Digital Commons Network^™

Public School Teachers Who Refuse To Use Preferred Names And Pronouns: A Brief Exploration Of The First Amendment Limitations In K-12 Classrooms, Suzanne Eckes

ConLawNOW

This article focuses on whether a teacher has a First Amendment right under both the free speech and free exercise clauses of the U.S. Constitution when refusing to use a student’s preferred name or pronoun in a public school classroom. The article begins by briefly summarizing a recent case from Kansas and then examines prior precedent involving teachers’ classroom speech and teachers’ rights to freely exercise their religious rights in public schools. It then briefly highlights how these issues have been addressed in previous pronoun cases and concludes with a discussion of related constitutional issues.

Suppression Of Free Tweets: How Packingham Impacts The New Era Of Government Social Media And The First Amendment, Elise Berry

ConLawNOW

As social media popularity grows, so too does the constitutional conflicts between the First Amendment’s public forum doctrine and a public official’s social media. More and more claims of viewpoint discrimination are arising from the district courts, stemming from a public official’s use of his or her social media to delete comments or ban users from their official social media pages. Similarly, President Donald Trump’s use of his Twitter has also instigated a law suit against him for viewpoint discrimination under the public forum doctrine. While the Supreme Court has been silent on the issue, its decision in Packingham v. …

Remedies Symposium: On Critical Junctures, Intercurrence, And Dynamic Political Orders, Paul Baumgardner

ConLawNOW

Relying on contemporary historical-institutionalist literature concerning processes of American political development, this article argues that the nebulous status of religious rights in the United States is largely a recent phenomenon—the result of one coalition (centered around rights protections for the LGBTQ community) growing and making important strides at the same time that a separate "religious rights” coalition attempts to push beyond a disorienting critical juncture. How long this state of intercurrence will persist, and how it will be resolved, are unresolved questions.

Unmasking The Teen Cyberbully: A First Amendment-Compliant Approach To Protecting Child Victims Of Anonymous, School-Related Internet Harassment, Benjamin A. Holden

Akron Law Review

In proposing a new rule under the First Amendment to adjudicate anonymous Cyberbullying cases, this Article first reviews and summarizes the First Amendment precedents governing regulation of speech by minors and student speech in the school environment. Second, it reviews and discusses the prevalence of minors’ online harassment or Cyberbullying, including pre-litigation disputes reported in the press. Third, it reviews and summarizes the First Amendment precedents governing the “unmasking” of anonymous speakers. Finally, the Cyberbully Unmasking Test is proposed and applied.

A Missed Opportunity To Clarify Students' First Amendment Rights In The Digital Age, Elizabeth Shaver

Akron Law Faculty Publications

In the last decade, the federal circuit courts have grappled with the issue whether, and to what extent, school officials constitutionally may discipline students for their off-campus electronic speech. Before 2015, three federal circuit courts had extended school authority to off-campus electronic speech by applying a vague test that allows school officials to reach far beyond the iconic “schoolhouse gate” referenced in the Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) Two other federal circuits had avoided the issue altogether by deciding the cases before them on other grounds. In 2015, …

The Religious Freedom Waltz: Going Forward While Moving Back, Audra L. Savage

ConLawNOW

Although religious freedom has the distinction as the “first freedom,” it is not first in terms of protected rights. Religious freedom is under attack and if not shielded from potential threats, this quintessential American right may be lost altogether. Or at least, this is what U.S. law professors Andrew Koppelman and Steven D. Smith would have one believe, according to books each professor recently published. Unfortunately, they are not exaggerating. Volumes of articles and tomes have been written questioning, critiquing and criticizing (and lamenting, blasting and ridiculing) the decisions of the U.S. Supreme Court adjudicating the religion clauses of the …

Citizens United: Correct, Modest, And Overdue, Allison R. Hayward

ConLawNOW

In this article, Professor Allison Hayward seeks to refute the criticisms leveled at the outcome in Citizens United. Professor Hayward maintains that the “long-standing precedent” overturned by the majority was not firmly rooted, having only been around for a mere 20 years. She further argues that Citizens United is a proper application of First Amendment doctrine. Lastly, Professor Hayward argues that corporations play an important role in our society, most especially those non-profit entities which so often are associated with political advocacy.

The Free Exercise Of Religion, Arthur J. Goldberg

Akron Law Review

Freedom of speech and of the press, guaranteed by the First Amendment, is today regarded to be our most preferred freedom. Justice Cardozo once said this freedom is the matrix, the indispensable condition of nearly every other freedom.

