Digital Commons Network^™

Free Speech And The Limits Of Legislative Discretion: The Example Of Specialty License Plates, Leslie Gielow Jacobs

Leslie Gielow Jacobs

No abstract provided.

Government Nonendorsement, Nelson Tebbe

Nelson Tebbe

What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is no …

First Amendment Decisions From The October 2006 Term, Erwin Chemerinsky, Marci A. Hamilton

Erwin Chemerinsky

No abstract provided.

An Overview Of The October 2006 Supreme Court Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

What The Abortion Disclosure Cases Say About The Constitutionality Of Persuasive Government Speech On Product Labels, Leslie Gielow Jacobs

Leslie Gielow Jacobs

No abstract provided.

The Link Between Student Activity Fees And Campaign Finance Regulations, Leslie Gielow Jacobs

Leslie Gielow Jacobs

No abstract provided.

Pledges, Parades, And Mandatory Payments, Leslie Gielow Jacobs

Leslie Gielow Jacobs

This Article examines the Supreme Court's treatment of compelled expression cases. It sets forth the speech restraint framework by describing the crucial determinations guiding judicial analysis. It then explains the current results, reasoning, and incoherence of the compelled expression cases. This Article isolates and evaluates the variables that the Court claims are significant to compelled expression analysis. It then adjusts the variables according to the free speech clause values evident in speech restraint analysis to create a coherent doctrine of compelled expression. This doctrine both places past cases within a consistent framework and provides a structure for evaluating future compelled …

Speech And Strife, Robert L. Tsai

Robert L Tsai

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …

Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen E. Henderson

Stephen E Henderson

Restricting Hate Speech Against Private Figures: Lessons In Power-Based Censorship From Defamation Law, Victor C. Romero

Victor C. Romero

This article examines the debate between those who favor greater protection for minorities vulnerable to hate speech and First Amendment absolutists who are skeptical of any burdens on pure speech. The author also provides another perspective on the debate by highlighting the "public/private figure" distinction as an area within First Amendment law that acknowledges differences in power, a construct anti-hate speech advocates should use to further their cause. Specifically, the author places the "public/private figure" division in a theoretical and historical context and then provides empirical support for the thesis that whites enjoy a more prominent societal role and greater …

All Signs Point To A Headache When Court Hears This Case, Alan E. Garfield

Alan E Garfield

No abstract provided.

Regulating Drones Under The First And Fourth Amendments, Stephen E. Henderson, Joseph Thai, Marc Jonathan Blitz, James Grimsley

Stephen E Henderson

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September of this year. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Ultimately, given UAV utility and cost effectiveness over a vast range of tasks, widespread commercial use seems certain. So it is imperative …

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky

Lyrissa Barnett Lidsky

Like most of us, public colleges and universities increasingly are communicating via Facebook, Second Life, YouTube, Twitter and other social media. Unlike most of us, public colleges and universities are government actors, and their social media communications present complex administrative and First Amendment challenges. The authors of this article — one the dean of a major public university law school responsible for directing its social media strategies, the other a scholar of social media and the First Amendment — have combined their expertise to help public university officials address these challenges. To that end, this article first examines current and …

Should Musicians Be Jailed For Their Threatening Lyrics?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky

Robert H. Jerry II

Like most of us, public colleges and universities increasingly are communicating via Facebook, Second Life, YouTube, Twitter and other social media. Unlike most of us, public colleges and universities are government actors, and their social media communications present complex administrative and First Amendment challenges. The authors of this article — one the dean of a major public university law school responsible for directing its social media strategies, the other a scholar of social media and the First Amendment — have combined their expertise to help public university officials address these challenges. To that end, this article first examines current and …

The Worst Test Of Truth: The "Marketplace Of Ideas" As Faulty Metaphor, Thomas W. Joo

Thomas W Joo

In his famous dissent in Abrams v. United States, Justice Holmes proclaimed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This Article critiques the basic argument against speech regulation that has developed from the “marketplace of ideas” metaphor: that speech should be “free” because markets are “free,” and because free markets produce “truth.” These assertions about markets are taken for granted, but they portray markets and market regulation inaccurately; thus economic markets provide a poor analogy for the deregulation of speech.

