Digital Commons Network^™

Supplementing The Record: The Life And Career Of Judge Edmund L. Palmieri, Todd C. Peppers, Bridget Tainer-Parkins

Research Papers

For approximately ninety years, lower federal court judges have hired law clerks to process the work of the courts. While the law clerks typically go onto successful careers as attorneys, law professors, government officials, and judges, it is rare that the former apprentices become so famous that their mentors are lost in their oversized shadows. This is the case, however, for former federal district court Judge Edmund L. Palmieri. A highly respected jurist who sat in the Southern District of New York for over three decades, Palmieri has seemingly become the answer to the following trivial pursuit question: "What federal …

A Framework For Thinking About The Government’S Speech And The Constitution, Helen Norton

Publications

This Essay sketches a framework for mapping and navigating the constitutional implications of the government’s speech—and then illustrates this framework’s application to some contemporary constitutional disputes. My hope is that this framework will help us sort through the constitutional puzzles triggered by the government’s expressive choices—puzzles that confront courts and policymakers with increasing frequency. What I call “first-stage government speech questions” require us to determine when the government is speaking itself and when it is instead (or also) regulating others’ speech. This determination matters because the rules that apply to the government as speaker are very different from those that …

Newsgathering Takes Flight In Choppy Skies: Legal Obstacles Affecting Journalistic Drone Use, Clay Calvert, Charles D. Tobin, Matthew D. Bunker

UF Law Faculty Publications

This Article examines legal challenges confronting journalists who use drones to gather images. Initially, it traces the history of drones and the Federal Aviation Administration’s efforts to regulate them, as well as new state legislation that aims to restrict drones. This Article then illustrates that a wide array of legal remedies already exist for individuals harmed by journalistic drone usage, and it argues that calls for additional, piecemeal state laws to regulate drones are unnecessary and unduly hinder First Amendment interests in newsgathering and the public’s right to know. Furthermore, this Article asserts that the reasonable-expectation-of-privacy jurisprudence developed in aerial …

Free Speech Versus Free Education: First Amendment Considerations In Limiting Student Athletes' Use Of Social Media, Mary Margaret Penrose

Meg Penrose

This article considers the First Amendment implications regarding limitations placed on student athletes' use of social media. Schools have a vested interest in controlling their athletes' public expressions, whether such expressions are found in tattoos, public interviews or tweets. Like it or not, a great deal of damage can occur in "140 words or less." And, displeased student-athletes have choices. Twitter or touchdowns. Facebook from your dorm or facetime on television hitting three-pointers. While universities are generally places that encourage robust speech and debate, there are defensible, and arguably lawful, reasons why schools should limit student-athletes' use of social media. …

Free Speech Versus Free Education: First Amendment Considerations In Limiting Student Athletes' Use Of Social Media, Mary Margaret Penrose

Meg Penrose

This article considers the First Amendment implications regarding limitations placed on student athletes' use of social media. Schools have a vested interest in controlling their athletes' public expressions, whether such expressions are found in tattoos, public interviews or tweets. Like it or not, a great deal of damage can occur in "140 words or less." And, displeased student-athletes have choices. Twitter or touchdowns. Facebook from your dorm or facetime on television hitting three-pointers. While universities are generally places that encourage robust speech and debate, there are defensible, and arguably lawful, reasons why schools should limit student-athletes' use of social media. …

The Constitution And Revenge Porn, John A. Humbach

Pace Law Review

While the Supreme Court has recognized a number of circumstances that justify government impingements on free expression, the Court has been extremely reluctant to permit speech restrictions that discriminate based on a message’s content, its viewpoint, or the speaker. It has nearly always refused to tolerate such discrimination unless the case falls within one of the several historically established exceptions to First Amendment protection. Because of the special place that the modern First Amendment cases accord to content discrimination (and the allied discriminations based on viewpoint and speaker), any statutes designed specifically to outlaw revenge porn as such would seem …

Post-Katrina Suppression Of Black Working-Class Political Expression, Taunya L. Banks

Faculty Scholarship

No abstract provided.

More Than A Feeling: Emotion And The First Amendment, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

First Amendment law has generally been leery of government attempts to change the marketplace of emotions—except when it has not been. Scientific evidence indicates that emotion and rationality are not opposed, as the law often presumes, but rather inextricably linked. There is no judgment, whether moral or otherwise, without emotions to guide our choices. Judicial failure to grapple with this reality has produced some puzzles in the law.

Part I of this Symposium contribution examines the intersection of private law, the First Amendment, and attempts to manipulate and control emotions. Only false factual statements can defame, not mere derogatory opinions. …

Leaving The Dale To Be More Fair: On Cls And First Amendment Jurisprudence, Mark Strasser

Mark Strasser

In Christian Legal Society of the University of California, Hastings College of Law v. Martinez, the Supreme Court upheld the Hastings College of Law’s requirement that all recognized student groups have an open membership policy. The decision has been criticized for a variety of reasons, e.g., that the Court conflated the First Amendment tests for speech and association. What has not been adequately explored is the degree to which the Court has modified limited purpose public forum analysis in the university context over the past few decades, resulting in a jurisprudence that is virtually unrecognizable in light of the more …

Free Speech Versus Free Education: First Amendment Considerations In Limiting Student Athletes' Use Of Social Media, Mary Margaret Penrose

