Law Commons^™

An Appeal To Aesthetics, Dorothy M. Hong

Dorothy M Hong

Aesthetics in modern time that broadens tolerance yet maintains the same criteria for beauty that casts doubts on First Amendment at times.

Why Are We Teaching Kids To Hate?: Ending The Practice Of Gay-To-Straight Conversion Treatments, Afton R. Cavanaugh

Afton R. Cavanaugh

The governor of California just signed into law SB 1172, creating a cause of action against mental health professionals that attempt to convert children under the age of eighteen from gay to straight. Conversion therapy, as this practice is called, has been around for a long time, but recently our nation’s youth has come into the crosshairs of powerful anti-gay activists. Conversion therapy imbeds within the child’s psyche an internalized form of homophobia that causes an extreme risk of psychological distress given the developing and often fragile mental state of children and teenagers. These methods have no proven success rate, …

Constitutional Combat: Is Fighting A Form Of Free Speech? The Ultimate Fighting Championship And Its Struggle Against The State Of New York Over The Message Of Mixed Martial Arts, Daniel A. Berger

Daniel A Berger

No abstract provided.

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Jurisprudence, Warren S. Grimes

Warren S Grimes

The Supreme Court has become an unelected superlegislature that, instead of narrowly deciding cases or controversies, tends to issue sweeping policy decisions that deprive democratic institutions at federal, state and local levels of their appropriate democratic role. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial …

Can The Supreme Court Be Fixed? Lessons From Judicial Activism In First Amendment And Sherman Act Cases, Warren S. Grimes

Warren S Grimes

The Court has strayed from its role as a decider of cases or controversies to become an unelected policy board that undermines democratic institutions at the federal, state, and local levels. Part I of this paper describes content-neutral measures of judicial activism, most repeatedly acknowledged by the Court. Part II addresses specific examples of judicial activism in Supreme Court decisions involving the Sherman Act and First Amendment election law cases. Part III concludes by urging a public debate on possible reforms of the Court, some easily implemented, others more involved, that could constrain judicial activism and restore the Court’s primary …

Greater And Lesser Powers, Samuel Levin

Samuel Levin

During much of the twentieth century it was relatively stylish for lawyers, judges and justices to argue that an exercise of power was permissible because "the greater power [to do something else] necessarily includes the lesser power [to do this]." Unfortunately, sloppy and unprincipled uses that merely reflected the intuitions of those who invoked it has largely discredited the argument, although it still makes some relevant appearances.

This paper argues that there is a principled way to apply the argument: by looking to the relative harms caused by each exercise of power. However, any notion of "necessarily includes" needs to …

Advancing An Adaptive Standard Of Strict Scrutiny For Content-Based Commercial Speech Regulation, Nat S. Stern

Nat S Stern

Over the course of several decades, commercial speech has largely shed its “subordinate status” as a class of expression ungoverned by ordinary First Amendment principles. This Article argues that the Supreme Court should take the next logical step in the evolution of its commercial speech doctrine and subject content-based regulation in this area to the standard of strict scrutiny applied elsewhere. As in other settings, strict scrutiny here could be adapted to its context. In particular, strict scrutiny in the commercial realm could incorporate the understanding that government has a powerful interest in preventing false, deceptive, and misleading representation. In …

Lies, Damned Lies, And Journalism: Why Journalists Are Failing To Vindicate First Amendment Values And How A New Definition Of “The Press” Can Help, Chris Edelson

Chris Edelson

This article identifies a specific problem – journalists who fail to provide the public with the accurate information needed to foster informed public opinion – and offers a specific solution: defining “the press” to provide protections and prestige only to those whose work actually advances First Amendment values.

American journalistic norms facilitate lying by politicians, candidates for office, and other public figures. Because many journalists are committed to the ideal of balance over truth, they are often incapable of calling out lies. Instead, they create a false equivalence by suggesting there are two sides to every argument. I call this …

“On The Streets Of Doomed America” : Snyder V. Phelps Through A Millian Lens, David G. Lake

David G Lake

Although many Americans may be opposed to the Supreme Court’s ruling in Snyder v. Phelps, the Court protected traditional application of the freedom of speech by finding in favor of the Westboro Baptist Church. Specifically, the Supreme Court’s analysis of public vs. private speech issues in Snyder v. Phelps conforms to John Stuart Mill’s analysis of speech regulation in “On Liberty,” indicating that current freedom of speech jurisprudence continues to reflect Mill’s analysis and traditional ideas of this essential freedom.

