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Constitutional Law

Selected Works

First Amendment

2012

Articles 1 - 6 of 6

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Symposium: No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision , Jamin B. Raskin Aug 2012

Symposium: No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision , Jamin B. Raskin

Jamin Raskin

The Supreme Court's decision in Tinker v. Des Moines Independent Community School District forty years ago did for the ideal of expressive freedom in America's public schools what Brown v. Board of Education did for the ideal of racial equality. It made a core value of the Bill of Rights spring to life for young people facing authoritarian treatment at the hands of adult officials running their school systems. By privileging the right of students to engage in passionate political communication over the school's interest in maintaining discipline or the community’s interest in maintaining pro-war consensus, the Tinker decision was …

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Explicating The Concept Of Journalist: How Scholars, Legal Experts And The Industry Define Who Is And Who Isn’T, Jonathan Peters Jul 2012

Explicating The Concept Of Journalist: How Scholars, Legal Experts And The Industry Define Who Is And Who Isn’T, Jonathan Peters

Jonathan Peters

This paper explicates the concept of journalist by exploring the scholarly, legal and industry domains. For the scholarly domain, we reviewed studies defining journalists. For the legal domain, we reviewed cases and statutes defining journalists. And for the industry domain, we reviewed membership criteria of journalism organizations. We did not intend to devise a normative definition. We intended to explore the dimensions used by others, and to use them to explicate the concept of journalist.

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Disclosure's Effects: Wikileaks And Transparency, Mark Fenster Feb 2012

Disclosure's Effects: Wikileaks And Transparency, Mark Fenster

Mark Fenster

Constitutional, criminal, and administrative laws regulating government transparency, and the theories that support them, rest on the assumption that the disclosure of information has transformative effects: disclosure can inform, enlighten, and energize the public, or it can create great harm or stymie government operations. To resolve disputes over difficult cases, transparency laws and theories typically balance disclosure’s beneficial effects against its harmful ones. WikiLeaks and its vigilante approach to massive document leaks challenge the underlying assumption about disclosure’s effects in two ways. First, WikiLeaks’s ability to receive and distribute leaked information cheaply, quickly, and seemingly unstoppably enables it to bypass …

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Bleeeeep! The Regulation Of Indecency, Isolated Nudity, And Fleeting Expletives In Broadcast Media: An Uncertain Future For Pacifica V. Fcc, Danielle Weatherby Dec 2011

Bleeeeep! The Regulation Of Indecency, Isolated Nudity, And Fleeting Expletives In Broadcast Media: An Uncertain Future For Pacifica V. Fcc, Danielle Weatherby

Danielle Weatherby

This article posits that regulating in an area of speech that raises questions about its social value and potential harm will be extremely difficult under the Roberts Court. Government restrictions targeting the content of low value, but protected, expression will be reviewed under the exacting standards of core First Amendment speech. Even though the broadcast indecency policy is shrouded in administrative agency deference standards, it is unlikely that the Court will give the FCC free-wheeling reign to enforce its new policy, which is much more speech-restrictive than the FCC’s enforcement policy of the past forty years. While the Court may …

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The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen Dec 2011

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

Mark D. Rosen

Democracy does not spontaneously occur by citizens gathering to choose laws. Instead, representative democracy takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of the “rules of the road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against partisan gerrymandering—which is partly responsible for the fact that most congressional districts are no longer party competitive, but instead are either safely Republican or safely Democratic—and against onerous …

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Decoding First Amendment Coverage Of Computer Source Code In The Age Of Youtube, Facebook And The Arab Spring, Jorge R. Roig Dec 2011

Decoding First Amendment Coverage Of Computer Source Code In The Age Of Youtube, Facebook And The Arab Spring, Jorge R. Roig

Jorge R Roig

Computer source code is the lifeblood of the Internet. It is also the brick and mortar of cyberspace. As such, it has been argued that the degree of control that a government can wield over code can be a powerful tool for controlling new technologies. With the advent and proliferation in the Internet of social networking media and platforms for the publication and sharing of user-generated content, the ability of individuals across the world to communicate with each other has reached truly revolutionary dimensions.
The influence of Facebook in the popular revolutions of the Arab Spring has been well documented. …

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