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Long Live The Lie Bill!, Lucila I. Van Dam Dec 2008

Long Live The Lie Bill!, Lucila I. Van Dam

University of Michigan Journal of Law Reform

What successful defamation plaintiffs typically desire and doctrinally deserve is to have their reputations restored. Presently, however, a plaintiff who has established that she was defamed by the defendant is entitled only to an award of damages, which does nothing to restore reputation. This Note proposes that in addition to a damages award, courts-- if they are to take seriously their obligation to compensate the plaintiff-- should order the defendant to retract the defamatory statement. Contrary to the prevailing view, this Note argues that the proposed retraction order does not jeopardize the First Amendment guarantee of free expression.


The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum Dec 2008

The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum

Michigan Law Review

This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional …


Constitutional Secrecy: Aligning National Security Letter Nondisclosure Provisions With First Amendment Rights, Brian D. Eyink Dec 2008

Constitutional Secrecy: Aligning National Security Letter Nondisclosure Provisions With First Amendment Rights, Brian D. Eyink

Duke Law Journal

First created in the 1980s, national security letters and their nondisclosure provisions evaded judicial review until 2004. These secretive investigative tools allow federal agencies such as the FBI to compel disclosure of information about hundreds of thousands of people while also allowing the same agencies to unilaterally issue gag orders that can silence the people who receive these letters. This Note examines the nondisclosure provisions in the national security letter statutes. It argues that the nondisclosure provisions are unconstitutional prior restraints on speech and content-based speech restrictions. This Note then proposes a three-part solution that constitutionally balances the government's need …


Counteracting Hate Speech As A Way Of Preventing Genocidal Violence, Wibke Timmermann Dec 2008

Counteracting Hate Speech As A Way Of Preventing Genocidal Violence, Wibke Timmermann

Genocide Studies and Prevention: An International Journal

Hate speech regularly, if not inevitably, precedes and accompanies ethnic conflicts, and particularly genocidal violence. Without such incitement to hatred and the exacerbation of xenophobic, anti-Semitic, or racist tendencies, no genocide would be possible and persecutory campaigns would rarely meet with a sympathetic response in the general public. In order to successfully prevent genocidal crimes and violence, therefore, it is indispensable to effectively address the problem of systematic incitement to hatred. While less virulent forms of hate speech may be adequately addressed by human- rights law obligations on governments to prohibit such acts, vicious, systematic, and state-organized hate propaganda should …


Freeing Free Speech, Chris Rehn Jun 2008

Freeing Free Speech, Chris Rehn

Pro Rege

No abstract provided.


Confronting The Limits Of The First Amendment: A Proactive Approach For Media Defendants Facing Liability Abroad, Michelle A. Wyant May 2008

Confronting The Limits Of The First Amendment: A Proactive Approach For Media Defendants Facing Liability Abroad, Michelle A. Wyant

San Diego International Law Journal

This Article confronts the limits this issue imposes on the First Amendment in four parts. Part I described the potential for conflicting defamation laws and forum shopping to undermine the American media's speech protections in the context of the Internet and global publications and outlines the Article's overall method of analysis. Part II first orients these conflicting defamation laws with respect to their development from the common law. It then frames them in terms of the underlying structural and policy differences that have produced their substantive divergence. This frame provides the analytical perspective through which this Article examines the varying …


Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford Apr 2008

Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford

Michigan Law Review

Embodied in the Universal Declaration of Human Rights is the evocative proposition that "[e]veryone has the right to freedom of opinion and expression." Beneath that abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and what speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of participatory democracy. They …


Rendering Turner Toothless: The Supreme Court’S Decision In Beard V. Banks, Jennifer N. Wimsatt Feb 2008

Rendering Turner Toothless: The Supreme Court’S Decision In Beard V. Banks, Jennifer N. Wimsatt

Duke Law Journal

The Supreme Court has long recognized that prisoners' constitutional rights must be balanced against the need for deference to the decisions of prison administrators when prisoners' rights are restricted incident to their incarceration. The Court, however, has never explicitly recognized a theory of proper incarceration, yet it has implicitly adopted such a theory through its decisions regarding the constitutionally permitted level of restriction on particular prisoners' rights. This Note argues that the Court's prisoners' rights jurisprudence evinces a particular definition of proper incarceration and then reads the multiple opinions in Beard v. Banks consistently with that theory.


Court-Ordered Restrictions On Trial Participant Speech, Jonathan Eric Pahl Feb 2008

Court-Ordered Restrictions On Trial Participant Speech, Jonathan Eric Pahl

Duke Law Journal

This Note considers court-ordered limitations on the extrajudicial speech of trial participants in high-profile cases. After providing a history of Supreme Court decisions, informative though not dispositive of the topic, it presents the divergent approaches lower courts take when faced with trial participants' extrajudicial speech. The Note highlights the extreme legal uncertainty facing trial participants who desire to speak publicly about court proceedings. Finally, it concludes that courts would better balance First Amendment and fair trial values by rejecting the reasonable likelihood of prejudice standard.