But, to the Founding Fathers, freedom of religion was regarded to be preeminent among fundamental rights. And for good reasons. The immediate forebearers of the Framers of the Constitution, emigrated primarily because they were denied the right freely to exercise their respective religious beliefs not sanctioned by the established Church of England. The Colonists were religious dissenters. They adamantly insisted upon their …

A Line Drawn By Unsteady Hands: Section 170, Charitable Contributions, And Return Benefits In Hernandez V. C.I.R., David M. Phipps

Akron Law Review

This Note analyzes the majority decision and dissenting opinion in Hernandez, which have far-reaching implications for charitable organizations, taxpayers, and the government. Traditional tax deductions for charitable organizations may be in danger and these organizations may suffer economic difficulty?

Bad News: Privacy Ruling To Increase Press Litigation, The Florida Star V. B.J.F., Mary Ellen Hockwalt

Akron Law Review

This note analyzes the history and precedent upon which the Court relied in reaching Florida Star's "harsh outcome." Next, the note discusses how the Court, by refusing to extend its holding beyond the facts of the case and give broad Constitutional protection to publications of truth, failed to provide lower courts with any guidance in deciding future invasion of privacy actions. Finally, the note examines the Court's balancing test: weighing the privacy interests of a crime victim against the newspaper's freedom to print truthful information.

Of Flags And Menorahs: The Power Of Individual And Governmental Symbolic Speech, Mark F. Kohler

Akron Law Review

The aim of this article will be to explore the nature of symbolic speech, both individual and governmental. Using Johnson and Allegheny County as a backdrop, four themes will emerge from the article. First, both individuals and government speak and speak powerfully through symbols and symbolic conduct. Second, medium-based regulation of individual speech should receive careful judicial scrutiny. Third, unlike individual symbolic expression, governmental symbolic speech is subject to substantial content-based restrictions. Finally, careful distinctions must be drawn between government-initiated symbolic speech and governmental endorsement of individual symbolic speech.

Political Campaign Advertising And The First Amendment: A Structural-Functional Analysis Of Proposed Reform, Rebecca Arbogast

Akron Law Review

The metaphor of the political arena as a marketplace has become all too apt with candidates' increased reliance on 30- and 60-second spot television advertisements produced by consulting firms. This shift in the nature of political discourse as well as the accompanying scramble to raise the money necessary to fund this uniquely expensive form of campaign speech has generated much discontent with the electoral process among politicians and commentators. For instance, the Senate established a sixmember commission to propose reforms regarding media coverage of political campaigns, and the Markle Foundation has funded a study on "the potential role of public …

Kuhlmeier V. Hazelwood School District: The First Amendment Rights Of Public High School Students, Edward S. Muse

Akron Law Review

In Kuhlmeier v. Hazelwood School District, the Supreme Court held that high school students' first amendment rights were not violated when their principal deleted articles from the school newspaper. The Court stated that the school newspaper was not a "public forum" for expression which normally receives full first amendment protection. The Court further held that the school principal did not violate students' first amendment rights when he restricted the printing of articles due to the effect that they could have on other students.

The Supreme Court's decision will undoubtedly curtail students' rights to free speech and press. This casenote …

From Bigelow To Shapero: Steps Along The Way In Attorney Advertising, Horace E. Johns

Akron Law Review

In essence, the rationale for denying attorneys the right to advertise was to protect the public from overly-zealous attorneys who might be inclined to utilize unscrupulous methods to take advantage of unknowing clients.

Five reasons have been offered to support bans on advertising; (1) protection of consumers from misrepresentation concerning both price and the likelihood of successful litigation; (2) commercialization of the legal profession, resulting in neglect of clients; (3) prevention of overcharging and the securing of too many cases by attorneys to cover the costs of advertising; (4) protection of the bar's integrity; and (5) initiation of too many …

Hate Speech, Free Speech And The University, Robert W. Mcgee

Akron Law Review

Students and faculty face possible retribution for expressing unpopular ideas, making statements that may be offensive to someone, or even for asking legitimate questions that deal with race, sex, ethnicity or sexual preference. A "thought police" mentality has infested the university, just as McCarthyism did in the 1950s. This article explores the current state of this mentality and discusses the problems inherent in trying to preserve and protect the right of free speech in the university

Separation Of Powers And The Rule Of Law, George Anhang

Akron Law Review

This Note, building upon dicta in two recent U.S. Supreme Court First Amendment overbreadth doctrine cases - Massachusetts v. Oakes and Osborne v. Ohio - argues that separation of powers can be seen as a delicate incentive structure which although not insuring this certainty and predictability, helps to promote it.