Hate Speech And Persecution: A Contextual Approach, Gregory S. Gordon

Gregory S. Gordon

Scholarly work on atrocity-speech law has focused almost exclusively on incitement to genocide. But case law has established liability for a different speech offense: persecution as a crime against humanity (CAH). The lack of scholarship regarding this crime is puzzling given a split between the International Criminal Tribunals for Rwanda (ICTR) and Yugoslavia (ICTY) on the issue of whether hate speech can serve as an actus reus for CAH-persecution. In the 2000 Ruggiu and 2003 Nahimana judgments, separate ICTR Trial Chambers found that hate speech radio broadcasts not calling for violence deprived the target ethnic group of fundamental rights and …

Prophetic Speech, Jeremy G. Mallory

Jeremy G Mallory

Snyder v. Phelps presented the Supreme Court with a shocking set of facts leading to a result that surprised some and confused many. On a more unsettling note, it showed that existing First Amendment doctrine has difficulty addressing prophetic speakers as they are. Prophetic rhetoric is a unique speech category that warrants nuanced consideration due to its sui generis nature. Seven characteristics of prophetic speech undermine assumptions usually taken to hold true in the Court’s free speech jurisprudence. The law as it currently exists can only address prophetic speech as some variant of a known problem, but it is not …

Thomas Jefferson’S Establishment Clause Federalism, David E. Steinberg

David E. Steinberg

Thomas Jefferson’s Establishment Clause Federalism by David E. Steinberg

Abstract

According to mainstream legal analysis, Thomas Jefferson read the Establishment Clause as mandating a wall of separation between church and state. The Supreme Court has used this purported Jeffersonian interpretation as a basis for federal intervention into state religious regulation.

This view of Jefferson as an Establishment Clause separationist is not supported by the historical record. A belief in state's rights and limited federal government were Jefferson's most important tenets. Jefferson endorsed a Bill of Rights, which Jefferson and the anti-federalists viewed as a means of constraining federal power. After …

Disaggregating Disasters, Ronnell Andersen Jones

RonNell Andersen Jones

In the years since the September 11 attacks, scholars and commentators have criticized the emergence of both legal developments and policy rhetoric that blur the lines between war and terrorism. Unrecognized, but equally as damaging to democratic ideals—and potentially more devastating in practical effect—is the expansion of this trend beyond the context of terrorism to a much wider field of non-war emergency situations. Indeed, in recent years, war and national security rhetoric has come to permeate the legal and policy conversations on a wide variety of natural and technological disasters. This melding of disaster and war for purposes of justifying …

The State Response To Hazelwood V. Kuhlmeier, Tyler J. Buller

Tyler J. Buller

Student journalism was dealt a significant blow in 1988, when Hazelwood v. Kuhlmeier gave school officials a license to censor any student speech inconsistent with a school’s “pedagogical concerns.” Scholars and advocates have long argued that Hazelwood has allowed widespread censorship of stories criticizing school officials and articles concerning controversial topics like sex, drinking, and drug-use. In the aftermath of Hazelwood, nine states have adopted so-called “anti-Hazelwood” statutes and regulations that place additional protections between student journalists and school officials. These anti-Hazelwood measures have a mixed track record and are rarely litigated. Until now, there has been virtually no data …

First Amendment, Fourth Estate & Hot News: Misappropriation Is Not A Solution To The Journalism Crisis, Joseph A. Tomain

Joseph A Tomain

Journalism is a public good. The Framers understood the importance of a free press in a self-governing society and embedded a structural right for freedom of the press in the First Amendment. There is a journalism crisis. Symptoms of the crisis include layoffs of journalists, diminishing content in newspapers and shuttering of newspapers. The rise of online technologies has exacerbated the crisis, mainly by siphoning advertising revenue away from traditional news organizations to free classified advertisement websites such as Craigslist, search engines and myriad other non-journalistic online endeavors. The internet, however, is not the main cause of the journalism crisis. …

A Dangerous Distinction: The Deconstitutionalization Of Private Speech, Derigan Silver, Ruth Walden

