Law Commons^™

First Amendment Protection Of Artistic Entertainment: Toward Reasonable Municipal Regulation Of Video Games, John E. Sullivan

Vanderbilt Law Review

This Note proposes that video game software, the driving force of all video game entertainment, is an artistic creation of a video game designer. Because the United States Supreme Court repeatedly has recognized that artistic expression and entertainment are forms of expression that the first amendment protects, video game software deserves first amendment protection. Video game software is the "heart and soul"" of the video game, and first amendment protection, therefore, also should blanket the game itself. Accordingly, free "speech" liberties give video game manufacturers, distributors, and operators a fundamental right to purvey the protected expression; and the public a …

Cable Franchising And The First Amendment, William E. Lee

Vanderbilt Law Review

In awarding and regulating cable franchises, cities often extract from cable operators promises and conditions such as access channels in exchange for exclusive use of public rights-of-way. Professor William Lee in this Article argues that this cable franchising process violates the first amendment rights of cable operators. Professor Lee rejects the two rationales for municipal cable regulation by contending that cable is not a natural monopoly in every market and that cable's use of public rights-of-way requires content neutral regulation. The exacting of conditions such as access channels, however, is not content neutral regulation. Furthermore, censorship decisions that municipalities require …

Freedom Of Association And State Regulation Of Delegate Selection: Potential For Conflict At The 1984 Democratic National Convention, Platte B. Moring, Iii

Vanderbilt Law Review

This Note begins with a discussion of the history of the regulation of state parties by state law and national party rules. The Note then traces the development of case law concerning state regulation of party delegate selection procedures. Finally, the Note explores the potential for credentials disputes and litigation on the primacy of state party rules over contrary state laws if both the party rules and the state regulations comply with the Delegate Selection Rules for the 1984 Democratic National Convention. The Note concludes that the first amendment right of freedom of association guarantees that a state party may …

Free Speech And The Assumption Of Rationality, Frederick Schauer

Vanderbilt Law Review

First amendment doctrine is now both broad and complex, and the task of writing about all of it seems at least forbidding and perhaps impossible. Unthwarted by the magnitude of the mission, however, Franklyn Haiman has attempted, in Speech and Law in a Free Society,7 to survey and to integrate almost every area in which the first amendment restricts or should restrict the powers of the states and the federal government. Haiman's book is in some ways reminiscent of Thomas Emer-son's The System of Freedom of Expression." Like Emerson,Haiman devotes only a relatively brief introductory portion of his book to …

Judicial Restrictions On Attorneys' Speech Concerning Pending Litigation: Reconciling The Rights To Fair Trial And Freedom Of Speech, Sally R. Weaver

Vanderbilt Law Review

The constitutionality of restraints on attorneys' speech has been considered by only two federal circuit courts: the Seventh Circuit, in Chicago Council of Lawyers v. Bauer,' and, more recently, the Fourth Circuit, in Hirschkop v. Snead.' Relying on many of the same precedents, the circuits nevertheless developed seemingly contrary standards. This Recent Development compares the analyses of these recent cases and suggests an appropriate standard for the accommodation of the conflicting rights of free speech and a fair trial.

General Laws, Neutral Principles, And The Free Exercise Clause, G. Michael Mccrossin

Vanderbilt Law Review

This Note examines several recent Supreme Court decisions considering the first amendment's free exercise clause to determine whether, collectively, the decisions are results of principled decision making. During the past two decades the Court has had four significant opportunities to deal with the free exercise clause. In all but one, the Court made important statements about the constitutional protection afforded the free exercise of religious belief. In each case the basic issue was the same: was interference with the exercise of religion unconstitutional when that interference resulted from the application of a general law that promoted a valid public policy …

Antitrust Enforcement, Freedom Of The Press, And The "Open Market": The Supreme Court On The Structure And Conduct Of Mass Media, William E. Lee

