*Spam?* RE: What Authorizes Congress' Power to Regulate Speech?
Michael Zimmer
zimmermi at shu.edu
Mon Apr 11 12:41:39 PDT 2005
My colleague, Ed Hartnett, has written about inserting the Bill of Rights
into the text rather than appending as separate Amendments. Mike
Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8833
973.642.8194 fax
Bill Araiza
<Bill.Araiza at lls.
edu> To
Sent by: unlisted-recipients:; (no To-header
conlawprof-bounce on input)
s at lists.ucla.edu cc
CONLAWPROF at lists.ucla.edu
Subject
04/11/2005 01:18 Re: *Spam?* RE: What Authorizes
PM Congress' Power to Regulate Speech?
I seem to remember that originally the Bill of Rights amendments were
planned to be inserted into the original document, rather than
appended to the end. I also seem to recall that it was planned to
place the First Amendment at the end of Article I, Section 8's
catalogue of congressional powers. Obviously, that placement would
have affected the answer not just to Bobby's question, but presumably
also to other questions, such as the constitutionality of court
injunctions that impact speech.
I Akhil Amar wrote an article about this, although I could be mistaken.
Bill Araiza
Loyola (L.A.)
Washington & Lee
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Seems to me that it depends on the statute. Some statutes are
clearly applications of, for instance, the Commerce Clause or Post
Office Clause power. Given broad modern understandings of commerce,
which has long included communications using interstate channels of
communications, the Communications Decency Act, for example, would be
authorized under the Commerce Clause (perhaps mixed with the Necessary
and Proper Clause). Others, such as the Espionage Act involved in
Schenck, Debs, etc. are presumably mixes of the Necessary and Proper
Clause power and the various war powers.
=20
The toughest question, I think, is what was the federal power that
authorized the ban on flagburning in U.S. v. Eichman. But for most
other federal speech restrictions, there should be ample power under
post-Wickard (and even post-Lopez/Morrison/Boerne) understandings of
federal power, no?
=20
Eugene
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of RJLipkin at aol.com
Sent: Monday, April 11, 2005 5:48 AM
To: CONLAWPROF at lists.ucla.edu
Subject: What Authorizes Congress' Power to Regulate Speech?
=09
=09
=09
If Congress' power is constitutionally limited to its
enumerated powers, even if these powers are construed liberally, where
does Congress' power to regulate speech derive? Judicial opinions often
address the constitutionality of a congressional act regulating speech
by going directly to the First Amendment issue without ever identifying
the constitutional provision authorizing such regulation. Why is this? I
welcome an explanation. Thanks.
=20
Bobby
=20
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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<DIV><SPAN class=3D045081916-11042005> Seems to me that =
it=20
depends on the statute. Some statutes are clearly applications of, =
for=20
instance, the Commerce Clause or Post Office Clause power. =
Given=20
broad modern understandings of commerce, which has long=20
included communications using interstate channels of =
communications, the=20
Communications Decency Act, for example, would be authorized under=20
the Commerce Clause (perhaps mixed with the Necessary and Proper=20
Clause). Others, such as the Espionage Act involved in Schenck, =
Debs, etc.=20
are presumably mixes of the Necessary and Proper Clause power and the =
various=20
war powers.</SPAN></DIV>
<DIV><SPAN class=3D045081916-11042005></SPAN> </DIV>
<DIV><SPAN class=3D045081916-11042005> The toughest =
question, I=20
think, is what was the federal power that authorized the ban on =
flagburning in=20
U.S. v. Eichman. But for most other federal speech restrictions, =
there=20
should be ample power under post-Wickard (and even =
post-Lopez/Morrison/Boerne)=20
understandings of federal power, no?</SPAN></DIV>
<DIV><SPAN class=3D045081916-11042005></SPAN><SPAN=20
class=3D045081916-11042005></SPAN> </DIV>
<DIV><SPAN class=3D045081916-11042005> =
Eugene</SPAN></DIV>
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style=3D"PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: #000000 2px =
solid; MARGIN-RIGHT: 0px">
<DIV></DIV>
<DIV class=3DOutlookMessageHeader lang=3Den-us dir=3Dltr =
align=3Dleft><FONT=20
face=3DTahoma>-----Original Message-----<BR><B>From:</B>=20
conlawprof-bounces at lists.ucla.edu =
[mailto:conlawprof-bounces at lists.ucla.edu]=20
<B>On Behalf Of </B>RJLipkin at aol.com<BR><B>Sent:</B> Monday, April 11, =
2005=20
5:48 AM<BR><B>To:</B> CONLAWPROF at lists.ucla.edu<BR><B>Subject:</B> =
What=20
Authorizes Congress' Power to Regulate =
Speech?<BR><BR></FONT></DIV><FONT=20
id=3Drole_document face=3DArial>
<DIV> If Congress' =
power is=20
constitutionally limited to its enumerated powers, even if these =
powers are=20
construed liberally, where does Congress' power to regulate speech =
derive?=20
Judicial opinions often address the constitutionality of a =
congressional act=20
regulating speech by going directly to the First Amendment issue =
without ever=20
identifying the constitutional provision authorizing such =
regulation. Why=20
is this? I welcome an explanation. Thanks.</DIV>
<DIV> </DIV>
<DIV>Bobby</DIV>
<DIV> </DIV>
<DIV><FONT lang=3D0 face=3DArial PTSIZE=3D"10" =
FAMILY=3D"SANSSERIF">Robert Justin=20
Lipkin<BR>Professor of Law<BR>Widener University School of=20
Law<BR>Delaware</FONT></DIV></BLOCKQUOTE></FONT></BODY></HTML>
=00
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