Law Commons^™

The Visibility Value Of The First Amendment, Brian C. Murchison

William & Mary Bill of Rights Journal

No abstract provided.

Beyond Headlines & Holdings: Exploring Some Less Obvious Ramifications Of The Supreme Court’S 2017 Free-Speech Rulings, Clay Calvert

William & Mary Bill of Rights Journal

Digging behind the holdings, this Article analyzes less conspicuous, yet highly consequential aspects of the United States Supreme Court’s First Amendment rulings during the opening half of 2017. The four facets of the opinions addressed here—items both within individual cases and cutting across them—hold vast significance for future free-speech battles. Nuances of the justices’ splintering in Matal v. Tam, Packingham v. North Carolina, and Expressions Hair Design v. Schneiderman are examined, as is the immediate impact of Justice Anthony Kennedy’s Packingham dicta regarding online social networks. Furthermore, Justice Sonia Sotomayor’s solo concurrence in the threats case of Perez …

A Tale Of Two Clauses: Search And Seizure, Establishment Of Religion, And Constitutional Reason, Perry Dane

William & Mary Bill of Rights Journal

This Article dissects two developments in widely separate areas of American constitutional law—the “reasonable expectation of privacy” test for the Fourth Amendment’s Search and Seizure Clause and the “endorsement” test for the First Amendment’s Establishment Clause. These two stories might seem worlds apart, and they have not previously been systematically examined together. Nevertheless, the Article argues that they have in common at least three important symptoms of our legal culture’s deep malaise. These three phenomena occur in other contexts, too, but they appear with special clarity and a stark cumulative force in the two stories on which this Article focuses. …

Not Today, Satan: Re-Examining Viewpoint Discrimination In The Limited Public Forum, Daniel Cutler

William & Mary Bill of Rights Journal

No abstract provided.

Political Ideology As A Limited Protected Class Under Federal Title Vii Antidiscrimination Law, Anne Carey

Journal of Law and Policy

As the political climate in the United States becomes increasingly divided, more and more employees are fired for their off-duty political speech. Political speech is highly protected from government interference under the First Amendment, but it is not well protected from discrimination in employment matters. This is despite the fact that employers can be just as powerful and influential as the government. Although employee political speech is not currently protected at the federal level, there are a myriad of state statutes that protect employee speech from employer retaliation. Some of these state statutes protect speech on a broader level, others …

Is There Any Silver Lining To Trinity Lutheran Church, Inc. V. Comer?, Caroline Mala Corbin

Michigan Law Review Online

Trinity Lutheran Church, Inc. v. Comer is a significant setback for a strong separation of church and state. Missouri denied a playground grant to Trinity Lutheran because of a state constitutional provision that bans financial aid to churches. The church sued. The Supreme Court held not only that the Establishment Clause allowed the government to give taxpayer money to Trinity Lutheran, but that the Free Exercise Clause required it. The decision's many flaws are not the focus of this short Essay. Instead, this Essay dissects the Supreme Court's reasoning in order to apply it to current controversies in related areas …

Hollywood Loving, Kevin Noble Maillard

Fordham Law Review

In this Essay, I highlight how nongovernmental entities establish political, moral, and sexual standards through visual media, which powerfully underscores and expresses human behavior. Through the Motion Picture Production Code (the “Hays Code”) and the Code of Practices for Television Broadcasters (the “TV Code”), Americans viewed entertainment as a pre-mediated, engineered world that existed outside of claims of censorship and propaganda. This Essay critically examines the role of film and television as persuasive and integral legal actors and it considers how these sectors operate to maintain, and sometimes challenge, racial order.

