A panel, at the National Lawyers Convention, discussed procedure as it relates to First Amendment rights. The panel set forth how First Amendment procedures have historically protected First Amendment substance and discussed modern applications of the issue. For example, the prior restraint doctrine, overbreadth doctrine, the allocation of the burden of proof and relaxation of ripeness rules have important implications for challenging restrictions on speech and defending against libel and defamation.
The interaction of free speech and due process is often seen in litigation involving civil harassment orders, or civil protection orders. In many jurisidictions the definition of harassment permits the finding that harassment can be based solely on speech, meaning speech itself can provide a basis for liabilty. In addition, speech may be restricted as a remedy in litigation addressing harassment.
Investigations of wrongdoing in the realm of campaign finance law and political speech cases can also have serious implications for speech, both reputational and legal. Further cases involving political speech and campaign finance once exclusively litigated in the civil arena, are now the subject of criminal investigations and prosecutions. This is particularly problematic where many issues in this area remain unsettled.
Good lawyering is particularly important in First Amendment cases. Ineffective assistance of counsel can be considered as great an evil in First Amendment cases as in criminal cases. Unfortunately, practicing lawyers often do not understand the process by which constitutional facts are pleaded and proved in First Amendment cases and this problem begins with the way Constitutional Law 101 is taught in law schools.
In proving facts in First Amendment litigation the question becomes how does the government prove its justification of a restriction on speech or how does one opposing the government’s restriction on speech respond when the government asserts certain interests as being their justification. In First Amendment litigation the government often relies on legislative facts – newspaper reports, television stories, and criminal cases discussed in the media, arguably the government should be obligated to present more than rumors and speculation.
Erik S. Jaffe, Aaron H. Caplan, Robert A. Destro, Todd P. Graves, Alan B. Morrison, Eugene Volokh & David R. Stras,
Millennials, Equity, and the Rule of Law: 2014 National Lawyers Convention, How First Amendment Procedures Protect First Amendment Substance,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol65/iss1/11