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Articles 1 - 30 of 54
Full-Text Articles in Law
Defending Truth: Legal And Psychological Aspects Of Holocaust Denial, Kenneth Lasson
Defending Truth: Legal And Psychological Aspects Of Holocaust Denial, Kenneth Lasson
All Faculty Scholarship
From the still-burning embers of the Holocaust we have come once again to learn the terrible truth, that the power of Evil still lurks among the nations of the world, and cannot be underestimated. Nor can the effect of the spoken and written word, which in modern times must be taken in tandem with the violence of terrorism. Part I describes the background and nature of Holocaust denial, tracing the Nazis' adoption of a plan for the A "Final Solution of the Jewish Problem" through the post-War Nuremberg Trials to the present day. Part II examines the tension between free …
Medium-Specific Regulation Of Attorney Advertising: A Critique, Lyrissa Barnett Lidsky, Tera Jckowski Peterson
Medium-Specific Regulation Of Attorney Advertising: A Critique, Lyrissa Barnett Lidsky, Tera Jckowski Peterson
UF Law Faculty Publications
This Article conducts an in-depth analysis of Florida's new and proposed attorney advertising rules and demonstrates that they are not only unconstitutional, but also fail to serve consumers' needs for legal services. The Article first provides the background necessary to assess the constitutionality of the rules and then addresses point-by-point their many constitutional flaws, both procedural and substantive. Additionally, this Article shows that Florida's new medium-specific regulations are flawed in their conception.
The First Amendment Right To Silence, Robert A. Sedler
The First Amendment Right To Silence, Robert A. Sedler
Law Faculty Research Publications
No abstract provided.
Funerals And Free Speech, Timothy Zick
A Rush To Condemn, Timothy Zick
The First Amendment As/And Harassment, Timothy Zick
The First Amendment As/And Harassment, Timothy Zick
Popular Media
No abstract provided.
When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck
When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck
Faculty Publications
This article sets forth five rules with respect to what government may do to accommodate religious practice and five rules with respect to what government may not do. As it turns out the Supreme Court has said that most religious accommodations are left to the broad discretion of legislators and public officials. So long as the object of the accommodation is to protect or expand religious freedom, as distinct from expanding religion, the accommodation will be permitted.
Thoughts On Commercial Speech: A Roundtable Discussion, Ronald K.L. Collins, Steven H. Shiffrin, Erwin Chemerinsky, Kathleen M. Sullivan
Thoughts On Commercial Speech: A Roundtable Discussion, Ronald K.L. Collins, Steven H. Shiffrin, Erwin Chemerinsky, Kathleen M. Sullivan
Cornell Law Faculty Publications
Adam Liptak, the legal affairs writer for The New York Times, moderates a lively discussion about commercial speech between three esteemed constitutional scholars: Professor Erwin Chemerinsky of Duke University School of Law; Professor Kathleen Sullivan of Stanford Law School; and Professor Steve Shiffrin of Cornell Law School. These scholars debate the proper definition of defining commercial speech, how the corporate identity of a speaker and the content of the speech determines the level of First Amendment protection, whether it is possible to demarcate commercial speech from political speech, and the problems of paternalism and viewpoint discrimination in this complex and …
Religious Exemptions And The Common Good: A Reply To Professor Carmella, Laura S. Underkuffler
Religious Exemptions And The Common Good: A Reply To Professor Carmella, Laura S. Underkuffler
Cornell Law Faculty Publications
No abstract provided.
War And The Politics Of Free Speech, Timothy Zick
Student Tasered At Kerry Forum, Timothy Zick
Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Scholarship Chronologically
Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …
Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon
Scholarship Chronologically
Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …
Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas
Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas
Faculty Scholarship
This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.
Free To Believe, Richard Garnett
Free To Believe, Richard Garnett
Journal Articles
Richard Garnett reviews Religious Freedom and the Constitution by Christopher L. Eisgruber & Lawrence G. Sager, Harvard University Press, 352 pages, $28.95
Some Learning Opportunities From The Imus Affair, Kenneth Lasson
Some Learning Opportunities From The Imus Affair, Kenneth Lasson
All Faculty Scholarship
The author discusses the broader issues of free speech under the surface of the Don Imus affair, where that commentator made a gratuitous slur about the Rutgers women's basketball team. He balances this gaff against the good deeds of the same personality, comparing this with similar provocative remarks made by other well-known public figures. The media is cited for an overreaction to the Imus incident, and all these components are discussed in light of what free speech means.
Drop Coffers, Richard W. Garnett, Benjamin P. Carr
Drop Coffers, Richard W. Garnett, Benjamin P. Carr
Journal Articles
”Coffers.” When we hear or read the word, what do we picture? Buried treasure on the Isle of Monte Cristo? The dragon Smaug’s stolen riches, piled deep under the Lonely Mountain? Maybe we dimly remember a line of Shakespeare or Chaucer. If one is male and of a certain age, the word might bring to the surface suppressed memories of the all-nighters and arcana associated with Dungeons & Dragons. And, if one is a justice of the Supreme Court of the United States, one’s thoughts might turn to the checking account of St. Jerome Catholic School in Cleveland.