The Note does not attempt to show that this view of separation of powers is the driving force behind all Supreme Court separation of powers opinions. The Note is mainly interested in offering a coherent rationale for separation of powers doctrine. Nevertheless, the Note briefly discusses the two Supreme Court …

The Right To Republish Libel: Neutral Reportage And The Reasonable Reader, David Mccraw

Akron Law Review

This Article argues for a reconsideration and redefinition of the neutral reportage privilege. First, even if we accept Gertz's disapproval of newsworthiness as a criterion for First Amendment protection, a closer look at the neutral reportage privilege reveals that, contrary to what many courts and commentators have said, newsworthiness is not a necessary element of the privilege. Gertz is thus inapplicable. Second, the more serious problems with the neutral reportage privilege arise from its advocates' failure to define what constitutes "neutrality"-- in other words, to define what conduct by the reporter should legitimately give rise to immunity from libel actions.

Justice Brennan's Gender Jurisprudence, Rebecca Korzec

Akron Law Review

However, less attention has been focused on Justice Brennan's dramatic impact on the Supreme Court's gender jurisprudence. More than any other member of the Court, Justice Brennan recognized the complexity and pervasiveness of sex discrimination and its costs to society as a whole. Brennan's opinions recognized that sex differentiation is largely cultural in origin, rather than based on "real" gender differences. As a result, Justice Brennan created a truly independent gender jurisprudence, eventually emerging as the architect of the Supreme Court's contemporary test for evaluating claims of sex-based discrimination.

Understanding the significance of Brennan's contribution requires an appreciation of the …

God Talk By Professors Within The Classrooms Of Public Institutions Of Higher Education: What Is Constitutionally Permissible?, Sarah Howard Jenkins, Byron R. Johnson, Otto Jennings Helwig

Akron Law Review

This essay establishes, first, the professional aspects of disclosure. Second, it defines the equipoise between the State's interest in efficiency and the teacher's interest in exercising his or her First Amendment right of expression of religious opinion on matters of public interest. Third, the essay identifies expressive activities of the teacher within the classroom that should be accorded First Amendment protection pursuant to James v. Board of Education. Fourth, the essay examines whether the professor's disclosure of personal and theological biases in a classroom constitutes state action and concludes that a professor fulfilling his or her assigned tasks within …

Bias Crime Legislation: A Constitutional Rebuttal To Sticks And Stones . . ., Diana M. Torres

Akron Law Review

In a recent article, Susan Gellman of the Ohio bar provides perhaps the clearest and most persuasive arguments against these statutes both on constitutional and policy grounds. 5 This paper is, in many respects, a response to her arguments. It will first briefly discuss the need for bias crime legislation. It will then address the various forms of such statutes and respond to the constitutional objections of vagueness, overbreadth and infringement on free speech as set forth in Gellman's article. The paper will analogize the statutes to civil rights and anti-discrimination legislation and the principles behind sentencing discretion. Finally, the …

National Organization For Women V. Scheidler: Rico A Valuable Tool For Controlling Violent Protest, Suzanne Wentzel

Akron Law Review

This Note will examine the recent decision of the United States Supreme Court in National Organization for Women v. Scheidler that allows courts to apply RICO to non-economic enterprises. This Note will first discuss the problems that arise from protest, as well as a brief historical background of the RICO statute. It will further analyze the legal reasoning behind the Supreme Court's decision to apply RICO to anti-abortion protesters, and explore the possible First Amendment implications of such a decision.

Harassing Speech In The Public Schools: The Validity Of Schools' Regulation Of Fighting Words And The Consequences If They Do Not, Adam A. Milani

Akron Law Review

What can - and should - schools do about the harassment which their students are suffering? While the issues of hateful and harassing speech and political correctness on college campuses have received a great deal of attention in both the mass media and legal journals, the very real problem of student-to-student harassment in grammar and high schools has only recently been given attention in either forum. More specifically, there has been little attention paid to the questions of whether (1) the First Amendment permits grammar and high schools to control harassing speech by students, (2) schools violate civil rights statutes …

Colorado Republican Federal Campaign Committee V. Federal Election Commission: Maintaining What Remains Of The Federal Election Campaign Act Through Constitutional Compromise, Mary Sherris

Akron Law Review

This Note will discuss the Court's reasoning and holding in Colorado Republican. Additionally, this Note will discuss how the Court distinguished independent and coordinated campaign expenditures that were first established in Buckley v. Valeo. Finally, this Note will discuss why the Court did not address whether limitations on coordinated expenditures for political parties are protected by the First Amendment.

