2019 Theses Doctoral

Speech, Silence, and Structure

Gordon, Jeffrey Steven

The three Articles that comprise this Dissertation explore how free expression and judicial federalism regulate hurtful speech and promised silence. The Articles tackle torts and free speech, contracts and free speech, and a comparative variation on those two themes. Judicial federalism threads all three Articles. The first Article, Silencing State Courts, argues that the current mode of enforcing the First Amendment against state common law speech torts fails to promote cooperative judicial federalism. Second, Silence for Sale argues that state courts should free themselves from constitutional straitjackets and recognize a robust public policy of free expression that voids some nondisclosure agreements. Finally, Comparative Judicial Federalism argues that the strength of a federal free speech guarantee varies with a country's particular species of judicial federalism. By comparing free speech and judicial federalism in the United States and Australia, it argues that Australia’s judicial federalism augments its implied freedom of political communication.