Vanderbilt Law Review

This Article examines the Supreme Court's attempts to foster open markets by altering either the structure or the conduct of mass media enterprises." Structure and conduct are the two main determinants of market performance. Market structure "means those characteristics of the organization of a market that seem to exercise a strategic influence on the nature of competition and pricing within the market." Some characteristics of market structure include degree of buyer concentration, degree of seller concentration, degree of product differentiation, and entry conditions. Market conduct, on the other hand, comprises the practices, policies, and devices which firms employ in adjusting …

Regulation Of Programming Content To Protect Children After Pacifica, Dabney E. Bragg

Vanderbilt Law Review

This Note examines the "protect the children" rationale as justification for the regulation of program content to determine if it is likely to withstand future challenges. Initially, the Note reviews the Pacifica decisions to illustrate how the rationale recently has been employed. The Note then considers this rationale in light of traditional first amendment analysis and the interface of that analysis with the rights of children, concluding that the rationale does not justify abridgment of the first amendment. The Note then considers the effect of broadcasting's "unique characteristics" upon this analysis, concluding that this added element does not tip the …

Attorney Advertising Over The Broadcast Media, I. Terry Currie

Vanderbilt Law Review

This Note will examine the first amendment issues that broadcast attorney advertising raises. The Note will begin with a general discussion of the analytical approach adopted by the Supreme Court in freedom of speech and commercial speech cases. Next, the Note will explore the "special problems" and unique characteristics of the broadcast media as they relate to the interests affected by broadcast attorney advertising, concluding that the benefits afforded to consumers outweigh the potential risks created by such advertising. The Note will also briefly consider various regulations on broadcast advertising adopted by the bar at both the state and federal …

Recent Cases, Alan W. Duncan, Elton G. Snowden, William A. Holby, Joseph W. Gibbs

Vanderbilt Law Review

Constitutional Law -- Newsperson's Privilege - The First Amendment Guarantee of a Free Press Protects Against Compelled Disclosure of a Journalist's Exercise of Editorial Control and Judgment

Plaintiff, a former army officer who had achieved national prominence by claiming that his superiors ignored his reports of atrocities by American forces in Vietnam,' brought a libel suit against defendant television producer, reporter, and network for broadcasting a program that cast doubt upon plaintiff's allegations. Contending that defendant did not present available information corroborating plaintiff's claims, plaintiff sought discovery of the producer's beliefs, opinions, intent, and conclusions in preparing the program.

Alan …

First Amendment Restrictions On The Ftc's, Robert D. Eckinger

Vanderbilt Law Review

The Supreme Court has suggested a "degree of protection"approach to reconcile the first amendment protection of commercial speech with the need to effectively regulate false or misleading advertising. In so doing, however, the Court has failed to establish clearly the judicial standard of review appropriate in examining regulative measures. In the absence of adequate guidance, several circuit court decisions have adopted an unjustified standard of strict judicial scrutiny. The continued use of this standard by the circuit courts in reviewing FTC decisions will present increasing institutional problems for the courts and will seriously undermine the Commission's ability to protect consumers …

Recent Cases, Robert E. Banta, Oby T. Brewer, Iii, Cornelia A. Clark, I. Terry Currie, Douglas W. Ey, Jr.

Vanderbilt Law Review

Constitutional Law-First Amendment-School Authorities May Prohibit High School Student's Distribution of Sex Questionnaire to Prevent Possible Psychological Harm to Other Students Robert Edward Banta

Plaintiff, editor of a high school publication,' brought suit in federal court seeking an order compelling defendant school officials to allow the student publication to distribute a sex questionnaire,to students in the high school and to publish the results. Plaintiff claimed that defendants had not shown that the planned distribution would disrupt school activities and that, therefore, defendants'prohibition of the questionnaire violated 42 U.S.C. § 19831 and the first and fourteenth amendments. Pointing to potential psychological …

Recent Cases, Samuel E. Stumpf, Jr., M. Carolyn Barefield, Robert S. Reder, Stephen C. Morton, Randolph C. Coley

Vanderbilt Law Review

Noerr-Pennington Immunity for Joint Efforts to Influence Governmental Action - Intent to Cause Competitive Injury, Evidenced by Repeated, Baseless Opposition Before an Adjudicatory Body, Does Not Result in Loss of Noerr-Pennington Immunity Absent Specific Allegations of Conduct External to or Abusive of the Adjutory Processes

Samuel E. Stumpf, Jr.