First Amendment jurisprudence invokes the …

Begging To Be Constitutional, Magali Sanders

Magali J Sanders

This comment argues that a City of Miami ordinance prohibiting begging, soliciting, and panhandling in the Downtown business district is constitutional because it is aimed at combating the secondary effects of soliciting. Traditionally, courts have analyzed content-based and content-neutral speech restrictions using strict and intermediate scrutiny tests, respectively.

This comment urges courts to use the secondary effects test applied in City of Renton v. Playtime Theatres, Inc., where the court upheld a zoning ordinance prohibiting adult movie theatres from locating within a certain distance of residential homes. The court focused on the purpose of the ordinance, which was to …

Use "The Filter You Were Born With": The Unconstitutionality Of Mandatory Internet Filtering For The Adult Patrons Of Public Libraries, Richard J. Peltz-Steele

Richard J. Peltz-Steele

The only federal court (at the time of this writing) to consider the question ruled unconstitutional the mandatory filtering of Internet access for the adult patrons of public libraries. That 1998 decision helped the American Library Association and other free speech advocates fend off mandatory filtering for two years at the state and federal level, against the vigorous efforts of filtering proponents. Then, in 2000, the U.S. Congress conditioned federal funding of libraries on filter use, forcing the question into the courts as the latest colossal struggle over Internet regulation. This Article contends that the federal court in 1998 was …

United States V. Stevens: Win, Loss, Or Draw For Animals?, David N. Cassuto

David N Cassuto

Robert J. Stevens, proprietor of “Dogs of Velvet and Steel,” was indicted for marketing dog-fighting videos in violation of 18 U.S.C. §48, a law criminalizing visual or auditory depictions of animals being “intentionally mutilated, tortured, wounded, or killed” if such conduct violated federal or state law where “the creation, sale, or possession [of such materials]” takes place.” The law aimed principally at makers and distributors of “crush videos” wherein women wearing high heels and depicted from the waist down, grind small animals to death. However, the language of 18 U.S.C. §48 extended to dog-fighting as well. Stevens challenged the law …

Freedom Of Speech And The ‘Occupy’ Protests: ‘Narrowly Tailored To Further Significant Government Interests’, Mel Cousins

Mel Cousins

This note examines the spate of recent court decisions concerning efforts by Occupy protestors in various cities of the USA to prevent the removal (or restriction) of their protests. In general, though by no means in all cases, the courts, applying existing freedom of speech principles, have upheld the protestors’ right to protest to some extent but have placed narrow limits around the manner in which this right may be exercised. Following a short introduction (Part 1), Part 2 discuses the approach which has been taken by the courts in recent cases. The approach adopted contrasts sharply with the Supreme …

When Is A Lie An Affront To The Law?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Dropping F-Bombs At The Supreme Court, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Supreme Court As Prometheus: Breathing Life Into The Corporate Supercitizen, Robert Sprague, Mary Ellen Wells

Robert Sprague

This article examines the legal status of the corporation in light of the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission that corporations have political free speech rights equivalent to natural persons. In Citizens United, Justice Kennedy wrote that corporations were disadvantaged persons because the government had intruded upon their freedom of speech. The Citizens United majority portrays a misleading image of corporations. It is true most corporations are owned by small groups of individuals, managed by their owners, and limited in size and revenues. But what the Citizens United majority conveniently ignores is one particular attribute …

First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

New York City Zones Out Free Expression, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

The Supreme Court Rules In Favor Of Religious Club’S Right To Meet On Public School Premises: Is This “Good News” For First Amendment Rights?, Thomas A. Schweitzer

Thomas A. Schweitzer

No abstract provided.

Corporate First Amendment Rights After Citizens United: An Analysis Of The Popular Movement To End The Constitutional Personhood Of Corporations, Susanna K. Ripken

Susanna K. Ripken

No case in the Supreme Court’s last term was more controversial than Citizens United v. Federal Election Commission (Citizens United). In a sharply divided 5:4 decision, the Court invalidated strict federal campaign finance laws and upheld the First Amendment right of corporations to spend unlimited sums of corporate money to support or oppose candidates in political elections. Although mainstream criticism of Citizens United was fierce and widely publicized, a lesser known response to the case is a grassroots popular movement calling for an amendment to the Constitution establishing that money is not speech and that human beings, not corporations, are …

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, …

Don't Be So Quick To Ban Violent Videogames, Alan E. Garfield

Alan E Garfield

No abstract provided.

Hate Funeral Protests? Then Ignore Them, Alan E. Garfield

Alan E Garfield

No abstract provided.