Derigan Silver

In the mid-1960s the U.S. Supreme Court began applying a Meiklejohnian approach to certain First Amendment claims, using a self-government rationale to justify enhanced protection for freedom of expression on matters of public concern in cases involving defamation, false light invasion of privacy, government employees’ speech, and intentional infliction of emotional distress, as well as others. The Court, however, refrained from acknowledging the remainder of Meiklejohn’s argument — that private speech is outside the purview of the First Amendment and protected only by the Due Process Clause of the Fifth Amendment. In the wake of Supreme Court defamation rulings in …

The Affordable Care Act And Religious Freedom: The Next Battleground, Terri R. Day

Terri R. Day

This article presents a comprehensive analysis of the Health and Human Services (HHS) Mandate, which is the controversial required insurance coverage for preventative and wellness services, which include all FDA approved contraceptives, sterilizations, and related patient education and counseling. Failure to provide this coverage will result in an employer penalty. Non-exempt religious employers/insurers contend that this Mandate requires them to violate their freedom of conscience or suffer a penalty. The article discusses the religious reaction to the Mandate and provides a thorough legal analysis of the constitutional issues. Based on the recent health care decision and the likelihood that the …

Lies, Damned Lies, And Journalism: Why Journalists Are Failing To Vindicate First Amendment Values And How A New Definition Of “The Press” Can Help, Chris Edelson

Chris Edelson

This article identifies a specific problem – journalists who fail to provide the public with the accurate information needed to foster informed public opinion – and offers a specific solution: defining “the press” to provide protections and prestige only to those whose work actually advances First Amendment values.

American journalistic norms facilitate lying by politicians, candidates for office, and other public figures. Because many journalists are committed to the ideal of balance over truth, they are often incapable of calling out lies. Instead, they create a false equivalence by suggesting there are two sides to every argument. I call this …

Would Jesus Kill Hitler? Bonhoeffer, Church, And State, Kenneth K. Ching

Kenneth K Ching

“Would Jesus kill Hitler?” is a symbolic question about the relationship between church and state. Jesus did not have occasion to answer. But Dietrich Bonhoeffer did. Bonhoeffer was a pastor, theologian, and philosopher who tried to “live the life of Jesus” while conspiring to assassinate Hitler.

This will be the first law journal article to take Bonhoeffer as its primary subject. The article summarizes a long tradition of Christian political theory, the natural law/two kingdoms (“NL2K”) theory, running through St. Augustine, William of Ockham, Martin Luther, John Calvin and many others. Some argue that Bonhoeffer rejected NL2K thought. This article’s …

The Constitutional Referendum Of 1866: Andrew Johnson And The Original Meaning Of The Privileges Or Immunities Clause, Kurt T. Lash

Kurt T. Lash

Fourteenth Amendment scholars commonly assume that there is a relative silence in the historical record regarding public discussion of the proposed Amendment. In fact there was rich and extended public debate regarding the meaning of the Section One of the Amendment and the need to protect the privileges and immunities of citizens of the United States. These robust debates did not take place in state legislative assemblies, but in the campaign speeches, newspaper editorials and public documents accompanying the mid-term elections of 1866. Both Democrats and Republicans made the ratification of the Fourteenth Amendment a central part of their party’s …

A Right To Speak And Spend: Citizens United And Its Consequences For Objective Journalism, Michael Ellement

Michael Ellement

• Article puts forth two concerns for the future of journalism following the Supreme Court's decision in Citizens United v. F.E.C. First, Citizens United blurred the line as to what the "press" is. Prior to Citizens United, press entities were traditionally exempt from campaign finance regulations because of their status as non-partisan information sources. This gave the press a unique status to participate in political process not enjoyed by other groups. Such a distinction has been eviscerated by Citizens United. All corporations now have the equal right to disseminate unlimited amounts of advocacy for a candidate or political position. Second, …

Would Jesus Kill Hitler? Bonhoeffer, Church, And State, Kenneth K. Ching

Kenneth K Ching

“Would Jesus kill Hitler?” is a symbolic question about the relationship between church and state. Jesus did not have occasion to answer. But Dietrich Bonhoeffer did. Bonhoeffer was a pastor, theologian, and philosopher who tried to “live the life of Jesus” while conspiring to assassinate Hitler.

