Law Commons^™

"God Hates Fags" Isn't The Same As "Fuck The Draft": Introducing The Non-Sexual Obscenity Doctrine, Adam Lamparello

Adam Lamparello

No abstract provided.

Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper

Casey J Cooper

The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …

Freedom Of Speech & Election Day At The Polls: Thou Doth Protest Too Much, James J. Woodruff Ii

James J. Woodruff II

This Article seeks to answer the following question: What are the actual limits the government can place on political speech at and around the polling place? In examining this question, this Article argues that some of the current limitations placed on polling-place activities are unconstitutional. Specifically, this Article focuses on the wearing of political slogans and images within the polling room and campaign-free zone and the placement of campaign signs within the campaign-free zone.

The Basis For Noerr-Pennington Immunity: An Argument Based On Supreme Court Precedent That Federal Antitrust Law Forms The Foundation Of Noerr-Pennington, Not The First Amendment, Michael Pemstein

Michael Pemstein

Under the Noerr-Pennington doctrine defendants are immune from liability for violations of federal antitrust law that result from their efforts to influence the passage or enforcement of laws, even if the laws they advocate for, or their means of advocacy, have anticompetitive effects. Many courts have assumed that the Noerr-Pennington doctrine is based solely on the protections afforded by the First Amendment right to petition and have extended the Noerr-Pennington doctrine to a wide variety of torts outside the antitrust context based on this assumption. This article argues that these courts have failed to recognize that Noerr-Pennington’s protections are …

Does “The Freedom Of The Press” Include A Right To Anonymity? The Original Meaning, Robert G. Natelson

Robert G. Natelson

This Article examines relevant evidence to determine whether, as some have argued, the original legal force of the First Amendment’s “freedom of the press” included a per se right to anonymous authorship. The Article concludes that, except in cases in which freedom of the press had been abused, it did. Thus, from an originalist point of view, Supreme Court cases such as Buckley v. Valeo and Citizens United v. Federal Election Commission, which upheld statutes requiring disclosure of donors to political advertising, were erroneously decided.

Omnipresent Student Speech And The Schoolhouse Gate: Interpreting Tinker In The Digital Age, Watt L. Black Jr.

Watt Lesley Black Jr.

This paper focuses primarily on federal circuit level decisions regarding public school district's ability to discipline students who engage in electronic speech while off-campus and not involved in school activities. Particular attention is paid to the question of whether and how appeals courts have been willing to apply the "material and substantial disruption" standard from the Supreme Court's 1969 Tinker v. Des Moines decision to speech occurring off-campus. The paper, which is targeted toward both legal scholars and school administrators, draws together the common threads from the various circuits and weaves them into a set of guidelines for school administrators …

Does “The Freedom Of The Press” Include A Right To Anonymity? The Original Meaning, Robert G. Natelson

Robert G. Natelson

This Article examines relevant evidence to determine whether, as some have argued, the original legal force of the First Amendment’s “freedom of the press” included a per se right to anonymous authorship. The Article concludes that, except in cases in which freedom of the press had been abused, it did. Thus, from an originalist point of view, Supreme Court cases such as Buckley v. Valeo and Citizens United v. Federal Election Commission, which upheld statutes requiring disclosure of donors to political advertising, were erroneously decided.

Demonstrators' Right To Fair Warning, Caleb Hayes-Deats

Caleb Hayes-Deats

Protesting has become an integral part of American politics, so much so that federal courts of appeals have recently restricted police officers’ power to arrest demonstrators who have concededly violated otherwise valid statutes and regulations. Specifically, courts have found that, where demonstrators may reasonably, yet mistakenly believe that police officers have permitted their conduct, officers must give “fair warning” before arresting or dispersing those demonstrators. In § 1983 suits, courts have even found that demonstrators’ right to fair warning is “clearly established.” While the right to fair warning may be clearly established, its doctrinal roots are not. Ordinarily, the requirement …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

Campaign Finance, Federalism, And The Case Of The Long-Armed Donor, Todd E. Pettys

Todd E. Pettys

In its ruling last Term in McCutcheon v. FEC, the Court struck down federal campaign-finance laws that limited the aggregate amount of money that Shaun McCutcheon and other would-be campaign donors could give to a variety of political committees and to individuals running for Congress in states and districts other than their own. Chief Justice Roberts began his opinion for the plurality by declaring that "[t]here is no right more basic in our democracy than the right to participate in electing our political leaders." Retired justice John Paul Stevens has argued that the Court's ruling in McCutcheon is "a grossly …

Of Locke And Valor: Why The Supreme Court's Decision In United States V. Alvarez Does Not Foreclose Congress's Ability To Protect The Property Rights Of Medal Of Honor Recipients, Timothy J. Geverd

Timothy J. Geverd

No abstract provided.

A Matter Of Context: Casey And The Constitutionality Of Compelled Physician Speech, Scott W. Gaylord

Scott W. Gaylord

The last few years have seen an increasing number of States seek to regulate abortion procedures—from heart auscultation statutes to admitting privileges to minimum facility standards. One such regulation has involved “speech-and-display” statutes, which require physicians to conduct an ultrasound, display the sonogram images to a woman considering an abortion, and describe the anatomical features that are visible in the image. In addition to asserting traditional due process claims, physicians have challenged these ultrasound requirements on First Amendment grounds, arguing that speech-and-display laws compel physicians to engage in speech activity against their will and (sometimes) against their medical judgment.

Although …

The First Amendment Guide To The Second Amendment, David B. Kopel

David B Kopel

How courts do and should use First Amendment doctrines when deciding Second Amendment cases.

The Church Of Animal Liberation: Animal Rights As “Religion” Under The Free Exercise Clause, Bruce Friedrich

Bruce Friedrich

In this article, I do two things: First, I argue that a belief in animal liberation constitutes religion under constitutional jurisprudence interpreting the Free Exercise Clause of the U.S. Constitution. Thus, every time a prison warden, teacher or school administrator, or government employer refuses to accommodate the ethical belief of an animal liberationist, they are infringing on that person’s religious freedom, and they should have to satisfy the same constitutional or statutory requirements that would adhere were the asserted interest based on more traditional religious exercise. Second, I suggest that one possible solution to the problem of widespread violation of …