Digital Commons Network^™

Public Corruption Concerns And Counter-Majoritarian Democracy Definition In Citizens United V. Federal Election Commission, Daaron Kimmel

Chicago-Kent Law Review

In determining the shape of the free speech rights and anti-corruption concerns that courts must balance in campaign finance cases, judges are influenced by their own underlying understandings of what an ideal democracy should look like. For judges to decide whether the government is appropriately regulating the political process, the rules that allow all citizens to interact with and shape their democracy, judges must first decide what that democracy ought to look like. This affords judges a great deal of discretion in campaign finance cases. Citizens United v. Federal Election Commission is a particularly bold judicial attempt to reshape the …

The "Strong Medicine" Of The Overbreadth Doctrine: When Statutory Exceptions Are No More Than A Placebo, Christopher A. Pierce

Federal Communications Law Journal

In United States v. Stevens, the United States Supreme Court invalidated a federal statute criminalizing the interstate sale and distribution of depictions of animal cruelty on First Amendment grounds. While Stevens demonstrates the Court's reluctance to create a new category of speech outside of First Amendment protection, Stevens also stands for the proposition that borrowing the exceptions clause from the Court's obscenity standard will not adequately protect a statute from invalidation as overbroad. This Note discusses the use of the obscenity standard's exceptions clause in nonobscenity statutes and the Court's treatment of the exceptions clause in Stevens. This Note concludes …

Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley

Don R Berthiaume

“The right to counsel is too important to be passed over for prosecutorial convenience or executive branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted... However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law.”[1] So said Senator Arlen Specter on February 13, 2009, just seven months before Congress chose to ignore the very privilege he lauded. Why then, if the right to counsel is as important as Senator Specter articulated, does Congress maintain …

It’S My Church And I Can Retaliate If I Want To: Hosanna-Tabor And The Future Of The Ministerial Exception, Brad Turner

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Reason, The Common Law, And The Living Constitution (Review Of The Living Constitution By David Strauss), Matthew J. Steilen

Book Reviews

This article reviews David Strauss’s recent book, The Living Constitution. The thesis of Strauss’s book is that constitutional law is a kind of common law, based largely on judicial precedent and common-sense judgments about what works and what is fair. Strauss argues constitutional doctrines prohibiting discrimination and protecting free speech have a common law basis, and that the originalist would have to reject them. However, it is unclear that the common law can justify these rights. This review examines Strauss’s account of the common law and shows why it cannot justify our First Amendment protections of subversive advocacy, as Strauss …

Should Corporations Have First Amendment Rights?, Kent Greenfield, Daniel Greenwood, Erik Jaffe

Kent Greenfield

As Professor Winkler correctly stated, current doctrine emphasizes the rights of listeners rather than the identity of corporate speakers. My argument is, in effect, that this emphasis misses the key point. But I will not deal with listeners directly. I am simply going to assume, rather than argue, that if corporate advertising were ineffective in influencing voters or legislators, normal market processes would eliminate it. I'm going to take it for granted that when corporations speak, it makes a difference in the actual results.

Our Conflicting Judgements About Pornography, Kent Greenfield

Kent Greenfield

No abstract provided.

Opening The Broom Closet: Recognizing The Religious Rights Of Wiccans, Witches, And Other Neo-Pagans, Bradford S. Stewart

Northern Illinois University Law Review

Religious freedom is a core component of our nation and one of the most widely known and accepted constitutional guarantees provided by the First Amendment. No prior civilization had adopted a national policy that tolerated various religious beliefs while simultaneously refusing to endorse or promote a national religion. Considering the fundamental backdrop of religious tolerance, it might seem unimaginable that a skilled medical technician could be fired from her job, an alleged victim of sexual abuse could have her credibility undermined in a court of law, or a mother could lose custody of her child, under the color of legality, …

First Amendment Freedom Of Speech And Religion - October 2009 Term, Burt Neuborne, Michael C. Dorf

Touro Law Review

No abstract provided.

Taxes, Free Expression, And Adult Entertainment, Steve R. Johnson

Scholarly Publications

The interaction of morality and money produces interesting results. One manifestation is legislation in some states and proposals in others to impose higher taxes on “gentlemen’s show lounges” (OK, I mean strip clubs) and other venues of adult entertainment.