Free Exercise And Comer: Robust Entrenchment Or Simply More Of A Muddle?, Mark Strasser

University of Richmond Law Review

Several states are barred by their own constitutions from spending public monies in support of sectarian institutions. The United States Supreme Court has manifested great ambivalence about the constitutionality of such limitations. Sometimes, the Court has impliedly endorsed them as a reasonable measure to assure that Establishment Clause guarantees are respected. At other times, the Court has suggested that such limitations are constitutionally disfavored, although the Court has not yet held that such amendments are per se unconstitutional. The Court’s most recent decision addressing state constitutional spending limitations, Trinity Lutheran Church of Columbia, Inc. v. Comer, adds another layer of …

Islam And Religious Freedom: The Experience Of Religious Majorities And Minorities, Brett G. Scharffs

Notre Dame Law Review Reflection

It seems likely that change in Islam will be affected both by outside and internal sources, as was the case for the Catholic Church and its journey to Dignitatis Humanae. However, one thing the Catholic experience suggests is that meaningful and profound change does not simply come from outside pressures; it comes from authentic and sincere evaluation and interpretation by insiders of a religious tradition of that tradition itself. Thus, if Islam is going to come to embrace religious freedom as an important value, this will be the result, significantly if not primarily, of Muslims interpreting their own sacred …

Race, Speech, And Sports, Matthew J. Parlow

University of Richmond Law Review

Race, sports, and free speech rights intersected in a very controversial and public way during the 2016 and 2017 National Football League (“NFL”) seasons. On August 26, 2016, Colin Kaepernick spurred a national debate when he refused to stand during the playing of the national anthem before the NFL preseason game between the Green Bay Packers and the San Francisco 49ers, Kaepernick’s team at the time.

Reconsidering Selective Conscientious Objection, Andrew J. Haile

University of Richmond Law Review

In 1971, in the midst of the Vietnam War, the United States Supreme Court decided that to qualify as a conscientious objector (“CO”) one must oppose all war, and not just a particular war. The Court’s decision in Gillette v. United States turned on its interpretation of section 6(j) of the Military Selective Service Act. Section 6(j) provided, in relevant part, that no person shall “be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” According to …

University Regulation Of Student Speech: In Search Of A Unified Mode Of Analysis, Patrick Miller

Michigan Law Review

Universities are meant to be open marketplaces of ideas. This requires a commitment to both freedom of expression and inclusivity, two values that may conflict. When public universities seek to promote inclusivity by prohibiting or punishing speech that is protected by the First Amendment, courts must intervene to vindicate students’ rights. Currently, courts are split over the appropriate mode of analysis for reviewing public university regulation of student speech. This Note seeks to aid judicial review by clarifying the three existing approaches—public forum analysis, traditional categorical analysis, and a modified version of the Supreme Court’s education-specific speech doctrine—and proposes a …

Drawing The Line: The Jurisprudence Of Non-Consensual Pornography And The Implications Of Kanye West’S Famous Music Video, Karla Utset

University of Miami Law Review

In June 2016, American rapper Kanye West premiered the music video for Famous from his seventh studio album “The Life of Pablo.” West’s Famous music video, inspired by Vincent Desiderio’s painting Sleep, features nude replications of several celebrities lying together on a bed. The cinematography is voyeuristic, with one journalist describing the video as “predatory.” In making and publicizing the infamous music video, West failed to seek and acquire the consent of several of the individuals featured. The production received both considerable praise and backlash from artists, critics, and the celebrities depicted.

This Note discusses the jurisprudence of non-consensual pornography, …

Nordstrom V. Ryan: Inmate’S Legal Correspondence Between His Or Her Attorney Is Still Constitutionally Protected, Christina Ontiveros

Golden Gate University Law Review

Prison administrations have been given much deference as to the limitations of prisoners’ rights. Still, even though the courts have shown regard to the prison administration, they have also recognized that there are two important interests at play: those of the prison administration and that of the prisoners’ constitutional rights. Because there are two important interests at play when an issue arises as to a prison’s regulation and its effect on a prisoner’s constitutional right, the courts turn to the Turner standard to determine the regulation’s constitutionality. Recently, the Ninth Circuit used this standard in Nordstrom v. Ryan to determine …

Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum

The University of Cincinnati Intellectual Property and Computer Law Journal

This paper examines the tension between the First Amendment and Publicity Rights considering why and how friction is emerging, the legal underpinnings and theories behind the development of publicity rights and how to reconcile this with values raised in support of the First Amendment. This collision course of rights occurs where property interests have vested in human identity itself which brings us face to face with the outer limits of free speech and expression under the First Amendment and evens tests the notion of how we define speech. The paper takes a dive into some of the currently arising issues …

Gerrymandering And Association, Daniel P. Tokaji

William & Mary Law Review

No abstract provided.

