Digital Commons Network^™

Medium-Specific Regulation Of Attorney Advertising: A Critique, Lyrissa Lidsky, Tera Peterson

Faculty Publications

Florida has been one of the most aggressive states in regulating attorney advertising. The Florida Supreme Court recently adopted new and more stringent rules regulating broadcast advertising by attorneys, and the court appears poised to adopt new and more stringent rules governing Internet advertising by attorneys. As this Article details, the problem is that Florida's new and proposed rules violate both the First Amendment and sound public policy principles. This Article provides guidance to states contemplating further regulation of attorney advertising, and it indirectly critiques current commercial speech doctrine.

Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon

Scholarship Chronologically

Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …

Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon

Scholarship Chronologically

Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …

Preacher Man V. Porn King: A Legal, Cultural, And Moral Drama Starring Jerry Falwell, Larry Flynt, And The First Amendment, Tory L. Lucas

Faculty Publications and Presentations

Take one part proselytizing, political Southern Baptist televangelist, one part obnoxious, media-seeking pornographer, and one part First Amendment free speech, and you get the colossal legal, cultural, and moral battle embodied in the seminal Supreme Court case of Hustler Magazine v. Falwell. It all started in late 1983 with a controversial and despicable ad parody of a man and his mother that culminated in an aggressive legal battle between litigants on polar opposites of the moral and legal spectrum. Going behind the text of the Supreme Court decision, this article delves into the history behind the unique circumstances that made …

Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas

Faculty Scholarship

This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

Displacing Dissent: The Role Of Place In First Amendment Jurisprudence, Thomas P. Crocker

Faculty Publications

From the perspective of free speech theory, both of the central First Amendment values - human autonomy and deliberative democracy - require robust protection for the places and spaces in which speech and public discourse occur. This Article argues that current Supreme Court doctrine does not effectively protect speech from content neutral regulation of place. The problem is that remaining neutral is consistent with policies that would dislocate the very place for the "marketplace of ideas." Moreover, free speech theory focused on autonomy and deliberative democracy has not adequately addressed the role that place plays in furthering these values. Speech …

Best Brief, 17th Annual National First Amendment Moot Court Competition, Bret Hobson, Lauren Mock

Competition Materials

From First Amendment Center News Release:

NASHVILLE, Tenn. — The team from George Mason University School of Law won the 17th Annual National First Amendment Moot Court Competition today at the First Amendment Center at Vanderbilt University.

Recognized for “best brief” in the competition were Bret Hobson and Lauren Mock of the University of Georgia School of Law; and for “best oralist,” Ryan Faulconer of the University of Virginia School of Law.

The competition this year focused on a hypothetical case involving commercial speech, specifically attorney advertising. Teams of student advocates from 35 law schools argued both sides of complex …

Morse Code, Da Vinci Code, Tax Code And ... Churches: An Historical And Constitutional Analysis Of Why Section 501(C)(3) Does Not Apply To Churches, Jennifer M. Smith

Journal Publications

This article is about the United States federal tax code and churches. In particular, it discusses the interplay between section 501(c)(3) and churches in America. Section II presents a background of the history of the tax exemption for churches and the judicial holdings relative to that exemption. Section III explores the historical development of the separation between church and state, tax exemptions, and section 501(c)(3). Section V analyzes section 501(c)(3) under the Constitution's free speech and religion clauses. Section V proposes a recommendation, and Section VI is the conclusion.

An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger

Law Faculty Publications

No abstract provided.

Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis

Journal Articles

As license plates emblazoned with the message “Choose Life” have proliferated in twenty-four states, so too have lawsuits challenging such specialty license plates. The holdings of such cases have run the gamut, resulting in a three-way circuit split among the Fourth, Fifth, and Sixth Circuits. Analysis of the controversy up to this point has not considered an illuminating analogy: advertising space owned and operated by the government. Examining the parallels between advertising space and specialty license plates informs doctrinal analysis of the dispute, demonstrating that state legislatures may not use the current practice of individually establishing specialty license plates through …

Inchoate Liability And The Espionage Act: The Statutory Framework And The Freedom Of The Press, Stephen I. Vladeck

Articles in Law Reviews & Other Academic Journals

The debate over the proper balance between national security and freedom of the press has increasingly focused on the media's potential criminal liability for publishing sensitive information, as was threatened after the New York Times and the Washington Post disclosed the U.S. government's secret and warrantless wiretapping of domestic phone calls. With the issue of press liability for the publication of national security information, however, comes a bevy of difficult questions concerning the scope of the protections afforded to the press under the First Amendment.

