Law Commons^™

Some Words Are Injurious . . . Some Cause A Raging Storm, Kenneth Lasson

All Faculty Scholarship

No abstract provided.

Free Speech: It's Great For Hate, Kenneth Lasson

All Faculty Scholarship

No abstract provided.

Academic Freedom And The First Amendment In The Supreme Court Of The United States: An Unhurried Historical Review, William W. Van Alstyne

Faculty Publications

No abstract provided.

Academic Freedom, Hate Speech, And The Idea Of A University, Rodney A. Smolla

Faculty Publications

No abstract provided.

Foreword: Freedom And Tenure In The Academy: The Fiftieth Anniversary Of The 1940 Statement Of Principles, William W. Van Alstyne

Faculty Publications

This forward comments on the shared anniversary of the Bill of Rights and several declarations of academic freedom. Several of the preceding articles are intended to discuss academic freedom and the need for its protection in the U.S.

Myths And Misunderstandings, Michael I. Meyerson

All Faculty Scholarship

This article explores the utility of the Holmsean marketplace of ideas when considering the regulation of different forms of communication technology.

Efficiency And Image: Advertising As An Antitrust Issue, Elizabeth B. Mensch, Alan David Freeman

Journal Articles

No abstract provided.

This Gun For Hire: Dancing In The Dark Of The First Amendment, Michael I. Meyerson

All Faculty Scholarship

Classified advertisements in newspapers and magazines represent a uniquely democratic access to the media for the individual. Without having to pay the thousands of dollars for full-page advertisements, buyers and sellers can purchase space for their offers for only a few dollars, yet have them seen by city-wide or nation-wide audiences. Democracy, though, breeds its own excesses, and the legal question is always how to control that excess without harming the freedom.

As befits a medium open to all, classified advertisements run the gamut of human activity, from the sale of a used automobile to employment to lonely singles looking …

Impending Legal Issues For Integrated Broadband Networks, Michael I. Meyerson

All Faculty Scholarship

Given human nature, computer networks are prone to many of the same legal problems that have affected earlier forms of communication. The insatiable human appetite for mischief, information, pornography, and anti-competitive activity guarantees that the many legal conflicts that afflict computers, telephones, cable television, and broadcasting will be visited upon IBNs. This article focuses on several of these legal problems. By examining the history of controversies involving the electronic media and breaches of security, protection of privacy, regulation of sexual material and refusals to deal, this article attempts to outline some ways to think about applying the lessons from the …

Religious Free Speech Rights Of Students In Public Schools: The Educator's Dilemma, Rosalie Levinson

Law Faculty Publications

No abstract provided.

The Case Against A Right To Religion-Based Exemptions, Ellis M. West

Political Science Faculty Publications

When, if ever, does the free exercise clause of the first amendment give an individual or organization the right to disobey with impunity a valid law of the state? This question is being discussed with increasing frequency and intensity because of the growing number of persons and groups who are going to the courts and claiming such a right on the grounds that the application of certain laws to them would burden their free exercise of religion. Almost all the individuals and some of the groups who claim such a right do so because the laws to which they object …

Churches And The Free Exercise Of Religion, John H. Garvey

Scholarly Articles

The first amendment says that "Congress shall make no law . . . prohibiting the free exercise" of religion. This rule is most often used to protect individuals (religious speakers, pacifists, people claiming public benefits). This is hardly surprising. We naturally think that free exercise is an individual right, as we think that religion is a personal and private affair. I want to dispute (more modestly, to qualify) that view. I will argue that we should (sometimes) see the freedom of religion as a group right, which can conflict with, and take precedence over, individual rights.

A Judicial Postscript To The Church-State Debates Of 1989: How Porous The Wall, How Civil The State?, William W. Van Alstyne

Faculty Scholarship

This work is a continuation of the debate regarding the Establishment Clause. The focus lies with Justice O’Connor’s concurrence in County of Allegheny v. ACLU and how this opinion harkens back to a concept shared by Jefferson and Madison, that the establishment clause is designed to prevent government favoritism.