In 2010 and 2011 two state supreme courts passed on the legality of different forms of those taxes, upholding them against challenges that they infringed on free speech/free expression rights protected by the First Amendment of the U.S. Constitution. This installment of the column considers those two decisions: the February 2010 Utah decision in Bushco v. Utah State Tax Commi …

The Garcetti Virus, Nancy M. Modesitt

All Faculty Scholarship

In an era where corporate malfeasance has imposed staggering costs on society, ranging from the largest oil spill in recorded history to the largest government bailout of Wall Street, one would think that those who uncover corporate wrongdoing before it causes significant harm should receive awards. Employees are particularly well-placed to uncover such wrongdoing within companies. However, rather than reward these employees, employers tend to fire or marginalize them. While there are statutory protections for whistleblowers, a disturbing new trend appears to be developing: courts are excluding from the protection of whistleblowing statutes employees who report wrongdoing as part of …

The Power Of Music: Applying First Amendment Scrutiny To Copyright Regulation Of Internet Radio, Amanda Reid

Amanda Reid

You Can Say That Again!: A Way Out Of The Compelled Commercial Speech Conundrum, Dayna B. Royal

Dayna B. Royal

In the last decade the Supreme Court has modified the compelled-speech and commercial-speech doctrines by creating a hybrid of the two—compelled-commercial speech. This nascent doctrine leaves unanswered serious questions about how it coexists with other doctrines in the First Amendment landscape.

This paper proposes a principled means to resolve these questions by drawing on an innovative behavioral-science theory called Cultural Cognition to provide a system for categorizing forced commercial-speech regulations. By establishing which test applies to determine whether regulations violate the First Amendment, this framework should help bring consistency and predictability into a murky area of First Amendment law.

Cultural Cognition As A Tool To Combat The Compelled-Commercial-Speech Conundrum, Dayna B. Royal

Dayna B. Royal

In the last decade the Supreme Court has modified the compelled-speech and commercial-speech doctrines by creating a hybrid of the two—compelled-commercial speech. This nascent doctrine leaves unanswered serious questions about how it coexists with other doctrines in the First Amendment landscape. This paper proposes a principled means to resolve these questions by drawing on an innovative behavioral-science theory called Cultural Cognition to provide a system for categorizing forced commercial-speech regulations. By establishing which test applies to determine whether regulations violate the First Amendment, this framework should help bring consistency and predictability into a murky area of First Amendment law.

Religious Freedom In Private Lawsuits: Untangling When Rfra Applies To Suits Involving Only Private Parties, Sara Lunsford Kohen

Sara Kohen

Religious Freedom in Private Lawsuits: Untangling When RFRA Applies to Suits Involving Only Private Parties, for publication discusses when courts should apply the Religious Freedom Restoration Act (“RFRA”) in cases in which the federal government is not a party. Congress passed RFRA in reaction to the Supreme Court’s decision in Employment Division v. Smith. The Court held in Smith that the Constitution does not require religious exemptions from neutral, generally applicable laws—those that do not target religion and cover non-religious conduct to the same extent as religious conduct. By contrast, RFRA allows a federal law to substantially burden a religious …

Religious Freedom Or Child Abuse' Drawing The Line Between Free Excercise And Crimes Against Children In Georgia, Christina G. Bennett

Religious Studies Theses

This project examines how Georgia draws the line between religious freedom and child abuse. In Georgia, certain religious parents are granted spiritual exemptions for conduct that would otherwise be prohibited due to its potential harm to children, while other parents must alter their religious practices to conform to the law. An examination of Georgia law governing conduct that is both religiously-motivated and poses a risk of physical harm to children illustrates that Georgia’s spiritual exemptions have contributed to producing legally-defined religious orthodoxy, inconsistent regulation of religious conduct, and less stringent state protection from harm for the children of some religious …

Is Sexting The New Witchcraft? A Plea For A Common Sense Approach, John O. Hayward

John O. Hayward

Teenagers have enthusiastically embraced digital technology and its myriad assortment of electronic devices and gadgets. But unfortunately they often find themselves the target of numerous laws criminalizing their use. Sending sexy photos of themselves in various stages of undress to their favorite boyfriend or girlfriend earns them unwanted attention from school administrators as well as criminal complaints from the local district attorney accusing them of trafficking in child pornography! This article deals with “sexting,” the practice of “sending, receiving, or forwarding sexually explicit messages, photos, or images via cell phone, computer, or other digital device.” (The term is a combination …

Religious Freedom In Private Lawsuits: Untangling When Rfra Applies To Suits Involving Only Private Parties, Sara Lunsford Kohen

Sara Kohen

Religious Freedom in Private Lawsuits: Untangling When RFRA Applies to Suits Involving Only Private Parties, for publication discusses when courts should apply the Religious Freedom Restoration Act (“RFRA”) in cases in which the federal government is not a party. Congress passed RFRA in reaction to the Supreme Court’s decision in Employment Division v. Smith. The Court held in Smith that the Constitution does not require religious exemptions from neutral, generally applicable laws—those that do not target religion and cover non-religious conduct to the same extent as religious conduct. By contrast, RFRA allows a federal law to substantially burden a religious …

Lawyering Decisions—October 2009 Term, Eileen Kaufman

Eileen Kaufman

No abstract provided.

