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Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Exposing Judges' Unaccountability And Consequent Riskless Wrongdoing: Pioneering The News And Publishing Field Of Judicial Unaccountability Reporting, Dr. Richard Cordero Esq.

Dr. Richard Cordero Esq.

This study analyzes official statistics of the Federal Judiciary, legal provisions, and other publicly filed documents. It discusses how federal judges’ life-appointment; de facto unimpeachability and irremovability; self-immunization from discipline through abuse of the Judiciary’s statutory self-policing authority; abuse of its vast Information Technology resources to interfere with their complainants’ communications; the secrecy in which they cover their adjudicative, administrative, disciplinary, and policy-making acts; and third parties’ fear of their individual and close rank retaliation render judges unaccountable. Their unaccountability makes their abuse of power riskless; the enormous amount of the most insidious corruptor over which they rule, money!, …

Speech As A Weapon: Planned Parenthood V. American Coalition Of Life Activists And The Need For A Reasonable Listener Standard, Alex J. Berkman

Touro Law Review

No abstract provided.

The Disincorporation Proclamation: Emancipating The Establishment Clause From The Fourteenth Amendment, Martin Wishnatsky

Martin Wishnatsky

No abstract provided.

Texas Cheerleaders And The First Amendment: Can You Cheer For God At A Football Game?, Brett A. Geier

Brett A Geier

The Kountze High School Cheerleaders in Kountze, Texas last year placed religious messages on run-through banners at the pre-game ceremonies for its football team. When district officials directed the cheerleaders to cease placing the messages on the banners, the cheerleaders sought relief under the Free Exercise Clause and free speech doctrine. In the spring of 2013, the District Court enjoined the school from preventing the cheerleaders from placing religious messages on the banners stating that the act did not violated the Establishment Clause. This particular case has multiple issues that must be addressed: First Amendment conflict; free speech fora, religious …

"Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion", Frederick Mark Gedicks, Rebecca G. Van Tassell

Frederick Mark Gedicks

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked Establishment Clause limits on such exemptions. The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion—that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …

The Categorical Approach To Protecting Speech In American Constitutional Law, Daniel A. Farber

Daniel A Farber

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Anonymity Is The Battlefield: Practical And Legal Considerations In The Fight For Free Expression On The Web, Dan Massoglia

Dan Massoglia

No abstract provided.

Religious Pretenders In The Courts: Unmasking The Imposters, John O. Hayward

John O. Hayward

When courts decide First Amendment “Free Exercise” cases, they often are confronted with the daunting task of defining what exactly is a “religion.” This article examines how judicial definitions and interpretations of religious faith have evolved over many decades, including legal recognition of Wicca (modern day witchcraft) and Hare Krishna as “religions,” as well as courts steering clear of the issue whenever possible, for example, when faced with an adherent of the “Church of Body Modification” who claims her employer’s dress code violates her religion. It also explores how courts have sought to uncover deception and fraud hiding behind disingenuous …

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education LEWIS M. WASSERMAN Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

A New First Amendment Goal Line Defense – It’S Time To Stop The Right Of Publicity Offensive, Mark Conrad

Mark A. Conrad

No abstract provided.

After Caronia: First Amendment Concerns In Off-Label Promotion, Stephanie Greene

Stephanie Greene

After Caronia: First Amendment Concerns in Off-Label Promotion by Stephanie M. Greene* Abstract The government has successfully prosecuted pharmaceutical companies for off-label promotion of drugs, maintaining that such promotion impermissibly undermines the FDA’s pre-market approval process and jeopardizes the public health. In several recent cases, however, pharmaceutical companies have alleged that regulations prohibiting such promotion are unconstitutional because off-label promotion is protected under the First Amendment. Two recent Supreme Court cases contain language that gives broad protection to advertising and marketing in the pharmaceutical field. This paper questions the reach of these cases as applied to the practice of off-label …