The First Amendment In An Age Of Paratroopers, David Skover, Ronald Collins

Faculty Articles

As the lead piece in a Colloquy entitled The First Amendment and the Paratroopers' Paradox, this article argues that today's free speech theory is largely grounded in 18th Century fears of government's tyrannical censorship. This theory is ill-equipped to deal with a distinct tyranny in 21st Century America, a tyranny playing upon the public's insatiable appetite for amusement. Those who venture to develop free speech principles to suit a new cultural environment are the First Amendment paratroopers of our time, the ones who realize that we cannot retain our old constitutional prerogatives in a transformed world. The Paratroopers' Paradox: To …

First Amendment And Land Use, In Recent Developments In Land Use, Planning, And Zoning, Alan C. Weinstein

Law Faculty Articles and Essays

Once again in the past year, the U.S. Supreme Court has entered an opinion involving the first amendment that has significant ramifications for local zoning and planning. This marks the third time since 1986 that the Court has handed down a decision in this field. The most important development in this area of the law since last year's committee report is the Supreme Court's decision in FW/PBS, Inc. v. City of Dallas, which addressed the validity of a comprehensive adult entertainment zoning and licensing ordinance enacted by Dallas in 1986. FW/PBS was followed with great interest because it marked the …

The First Amendment And The International "Free Flow" Of Information, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.

Pure Symbols And The First Amendment, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Learned Hand And The Self-Government Theory Of The First Amendment: Masses Publishing Co. V. Patten, Vincent A. Blasi

Faculty Scholarship

Sitting as a federal district judge in the case of Masses Publishing Co. v. Patten, Learned Hand was called upon to interpret the Espionage Act of 1917 just six weeks after its passage. The Act was potentially the most speech-restrictive piece of federal legislation since the Alien and Sedition Acts of 1798. Judge Hand recognized this and ruled that the terms of the Act must be construed in light of the first amendment. He defined the limits of legally protected war criticism, and presumably of political advocacy generally, according to a test that makes the crucial consideration the content of …

By What Authority?: Reflections On The Constitutionality And Wisdom Of The Flag Protection Act Of 1989, David L. Faigman

Faculty Scholarship

No abstract provided.

Art, Obscenity And The First Amendment, Judith Bresler

Articles & Chapters

Symposium on Law and the Visual Arts: Art, the First Amendment and the NEA Controversy

Rethinking First Amendment Assumptions About Racist And Sexist Speech, Rodney A. Smolla

Faculty Publications

No abstract provided.

The Lemon Test: Should It Be Retained, Reformulated Or Rejected?, Carl H. Esbeck

Faculty Publications

This essay addresses the Supreme Court's three-part establishment clause test originally set down in Lemon v. Kurtzman. Part I concerns the manner in which the Lemon test has substantially evolved. Part II explores what the evolved test has to offer by way of solving the seemingly conflicting duties not to inhibit free speech and political rights, while at the same time refraining from passing laws "respecting an establishment of religion." Finally, Part III addresses some of the proposals to supplant Lemon altogether.

First Freedom: Religion And The Bill Of Rights, Carl H. Esbeck

Faculty Publications

This volume is a collection of seven papers delivered at a symposium assembled in April 1989 upon the occasion, almost two hundred years hence, of the passage of the Bill of Rights by the First Congress. The unifying theme is stated to be the historical context of both Religion Clauses in the First Amendment, but the authors are driven primarily by Establishment Clause concerns. The Thrust of the essays deal with the originalism advanced during the years of Reagan Administration, and nonpreferentialism comes in for particular criticism, both pejoratively characterized as that "growing clamor".

Original Intent, History And Levy’S Establishment Clause. Book Review Of The Establishment Clause: Religion And The First Amendment, By Leonard W. Levy, Ruti Teitel

Articles & Chapters

No abstract provided.

Alive And Well: Religious Freedom In The Welfare State, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Free Speech And Compulsory Union Fees: An Analysis Of Lehnert V. Ferris Faculty Association, Barbara J. Fick

Journal Articles

This article previews the Supreme Court case Lehnert v. Ferris Faculty Ass'n, 500 U.S. 507 (1991). The author expected the case to address the line between those types of activities that effectuate a union's duties as collective bargaining representative, and thus can be charged to non-members, and those activities that are not related to collective bargaining and therefore are not chargeable to objecting non-members.

Securities Regulation And The First Amendment, Aleta Estreicher

Articles & Chapters

No abstract provided.

Book Review Of Religion And The State: Essays In Honor Of Leo Pfeffer, By James E. Wood, Jr., Ruti G. Teitel

Other Publications

No abstract provided.

The Regulation Of Speech Incident To The Sale Or Promotion Of Goods And Services: A Multifactor Approach, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Insults And Epithets: Are They Protected Speech?, Kent Greenawalt

Faculty Scholarship

It is a privilege to offer a lecture in this series named for Edward J. Bloustein. Not many lecture series honor sitting university presidents who deliver the first lecture in the series; but President Bloustein is the very rare president whose long tenure in office has been accompanied by continuing academic productivity. That achievement is remarkable.

When I tentatively chose this topic a year ago, I knew it involved the application of philosophical insights to serious practical questions, the kind of work that President Bloustein has done so well. I also knew that the search for those aspects of human …