Digital Commons Network^™

The First Religious Charter School: A Viable Option For School Choice Or Prohibited Under The State Action Doctrine And Religion Clauses?, Julia Clementi

Fordham Law Review

After the First Amendment’s Religion Clauses were ratified, church and state became increasingly divorced from one another, as practicing religion became a private activity on which the government could not encroach. This separation, however, was slow, and much credit is owed to the U.S. Supreme Court for its efforts to disentangle the two. One particular area in which the Supreme Court exercised its influence was the U.S. education system; the Court invoked the Religion Clauses and neutrality principles to rid public schools of religious influences and ensure that private religious schools could partake in government programs that were available to …

Selecting Scrutiny In Compelled-Speech Cases Involving Non-Commercial Expression: The Formulaic Landscape Of A Strict Scrutiny World After Becerra And Janus, And A First Amendment Interests-And-Values Alternative, Clay Calvert

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines how courts select the standard of scrutiny—strict, intermediate, or something akin to rational basis—in compelled-speech disputes following the United States Supreme Court’s 2018 rulings in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. The compelled-speech doctrine provides individuals and entities with a qualified First Amendment right not to be forced by the government to convey messages under certain circumstances. This principle sometimes is referred to as an unenumerated First Amendment right not to speak. The Article concentrates on compelled-speech mandates involving non-commercial expression in …

Two Tests Unite To Resolve The Tension Between The First Amendment And The Right Of Publicity, Dora Georgescu

Fordham Law Review

The right of publicity is an established legal doctrine that grants individuals the exclusive right to control the commercial use of their image. Though it has many important and laudable uses, one unfortunate consequence of the right of publicity is that it restricts artists’ abilities to portray real persons in their works. In so doing, the right of publicity directly conflicts with the First Amendment protections of an individual’s freedom of expression.

While the U.S. Supreme Court addressed this tension in Zacchini v. Scripps-Howard Broadcasting Co., the Court did not create a clear standard for balancing the interests of …

Meta Rights, Charlotte Garden

Fordham Law Review

Are individuals entitled to notice of their constitutional rights or assistance in exercising those rights? In most contexts, the answer is no. Yet, there are some important exceptions, in which the U.S. Supreme Court has held that special circumstances call for notice and procedural protections designed to facilitate rights invocations. This Article refers to these entitlements as “meta rights”—rights that protect rights. The most famous of these is the Miranda warning, which notifies suspects of their Fifth Amendment rights to silence and an attorney. There are others as well—among them, the First Amendment right of individuals represented by public sector …

Hazelwood V. Kuhlmeier And The University: Why The High School Standard Is Here To Stay, Christopher N. Lavigne

Fordham Urban Law Journal

In Hazelwood School District v. Kuhlmeier, the Supreme Court evaluated the administrative control of a high school newspaper and held that public school officials could control speech in school-sponsored activities if they did so for legitimate pedagogical reasons. While the Court reserved the question of whether this standard should be applicable at the university level, various federal circuit courts have since applied this speech-restrictive standard to student speech at colleges and universities. In light of these circuit court opinions, there has been considerable debate about whether and to what extent the Hazelwood framework should apply to college and university students. …

Nonparty Remote Electronic Access To Plea Agreements In The Second Circuit, David L. Snyder

Fordham Urban Law Journal

Widespread electronic access to case files gives rise to security concerns previously unrealized in the era of paper records. As the United States Department of Justice noted, the emergence of a "cottage industry" of websites that republish court filings online for the purposes of witness intimidation, retaliation, and harassment poses "a grave risk of harm" to cooperating witnesses and defendants. Accordingly, the benefits associated with remote electronic availability and dissemination of judicial documents may come at a considerable cost. This Note describes the options that district courts within the Second Circuit could implement to mitigate these concerns. Part I of …

The Politics Of Permits: The Unconstitutionality Of The Guiliani Administration's Parade And Rally Permit Application Procedures, Michael L. Landsman

Fordham Urban Law Journal

This article addresses the unconstitutionality of New York Mayor Rudolph Guiliani’s Administration’s parade and rally permit application procedures, which Judge Leonard B. Sand of the Southern District of New York held to be in violation of the First Amendment on November 16, 1998. The author initially noted the two major factors that won Guiliani the 1993 mayoral election, New Yorker’s belief that he could (1) reduce crime and (2) cool racial tensions, and then “curiously” observed that the groups that faced the greatest bias in their applications were those that applied for parade or rally permits to protest or make …