National Endowment Of The Arts V. Finley: A Dispute Over The "Decency And Respect" Provision, Alicia M. Choi

Akron Law Review

There is substantial controversy over whether the government should be involved in art funding. The purpose of this Note is to present and critique arguments both supporting the “decency and respect” provision and those opposing it. Those who support the clause state that although the people do not have a constitutional right to receive funding, the “decency and respect” provision does not violate the people’s First and Fifth Amendments. The provision is only a “consideration”, not a requirement. Opponents of the “decency and respect” provision argue that the First and Fifth Amendments prohibit the government from controlling the content of …

Www.Obscenity.Com: An Analysis Of Obscenity And Indecency Regulation Of The Internet, Kelly M. Doherty

Akron Law Review

This comment explores the constitutionality of federal regulations as applied to Internet content and alternatives to government regulation. Part II provides background on the Internet, First Amendment obscenity and indecency law as applied to communications media, and past and current legislation enacted to regulate Internet content. Part III analyzes the constitutionality of COPA, and discusses why other alternatives are more effective and preferable to government regulation. Part IV concludes that protecting children from harmful Internet content is the responsibility of parents, and therefore, Internet regulation should begin at home.

Buckley V. Valeo, Political Disclosure And The First Amendment, Trevor Potter

Akron Law Review

Put differently, the reality is that disclosure’s constitutional status is unclear. The Supreme Court’s jurisprudential framework is often unpredictable. Even when the Court has been consistent in choosing a formal framework with which to approach disclosure laws, it has been inconsistent and unpredictable in applying that framework. To be sure, this issue takes on particular urgency in light of the importance both sides in the campaign finance debate attach to disclosure of campaign spending (however differently defined), and the existence of the Internet as a vehicle for immediate mass dissemination of information required to be reported. Accordingly, providing an overview …

A Symposium: The Legal And Polticial Implications Of Buckley V. Valeo (1976), Christopher P. Banks, John C. Green

Akron Law Review

One of the most vexing issues in constitutional jurisprudence concerns the political regulation of money and its democratic implications. The resolution of the constitutional question for democracy involves striking a balance between two competing interests: the protection of political liberty under the First Amendment and the legitimate interest government has in preventing money from having a corrosive or corrupting effect on the political system. With its landmark ruling in Buckley v. Valeo, some say that the Supreme Court successfully reconciled these interests and, in fact, strongly preserved the basic ideal of American freedom. Different commentators, however, maintain that the Supreme …

Paps' A.M. V. City Of Erie: The Wrong Route To The Right Direction, Michael Mcbride

Akron Law Review

This note will examine the Pennsylvania Supreme Court’s decision in Pap’s A.M. v. City of Erie, by looking at the policy behind the decision, while also examining the decision in light of the previous United States Supreme Court decision in Barnes v. Glen Theatre. The note will examine why the decision in Pap’s A.M. was an unnecessary misinterpretation of the United States Constitution. It will examine how and why the Pennsylvania Supreme Court could have settled the issue of nude dancing in Pennsylvania and avoided review by the United States Supreme Court by deciding the case under the Pennsylvania Constitution …

Citizenship Education And The Free Exercise Of Religion, Tyll Van Geel

Akron Law Review

Part One of this article provides a broad-brush overview of constitutional doctrine as it bears on citizenship education in the public schools. The remaining parts of the article focus on a Free Exercise challenge to the introduction of a Callaneseque program of citizenship education in a public school. Part Two thus explicates Callan’s theory. Part Three outlines my approach to the Free Exercise Clause. Part Four applies that approach to a challenge brought against a Callanesque program of citizenship education. Part Five takes up other possible rights-based limits on the education power and offers a suggestion regarding how citizenship education …

Kirsch V. Wisconsin Department Of Corrections: Will The Supreme Court Say "Hands Off" Again?, Owen J. Rarric

Akron Law Review

This Note examines the struggle of prison inmates to gain access to religious materials; materials that have been forbidden by prison officials. Part II of the Note will examine the historical development of inmates’ constitutional rights. It will also analyze the Supreme Court’s standard for reviewing prison regulations involving inmates’ constitutional rights. Moreover, the Note discusses Congress’ attempt to set the standard of review. The Note then examines the significance of the Kirsch decision. Finally, the Note analyzes the fourth factor of the Turner Standard used in Kirsch and explores the possible effect of a new legislative act on prisoners’ …