I am happy to announce the publication of my latest law review article, The Unfinished Masterpiece: Compulsion and the Evolving Jurisprudence Over Free Speech, 83 Md. L. Rev. 145 (2023) The work not only discusses the recent 303 Creative ruling of the Supreme Court, but an important case now pending before the Court for possible review, Porter v. Board of Trustees of North Carolina State University. The Porter decision was decided by the United States Court of Appeals for the Fourth Circuit and, in my view, represents a major threat to both free speech and academic freedom. Both cases are also discussed in my forthcoming book, The Indispensable Right.
The article is the outgrowth of remarks that I gave at Maryland Law School at a Supreme Court symposium. The Law Review asked me if I would be willing to convert my remarks into a law review article.
I would like to thank Editor in Chief Rosemary Ardman and the entire staff of the Maryland Law Review for organizing the symposium as well as providing such excellent insights throughout the editing process. The issuance of the 303 Creative opinion shortly before publication required a major rewrite and a new round of edits from the law review members, who took on the task with enthusiasm.
Here is the summary:
“This Article explores how free expression conflicts have been addressed under religious, associational, and free speech rationales. A proponent of a natural rights or autonomous view of free speech, the Article lays out how a new and promising approach coalesced in the recent decision of the Supreme Court in 303 Creative LLC v. Elenis. Indeed, the Article explains how the decision completed the work left undone in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission in 2018. However, it argues that this rationale remains an “unfinished masterpiece” due to the lack of a clear natural right or autonomous foundation for free speech. That vulnerability was vividly illustrated just a week after 303 Creative, when the Fourth Circuit rejected the free speech claims of a professor in Porter v. Board of Trustees of North Carolina State University. The Fourth Circuit not only continued a past rationale of speech-as-conduct, but adopted a narrow view of the function of the speech by the dissenting faculty member. The case shows that the Supreme Court must complete the work in 303 Creative by increasing the scope and depth of free speech protection. To that end, the Article argues that religious speech should be protected first and foremost as speech as opposed to a violation of the Religion Clauses. Moreover, it must be grounded in either a natural right or autonomous rationale rather than past functionalist rationales. Only then will the Court truly achieve a long-sought masterpiece of free speech.”
The article is now available on the website here.
I’m buying the book but I do disagree slightly with JT. To me, the indispensible right is No. 2 for without that one, the rest were just pipe dreams.
Professor,
Congratulations on the book.
You are incredibly disciplined and focused to do all that you do! Impressive!
Congrats on the book, Turley. My hope is that by speaking on the topic of free speech you’ll be able to eventually believe your own words and be able to adjust your own censoring practices. There’s always hope, after all.
It appears a federal agency is today committing felony crimes under Title 18 US Code 245.
An Executive Branch agency violating the jurisdiction of the co-equal Legislative Branch. Violating their Oath of Office, which includes the First Amendment.
Blocking a citizen from exercising legal First Amendment activity communicating with their members of Congress.
Although not a Trump supporter, those talking about a “Deep State” – this is what they are talking about. The contract between citizens and government is breached by agencies run amok.
When agencies do this, voters choose leaders like Trump!
I know JT loves his free speech. As long as you agree with him, otherwise, not so much. I think he also likes his 2nd amendment and people use of guns. Here is a nice report on how guns are used.
https://www.washingtonpost.com/nation/interactive/2023/ar-15-force-mass-shootings/
BAN CARS!
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The National Highway Traffic Safety Administration has released its latest projections for traffic fatalities in 2022, estimating that 42,795 people died in motor vehicle traffic crashes. This represents a small decrease of about 0.3% as compared to 42,939 fatalities reported for 2021.
– NHTSA, Apr 20, 2023
There is a significant amount of fairly nuts speach on this blog that disagrees with Prof. Turly.
Seems Tulery values free speech – even for those who disagree.
I do not recall Turley posting on the 2nd amendment.
Your WaPo article does not appear to be reachable. regardless – its Wapo, no would would expecty they know anything about guns the 2nd amendment or pretty much anything.
The majority of mass shooting – which are a tiny portion of all gun deaths and an even tinier portion of all violent deaths are committed by someone owning a long gun. Of those a disproportionate number are committed by people with an AR-15 of some form.
At the same time very nearly 100% of all mass shootings are committed by someone with a hand gun, and very nearly 100% of all killings with guns are committed by someone with a handgun.
My statements about are about POSESSION not the actual killing. Most but not all of the killing is done with handguns.
Long guns are not suitable for close ranges,
There is actual data on shootings of all kinds by the FBI. By the numbers long guns – including AR-15s are used in a disproportionately small in comparison to their ownership number of killings.
Pres. Obama commissioned a CDC report on gun violence in the hopes of being able to use the data to justify some public health claim to regulate guns.
Left wing nuts often try to find tricky ways to circumvent peoples lives.
Problem is that the left wing nuts at the CDC found that it was highly likely that gun ownership dramatically reduced the odds of a person being the victim of a violent crime.
In a more recent study of mass shootings – the US came in 41st out of 49 countries in the rate of mass shootings.
That despite the fact that we have more guns per capita than any developed nation.
It is also true that in the US the rates of gun violence are highest in the places with the strictest gun restrictions.
Nearly all mass shootings occur in gun free zones.
Australia imposed one of the strictest sets of controls on guns – especially rifles a bit more than 2 decades ago.
The number of mass shooting dropped to zero. But the number of mass killings was unchanged. There was a spike in mass killings by Arson.
The people who wish to commit crimes with guns are going to get a gun. With near certainty most are not going to get one legally.
Mass shooters being the exception. Mass shooters are near universally people with serious mental health problems.