A New First Amendment Goal Line Defense – It’S Time To Stop The Right Of Publicity Offensive, Mark A. Conrad

Mark A. Conrad

What began as a novel subset of traditional privacy rights has led courts and legislatures to create a property-based right of publicity jurisprudence that has gone beyond its original goals and now crept into the traditional First Amendment domain of protection of artistic and creative rights. In the last two decades, courts have applied the “right of publicity” doctrine in various artistic contexts and various tests devised by the courts to balance the competing interests of free speech and commercial rights to one’s identity and image have produced a panoply of rulings, exacerbated by a lack of federal law and …

A Comprehensive Approach To Bridging The Gap Between Cyberbullying Rules And Regulations And The Protections Offered By The First Amendment For Off-Campus Student Speech, Vahagn Amirian

Vahagn Amirian

No abstract provided.

Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman

Lewis M. Wasserman

Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …

Rankings, Reductionism, And Responsibility, Frank Pasquale

Frank A. Pasquale

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …

"Kill The Sea Turtles" And Other Things You Can't Make The Government Say, Scott W. Gaylord

Scott W. Gaylord

In Pleasant Grove City v. Summum, the Supreme Court confirmed that there is no heckler’s veto under the government speech doctrine. When speaking, the government has the right to speak for itself and to select the views that it wants to express. But the Court acknowledged that sometimes it is difficult to determine whether the government is actually speaking. Specialty license plates have proven to be one of those difficult situations, raising novel and important First Amendment issues. Six circuits have reached four separate conclusions regarding the status of messages on specialty license plates. Three circuits have held that …

Lost In The Compromise: Free Speech, Criminal Justice, And Attorney Pretrial Publicity, Margaret Tarkington

Margaret C Tarkington

Publicity by the prosecution and defense in the criminal proceedings against George Zimmerman again raised the question of the appropriate scope of First Amendment protection for attorney pretrial publicity. The Supreme Court, the Model Rules of Professional Conduct, and many scholars have viewed restrictions on attorney pretrial publicity as a compromise between the constitutional guarantees of free speech and a fair trial. Nevertheless, scholars advocate widely divergent levels of free speech protection for attorney pretrial publicity—ranging from core free speech protection to extremely limited protection. Traditional First Amendment doctrines fail to elucidate the proper scope of free speech rights for …

The First Amendment Structure For Speakers And Speech, Charles W. Rhodes

Charles W Rhodes

A noticeable trend in the Roberts Court’s free speech decisions is heightened attention to the dimensions of the First Amendment. From holding false factual statements, violent video games, and depictions of animal cruelty are covered by the First Amendment, to determining that a legislator’s vote, governmental acceptance of a monument, and a law school’s refusal to allow access to military recruiters are not, the Court has highlighted the importance of evaluating both the scope of the First Amendment and the appropriate attribution of communicative efforts. But the Court has failed to announce an overarching structural framework for resolving these prefatory …

National Geo-Graphics: The New "Federalism Function" Of American Tort Law, Riaz Tejani

San Diego Law Review

“Community” was once the wellspring of norms governing risk, harm, and compensation. Today, people, goods, and information move at such high speed across such wide distances that markets come to replace community as the measure of socially “reasonable” conduct. Alongside this rise of mass-market industrial and media actors, American tort law has experienced unprecedented influence of national rules upon once purely state common law doctrines. Thus far the shift has been only partial—through constitutional rights and federal preemption, it has impacted certain industries such as bioengineering but left untouched others such as medical care. Critics of this partial federalization espouse …

Anatomy Of The Reasonable Observer, Jessie Hill

Jessie Hill

The “reasonable observer”—the fictional person from whose perspective we are to judge whether a governmental display or practice violates the Establishment Clause—has been under fire for decades. Primarily, critics argue that the reasonable observer, as conceived by the Supreme Court, is incapable of representing a community perspective because he does not sufficiently resemble a flesh-and-blood person. This criticism can be further articulated as two specific complaints: first, that too much knowledge is imputed to the reasonable observer, making him more omniscient than the average passerby; and second, that the reasonable observer, like the average judge, is biased toward a majoritarian …