This essay attempts to survey these questions in light of the absence of an overarching …

F(R)Ee Expression: Reconciling Copyright & The First Amendment, Raymond Shih Ray Ku

Faculty Publications

This essay explores the relationship between copyright and free speech by critically evaluating the proposition that conflicts between the two can be eliminated because the Framers intended both to be engines for free expression. My purpose is not to set forth a comprehensive theory of copyright and free speech, but is more modest. This essay argues that while useful, reference to the Framers' intent only goes so far in avoiding conflicts between copyright and free speech, and when viewed outside of the facts presented by Harper & Row and Eldred, reliance upon the Framers' intent arguably increases such conflicts. Moreover, …

Art As Speech, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

There’S Just One Hitch, Will Smith: Examining Title Vii, Race, Casting, And Discrimination On The Fortieth Anniversary Of Loving V. Virginia, Angela Onwuachi-Willig

Faculty Scholarship

In this Symposium Essay, I use Loving v. Virginia as a backdrop for exploring why our society allows, without legal challenge, customer preference or discrimination to unduly influence casting decisions for actors paired in romantic couples in movies and television. In so doing, I examine how existing anti-discrimination law in employment can and should be used to address these improper influences within the entertainment industry. In Part I of the Essay, I first survey the growing practice of casting intraminority couples casting in films and television and examine how such casting, despite its appeal on the surface, may work to …

Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart

Publications

No abstract provided.

Can The Irs Silence Religious Organizations, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

In the years following the 2004 presidential election, the Los Angeles Times reported that the Internal Revenue Service threatened revoking the tax-exempt status of the All Saints Episcopal Church in Pasadena because during a 2004 sermon, a church rector stated that he opposed the Vietnam and Gulf wars and that Jesus would have disapproved of the Bush Administration's preemptive war doctrine. The rector did not tell his parishioners who to support in the 2004 election, however. This threat of revoking an organization's tax-exempt status is just one example of the IRS's recent and unprecedented aggressiveness in seeking out violations of …

The Public's Right To Fair Use: Amending Section 107 To Avoid The 'Fared Use' Fallacy, Wendy J. Gordon, Daniel Bahls

Faculty Scholarship

Under provocative titles like "Fared Use"¹ and "The End of Friction,"² commentators argue about whether or not the copyright doctrine of fair use³ should exist in a world of instantaneous transactions. As collecting societies such as the Copyright Clearance Center have become more powerful, and technologies like cellular phones and the internet have made it possible to purchase digital copies by dialing a number or clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. The Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present …

Campaign Speech And Contextual Analysis, Miriam Galston

GW Law Faculty Publications & Other Works

Recent developments - such as a wave of FEC enforcement actions, the FEC's publication of its case by case approach to determining political committee status, and the Supreme Court's decision in FEC v. Wisconsin Right to Life - have made it necessary to reconsider the kinds of campaign finance reforms desirable and constitutionally permissible. This Article examines the proposition that, if section 527 groups and groups exempt under section 501 of the Internal Revenue Code are part of a network of commonly managed organizations, then the FEC should decide whether they need to register as political committees under the Federal …

The Trials Of Lenny Bruce, Douglas O. Linder

Faculty Works

In the late 1950s and early 1960s, Lenny Bruce was the spirit of hipness and rebellion. His underdog, idealistic humor took on every American sacred cow, from capitalism to organized religion to sexual mores. Fans were attracted to Bruce's dark sexiness and brutal honesty. Kenneth Tyson described Bruce as fully, quiveringly conscious. Bruce's rise to the status of cultural icon began in the mid-1950s in the strip clubs of southern California where Bruce began to develop the iconoclastic edginess that would be his trademark. In his autobiography, "How to Talk Dirty and Influence People", Bruce described the importance of the …

Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett

Journal Articles

The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.

How, then, should we understand church-state separation? …

No Reason To Live: Dilution Laws As Unconstitutional Restrictions On Commercial Speech, Mary Lafrance

Scholarly Works

Traditionally, trademark and unfair competition laws have protected trademark owners against unauthorized uses of their marks that are likely to confuse or mislead consumers about the origin of goods or services. If a particular use is not likely to confuse or mislead, then it is not actionable under traditional infringement regimes. When applied to commercial speech, as opposed to noncommercial expression, traditional trademark and unfair competition laws generally have survived scrutiny under the First Amendment, because these laws restrict only commercial speech that is false or misleading.