Faculty Scholarship

This article considers the First Amendment implications regarding limitations placed on student athletes' use of social media. Schools have a vested interest in controlling their athletes' public expressions, whether such expressions are found in tattoos, public interviews or tweets. Like it or not, a great deal of damage can occur in "140 words or less." And, displeased student-athletes have choices. Twitter or touchdowns. Facebook from your dorm or facetime on television hitting three-pointers. While universities are generally places that encourage robust speech and debate, there are defensible, and arguably lawful, reasons why schools should limit student-athletes' use of social media. …

How Public Schools Can Constitutionally Halt Cyberbullying: A Model Cyberbullying Policy That Survives First Amendment, Fourth Amendment, And Due Process Challenges, Naomi Harlin Goodno

Naomi Harlin Goodno

There have been all too many recent cases where children are taking their lives because of cyberbullying. Schools, courts, and legislatures are struggling with how to deal with such tragedies. Imagine two public school students, Joe and Jane. Joe punches Jane during class. The school is certainly within its legal rights to discipline Joe. Assume, instead, Joe punches Jane while both are walking home from school. The school cannot discipline Joe because the act took place off-campus. Now, assume instead, that Joe, while at home and using his own laptop, creates a website about Jane stating that he wished she …

When Obscenity Discriminates, Elizabeth M. Glazer

Elizabeth M Glazer

When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …

When Obscenity Discriminates, Elizabeth M. Glazer

Elizabeth M Glazer

When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …

Displacing Dissent: The Role Of "Place" In First Amendment Jurisprudence, Thomas P. Crocker

Fordham Law Review

No abstract provided.

Expressive Merchandise And The First Amendment In Public Fora, Genevieve Blake

Fordham Urban Law Journal

Courts have struggled to strike a balance between the interests of individuals and cities with the application of intermediate scrutiny to content-neutral time, place, and manner restrictions, and several variations have emerged. This Comment will examine the breadth of those approaches as they affect the determination of what expression triggers First Amendment protection. Ultimately, the Note will argue for a re-thinking of how courts evaluate the scope of First AMendment protection and municipal regulation of expressive activity.

Panel Iii: Indecent Exposure? The Fcc's Recent Enforcement Of Obscenity Laws, William Davenport, Jeffrey Hoeh, C. Edwin Baker, Paul J. Mcgeady

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Panel Iii: Indecent Exposure? The Fcc's Recent Enforcement Of Obscenity Laws, William Davenport, Jeffrey Hoeh, C. Edwin Baker, Paul J. Mcgeady

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Discussing The First Amendment , Christina E. Wells

Faculty Publications

Despite its many good qualities, Eternally Vigilant nevertheless suffers from a flaw common to First Amendment scholarship--a tendency to give short shrift to study of the social, psychological, historical, and political factors that influence the Court's decision making and, thus, free speech doctrine. Discussion including these influences would facilitate an even greater understanding of free speech doctrine and the principles that underlie it.

The Mischief Of Cohen V. Cowles Media Co., Alan E. Garfield

Alan E Garfield

For a short, sloppily reasoned 5-4 decision that textbook editors have largely consigned to note status, Cohen v. Cowles Media Co. has had a remarkably insidious influence on First Amendment law. The problem is not so much the decision’s holding. The Supreme Court’s conclusion that newspapers could be liable for breaching a promise of anonymity to a source might actually further speech interests. The problem instead is in Cohen’s reasoning. It is the way in which the Supreme Court so cavalierly dismissed the argument that the First Amendment precluded punishing media defendants for the publication of truthful information. The Court …

Introduction: Tiger Woods And The First Amendment, Tyler T. Ochoa

Faculty Publications

Although the right of publicity has been recognized as a distinct common-law doctrine since 1953, only in recent years have courts begun to take the First Amendment seriously as a limit on the extent to which sports figures and other celebrities can use the doctrine to control the use of their images. It is widely recognized that the government may prohibit false and misleading speech, such as an advertisement that falsely implies an endorsement of a product by an individual, without violating the First Amendment. Similarly, it is generally acknowledged that the First Amendment protects the depiction of celebrities in …

Compelled Lawyer Representation And The Free Speech Rights Of Attorneys, Leora Harpaz

Western New England Law Review

No abstract provided.

Panel I: Accountability Of The Media In Investigations, Gregg Jarrett, Charles E. Rose, Randall J. Turk, L. Lin Wood

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Title Vii As Censorship: Hostile Environment Harassment And The First Amendment, Kingsley R. Browne

Law Faculty Research Publications

No abstract provided.

Accomodation Of Reputational Interests And Free Press: A Call For A Strict Interpretation Of Gertz, Tom Wall

Fordham Urban Law Journal

New York Times Co. v. Sullivan provides that states may award damages in defamation actions brought by public officials against media critics of their official conduct only if the plaintiff proves that the defendant acted with "actual malice." Subsequently, the Supreme Court extended this rule to public figures and promulgated standards for identifying public figures. The Court declared unconstitutional the common law standard of strict liability in actions brought by private individuals. Establishing negligence as a constitutional minimum, the Court delegated to the states the responsibility for formulating the proper standard of fault in actions brought by private individuals. This …

The Movement Toward Religious Liberty: An Examination Of The Factors Responsible For The First Amendment To The Constitution Of The United States, William Grese

Bachelor of Divinity

This is the context in which this research paper is written though its goal is much more modest. We do not hope to settle the question of the intent of our founding fathers. But we want to try to determine whether the churches were at all involved in this movement toward religious freedom. Were they in favor of a separation between church and state, or did they only seek to end preference? Or were they not involved at all? At the same time, we also want to examine the various factors responsible for the first amendment and to see what …