Visual Gut Punch: Persuasion, Emotion, And The Constitutional Meaning Of Graphic Disclosure, Ellen P. Goodman

ellen p. goodman

The ability of government to “nudge” with information mandates, or merely to inform consumers of risks, is circumscribed by First Amendment interests that have been poorly articulated in the relevant law and commentary. New graphic cigarette warning labels supplied courts with the first opportunity to assess the informational interests attending novel forms of product disclosures. The D.C. Circuit enjoined them as unconstitutional, compelled by a narrative that the graphic labels converted government from objective informer to ideological persuader, shouting its warning to manipulate consumer decisions. This interpretation will leave little room for graphic disclosure and is already being used to …

The Conspiracy Origin Of The First Amendment, Steven R. Morrison

Steven R Morrison

Scholars and jurists have misunderstood the import of three seminal 1919 First Amendment cases—Schenck v. United States, Frohwerk v. United States, and Abrams v. United States—as primarily free speech cases. They are better understood as free assembly cases. This is important for two reasons. First, individuals’ speech has the intended First Amendment effect only when speakers combine into groups. Second, the 1919 cases were the beginning of substantive First Amendment law, and so have resulted in a First Amendment jurisprudence that favors individual rights over group rights. This is a constitutional and normative mistake. Combined with the first reason, the …

Gay Talk: Protecting Free Speech For Public School Teachers, Stephen J. Elkind, Peter D. Kauffman

Stephen J Elkind

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education …

Flemming Rose's Rejection Of The American Free Speech Canon And The Poverty Of Comparative Constitutional Theory, Robert Kahn

Robert Kahn

In the fifteen page English language excerpt of his recent memoir The Tyranny of Silence, Danish publisher Flemming Rose gave an extended defense of his decision to run the cartoon images of the Prophet Mohammed. Current First Amendment doctrine almost certainly would treat this act as protected speech. But Rose barely mentions the First Amendment. Instead, he develops a highly personal theory of speech based on his experience in the Soviet Union and discussions with Salman Rushdie. Like many American legal academics Rose opposes bans on hate speech, but he does so for different reasons.

From a comparative law …

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

Lights, Camera, Arrest: The Stage Is Set For A Federal Resolution Of A Citizen's Right To Record The Police In Public, Taylor R. Robertson

Taylor R Robertson

Grab your cellphone, press the record button, and amaze your friends!

No advertisement like this exists in real life, of course, because the action is already universally automatic—it needs no encouragement or instruction. But aim the camera at the police and you could be arrested and face up to fifteen years in prison under some eavesdropping or wiretapping laws simply for recording the police in public speaking at volumes audible to any unassisted ear. While wiretapping laws were originally intended to protect citizens from the snooping detective, some states have effectively turned these laws into government protection from the watchful …

"Merchants Of Discontent": An Exploration Of The Psychology Of Advertising, Addiction, And The Implications For Commercial Speech, Tamara R. Piety

Tamara R. Piety

In this paper, I attempt to draw parallels between the psychology of commercial advertising and marketing and the psychology of addiction. Both appear to be characterized by denial, escapism, narcissism, isolation, insatiability, impatience, and diminished sensitivity. Advertising appeals to these impulses and addiction is marked by them. In what follows, I explore these parallels in general and then explore the potential consequences or side effects in three specific contexts: the advertising of addictive products, advertising and children, and advertising and women. In these three areas, there is some evidence that advertising may be contributing to negative social phenomena in a …

Corporations And Commercial Speech, Ron Collins, Mark Lopez, Tamara Piety, David Vladeck

Tamara R. Piety

Today's discussion will be about a rather famous case-actually, a non-case, Nike v. Kasky.