Constitutional Law - First Amendment - Student's Right to Receive Information Precludes Board's Removal of Allegedly Offensive Books from High School Library

M. Carolyn Barefield

Constitutional Law-Search and Seizure - Federal Courts Are Bound by Federal Wiretapping Statutes and Will Not Exclude Evidence Seized by State Agents in Violation of More …

State Court Reactions To Gertz V. Robert Welch,Inc.: Inconsistent Results And Reasoning, Charles W. Gerdts, Iii, Kevin J. Wolff

Vanderbilt Law Review

This Recent Development will examine the state court reactions to Gertz, describe the reasons for the lack of uniformity in their conclusions, and suggest an approach to balancing the first amendment and reputational interests.

Recent Cases, Linda A. Bunsey, David M. Thompson, Charles K. Campbell, Jr., Keith B. Simmons, Thomas C. Hundley

Vanderbilt Law Review

If the instant case, rather than Northway, is to become the accepted rule in the area of discounting, consumers and state lenders will be protected while the national bank-lenders will be burdened only slightly, if at all. National banks located in states that permit state lenders to discount loans at the maximum rate, with-out regard to the actual yield, will not be affected. National banks located in states that permit state lenders to discount only to the extent that the actual yield is within the statutory maximum will need to change their practices merely by charging the statutory rate only …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Conflict of Laws--Torts--Lex Loci Delicti Is Proper Law When Parties Are Domiciled in Different Jurisdictions Unless Displacing That Law Advances Forum State's Substantive Law Purposes Without Impeding Interstate Relations or Predictability of Result

Plaintiff, an Ontario domiciliary, brought an action in New York for the wrongful death of her husband, also a domiciliary of Ontario,who was killed in a collision in that province' while a passenger in an automobile driven by defendant's intestate, a New York domiciliary. Defendant pleaded as an affirmative defense the Ontario guest statute, which restricts a guest's recovery to damages for injuries sustained only as a …

Civil Disobedience And The Law, Frank M. Johnson, Jr.

Vanderbilt Law Review

This article is based on a speech delivered by Judge Frank M.Johnson, Jr. to the faculty and students of the Vanderbilt Law School. Judge Johnson's thesis is that "civil disobedience" presents a special challenge to judges and lawyers. He feels that there are alternatives to "civil disobedience" for challenging and protesting the law and that lawyers have a duty to inform the public of these alternate methods. Only in extreme cases does Judge Johnson believe that "civil disobedience" is justified. He illustrates his thesis with a discussion of the events surrounding the Democratic Convention at Chicago.

The Constitution On The Campus, Charles A. Wright

Vanderbilt Law Review

This article is the text of the Oliver Wendell Holmes Lectures, delivered by Professor Wright at the Vanderbilt University School of Law in April, 1969. Oliver Wendell Holmes, Jr., left a large part of his estate to the United States at his death in 1935. By Act of Congress in 1955, the disposition of the property was entrusted to a Permanent Committee, which, among other projects, sponsors the, annual Hohnes Lectures by a distinguished legal scholar.

Professor Wright has brought to this topic both profound constitutional scholarship and wide experience in dealing with related problems at his university. His thesis …

The Legal Philosophy Of John Marshall, Douglas A. Poe

Vanderbilt Law Review

One of the greatest and most significant constitutional enigmas with which the Supreme Court has grappled during the past two decades has concerned the proper delineation of the first amendment's prohibition against the abridgment of "the freedom of speech." The range of problems confronted has extended from congressional investigations to state obscenity laws, from sit-in demonstrations to the provision of legal counsel by labor unions for their members. An all-encompassing and consistent theory of the first and fourteenth amendments has yet to be articulated by the Court, a situation which is hardly unexpected in view of the disparate claims asserted …

