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Arise, you have nothing to lose but your barbed wire fences!

1997-09-10 - Re: Government shows its hand…good news!

Header Data

From: “Peter D. Junger” <junger@upaya.multiverse.com>
To: “James S. Tyre” <j.s.tyre@worldnet.att.net>
Message Hash: 5798c61f7ae58a733a8dd079efcaced8309c6118e9fc8ca0bafe4a3e70a6bd17
Message ID: <199709101013.GAA02982@upaya.multiverse.com>
Reply To: <341619BC.6A3F@worldnet.att.net>
UTC Datetime: 1997-09-10 10:20:03 UTC
Raw Date: Wed, 10 Sep 1997 18:20:03 +0800

Raw message

From: "Peter D. Junger" <junger@upaya.multiverse.com>
Date: Wed, 10 Sep 1997 18:20:03 +0800
To: "James S. Tyre" <j.s.tyre@worldnet.att.net>
Subject: Re: Government shows its hand...good news!
In-Reply-To: <341619BC.6A3F@worldnet.att.net>
Message-ID: <199709101013.GAA02982@upaya.multiverse.com>
MIME-Version: 1.0
Content-Type: text/plain



"James S. Tyre" writes:

: Tim May is correct (as is Declan's clarification of his earlier note). 
: If the amendment does become law, however, do not expect two things:
: 
: . . . .
: 
: 2.  Do not expect that a case will involve a broad coalition of
: plaintiffs, as was the case with the CDA.  Expect that the courts will
: only entertain an action by a plaintiff with traditional standing:  one
: who goes through all of the bureaucratic hoops trying to get a license,
: and then is turned down.

There would, undoubtedly, have to be some showing of standing, but
that would not require going through the bureaucratic hoops of trying
to get a license _if_ the denial of a license is not reviewable under
the APA, and perhaps not even then.  It is the requirement that one
get a license, not the denial of the license, that is a prior
restraint in violation of the First Amendment and if a licensing
scheme on speech is to be upheld it must provide for prompt judicial
review.  (And normally providing judicial review is not enought to
get around the prior restraint challenge.)  

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
     NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists

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