This Note argues that Bose does not support the symmetrical application of independent review of facts by appellate courts in First Amendment cases, regardless of whether the First Amendment claimant won or lost below. While symmetrical procedures and results may be desirable in most parts of the law, symmetry is not required where that symmetry will inhibit a greater constitutional interest. In the independent review context, symmetrical application of Bose results in the reversal of First Amendment wins that would otherwise be upheld under clear error review. This result is clearly antithetical to Bose’s purpose of enhancing First Amendment protections.
Cardozo Law Review de·novo
Wurtzel, Joshua, "Symmetry For Symmetry’s Sake: Why Bose Does Not Require Independent Review of a Trial Court’s First-Amendment-Favorable Findings of Fact" (2013). Cardozo Law Review de•novo. 3.