Unfortunately though near 100% of mass shooters have one of a few specific mental health disorders.
People with those mental health disorders have overal rates of violence only about twice the national average.
As an example the rate of violence among paranoid schitzophrenics is doubt the national average and equal to the rate of violence by blacks.
No one would think that we should prevent gun violence by denying blacks the right to own guns.
Denying people with mental health issues the right to own guns is about equally egregious. And ineffective.
Regardless, Mass shootings do not correlate to gun ownership in anyway.
They 1990’s Assualt Weapon ban resulted in no change to an already established declining rate of violence – as well as mass shootings.
This trend continued uninterrupted until 2019 when it dramatically reversed.
Both overall rates of violence, rates of gun violence, and rates of mass killing have been increasing since 2019.
What does this actually correlate too ? The move into adulthood of a generation that has the highest rates of anxiety and depression we have ever recorded.
I would note we are seeing rising rates of violence globally.
Republicans make a valid case that the War in Ukraine and the War in Israel and Irans’s efforts to destabilize the region and China threatening are the consequence of the policies of the Biden administration.
While true there is more at play than that.
it is not merely the policy changes as the left is in power that cause increased violence – who would have thought that running arround shouting defund the police would result in more crime ?
Some on the left have pointed out that the rates of violence have increased everywhere – not just where efforts to defund the police have occured, and though the rate of increase is highest in the places that have actually gone forward with this nonsense. Vilence is increasing everywhere.
Not just in the US but globally. Again – many of the policy changes have triggered this – some in a viscious cycle.
But the other well known factor is that chaos causes violence to spike – and the left is agents of chaos.
No one can guarantee bad things will not happen. Confiscate all the guns and you can be stabbed to death – Scottland has virtually no guns and rates of violence and death the same as the US.
One of the problems with the left is that they so greatly beleive that all problems are magically solveable by the use of government force to compel ill thought out first order solutions, that very little thought will tell you will not work and will have 2nd and thrid order consequences that are worse than the disease.
But maybe that is the point. Historically despots not merely confiscated guns but went to great trouble to instill fear in the population – because fearful people think they need a strong leader. Which does not explain why the left picked Biden, but it does explain why in 2025 Trump may be president.
I noted the spike in anxiety and depression.
But there are other factors.
If you are a 50 year old conservative white male, your odds of sufference from anxiety or depression are about 16%.
If you are a 20 something progressive woman your odds are about 76%.
Being young nearly doubles your rate of anxiety.
Being female nearly doubles your rate of anxiety.
Being progressive nearly doubles your rate of anxiety.
And all three of these factors – or atleast the scale of the factors are NEW This was not true 20 years ago.
Who would have guessed that going arround telling everyone that everything is about victim opressor,
That there are opressors of one sort or another arround every corner, that you have no hope of getting ahead in the world except empowering government to use force against your alleged opressors.
Who would have guessed that teaching people that the world is a dangerous hell hole would make people anxious and depressed ?
Who would have guessed that would causs mass shooting to increase, drug use to increase, drug addiction to increase, suicide to increase.
Rates of violence to increase.
Psychology has unfortunately advanced very little since Freud, there are few mental health problems that we can do much beyond medicate and even that works poorly.
But there is one aspect of psychology that we have been incredibly successful in – and that is anxiety and depression.
If you have a world view that is dark, you will suffer from anxiety and depression.
If you strive to see the world as it is, to get past seeing only the negative – you will recover from anxiety and depression.
This is not easy, and sometimes medication is a component in the recovery process
but anxiety and depression can be cured.
All it takes is seeing the world as it is – not the dark hellhole you pretend it to be.
You live in the least racist country in the world, in the least racist moment in time Perfect ? No. But the best we have ever had.
Nor is racism the only bad thing that is at its all time most every bad thing is at its nadir. Or it was until a few years ago.
If you truly understand that in your heart and in your mind – you will get beyond anxiety and depression,
And you will not only make your world a better place – you will make THE WORLD a little bit better a place.
If you have convinced yourself there are monsters under the bed. You are never going to get past the anxiety.
Get a grip – guns are not the problem.
The problem is in your head.
John Say,
Well said.
You say you want a revolution
Well, you know
We all wanna change the world
You tell me that it’s evolution
Well, you know
We all wanna change the world
But when you talk about destruction
Don’t you know that you can count me out?
Don’t you know it’s gonna be alright?
Alright
Alright
You say you got a real solution
Well, you know
We’d all love to see the plan
You ask me for a contribution
Well, you know
We’re all doin’ what we can
But if you want money for people with minds that hate
All I can tell you is, brother, you have to wait
Don’t you know it’s gonna be alright?
Alright
Alright
You say you’ll change the constitution
Well, you know
We all wanna change your head
You tell me it’s the institution
Well, you know
You better free your mind instead
[But if you go carryin’ pictures of Chairman Mao
You ain’t gonna make it with anyone anyhow
Don’t you know it’s gonna be
Alright
Alright
Alright
303 Creative
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“It’s the [private property], stupid!”
– James Carville
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Americans are free.
American government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while government itself is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure.
The 5th Amendment right to private property was initially qualified by the Framers and is, therefore, absolute, allowing no further qualification, and allowing ONLY the owner the power to “claim and exercise” dominion over said private property.
For those of you in Rio Linda, Congress and the government have no (i.e. zero) power to deny constitutional rights or to “claim and exercise” dominion over private property, understanding that property damage and bodily injury are criminal.
Below is the definitive “decision” by the American Founders and Framers, causing all subsequent judicial “interpretation” to be extraneous and irrelevant:
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“[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
– James Madison
Professor Turley, I downloaded the pdf and will read eagerly.