Archive for the ‘Constitutional Rights’ Category

“Swab First, Ask Questions Later”

June 5, 2013

Deoxyribonucleic acid (DNA): the wonder molecule.  It encodes the genetic instructions used in the development and functioning of all known living organisms and many viruses.

From genetic engineering to forensics to bioinformatics to nanotechnology, DNA is the defining characteristic of of human evolution and scientific progress. It is —for any fan of Law & Order of CSI — the stuff of which dreams of guilt or innocence are made of.

In his post, “The Slippery Swab (Update)” Scott Greenfield tackles the issue of DNA in a thought-provoking post on the U.S. Supreme Court decision in Maryland v. King, which approved the Maryland law permitting the taking of DNA from presumptively innocent defendants. Greenfield writes, (more…)

Alexander Tsesis on “Inflammatory Speech: Offense versus Incitement”

April 16, 2013

 Alexander Tsesis (Loyola University Chicago School of Law) has posted “Inflammatory Speech: Offense versus Incitement”, Minnesota Law Review, Vol. 97, 2013/Loyola University Chicago School of Law Research Paper No. 2013-006. Here’s the abstract:

The commonly accepted notion that content regulations on speech violate the First Amendment is misleading. In three recent cases – Snyder v. Phelps, Brown v. Entertainment Merchants Ass’n, and United States v. Stevens – the Court made clear that free speech includes the right to express scurrilous, disgusting, and disagreeable ideas. A different set of cases, however, concluded that group defamation, intentional threats, and material support for terrorist organizations are not protected forms of expression. This Article seeks to make sense of this doctrinal dichotomy and to develop clearer guidelines for regulating incitements that are posted on the Internet and in public areas.

Many leading First Amendment scholars regard the Supreme Court’s jurisprudence on outrageous and inciting expressions to be inconsistent. These academic authors often adopt a libertarian theory of the Free Speech Clause. They generally agree with cases that strike limits on offensive statements but disregard, or outright ignore, those that uphold restrictions on threats and defamations made in the absence of any imminent threat of harm. This Article demonstrates that opponents of incitement regulations fail to differentiate policies that protect public safety from those that silence outrageous but benign expressions.

I propose a relatively straightforward method for evaluating the constitutionality of incitement laws. The mens rea of a speaker is key to judicial determinations about whether true threats, group defamation, and material support for terrorists are actionable or constitutionally protected. This Article parses the Court’s analysis of unprotected incitement that poses a threat to public safety. A small but significant group of decisions belies the libertarian claim that incitement is constitutionally protected. My proposal will undoubtedly be controversial because the method I propose would augment juries’ and judges’ authority to assess the context within which threatening statements are made and qualify the relevance of the canonic imminent threat of harm doctrine.

Download a pdf copy of the article via SSRN here.

Chanakya Sethi, “Beyond Irwin Toy: A New Approach to Freedom of Expression Under the Charter”

May 23, 2012

Chanakya Sethi, Student-at-Law (Osgoode Hall Law School – York University) has posted “Beyond Irwin Toy: A New Approach to Freedom of Expression Under the Charter”,  Appeal, Vol. 17, pp. 21-45, 2012. The abstract reads:

The Supreme Court of Canada has struggled for more than two decades to resolve the inherent tension in its expansive interpretation of freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms with the high standard of justification that limits on that right must satisfy under section 1. The Court’s attempts have not assuaged critics who point to a continuing methodological anarchy in the Court’s jurisprudence. Despite ample criticism, however, little has been said in the way of proposed alternatives. This paper is an attempt to fill that void.

The author proposes an approach to section 2(b) adjudication that begins by animating the normative judgement latent in the Court’s jurisprudence: When not all expression is equally worthy of protection, not all expression should be equally protected. The foundation of this methodology lies in a purposive analysis of section 2(b), with an inquiry as to which categories of expression lie at the core of the guarantee and which lie farther afield. Those forms of expression closest to the core should be subject to the strictest form of scrutiny under section 1, while those outside the core should be subject to attenuated standards of review. Crucially, these distinctions must be evidenced by explicit tiers of scrutiny.

The proposed approach yields important benefits that address the specific criticisms levelled at the Court’s current methodology, including clarity and predictability, prudential limits on the flexibility the Court affords itself, and a more efficient use of the Oakes test, especially its third branch. Though the full impact of the proposed methodology is beyond the scope of this paper, the approach’s implications are most clear in the realm of political expression, where several of the Court’s recent precedents would likely have been decided differently.

Download a pdf copy of the article via SSRN here.

Supreme Court of Canada Denies U.S. Government Leave to Appeal in Abdullah Khadr Extradition

November 3, 2011
Abdullah Khadr

Abdullah Khadr (Colin Perkel / THE CANADIAN PRESS via

The Supreme Court of Canada  today denied the  U.S. Government’s application for leave to appeal in Attorney General of Canada on behalf of the United States of America v. Abdullah Khadr (Ont.) (Criminal) (By Leave) (34357) Coram: Binnie / Deschamps / Rothstein (without costs).

For a backgrounder, see my earlier post: Ontario C.A. upholds stay of U.S.A.’s extradition request for Abdullah Khadr.

Chanakya Sethi, “Does the Charter Follow the Flag? Revisiting Constitutional Extraterritoriality after R. v. Hape”

October 19, 2011
Distributing copies of the Canadian Charter of...

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 Chanakya Sethi (Osgoode Hall Law School – York University) has posted “Does the Charter Follow the Flag? Revisiting Constitutional Extraterritoriality after R. v. Hape”, The Dalhousie Journal of Legal Studies, Vol. 20, No. 1, 2011. Here’s the abstract:

In the recent case of R. v. Hape, the Supreme Court of Canada concluded on the basis of international law, including principles of sovereign equality and comity, that the Canadian Charter of Rights and Freedoms cannot apply extraterritorially. The Court’s decision has been faulted by scholars of both constitutional and international law as being deeply problematic. The purpose of this essay is to accept the invitation implicit in these criticisms by revisiting Hape and asking anew, Does the Charter follow the flag? The author concludes that the Court’s reasoning in Hape rests on a flawed understanding of international law. Indeed, a more searching analysis reveals that there is ample basis to conclude that extraterritorial application of the Charter – far from being anathema to international law – is in harmony with emerging principles of state responsibility. An analysis of foreign jurisprudence provides added support for this conclusion. The question of international law aside, however, fidelity to the principles underlying the Charter necessitates an interpretation that contemplates extraterritorial application.

 Download a .pdf copy of the paper via SSRN here.

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