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Has Originalism played a significant role in the Supreme Court's free speech jurisprudence? One scholar has concluded that even Justice Scalia used Originalism in only 30% of his 56 opinions on freedom of expression through the 2010 Term.

Do landmark freedom of expression opinions square with the original understanding of the First Amendment? The Amendment's protections have been held to cover flag burning, cross burning, commercial advertising, campaign funding, virtual child pornography, violent video games and DVDs, expressive association, protests at military funerals and abortion clinics, false statements of fact, and nude dancing. The Supreme Court has also held that the First Amendment to some extent limits disciplinary measures in public schools, government employment actions, and conditions attached to government benefits.

This panel will discuss how Originalism has been used in fashioning freedom of expression doctrine, and whether it should be used more (or less).

This panel was held on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Free Speech & Election Law: Originalism and the First Amendment
3:00 p.m. – 5:00 p.m. 
State Room

  • Prof. David F. Forte, Garwood Visiting Professor, Princeton University
  • Hon. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center; Stanford Law School, Senior Fellow, Hoover Institute
  • Prof. David M. Rabban, Dahr Jamail, Randall Hage Jamail and Robert Lee Jamail Regents Chair; University Distinguished Teaching Professor, University of Texas at Austin School of Law
  • Prof. Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; former President, American Civil Liberties Union
  • Moderator: Hon. Carlos T. Bea, U.S. Court of Appeals, Ninth Circuit
  • Introduction: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

The Mayflower Hotel
Washington, DC