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

Martin A. Schwartz

No abstract provided.

Sandel On Religion In The Public Square, Hugh Baxter

Faculty Scholarship

In the final chapter of "Justice" (2009), Sandel calls for a “new politics of the common good,” which he presents as an alternative to John Rawls’s idea of public reason. Sandel calls “misguided” Rawls’s search for “principles of justice that are neutral among competing conceptions of the good life.” According to Sandel, “[i]t is not always possible to define our rights and duties without taking up substantive moral questions; and even when it’s possible it may not be desirable.” In taking up these moral questions, Sandel writes, we must allow specifically religious convictions and reasons into the sphere of public …

Government Sponsored Social Media And Public Forum Doctrine Under The First Amendment: Perils And Pitfalls, Lyrissa Barnett Lidsky

UF Law Faculty Publications

The goal of this article is to provide guidance to lawyers trying to navigate the morass that is the U.S. Supreme Court’s public forum jurisprudence in order to advise government actors wishing to establish social media forums.

Supreme Court Section 1983 Decisions: (October 2001 Term), 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.

Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity, Samuel J. Levine

Samuel J. Levine

In 1986, the United States Supreme Court handed down a 5-4 decision ruling that Air Force regulations prohibiting Simcha Goldman from wearing a yarmulke while in uniform did not violate Goldman’s First Amendment right to the free exercise of religion. The Court’s majority opinion, which accepted the government’s assertion that allowing Goldman to wear a yarmulke would unduly upset important military interests, drew unusually harsh responses from both dissenting justices and legal scholars. Yet, upon closer examination, perhaps what stands out most about the events surrounding the Goldman decision is the untold story of the case, which differs in significant …

Civility In Government Meetings: Balancing First Amendment, Reputational Interests, And Efficiency, Terri R. Day, Erin Bradford

Terri R. Day

This article addresses the issue of civility in local government meetings and the constitutional considerations for adopting rules of decorum. While not constitutionally guaranteed, the right of citizens to participate in public meetings can be created by state statute or judicial fiat. Once created, any restrictions placed on citizen speech are subject to constitutional dictates. Matters of local government business inflame passions; and public comment sessions can become explosive. When disruption occurs, presiding officials must act to silence citizens’ voices or eject them from public meetings, in ways that do not trample on First Amendment rights. In creating parameters that …

Civility In Government Meetings: Balancing First Amendment, Reputations Intests, And Efficiency, Terri R. Day, Erin Bradford

Terri R. Day

This article addresses the issue of civility in local government meetings and the constitutional considerations for adopting rules of decorum. While not constitutionally guaranteed, the right of citizens to participate in public meetings can be created by state statute or judicial fiat. Once created, any restrictions placed on citizen speech are subject to constitutional dictates. Matters of local government business inflame passions; and public comment sessions can become explosive. When disruption occurs, presiding officials must act to silence citizens’ voices or eject them from public meetings, in ways that do not trample on First Amendment rights. In creating parameters that …

Wikileaks Would Not Qualify To Claim Federal Reporter’S Privilege In Any Form, Jonathan Peters

Jonathan Peters

This article addresses whether WikiLeaks could claim a federal reporter’s privilege if the U.S. government or a U.S. entity tried to compel one of the site’s staff members to disclose the source(s) of any documents it has released. After exploring the origins of the First Amendment-based privilege, I argue that WikiLeaks would not be able to claim it. First, the website does not engage in investigative reporting. Second, it has not taken steps consistently to minimize harm. I also discuss congressional attempts to pass a federal shield law, paying special attention to H.R. 985 and S. 448, the two most …

Religious Truth, Pluralism, And Secularization: The Shaking Foundations Of American Religious Liberty, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I recount John Locke’s 1689 Letter Concerning Toleration and explain how religious liberty continues to rest on Lockean and related justifications. These various justifications depend in part on religious-moral reasoning (both Christian and non-Christian) and in part on political-pragmatic considerations. I then discuss recent and ongoing developments in the American religious landscape, including a radical increase in religious diversity, the modernization of traditional faiths, the individualization or "spiritualization" of religion, and the increasing secularization of individual belief structures. I suggest that these developments, over time, may seriously threaten the underlying religious-moral and political-pragmatic foundations of religious liberty …

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.