Digital Commons Network^™

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau

Sonya G Bonneau

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and …

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Frederick Mark Gedicks

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is somehow absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent. The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What …

The First Amendment Right To Bare All: How Should Courts Apply The Secondary Effects Doctrine To Strip Bars And Other Sexually Oriented Businesses?, Andrew L. Arons

Andrew L Arons

The U.S. Supreme Court has developed a deferential First Amendment Doctrine that can be used to uphold laws that target speakers on the basis of the content of their speech. This so-called “secondary effects” doctrine relies on a fictional premise: state and local laws that target certain forms of speech are actually aimed at the adverse secondary effects of the speech. The doctrine supposedly applies to any form of speech that produces secondary effects. It also theoretically permits targeted speakers to challenge the constitutionality of such laws by disproving the existence of secondary effects. Nevertheless, lower courts have impliedly limited …

Emerging Technologies And Dwindling Speech, Jorge R. Roig

Jorge R Roig

The Curious Case Of Convenience Casinos: How Internet Sweepstakes Cafes Survive In A Gray Area Between Unlawful Gambling And Legitimate Business Promotions, Steven Silver

Steven Silver

Once relegated to the Nevada desert and New Jersey shore, gambling is now everywhere in the United States. State governments strapped for cash and desperate for increased tax revenues are welcoming gambling with open arms as forty-three states sponsor lotteries and twenty-three states house casinos. Despite this gaming boom, the ease of access to casinos has not deterred entrepreneurs from successfully creating an offshoot industry of “convenience casinos.” Convenience casinos are simply Internet cafes that sell Internet time cards attached with instant-win sweepstakes entries, much like the code underneath a Coke bottle or a McDonald’s Monopoly game piece. Although seemingly …

The Curious Case Of Convenience Casinos: How Internet Sweepstakes Cafes Survive In A Gray Area Between Unlawful Gambling And Legitimate Business Promotions, Steven J. Silver

Steven Silver

Once relegated to the Nevada desert and New Jersey shore, gambling is now everywhere in the United States. State governments strapped for cash and desperate for increased tax revenues are welcoming gambling with open arms as forty-three states sponsor lotteries and twenty-three states house casinos. Despite this gaming boom, the ease of access to casinos has not deterred entrepreneurs from successfully creating an offshoot industry of “convenience casinos.” Convenience casinos are simply Internet cafes that sell Internet time cards attached with instant-win sweepstakes entries, much like the code underneath a Coke bottle or a McDonald’s Monopoly game piece. Although seemingly …

Leaving The Dale To Be More Fair: On Cls And First Amendment Jurisprudence, Mark Strasser

Mark Strasser

In Christian Legal Society of the University of California, Hastings College of Law v. Martinez, the Supreme Court upheld the Hastings College of Law’s requirement that all recognized student groups have an open membership policy. The decision has been criticized for a variety of reasons, e.g., that the Court conflated the First Amendment tests for speech and association. What has not been adequately explored is the degree to which the Court has modified limited purpose public forum analysis in the university context over the past few decades, resulting in a jurisprudence that is virtually unrecognizable in light of the more …

First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal

Lawrence Rosenthal

Scholars have struggled to explain our sprawling First Amendment doctrine – once described by Justice Stevens as “an elaborate mosaic of specific judicial decisions, characteristic of the common law process of case-by-case adjudication.” The position that has gained the most traction in recent scholarship has stressed the primacy of governmental motive – this school of thought argues that the degree of scrutiny to be afforded a challenged regulation is based on an assessment of the likelihood that the regulation reflects a governmental motive to burden disfavored speech or speakers.

This article offers a challenge to the purposivist account. It begins, …

On Boy Scouts And Anti-Discrimination Law: The Associational Rights Of Quasi-Religious Organizations, Erez Reuveni

Erez Reuveni

This paper proposes a tripartite legal approach to analyzing the rights of private, expressive associations. Current law views private associations through a binary lens - either an organization is "religious," or it is "secular." But this dichotomy fails to account for organizations whose animating expressive purpose is both religious and secular. Using the Boy Scouts of America as a case study, this paper develops a third category of private associations, quasi-religious groups, and articulates why the category is necessary and how quasi-religious groups would fit within existing First Amendment jurisprudence. First, the article reviews numerous cases involving the Boy Scouts …