Law Commons^™

Laying Siege To The Ivory Tower: Resource Allocation In Response To The Heckler's Veto On University Campuses, Macklin W. Thornton

San Diego Law Review

High in the towers of academia, the lofty ideals of free speech are tossed around with a deceptive ease. However, as legal minds grapple with heady legal doctrines, free speech has concrete consequences down at the foot of those towers. At this ivory base, the property line between the university and the community blur. Students and nonstudents assemble and deliver conflicting speech that, at times, foments violence. Molotov cocktails, gun shots, broken windows, disgruntled students. All attempts to trigger the dreaded heckler’s veto—an attempt the government has an obligation to prevent. In addition to the public relations disasters grown from …

Religion In The Public Square, H.E. Baber

San Diego Law Review

The First Amendment to the U.S. Constitution both prohibits the establishment of religion and guarantees its free exercise. There is, however, a tension between the Free Exercise Clause and the Establishment Clause, which has been understood to erect a “wall of separation” between church and state. Prima facie, the Establishment Clause prohibits the state from providing special benefits to institutions or individuals in virtue of their religious affiliations or convictions. The Free Exercise Clause, however, is cited in support of accommodations for individuals who, because of their religious commitments, cannot in good conscience conform to laws or regulations. This seems …

False Speech: Quagmire?, Christopher P. Guzelian

San Diego Law Review

Recently decided cases in several Federal Courts of Appeals and the United States Supreme Court show that First Amendment false speech case law is contradictory and unpredictable. This Article gives examples and concludes that legal liability for false speech will continue to be arbitrary and even susceptible to intentionally unjust decisionmaking if judges and juries individually and collectively disregard or downplay the necessity of an honest search for truth under the guise of tolerance and evenhandedness. If Americans wish to avoid an anything-goes “quagmire” about truth, they must—despite inevitable resistance in a civilization increasingly rife with skeptics—undergo transformations of their …

The Constitutional Jurisprudence Of Justice Kennedy On Speech, Charles D. Kelso, R. Randal Kelso

San Diego Law Review

Justice Kennedy's basic principles in free speech cases are supporting political freedom, supporting individual autonomy, and protecting freedom to teach, learn, and innovate. Given these principles, his opinions in free speech cases protect free speech from government regulation unless the government can provide strong reasons for any restrictive action and show that the means it has chosen to carry out its purposes are closely tailored to its goals. At a minimum, judicial review is by strict scrutiny for content-based regulations and intermediate review for content-neutral time, place, and manner regulations. In some cases, Justice Kennedy has indicated a preference for …

Adolescent Identity Versus The First Amendment: Sexuality And Speech Rights In The Public Schools, Steven J. Macias

San Diego Law Review

This Article examines the legal tensions that currently exist between public schools' attempts to protect gay students from bullying and harassment and antigay students' First Amendment rights to engage in allegedly harassing speech. First, it looks at the popular conception of the relationship between childhood or adolescence and sexuality by considering the political and legal fallout of the same-sex marriage debate. Then this Article turns to a conception of public schooling that would allow for the constitutionally permissible regulation of antigay-identity speech. Next, through the use of critical theory, this Article explains why First Amendment defenses to gay harassment have …

Hate In Cyberspace: Regulating Hate Speech On The Internet, Alexander Tsesis

San Diego Law Review

The speed at which information can be spread throughout the United States and other countries has been greatly enhanced by the Internet. This computer-driven, technological medium consists of various modes of transmission, including discussion groups, interactive pages, and mail services. A wide variety of pictorial, auditory, and written information is available on the Internet. Persons with disparate goals can access and affect large audiences through it. Both those seeking social improvement and those promoting racist violence can now increase the magnitude, diversity, and location of their audiences. Persons advancing

democratic ideals and those inclined to exclusionary elitism can use e- …