Washington and Lee law professor Brian Murchison has published a new article in the latest issue of the Columbia Journal of Law & the Arts. Professor Murchison’s article is titled “Speech and the Truth-Seeking Value” and appears the first issue of volume 39.
From the abstract:
Courts in First Amendment cases long have invoked the truth-seeking value of speech, but they rarely probe its meaning or significance, and some ignore it altogether. As new cases implicate questions of truth and falsity, thorough assessment of the value is needed. This Article fills the gap by making three claims. First, interest in truth-seeking has resurfaced in journalism, politics, philosophy, and fiction, converging on a concept of provisional or “functional” truth. Second, the appeal of functional truth for the law may be that it clarifies thinking about a range of human priorities—survival, progress, and character—without insisting on truth in an absolute or transcendent sense. Third, the law’s current treatment of truth-seeking in First Amendment cases turns on whether a case implicates the truth of the past, present, or future. Cases about past truth involve its knowability; cases about present truth involve its hiddenness; and cases about future truth involve its falsification. Because judicial treatment of truth-seeking in each of these groupings is underdeveloped, legal thought can benefit from literary works by three major novelists: Paul Scott, author of Staying On; Kazuo Ishiguro, author of Never Let Me Go; and Ian McEwan, author of Atonement. Each of these works clarifies an important aspect of the truth-seeking value of expressive freedoms. The Article concludes by considering the value’s limitations, focusing on the complex setting of campaign finance.
Washington & Lee law professor Brian Murchison’s scholarship is cited in “Breathless and Burdened: Dying from Black Lung, Buried by Law and Medicine“. The report from the Center for Public Integrity won a Pulizer Prize in the Investigative Reporting category for its detailed analysis of controversial denials of black lung benefits to coal miners.
Professor Murchison’s 2002 article “Due Process, Black Lung, and the Shaping of Administrative Justice” is cited in Part 3 of the investigative series as it chronicles of the case of former coal miner Ted Latusek.
Read more of Professor Murchison’s scholarship here.
Washington and Lee law professor Brian Murchison was recognized Oct. 24 during the annual meeting of the Virginia Association of Defense Attorneys for his service as editor in chief of the Journal of Civil Litigation.
Prof. Murchison served as editor in chief for five years. The Journal is published four times a year. Each edition contains an interesting selection of in-depth articles, as well as summaries of trial court decisions not readily available from other sources.
On August 22, Prof Brian Murchison lectured on the 2012-13 U.S. Supreme Court Term at a meeting of the Federal Bar Associaction’s chapter in Roanoke. Murchison discussed some of last Term’s leading cases, including the split decisions on California’s Proposition 8 and the Defense of Marriage Act; the challenge to the constitutionality of the Voting Rights Act of 1965; the University of Texas affirmative action case; and the challenge to the Foreign Intelligence Surveillance Act.
In addition, Murchison previewed the Recess Appointments Clause case that the Court will hear in the coming Term, and discussed another case the Court may review, involving a Free Exercise Clause attack on the Affordable Care Act. This was Murchison’s second visit to an event sponsored by the FBA, which includes members of the Roanoke bench and bar.
Professor Brian Murchison was guest speaker on August 23, 2012, at a meeting of the Federal Bar Association’s chapter in Roanoke. Professor Murchison’s talk, entitled “The 2011 Term: Momentous Struggle for the Center,” addressed the recently concluded Term of the U.S. Supreme Court. Among the cases discussed by Professor Murchison were Zivotofsky v. Clinton, involving the political question doctrine and executive branch policy on the sovereignty of Jerusalem; United States v. Jones, the Fourth Amendment case involving a GPS tracking device; National Federation of Independent Business v. Sebelius, the Term’s major case, addressing the constitutionality of the Patient Protection and Affordable Care Act; Miller v. Alabama, the Eighth Amendment-based challenge to mandatory sentences of juveniles convicted of murder to life imprisonment without opportunity for parole; United States v. Alvarez, the challenge to the Stolen Valor Act on First Amendment grounds; two cases involving contested federal enforcement efforts, Sackett v. EPA and Hosanna-Tabor Church v. EEOC; and Arizona v. United States, where the Court ruled on federal pre-emption of Arizona’s controversial immigration law.
Professor Brian Murchison, the Charles S. Rowe Professor of Law, recently spoke at the Washington and Lee Institute for Honor, which took place on March 2-3 and brought together journalists, professors, students, alumni, and other interested persons for a program entitled “The New Conversation: How Are the News Media Shaping Our Political Beliefs?”
The title of Murchison’s talk was “New Media, Old Media, and Media In Between: Variations in First Amendment Disputes.” Examining the current media landscape, Murchison contrasted illustrative legal disputes affecting the traditional print and broadcast media (“old media”), avenues of expression on the internet (“new media”), and developing media such as 24/7 cable programming and talk radio. As an example of a current case involving old media, Murchison discussed federal prosecutors’ efforts to obtain the testimony of New York Times reporter James Risen in a criminal case brought against an ex-CIA employee, Jeffrey Sterling, accused of unauthorized disclosure of national security information. The case exemplified the professional norms of old media, including investigative reporting and reliance on confidential sources of information. Turning to transitioning media, Murchison discussed libel actions brought against a Fox morning show and against liberal talk show host Randi Rhodes. In both, the courts commented on the hyperbolic nature of speech on various cable and radio programs and found the challenged expression protected by the First Amendment. Finally, in discussing cases typical of the new media, Murchison explored cases brought against bloggers and website commentators who post sometimes harsh opinions and wish to remain anonymous. Murchison outlined the protections afforded them by the First Amendment, protections that are not without limits.
Professor Brian Murchison, the Charles S. Rowe Professor of Law, posts here about his reaction and thoughts on the recently decided U.S. Supreme Court Case, Snyder v. Phelps. He also previewed the case last October here at the Faculty Scholarship Blog.
The Supreme Court’s decision in Snyder v. Phelps was consistent with First Amendment precedent; the Court’s 8-1 vote on the merits was perfectly plausible and not unexpected.
The facts are well known. A fringe church crudely exploited the occasion of a deceased Marine’s memorial service. The group gathered in a space permitted by police, some 1,000 feet from the church, without breaching the peace or disrupting the service, and their signs expressed a message that many thought bizarre — that God kills soldiers to punish the United States for condoning homosexuality. When the Marine’s father sued the church group for intentional infliction of emotional distress and invasion of privacy caused by the speech, a jury in Maryland awarded him a significant amount of damages. The Fourth Circuit reversed on First Amendment grounds, ruling among other things that the challenged speech was non-actionable hyperbole.
The Supreme Court affirmed the Fourth Circuit’s result. Read more…