Authorship, Audiences, And Anonymous Speech, Lyrissa Barnett Lidsky, Thomas F. Cotter
Authorship, Audiences, And Anonymous Speech, Lyrissa Barnett Lidsky, Thomas F. Cotter
UF Law Faculty Publications
This Article aims to assist lawmakers and courts to find the proper balance between the right to speak without disclosing one's true identity and the rights of those injured by anonymous speech. To this end, we present both a positive and a normative analysis of anonymous speech. In the positive analysis, we examine the private costs and benefits that speakers encounter when deciding whether to publish with or without attribution; among these costs and benefits are the potentially differing responses of audiences to attributed and nonattributed speech. For example, speakers may feel less vulnerable to retaliation when they speak anonymously, …
Newsgathering In Light Of Hipaa, Alexander A. Boni-Saenz
Newsgathering In Light Of Hipaa, Alexander A. Boni-Saenz
All Faculty Scholarship
This short piece examines the interaction between the Health Insurance Portability and Accountability Act (HIPAA), a federal law designed to protect the privacy of individuals’ health information, and state Freedom of Information (FOI) laws, which are designed to ensure public access to government documents. It describes three recent cases from different states that addressed difficult issues about where and how to draw the line between the public’s right to know and individuals’ rights to keep their medical information secret. It concludes that questions about the interaction of state FOI laws and HIPAA should be guided by the framework suggested in …
An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger
An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger
Law Faculty Publications
No abstract provided.
Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis
Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis
Journal Articles
As license plates emblazoned with the message “Choose Life” have proliferated in twenty-four states, so too have lawsuits challenging such specialty license plates. The holdings of such cases have run the gamut, resulting in a three-way circuit split among the Fourth, Fifth, and Sixth Circuits. Analysis of the controversy up to this point has not considered an illuminating analogy: advertising space owned and operated by the government. Examining the parallels between advertising space and specialty license plates informs doctrinal analysis of the dispute, demonstrating that state legislatures may not use the current practice of individually establishing specialty license plates through …
Art As Speech, Edward J. Eberle
The Preventive Paradigm And The Perils Of Ad Hoc Balancing, Jules Lobel
The Preventive Paradigm And The Perils Of Ad Hoc Balancing, Jules Lobel
Articles
This article addresses the claim that times of crisis require jettisoning legal rules in favor of ad hoc balancing. Part I demonstrates that the coercive preventive measures adopted by the Bush administration in carrying out the War on Terror discarded clear legal rules in favor of ad hoc balancing and relied on suspicions rather than objective evidence. Part II examines the claims of prevention paradigm supporters that ad hoc balancing is necessary in the new post-911 era in order to reach decisions that correctly weigh the values of liberty and peace versus national security. This article argues that discarding the …
Getting Permission, Philip A. Hamburger
Getting Permission, Philip A. Hamburger
Faculty Scholarship
Institutional Review Boards ("IRBs") are the instruments of a system of licensing – a system under which scholars, students, and other researchers must get permission to do research on human subjects. Although the system was established as a means of regulating research, it regulates research by licensing speech and the press. It is, in fact, so sweeping a system of licensing speech and the press that it is reminiscent of the seventeenth century, when Galileo Galilei had to submit to licensing and John Milton protested against it. Accordingly, it is necessary to examine the constitutionality of IRB licensing and, more …
Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart
Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart
Publications
No abstract provided.
How Does "Equal Liberty" Fare In Relation To Other Approaches To The Religion Clauses?, Kent Greenawalt
How Does "Equal Liberty" Fare In Relation To Other Approaches To The Religion Clauses?, Kent Greenawalt
Faculty Scholarship
As one of four contributors to an issue celebrating Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution, I have chosen to write an Essay that differs from an ordinary review. I compare the authors' approach with two other recent formulations of what should be central for the jurisprudence of the Religion Clauses. Since I have recently published my own treatment of the Free Exercise Clause, and a second volume on the Establishment Clause is in the pipeline toward publication, I do not here present my own positive views (though I provide references for interested readers). Those views …
The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog
The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog
Articles
A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an …
The Constitution, The Courts And The Common Law, Robert A. Sedler
The Constitution, The Courts And The Common Law, Robert A. Sedler
Law Faculty Research Publications
No abstract provided.
The Media And National Security, Robert A. Sedler
The Media And National Security, Robert A. Sedler
Law Faculty Research Publications
In our discussion of the media and national security, we begin with the First Amendment, not only with its legal doctrines and principles, but also with the values of the First Amendment and its function in a free and democratic society. We will first discuss how the First Amendment protects the media with respect to its disclosure of information purportedly affecting national security. We will then discuss the process by which the media voluntarily refuses to publish information on the ground that the disclosure of the information will seriously harm the national security. We will finally discuss the relationship between …
Uncivil Religion: Judeo-Christianity And The Ten Commandments, Frederick Mark Gedicks, Roger Hendrix
Uncivil Religion: Judeo-Christianity And The Ten Commandments, Frederick Mark Gedicks, Roger Hendrix
Faculty Scholarship
In the recent Decalogue Cases, Justice Scalia argued that when it comes to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits th[e] disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists. Justice Scalia's argument represents the latest attempt to insulate American civil religion from Establishment Clause attack. A civil religion is a set of nondenominational values, symbols, rituals, and assumptions which create both reverence of national history and formation of a communal national bond.
The most recent incarnation of American civil …