Religion And The Public Schools, P. Raymond Bartholomew

Vanderbilt Law Review

The first amendment to the United States Constitution contains a dual command with respect to governmental involvement with religion: government must "make no law respecting an establishment of religion or prohibiting the free exercise thereof." Although some have insisted that the first amendment requires a strict separation of church and state, the conclusion is inescapable that the two clauses were intended to operate together in harmony. It is apparent, therefore, that the conflicting policies of the "no establishment" clause and the "free exercise" clause must be balanced and reconciled. The United States Supreme Court has held that this balancing effort …

Charitable Tort Immunity Under The First Amendment, I. Stephen North

Vanderbilt Law Review

The doctrine of charitable tort immunity was conceived in England in 1861. The case of Holliday v. Leonard' held that to apply funds in trust to satisfy a tort claim would be to thwart the intent of the donor. In 1871, Holliday was overruled and since then charities in England have been liable for their torts. Apparently unaware that the Holliday case had been overruled, the courts of Massachusetts and Maryland' cited it as authority and established the immunity rule in America. From the beginning, the doctrine was not without its dissenters. In 1879, for example, Rhode Island rejected immunity. …

The First Amendment And The Judicial Process: A Reply To Mr. Frantz, Wallace Mendelson

Vanderbilt Law Review

Cut loose from its foundation in the distinction between discussion and incitement, the clear and present danger test lost its rational meaning and became a cloak for "vague but fervent transcendental-ism." In short, the activists destroyed it as an intelligible guide to decision-and then abandoned it about a dozen years ago. Meanwhile they have tried, and apparently discarded, one "new" verbalism after another. The latest is Mr. Justice Black's absolutist concentration on two untroubled words in the first amendment: "no law." This gambit--"no law means no law"--again begs all the difficulties simply by ignoring them. As Dean Griswold has suggested, …

Voice Identification, Writing Exemplars And The Privilege Against Self-Incrimination, Russell J. Weintraub

Vanderbilt Law Review

The problems involved in defining the nature of the privilege against self-incrimination and in setting its limits have been much mooted in recent years. Though these problems have been brought into sharp focus by the present very urgent and certainly justified concern for our national security, they are problems which are inherent in the privilege itself. They have been with us for a long time.

One of these problems concerns the extent to which a person may refuse to participate in criminal proceedings brought against him. Doubtless not even the most liberal proponent of the privilege would claim that an …

Book Reviews, Reginald C. Harmon (Reviewer), A. B. Butts (Reviewer), Rollin M. Perkins (Reviewer), Stanley D. Rose (Reviewer), Charles H. Livengood, Jr. (Reviewer), Keith W. Blinn (Reviewer)

Vanderbilt Law Review

Military Justice under the Uniform Code

By James Snedeker

Boston: Little, Brown and Company, 1953. $15.00.

reviewer: Reginald C. Harmon

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Conscription of Conscience

By Mulford Q. Sibley and Philip E. Jacob

Ithaca: Cornell University Press, 1952. Pp. x, 580. $6.50.

reviewer: A. B. Butts

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Theft, Law and Society

By Jerome Hall

Indianapolis: Bobbs-Merrill Co., Inc. Second Edition, 1952. Pp. xxiv, 398. $10.00.

reviewer: Rollin M. Perkins

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Freedom of the Press in England 1476-1776

By Fredrick S. Siebert

Urbana: University of Illinois Press, 1952. Pp. xiv, 411. $7.50.

reviewer: Stanley D. Rose

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Wage-Hour Law: Coverage

By Heiman …

Federal Law Of Search And Seizure As An Incident To Lawful Arrest In The Light Of The Case Of Harris V. United States, C.D. Berry, N.C. Frost

Vanderbilt Law Review

The recent widely discussed case of Harris v. United States further complicates that already complex phase of search and seizure which relates to the extent to which officers may search as an incident to a lawful arrest. The Fourth Amendment to the Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon prob-able cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to he seized." It has …