Where's The Harm?: Free Speech And The Regulation Of Lies, Lyrissa Barnett Lidsky Jan 2008

Where's The Harm?: Free Speech And The Regulation Of Lies, Lyrissa Barnett Lidsky

Washington and Lee Law Review

No abstract provided.


Your Opinion Really Does Not Matter: How The Use Of Referenda In Funding Public University Student Groups Violates Constitutional Free Speech Principles, Gregory B. Sanford Jan 2008

Your Opinion Really Does Not Matter: How The Use Of Referenda In Funding Public University Student Groups Violates Constitutional Free Speech Principles, Gregory B. Sanford

Notre Dame Law Review

No abstract provided.


The Lactating Angel Or Activist? Public Breatsfeeding As Symbolic Speech, Elizabeth Hildebrand Matherne Jan 2008

The Lactating Angel Or Activist? Public Breatsfeeding As Symbolic Speech, Elizabeth Hildebrand Matherne

Michigan Journal of Gender & Law

The only way to combat this stigma against public breastfeeding is through the act of breastfeeding in public. The author proposes that breastfeeding is a powerful act of symbolic speech vital for discarding one of the lingering shackles of women's inequality that triggers first amendment protection. Breastfeeding in public addresses this stigma by treating two ills at once: 1) greater public exposure to the practice decreases the severity of society's reactions, and 2) the less stares and confrontation that publicly nursing mothers receive, the more likely they will be to breastfeed, whenever or wherever their baby is hungry. This will …


Taking Safety Seriously: Using Liberalism To Fight Pornography, John M. Kang Jan 2008

Taking Safety Seriously: Using Liberalism To Fight Pornography, John M. Kang

Michigan Journal of Gender & Law

Liberalism, as a jurisprudential principle, need not be pornography's indifferent observer or spineless sycophant; liberalism can be used to fight pornography. In this Article, the author proposes to illuminate what appears to be the most essential aspect of liberalism in its inviolable dedication to peace and safety. By drawing upon the work of the early liberals, the author argues that liberalism's most basic ethos is conceptually incompatible with pornography, as the latter celebrates an unjustified form of violence as its own end.


From T-Shirts To Teaching: May Public Schools Constitutionally Regulate Antihomosexual Speech?, Amanda L. Houle Jan 2008

From T-Shirts To Teaching: May Public Schools Constitutionally Regulate Antihomosexual Speech?, Amanda L. Houle

Fordham Law Review

In applying the First Amendment in the public school context, courts are faced with the challenge of balancing the constitutional rights of students against the discretion of schools to control speech and conduct on school grounds. This Note focuses on the specific issue of public schools regulating antihomosexual speech. Evaluating the First Amendment rights of students expressing antihomosexual sentiment through private and school-sponsored mediums, this Note ultimately argues for a comprehensive standard permitting schools to regulate both private and school-sponsored student speech.


The Public Policy Exception, "The Freedom Of Speech, Or Of The Press", And The Uniform Foreign-Country Money Judgments Recognition Act, Charles W. Mondora Jan 2008

The Public Policy Exception, "The Freedom Of Speech, Or Of The Press", And The Uniform Foreign-Country Money Judgments Recognition Act, Charles W. Mondora

Hofstra Law Review

No abstract provided.


Ending The Suppression: Why The Hatch Act Cannot Withstand Meaningful Constitutional Scrutiny, Anthony T. Kovalchick Jan 2008

Ending The Suppression: Why The Hatch Act Cannot Withstand Meaningful Constitutional Scrutiny, Anthony T. Kovalchick

Western New England Law Review

No abstract provided.


On Communication, John Greenman Jan 2008

On Communication, John Greenman

Michigan Law Review

Everybody knows that communication is important, but nobody knows how to define it. The best scholars refer to it. Free-speech law protects it. But no one-no scholar or judge-has successfully captured it. Few have even tried. This is the first article to define communication under the law. In it, I explain why some activities-music, abstract painting, and parading-are considered communicative under the First Amendment, while others-sex, drugs, and subliminal advertising-are not. I argue that the existing theories of communication, which hold that communicative behaviors are expressive or convey ideas, fail to explain what is going on in free-speech cases. Instead, …


Limiting A Constitutional Tort Without Probably Cause: First Amendment Retaliatory Arrest After Hartman, Colin P. Watson Jan 2008

Limiting A Constitutional Tort Without Probably Cause: First Amendment Retaliatory Arrest After Hartman, Colin P. Watson

Michigan Law Review

Federal law provides a cause of action for individuals who are the target of adverse state action taken in retaliation for their exercise of First Amendment rights. Because these constitutional torts are "easy to allege and hard to disprove," they raise difficult questions concerning the proper balance between allowing meaningful access to the courts and protecting government agents from frivolous and vexatious litigation. In its recent decision in Hartman v. Moore, the U.S. Supreme Court tipped the scales in favor of the state in one subset of First Amendment retaliation actions by holding that plaintiffs in actions for retaliatory …


Do Churches Matter - Towards An Institutional Understanding Of The Religion Clauses, Richard W. Garnett Jan 2008

Do Churches Matter - Towards An Institutional Understanding Of The Religion Clauses, Richard W. Garnett

Villanova Law Review

No abstract provided.