Digital Commons Network^™

Tinkering With Success: College Athletes, Social Media And The First Amendment, Mary Margaret Meg Penrose

Meg Penrose

Good law does not always make good policy. This article seeks to provide a legal assessment, not a policy directive. The policy choices made by individual institutions and athletic departments should be guided by law, but absolutely left to institutional discretion. Many articles written on college student-athletes’ social media usage attempt to urge policy directives clothed in constitutional analysis.

In this author’s opinion, these articles have lost perspective – constitutional perspective. This article seeks primarily to provide a legal and constitutional assessment so that schools and their athletic departments will have ample information to then make their own policy choices.

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.

Precedent And Speech, Randy J. Kozel

Randy J Kozel

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.

The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …

Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel

Randy J Kozel

More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …

Book Review: The Great Dissent: How Oliver Wendell Holmes Changed His Mind—And Changed The History Of Free Speech In America, By Thomas Healy, Jamie Cameron

Jamie Cameron

This is a book review of Healy, Thomas. The Great Dissent: How Oliver Wendell Holmes Changed his Mind—and Changed the History of Free Speech in America. Metropolitan Books, Henry Holt and Co. 2013.

La Libertad De Expresión Frente A Los Delitos De Negacionismo Y De Provocación Al Odio Y A La Violencia: Sombras Sin Luces En La Reforma Del Código Penal, Germán M. Teruel Lozano

Germán M. Teruel Lozano

Racist and negationist speeches are at the border of tolerable messages in a democratic society. This paper will explore the limits to freedom of speech in the Spanish law, which is configured as a constitutional order «open» and based on the idea of «person», contrasting with the militant model characteristic of the European Convention on Human Rights. Then, once outlined the content of this freedom, the paper will submit to constitutional review the Holocaust denial crime and hate speech crimes after the reform of the Criminal Code in 2015, from a constitutional-criminal law perspective.

First Amendment; Freedom Of Speech; Broadcasting; Obscenity; Fcc V. Pacifica Foundation, James E. Moliterno

James E. Moliterno

“ ‘I was thinking about the curse words and the swear words, the cuss L words and the words you can't say . . .the words you couldn't say on the public, ah, airwaves... the ones that will curve your spine [and] grow hair on your hands ....’ While this is the satiric opinion of George Carlin, the Federal Communications Commission (FCC) and a bare majority of the United States Supreme Court have embraced it as their genuine opinion.' They have decided to protect the public from the fate of hearing Carlin's social criticism regarding seven ‘dirty’ words.”

All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet

Jud Mathews

This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how …

Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla

Rod Smolla

None available.

Words "Which By Their Very Utterance Inflict Injury": Evolving Treatment Of Inherently Dangerous Speech In Free Speech Law And Theory, Rodney A. Smolla

Rod Smolla

Not available.

Rethinking First Amendment Assumptions About Racist And Sexist Speech, Rodney A. Smolla

Rod Smolla

No abstract provided.

The Politics Of The Mass Media And The Free Speech Principle, Steven Shiffrin

Steven H. Shiffrin

No abstract provided.

Antidiscrimination Laws & Artistic Expression, Steven H. Shiffrin, Gregory R. Smith

Steven H. Shiffrin

No abstract provided.

Defamatory Non-Media Speech And First Amendment Methodology, Steven H. Shiffrin

Steven H. Shiffrin

In the course of his eloquent commentary upon New York Times Co. v. Sullivan, the late Professor Kalven enthused that the Court had written "an opinion that may prove to be the best and most important it has ever produced in the realm of freedom of speech." This excitement was generated not by the Court's rather narrow holding but rather by the hope that Sullivan would serve as the opening wedge to dislodge the clear and present danger test, to dismantle the "two-level" approach to first amendment analysis (reflected in cases such as Chaplinsky, Beauharnais, and Roth), and instead to …

The First Amendment And Economic Regulation: Away From A General Theory Of The First Amendment, Steven H. Shiffrin

Steven H. Shiffrin

No abstract provided.

Second Thoughts About The First Amendment, Randy J. Kozel

Randy J Kozel

The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech. Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article …

Are Vanity License Plates Considered Government Speech Or Public Speech?, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Marginality Of Citizens United, Michael C. Dorf

Michael C. Dorf

No abstract provided.

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Laura S. Underkuffler

No abstract provided.

How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia

Lyrissa Barnett Lidsky

This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …

Globally Speaking - Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States’ First Amendment provides an early historical protection of speech—a safeguard now embraced around the world. The extent of this protection, however, varies among states. The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …

La Lucha Del Derecho Contra El Negacionismo: Una Peligrosa Frontera. Particular Estudio De Los Ordenamientos Italiano Y Español, Germán M. Teruel Lozano

Germán M. Teruel Lozano

The struggle of the Law against negationism: a dangerous border. Particular study of the Spanish and Italian legal system (PhD. Thesis) - The document content an abstract of the thesis in English, Spanish and Italian.

The First Thing We Do, Jorge R. Roig

Jorge R Roig

Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett

Richard W Garnett

What role do religious communities, groups, and associations play - and, what role should they play - in our thinking and conversations about religious freedom and church-state relations? These and related questions - that is, questions about the rights and responsibilities of religious institutions - are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if …

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 …

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

Alan E Garfield

No abstract provided.

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

Martin A. Schwartz

No abstract provided.

La Libertad De Expresión En Internet Y Sus Garantías Constitucionales En El Control De Contenidos De Páginas Web, Germán M. Teruel Lozano

Germán M. Teruel Lozano

Master's thesis about freedom of speech in Internet and the constitutional guarantees in the control of websides content.

Money Talks But It Isn't Speech, Deborah Hellman

Deborah Hellman

This Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the grounds that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these …