Originalism and the First Amendment - Audio/Video

2016 National Lawyers Convention
David F. Forte, Michael W. McConnell, David Rabban, Nadine Strossen, Carlos T. Bea, Erik S. Jaffe November 23, 2016

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

Interview with Kirsten Powers - Event Audio/Video

2015 National Lawyers Convention
Kirsten Powers, Nicholas Quinn Rosenkranz November 24, 2015

On November 14, 2015, during the Federalist Society's 2015 National Lawyers Convention in Washington, DC, Professor Nicholas Quinn Rosenkranz of the Georgetown University Law Center interviewed USA Today Columnist, Daily Beast Columnist, and FOX News Contributor Ms. Kirsten Powers.

Interview with Kirsten Powers
12:30 p.m. – 2:15 p.m.
Grand Ballroom

  • Ms. Kirsten Powers, USA Today Columnist, Daily Beast Columnist, and FOX News Contributor
  • Interviewed by: Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center and Federalist Society Board of Directors

The Mayflower Hotel
Washington, DC

Note: There were technical issues with Prof. Rosenkranz's microphone at the beginning of the video during his introduction, but the issues were resolved by the time the interview begins.

Censoring Specialty License Plates - Podcast

Free Speech & Election Law Practice Group Podcast
Eugene Volokh June 04, 2015

Many states make money by letting a wide range of groups order specialty license plates for their members. The specialty plates tend to convey a message or an affiliation. May a state reject a proposed plate because it deals with “politically sensitive and emotionally charged issues?" More specifically, may a state forbid a “Choose Life” specialty plate, but allow a “Union Yes” plate and one that says “Support Police?” The Second Circuit just upheld such a policy, by a 2-to-1 vote. Is the decision consistent with the First Amendment?

  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law

How First Amendment Procedures Protect First Amendment Substance - Event Video

2014 National Lawyers Convention
Aaron H. Caplan, Robert A. Destro, Todd P. Graves, Alan B. Morrison, Eugene Volokh, David Stras, Erik S. Jaffe November 17, 2014

While the substance of constitutional rights is always important, it is often the procedures surrounding the protection and enforcement of those rights that give them teeth – or defang them.  From the landmark case of New York Times v. Sullivan to the recently decided Susan B. Anthony List v. Driehaus, the procedures required before one can burden speech, or raise a successful defense under the First Amendment, are critical to the effective scope of the constitutional right.  This panel will explore the various procedural safeguards applied – or not applied – in the context of the Freedom of Speech.  What level of proof is required before speech may be restricted based on an otherwise valid interest?  When will a private party have standing to challenge a restriction on speech that may not yet be final but that has immediate adverse consequences, such as requiring a party to defend an investigation or rebut a preliminary government finding in the midst of an election campaign?  What safeguards should exist in administrative processes, such as IRS tax exemption rulings, where discretion may be used to punish speech or otherwise favor one viewpoint over another?  These and other examples all illustrate that even where the substance of First Amendment rights is well established, procedural loopholes or protections can reduce or enhance the effectiveness of those rights.

The Federalist Society's Free Speech & Election Law Practice Group presented this panel on "How First Amendment Procedures Protect First Amendment Substance" on Friday, November 14, during the 2014 National Lawyers Convention.


  • Prof. Aaron H. Caplan, Loyola Law School, Los Angeles
  • Prof. Robert A. Destro, The Catholic University of America Columbus School of Law
  • Mr. Todd P. Graves, Graves Garrett LLC
  • Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, The George Washington University Law School
  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, University of California, Los Angeles School of Law
  • Moderator: Hon. David R. Stras, Associate Justice, Minnesota Supreme Court
  • Introduction: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC; and Chairman, Free Speech & Election Law Practice Group

Mayflower Hotel
Washington, DC

Criminal Law Enforcement versus the Free Press - Event Audio/Video

2013 National Lawyers Convention
Adam Liptak, Eric M. Freedman, Eugene Volokh, Michael B. Mukasey, A. Raymond Randolph, John G. Malcolm November 22, 2013

Criminal Law Enforcement versus the Free Press - Event Audio/VideoWhat are the First Amendment rights of press in the context of criminal investigations, and when national security is at issue?   In the modern, digital age, is there even agreement on who qualifies as press?  Should institutional or traditional press have greater rights over non-traditional media, including bloggers?  What are the rights of media to publish material leaked from the government?  Does the answer change if the media solicited the material or otherwise participated in the leak?  What are the policy and legal considerations when it comes to a national media shield law?  These and other questions will be addressed by our panel of experts.

The Criminal Law & Procedure Practice Group hosted this panel on "Criminal Law Enforcement versus the Free Press" on Friday, November 15, during the 2013 National Lawyers Convention.

Criminal Law: Criminal Law Enforcement versus the Free Press
12:00 noon – 2:00 p.m.

State Room

  • Mr. Adam Liptak, Supreme Court Correspondent, The New York Times
  • Prof. Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, Hofstra University School of Law
  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, University of California, Los Angeles School of Law
  • Hon. Michael Mukasey, Partner, Debevoise & Plimpton LLP and former United States Attorney General
  • Moderator: Hon. A. Raymond Randolph, United States Court of Appeals, District of Columbia Circuit
  • Introduction: Mr. John G. Malcolm, Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

Mayflower Hotel
Washington, DC

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