Law Commons^™

A Championship Season For The First Amendment, Joel Gora

Faculty Scholarship

No abstract provided.

Remembering Melville Nimmer: Some Cautionary Notes On Commercial Speech, William W. Van Alstyne

Faculty Scholarship

This examination concerns itself with two main questions: what qualifies as commercial speech and how much protection does commercial speech enjoy under the First Amendment when compared to other forms of speech. The trend of the Court indicates that commercial speech enjoys protections similar to political speech.

Policing Speech On The Airwaves: Granting Rights, Preventing Wrongs, Maria Marcus

Faculty Scholarship

Should the FCC take steps to prevent repeated advocacy of specific violent acts on the airwaves? If so, it must meticulously differentiate between mainstream government critics who are exercising First Amendment rights of dissent, and inciters of murder and sabotage. This Article proposes a new test to guide the FCC in that endeavor. Part I begins with an overview of communications law and the FCC's erratic enforcement efforts-what it has chosen to regulate unhesitatingly (e.g., dangerous hoaxes and indecency) and what it has ducked. The next sections will analyze the inadequacy of the Supreme Court's incitement jurisprudence. The 1969 Brandenburg …

Implications Of Mill's Theory Of Liberty For The Regulation Of Hate Speech And Hate Crimes, Keith N. Hylton

Faculty Scholarship

The notion that utilitarianism cannot support a theory of fundamental rights is a recurring source of conflict in law and philosophy.' Those who adhere to this view argue that a utilitarian or consequentialist approach cannot provide a stable, permanent justification for rights: at any moment, the utilitarian calculus might conclude that what it considered a right yesterday, actually reduces total welfare, and therefore is not a right today. Perhaps no one has gone further in attempting to refute this claim than John Stuart Mill.' As a result, any effort to construct a consequentialist theory of fundamental rights must draw at …

Viewpoints From Olympus, Kent Greenawalt

Faculty Scholarship

This Essay examines the Supreme Court's treatment of content and viewpoint discrimination in Rosenberger v. Rector and Visitors of the University of Virginia. In that opinion, the Court adopted a very expansive approach to what constitutes viewpoint discrimination, the form of content discrimination most disfavored by the Constitution. The Court held that a public university could not decline to fund publication of Wide Awake, a magazine devoted to proselytizing for Christianity, if it funded other student publications. Justice Kennedy's opinion for the Court accepted the argument of the sponsors of Wide Awake that the University had engaged in …

Cowboys, Camels, And The First Amendment: The Fda's Restrictions On Tobacco Advertising, George J. Annas

Faculty Scholarship

The Marlboro Man and Joe Camel have become public health enemies number one and two, and removing their familiar faces from the gaze of young people has become a goal of President Bill Clinton and his health care officials. The strategy of limiting the exposure of children to tobacco advertisements is based on the fact that almost all regular smokers begin smoking in their teens. This approach is politically possible because most Americans believe that tobacco companies should be prohibited from targeting children in their advertising.

Rethinking Media Liability For Defamation Of Public Figures, John L. Diamond

Faculty Scholarship

No abstract provided.

John Milton's Areopagitica And The Modern First Amendment, Vincent A. Blasi

Faculty Scholarship

The traditional liberal argument for free speech is now under fire from several directions. Critics from the left, the center, and the right find simplistic the claim that unregulated expression promotes the search for truth, the protection of self-government, the autonomy of individuals, and the control of concentrated power. Even if free speech does serve these values to a considerable degree, there are costs associated with liberty, costs the critics say are not sufficiently recognized in the standard liberal accounts.

As a general matter, but especially regarding the freedom of speech, liberalism is seen as too doctrinaire, too optimistic about …