Dilution laws, however, do not restrict speech that is false or misleading. Dilution …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Scholarly Works

This Article examines the metaphorical and metonymical framing of corporate money in Supreme Court decisions about campaign finance regulation. Metaphorical influences (corporation as a person, spending money as speech, marketplace of ideas as the model for First Amendment analysis) affected early decisions about the regulation of corporate spending in election campaigns. Later, a metonymical move to isolate corporate money and then to focus on its malevolent tendencies displaced the earlier view of corporate money as speech. This movement was best depicted in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court's 2003 decision on the Bipartisan Campaign …

Students And Workers And Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine, Scott A. Moss

Publications

First Amendment free speech doctrine has been called "institutionally oblivious" for ignoring how different institutions present different legal questions. This Article analyzes a little-discussed phenomenon in the growing literature about institutional context in constitutional law. With certain institutions, the situation is not institutional obliviousness but the opposite: extreme institutional tailoring of speech doctrine. The burden of proof ordinarily is on the government to justify speech restrictions, but in three institutions--public schools, workplaces, and prisons--courts allow heavy speech restrictions and defer to government officials. Even if these institutions need to restrict speech unusually often, why do we need different doctrine--institutionally tailored …

Should Law Schools Bar Student Organizations From Inviting The Military To Campus For Recruitment Purposes?, Joan Schaffner

GW Law Faculty Publications & Other Works

The military's discrimination against gays combined with the Solomon Amendment that forces schools to allow equal access to military recruiters in violation of their non-discrimination policies, upheld by the Supreme Court under constitutional challenge in FAIR v. Rumsfeld, 126 S.Ct. 1297 (2006), has created many difficulties for law schools. The law schools are torn between protecting their gay students from discrimination and enforcing their non-discrimination policy and violating the Solomon Amendment and thus risking the loss of substantial federal funding. In September 2006, the George Washington Law School was presented with a question of first impression. To what extent should …

The First Amendment As Criminal Procedure, Daniel J. Solove

GW Law Faculty Publications & Other Works

This Article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other despite the fact that many instances of government information gathering can implicate First Amendment freedoms of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case Boyd v. United States, in which the Supreme Court held that the government was prohibited from seizing a person's private papers. Over time, however, Fourth and Fifth Amendment protection has shifted, …

Introducing A Takedown For Trade Secrets On The Internet, Elizabeth A. Rowe

UF Law Faculty Publications

This Article explores, for the first time, an existing void in trade-secret law. When a trade-secret owner discovers that its trade secrets have been posted on the Internet, there is currently no legislative mechanism by which the owner can request that the information be taken down. The only remedy to effectuate removal of the material is to obtain a court order, usually either a temporary restraining order or a preliminary injunction. When a trade secret appears on the Internet, the owner often loses the ability to continue to claim it as a trade secret and to prevent others from using …

Institutional Academic Freedom Or Autonomy Grounded Upon The First Amendment: A Jurisprudential Mirage, Richard H. Hiers

UF Law Faculty Publications

In recent decades, several federal judges and Supreme Court Justices have stated that, at some time or another in the past, the Court determined that public universities or their professional schools are entitled to institutional academic freedom (or institutional autonomy) under the First Amendment. Notwithstanding the views of many learned commentators, the Court has never so held. Concurring opinions and dicta do not constitute Constitutional law. This article traces the series of misattributions, misreadings and other errors that have contributed to the present peculiar state of confusion in regard to these matters.

Church, State, And The Practice Of Love, Richard W. Garnett

Journal Articles

In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.

The specific goal for this paper is to draw from Deus caritas est some insight into …

Substantive Media Regulation In Three Dimensions, Gregory P. Magarian

Scholarship@WashULaw

Changes in the political and regulatory climates are prompting calls to revive substantive government regulation of the broadcast media, specifically the now-defunct fairness doctrine. In this article, Professor Magarian attempts to sharpen the present debate over substantive regulation by closely examining earlier defenses and criticisms of the fairness doctrine. The article assesses how supporters and opponents of the fairness doctrine have characterized three issues essential for assessing the doctrine's wisdom and constitutionality: who is regulating; who is being regulated; and the goal of the regulatory scheme. As to the first issue, who is regulating, fairness doctrine supporters emphasize the democratic …