Professional Standards And The First Amendment In Higher Education: When Institutional Academic Freedom Collides With Student Speech Rights, Clay Calvert

St. John's Law Review

(Excerpt)

Using the decisions in Keefe, Oyama and Tatro as analytical springboards, this Article examines rising tensions between institutional academic freedom and the First Amendment speech rights of college students. Specifically, the friction addressed here occurs when universities enforce external professional standards on students within their curricula. Initially, Part I provides a primer on institutional academic freedom. Part II then contrasts the vastly deferential Hazelwood approach to professional-standards disputes embraced by the Eighth Circuit in Keefe with the somewhat more rigorous ones adopted by the Ninth Circuit in Oyama and Minnesota’s Supreme Court in Tatro.

Part III then …

A Penny For Your Thoughts: Free Speech And Paying Fines With Coins, Peter C. Alexander

University of Arkansas at Little Rock Law Review

No abstract provided.

The First Amendment And Content Restrictions In State Film Incentive Programs, Dr. Joel Timmer

Loyola of Los Angeles Entertainment Law Review

In recent years, many states have offered incentive programs to lure film production and its associated economic benefits—increased jobs, spending, and tourism—to their states. Several of these programs have restrictions that deny incentives based on a film’s content. For example, Texas denies film incentives to projects that have “inappropriate content” or portray “Texas or Texans in a negative way.” This article concludes that these restrictions do not violate the First Amendment. Two key considerations factor into this conclusion: First, in granting subsidies, the government may apply criteria that would be impermissible in a regulatory context. Second, the denial of a …

Whistleblowing Speech And The First Amendment, Ronald J. Krotoszynski Jr.

Indiana Law Journal

Alexander Meiklejohn, the iconic First Amendment scholar who expounded the democratic self-government theory of the freedom of speech, posited that for demo-cratic self-government to function, the voters themselves must possess the infor-mation necessary to hold the government accountable. Yet, the information neces-sary for the citizenry to render wise electoral verdicts not uncommonly belongs to the government itself, and government officials often prove highly reluctant to share information that reflects badly on them and their work. The lack of critically im-portant information about the government’s performance makes it difficult, if not impossible, for voters to hold government accountable on Election Day. …

The Resilient Foundation Of Democracy: The Legal Deconstruction Of The Washington Posts's Condemnation Of Edward Snowden, Hanna Kim

Indiana Law Journal

On September 17, 2016, The Washington Post (“the Post”) made history by being the first paper to ever call for the criminal prosecution of its own source —Edward Snowden. Yet, two years prior to this editorial, the Post accepted the 2014 Pulitzer Prize in Public Service for its “revelation of widespread secret surveillance by the National Security Agency”—an honor which would not have been bestowed had Snowden not leaked the documents through this news outlet. The other three major media outlets that received and published Snowden’s documents and findings—The Guardian, The New York Times, and The Intercept—all have taken the …

Rfra As Legislative Entrenchment, Branden Lewiston

Pepperdine Law Review

When there is a conflict between two federal statutes, the more recent statute overrides the past statute. However, courts have used the Religious Freedom Restoration Act (RFRA) to preempt federal laws passed after it. Normally that is the role of constitutional provisions, not statutes. RFRA has been subject to much constitutional criticism, but its attempt to control subsequent federal law has drawn little attention. Courts use RFRA to trump subsequent federal statutes without second thought. This Essay draws on legislative entrenchment doctrine to argue that this feature of RFRA is unconstitutional. RFRA should be used to strike down prior laws …

The Bergdahl Block: How The Military Limits Public Access To Preliminary Hearings And What We Can Do About It, Eric R. Carpenter

William & Mary Bill of Rights Journal

Sergeant Bowe Bergdahl and Private First Class Bradley (now Chelsea) Manning have something in common. Military officials unlawfully closed all or portions of their preliminary hearings to the public. When doing so, military officials exploited two unusual features of the military justice system, thereby denying the accused and the media of their respective Sixth Amendment and First Amendment rights to a public hearing.

