Electoral Lies and the Broader Problems of Strict Scrutiny
States often attempt to regulate political speech in the form of deliberate lies related to ballot initiatives, referenda, candidates, or their political positions. Some courts focus on the various harms of electoral lies, while others focus more on the risks of bias and partisan abuse involved in such speech regulations, and the cases are in disarray. This article argues, however, that the most important problem underlying this case confusion is inherent in the widely utilized constitutional standard of strict scrutiny. Strict scrutiny typically requires a compelling governmental interest, “narrow tailoring,” and some causal relation between the regulation and the compelling interest. The crucial point, though, is that, as this article documents, each of these elements lends itself to a surprising degree of arbitrariness, judicial subjectivity, uncontrollable complexity, and sheer impracticality. The article works through these multiple problems, in the context of electoral lies and much more broadly, and considers two significant possible reforms of standard versions of the judicial strict scrutiny test.
An Emotion-Based Approach to Freedom of Speech
Free speech law often protects emotional expression. However, we lack an understanding of the scope and limits of protection for emotional expression. This Essay seeks to make progress toward such an understanding because a better understanding and grasp of the nature of emotion itself is crucial to achieving this goal. If we can arrive at an improved understanding of emotions and how they can be expressed, we will be better able to explain when we do and do not constitutionally protect the expression of emotion.
A Preference for Forgetting: Some Reflections on Publishing Looking For Blackfellas' Point: An Australian History of Place
Blackfellas' Point lies on the Towamba River in south-eastern New South Wales. As the river descends rapidly from its source on the Monaro plains, it winds its way through state forest, national park and farming land. Around twenty-five kilometres before it reaches the sea, just south of Eden, it passes through Towamba, the small village in which Mark McKenna now owns eight acres of land. Mark's land looks across the river to 'Blackfellas' Point', once an Aboriginal camping ground and meeting place. Looking for Blackfellas' Point is a history that begins by looking across the river to the arc of bush that is 'Blackfellas' Point. From there, Mark McKenna's gaze pans out - from the history of one place he knows intimately, to the history of one region and, ultimately, to the history of Australia's quest for reconciliation between Indigenous and non-Indigenous Australians. Looking For Blackfellas' Point is a history for every Australian who is interested in the story of settler-Australia's relations with Indigenous people - what happened between us, how we learnt to forget and, finally, how we came to confront the truth about our past and build a movement for reconciliation.