bear his expertise as a law professor, Fletcher reasons that the legal systems should defer to existing relationships of loyalty. Familial, professional, and religious loyalties should be respected as relationships beyond the limits of the law. Thus surrogate mothers should not be forced to surrender and betray their children, spouses should not be required to testify against each other in court, parents should not be prevented from willing their property to their children, and the religiously committed should not be forced to act contrary to conscience. Yet the question remains: Aren't loyalty, and particularly patriotism, dangerously one-sided? Indeed, they are, but no more than are love and friendship. The challenge, Fletcher maintains, is to overcome the distorting effects of impartial morality and to develop a morality of loyalty properly suited to our emotional and spiritual lives. Justice has its sphere, as do loyalties. In this book, Fletcher provides the first step toward a new way of thinking that recognizes the complexity of our moral and political lives.

In this highly original book, Robert Nagel demonstrates how contemporary constitutional politics reflect the moral character of American culture. He persuasively argues that judicial decisions embody wider social tendenceies towards moral evasiveness, privatization, and opportunism. Constitutional interpretation, he urges, is often an effort to stifle political disagreement and, ultimately, to censor our own beliefs and traditions. Nagel ranges over such controversial topics as the confirmation hearings of Clarence Thomas and Robert Bork, local resistance to abortion rights, political correctness on campus, and judicial decisions dealing with pornography, flag burning, gay rights, school prayer, and racial desegregation. Crossing conventional political and philosophical lines, the analysis is surprising and provocative. Nagel sees fundamental similarities between liberals like Ronald Dworkin and conservatives like Bork. He finds judicial arrogance in jurists as different as William Brennan and Sandra O'Connor. Clearly written and forcefully argued, this work is an audacious examination of judicial power as an integral part of our increasingly anxious and intolerant society.

Abortion, campaign financing, TV violence, homosexuality, and indecency on the Internet all have First Amendment implications, and all have been major political issues in the 1990s. During this decade, sex and secularism emerged as major targets of censorship, and an increasing number of Americans tested the limits of the Federal "decency" standards that were imposed on the arts, the broadcast media, and the Internet. America's interest in free expression has been paralleled by the growth of a powerful system of secrecy and censorship. This comprehensive encyclopedia documents the full history of the struggle in Congress, in the courts, and in our communities to define the modern contours of the First Amendment.

For more than three decades, Justice William J. Brennan Jr. served on the Supreme Court of the United States and helped the Court respond to almost every major political and social issue of our time. This book, by presenting Justice Brennan's decisions on many of these issues, illustrates his role as "the conscience of the Court". Through his opinions, with their clarity of analysis and compelling manner of expression, Justice Brennan left the American public a legacy of legal scholarship that continues to demonstrate his unfailing belief in the essential dignity of humankind.

John Hart Ely is a leading contemporary writer on political theory from the standpoint of American constitutional law. This collection covers a full range of topics of constitutional interpretation: federalism, separation of powers, freedom of expression, religious freedom, criminal procedure, racial discrimination, substantive due process, and honesty in government. Organized under these heads and linked by the author's witty explanatory and autobiographical remarks, the essays and other documents--many previously unpublished in any forum--range chronologically over the past three decades, from memoranda he wrote as a student working with lead counsel Abe Fortas on the landmark case of Gideon v. Wainwright to a comment on the constitutional implications of the O. J. Simpson verdict. Before beginning his academic career, Ely was the junior member of the Warren Commission's sixteen-lawyer staff, Chief Justice Earl Warren's law clerk, and a public defender in San Diego; and during the Ford Administration he took time off to serve as the third-ranking official of the U.S. Department of Transportation. This book reflects his various experience. It comments on many of the past quarter century's hot button issues--including abortion, affirmative action, anti-Communist legislation, busing, flag burning, governmental display of nativity scenes, the Nixon impeachment, trial by newspaper, the Clarence Thomas-Anita Hill contretemps, congressionally unauthorized war in the Persian Gulf and Bosnia, and whether the Warren Commission Report should be officially reexamined.

This clearly written and well-focused volume combines concise decisions of the primary areas of communication law with the foundational case decisions in those domains. Thus, in one volume, students of communication law, constitutional law, political science, and related fields find both the key rulings that define each area of law and a detailed summary of the legal concepts, doctrines, and policies so vital to understanding the rulings within their legal context. The text forgoes the tendency to provide encyclopedic treatment of all the relevant cases and focuses instead on the two or three cases most vital to an accurate and informed understanding of the current state of each field of communication law. The chapters provide readers with the most salient concepts and the necessary depth to understand the law while permitting most: reading time to be directed to the law itself. Full-text rulings allow readers to immerse themselves in the law itself--to develop a feel for its complexity, its flexibility, and its language. Useful as a quick reference to the landmark rulings and the jurisprudence of communication law, this book also serves well as the primary text in related undergraduate courses or as a supplemental text in graduate classes in the field.