Giving Women The Benefit Of Equality: A Response To Wirenius, Tracy Higgins

Fordham Urban Law Journal

This essay offers a feminist response to Mr. Wirenius’s provocative critique of Professor MacKinnon. Whether supporting or opposing pornography regulation, feminist legal scholars tend to approach the issue from neither of the traditional positions – First Amendment absolutist or moral censor. Rather, a feminist approach to pornography is informed by an understanding of the profound harm that pornography can and does inflict upon women. Consequently, even for feminists who many oppose pornographic regulation, the choice is not an obvious one, as it seems to be for Mr. Wirenius, between the good of civil libertarianism and the evil of totalitarianism. An …

The Miner's Canary: Tribal Control Of American Indian Education And The First Amendment, John E. Silverman

Fordham Urban Law Journal

One legacy of America's mistreatment of its indigenous peoples has been an educational policy that has run roughshod over Native American Free Exercise rights. Today, American Indian tribes widely seek increased control over the education of their children. This position has received broad congressional and presidential support since the Nixon Administration, but more than twenty years later, Native Americans are still fighting to attain their goals. Federal statistics that rank American Indians as our least educated, most addicted, shortest-lived citizens suggest tremendous room for improvement in Indian education. Despite certain circuit court Free Exercise Clause decisions that unreasonably hold Indian …

Giving The Devil The Benefit Of Law: Pornographers, The Feminist Attack On Free Speech, And The First Amendment, John F. Wirenius

Fordham Urban Law Journal

The battle lines over the censorship of “pornographic” materials have been shifted by a faction of the women’s movement following the publication of Andrea Dworkin’s Pornography: Men Possessing Women. With Dworkin, Catharine A. MacKinnon, a vocal and influential female advocate, co-authored a prototypical ordinance to protect against the degradation of individuals, mainly women, in pornography. To these advocates, pornography causes direct harm to individuals coerced into sexual activity and indirect harm by inculcating society with the chauvinistic norms of the pornographic world. While Wirenius agrees with MacKinnon and Dworkin about the importance of pornography in First Amendment jurisprudence, he disagrees …

The Minneapolis Anti-Pornography Ordinance: A Valid Assertion Of Civil Rights?, Winifred Ann Sandler

Fordham Urban Law Journal

The author of this student note examines a recent Minneapolis city ordinance that declares pornography to be both subordination of and a form of sex discrimination towards women. First Amendment proponents challenged the ordinance as unconstitutional. The author considers whether the state has a compelling interest in protecting its citizens from civil rights violations, and whether that interest can overcome first amendment rights. The author concludes that pornography is neither a civil rights violation, nor a category of unprotected speech.

A Unified Theory Of The First Amendment:, Mark S. Nadel

Fordham Urban Law Journal

The Supreme Court presently permits reasonable regulation of access in the broadcasting media; it nevertheless allows print publishers to foreclose such access. Although this approach has been praised by some, and a doctrine can only survive if there is a clear distinction between the print and broadcast media. In today's rapidly developing communications industry, the distinction between these converging media is unstable and inadequate. The increasing significance of cable television in particular has created a pressing need to replace the fragile double standard with a unified, all encompassing theory. This Article proposes such a unified theory after first drawing the …

Regulation Of Advertising And Promotional Pracitces Of Public Utilities Under The First Amendment, Thomas G. Carulli

Fordham Urban Law Journal

This Note examines the first amendment right of public utility corporations in light of the recent restrictions imposed on how these corporations communicate with their subscribers and the public in general. Specifically, this Note will focus "on the regulations promulgated by the New York Public Service Commission which prohibited the use of bill inserts on controversial matters of public policy and banned all promotional advertising by public utility corporations."

Book Review: The Law Of Obscenity, Edward J. Berbusse, S.J.

Fordham Urban Law Journal

Edward J. Berbusse, S.J. reviews The Law of Obscenity by Frederick F. Schauer. Schauer's book provides a historical perspective on obscenity law, tracking developments through several centuries. It begins with a look at obscenity law within the Church during the 16th and moves through civil law in England and up to the present in the United States. The book then explores the Miller v. California decision and the Supreme Court's move to a local standard, rather than national, of obscenity. In addition to the Miller case, Schauer looks at other important decisions which developed the modern body of law focusing …

Constitutional Law-Blockbusting-Antiblockbusting Section Of The Civil Rights Act Of 1968 Held Not Violative Of First Amendment. Finding Of "Group Pattern Or Practice" Does Not Require A Showing Of Conspiracy Or Concerted Action

Fordham Urban Law Journal

An action was brought by the Attorney General against the president of a realty group and four other real estate brokers to enjoin alleged violations of anti-blockbusting provisions of the Fair Housing Act of 1968. Defendants were accused of individually and collectively engaging in a practice to prevent the enjoyment of rights granted by the Fair Housing Act and that a group of persons was denied rights as a result. It was alleged the defendant's agents made unlawful representations to white homeowners concerning changes in the racial composition of their neighborhood in order to induce sales. The trial court found …