Past Bad Speakers, Performance Bonds & Unfree Speech: Lawfully Incentivizing "Good" Speech or Unlawfully Intruding on the First Amendment?

Calvert, Clay
July 2012
Harvard Journal of Sports & Entertainment Law;
Using the recent legal woes of television pitchman Kevin Trudeau as an analytical springboard, this article examines the multiple First Amendment issues and red flags raised by the imposition of performance bonds on "past bad speakers" as conditions precedent for their future speech. Performance bonds, the article argues, blur the traditional line that separates prior restraints from subsequent punishments in First Amendment jurisprudence. They also represent a form of government intrusion in the marketplace of ideas -- a form of interventionism, premised on financial incentivism -- that ostensibly discourages dangerous or otherwise unlawful speech from re-entering the speech market. This article also addresses the proper standard of judicial scrutiny that should be used to evaluate the validity of performance bonds. Furthermore, it considers whether the scope of performance bonds is necessarily limited to scenarios involving the Federal Trade Commission or whether such bonds can also be imposed in other contempt proceedings and/or by other federal agencies, such as the Federal Communications Commission.


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