In this Note, the author considers the Supreme Court's recent First Amendment jurisprudence-in particular R.A.V. v. City of St. Paul and Virginia v. Black, two cases concerning legislative attempts to criminalize cross-burning-through the eyes of foreign freedom of speech jurisprudence. He argues that the freedom of speech adjudicative models provided by the European Court of Human Rights and the Canadian Constitutional Court not only suggest a clearer mode of First Amendment adjudication, but may also enable us to more clearly understand the nature of the emergent case-by-case balancing jurisprudence implicitly present in both R.A.V. and Black.
Part I of the Note briefly considers how, despite its textual clarity and unequivocal command, First Amendment fundamentalism has been rejected by the Supreme Court. Part II introduces the motivation and means by which the European Court of Human Rights and the Canadian Constitutional Court adopted and utilize case-by-case balancing tests in freedom of expression adjudication. Part III examines R.A.V. and Black, revealing the extent to which such case-by-case analysis already informs modern First Amendment jurisprudence. Finally, in Part IV the author proposes a case-by-case First Amendment balancing test informed by precedent and foreign adjudicative models, and responds to several anticipated objections to such a test.
Matthew S. Melamed,
Towards and Explicit Balancing Inquiry - R.A.V. and Black through the Lens of Foreign Freedom of Expression Jurisprudence,
59 Hastings L.J. 407
Available at: https://repository.uchastings.edu/hastings_law_journal/vol59/iss2/4