The first feature is that the military justice system does not include a standing trial-level court. If there is a problem at the preliminary hearing, the accused and media have nowhere to go for help. The accused …

Maine's "Act To Protect Traditional Marriage And Prohibit Same-Sex Marriages": Questions Of Constitutionality Under State And Federal Law, Jennifer B. Wriggins

Maine Law Review

In 1997, Maine's Legislature passed “An Act to Protect Traditional Marriage and Prohibit Same-Sex Marriages” (Act). The summary attached to the bill states that the bill “prohibits persons of the same sex from contracting marriage.” The bill was the verbatim text of an initiative petition. Civil marriage in Maine and other states is regulated by state statute, and marriage regulation is generally considered to be within the state's police power. However, the state's power to regulate marriage is subject to constitutional limitations. I maintain that “heightened scrutiny” should be applied to the Act because the Act creates a gender-based classification, …

Losing The Spirit Of Tinker V. Des Moines And The Urgent Need To Protect Student Speech, David L. Hudson, Jr.

Et Cetera

Although the United States Supreme Court has held that public school students maintain freedom of speech and expression in school, courts have continued to restrict these Constitutional rights for these students. The speech protective standard from Tinker has gone from being speech protective to a test that favors and is deferential to school officials embroiled in students’ free-speech controversies. We need to regain the attitude of gratitude for students and their rights.

This abstract was written after publication by 2023-2024 Et Cetera Editor-in-Chief Philip Shipman

Privacy, Press, And The Right To Be Forgotten In The United States, Amy Gajda

Washington Law Review

When the European Court of Justice in effect accepted a Right to Be Forgotten in 2014, ruling that a man had a right to privacy in his past economic troubles, many suggested that a similar right would be neither welcomed nor constitutional in the United States given the Right’s impact on First Amendment-related freedoms. Even so, a number of state and federal courts have recently used language that embraces in a normative sense the appropriateness of such a Right. These court decisions protect an individual’s personal history in a press-relevant way: they balance individual privacy rights against the public value …

A Constitutional Counterpunch To Georgia's Anti-Slapp Statute, Nick Phillips, Ryan Pumpian

Mercer Law Review

A "Strategic Lawsuit Against Public Participation"-commonly referred to as a "SLAPP-is a lawsuit intended to chill free speech and healthy public debate and to otherwise intimidate people from speaking out on issues of public concern. True SLAPP suits strike at the heart of the United States and Georgia Constitutions, specifically the rights to free speech and to petition the government enshrined therein. In recent years, state legislatures, including the Georgia General Assembly, have attempted to ward off SLAPP suits through legislation-commonly referred to as "anti-SLAPP" statutes-aimed at the early dismissal of SLAPPs and the award of attorney's fees and costs …

The Public Defender's Pin: Untangling Free Speech Regulation In The Courtroom, Michael Kagan

Northwestern University Law Review

Recent disputes in Ohio and Nevada about whether lawyers should be allowed to wear “Black Lives Matter” pins in open court expose a fault line in First Amendment law. Lower courts have generally been unsympathetic to lawyers who display political symbols in court. But it would go too far suggest that free speech has no relevance in courtrooms. This Essay argues for a way to strike a balance.

Zombie Religious Institutions, Elizabeth Sepper

Northwestern University Law Review

This Article uncovers and names a phenomenon of pressing importance for healthcare policy and religious liberty law: the rise of zombie religious institutions—organizations that have contractual commitments to religious identity but lack actual attachments to churches or associations of religious people. Contracts create religion—sometimes in perpetuity—for institutions that are not, or never have been, religious and for providers who do not share the institution’s religious precepts. This Article details religion’s spread across healthcare through affiliations, mergers, and—most surprisingly—sales of hospitals that continue religious practice after their connection to a church ends. These contracts require hospitals—secular and religious, public and private, …

Snake Oil Speech, Jane R. Bambauer

Washington Law Review

Snake oil is dangerous only by way of the claims that are made about its healing powers. It is a speech problem, and its remedy involves speech restrictions. But First Amendment doctrine has struggled to find equilibrium in the balance between free speech and the reduction of junk science. Regulation requires the government to take an authoritative position about which factual claims are “true” and “false,” which is anathema to open inquiry. As a result, free speech jurisprudence overprotects factual claims made in public discourse out of respect for any remote possibility that the scientific consensus might be wrong but …