This will be the first law journal article to take Bonhoeffer as its primary subject. The article summarizes a long tradition of Christian political theory, the natural law/two kingdoms (“NL2K”) theory, running through St. Augustine, William of Ockham, Martin Luther, John Calvin and many others. Some argue that Bonhoeffer rejected NL2K thought. This article’s …

Regulating From Typewriters In An Internet Age: The Development & Regulation Of Mass Media Usage In Presidential Campaigns, Anthony J. King

Anthony J. King

The American election process has become a misleading process of campaign promises and self-promotion, thus diluting its primary and most fundamental purpose. This discrepancy can be traced to three primary groups; (1) the candidates, who supplied the motive; (2) the mass media, who supplied the means; and (3) the electorate, who so far have allowed it to happen. Seeking to remedy the situation lawmakers have turned to regulations of the media in attempt to assure fairness and nurture the marketplace of ideas. These numerous attempts at fairness have been met with a mixed reception and mixed results leading to questions …

Would Jesus Kill Hitler? Bonhoeffer, Church, And State, Kenneth K. Ching

Kenneth K Ching

“Would Jesus kill Hitler?” is a symbolic question about the relationship between church and state. Jesus did not have occasion to answer. But Dietrich Bonhoeffer did. Bonhoeffer was a pastor, theologian, and philosopher who tried to “live the life of Jesus” while conspiring to assassinate Hitler.

This will be the first law journal article to take Bonhoeffer as its primary subject. The article summarizes a long tradition of Christian political theory, the natural law/two kingdoms (“NL2K”) theory, running through St. Augustine, William of Ockham, Martin Luther, John Calvin and many others. Some argue that Bonhoeffer rejected NL2K thought. This article’s …

Elections Across The Pond: Comparing Campaign Finance Regimes In The United States And The United Kingdom, Kathleen Hunker

Kathleen Hunker

The article examines campaign finance regulations in two distinct political systems, the United States and the United Kingdom, and fleshes out how ‘constitutionalism’ — defined as the commitment to institutional arrangements that limit government authority — affects public efforts to curtail money in elections. Specifically, it looks at how the constitutional arrangements of the United States and the United Kingdom either facilitate or frustrate the ability of public bodies to enact prevailing public opinions on whether the nation’s underlying principles favor unrestrained political liberty or a level of political equality beyond the simple contours of one-man-one-vote. Moreover, the article compares …

My Space Or Theirs? Trying To Reconcile The Messy Judicial Doctrine For Off-Campus Student Expression, Ryan C. Tuck

Ryan C Tuck

The Supreme Court's student expression jurisprudence is notoriously muddled, but regarding one major question, the Court basically has remained silent: whether and when schools can regulate student expression that originates physically beyond the campus and lacks any indicia of school sponsorship. The Court has included some suggestive language in its four landmark student expression cases, including its most recent decision in 2007, but the Court never has resolved this issue. And after denying a pair of petitions for certiorari earlier this year, the Court appears unlikely to do so anytime soon. (The Court denied a similar petition the previous term.) …

Twibel Law: What Defamation And Its Remedies Look Like In The Age Of Twitter, Ellyn M. Angelotti

Ellyn M Angelotti

In six years, the Twitter audience has quickly grown to 140 million users who can instantly publish to a global audience. The informal nature of conversations on Twitter makes it a ripe environment for the spreading of rumors and potential falsehoods. While a few Twibel suits have been brought to the forefront, the courts have yet to rule on a case in the United States. This article presents a hypothetical situation where an influential Twitter user posts false content about a local restaurant that rapidly spreads online. This results in the restaurant's demise. The defamed party considers bringing a defamation …

Hysteria Over Sexting: A Plea For A Common Sense Approach, John O. Hayward

John O. Hayward

Teenagers have enthusiastically embraced digital technology and its myriad assortment of electronic devices and gadgets. But unfortunately they often find themselves the target of numerous laws criminalizing their use. Sending sexy photos of themselves in various stages of undress to their favorite boyfriend or girlfriend earns them unwanted attention from school administrators as well as criminal complaints from the local district attorney accusing them of trafficking in child pornography! This article deals with “sexting,” the practice of “sending, receiving, or forwarding sexually explicit messages, photos, or images via cell phone, computer, or other digital device.” (The term is a combination …

The Contradictory Messages Of Rehnquist-Roberts Era Speech Law, David Kairys

David Kairys

The Contradictory Messages of Rehnquist-Roberts Era Speech Law

By David Kairys

Abstract

This essay begins with a new analysis and critique of the campaign finance cases. Buckley v. Valeo, Citizens United v. FEC and all the protective campaign financing cases in between treat limits on the quantity of speech the same way courts have long treated complete prohibitions of speech – with strict scrutiny and no consideration of the adequacy of the allowed quantity or alternative avenues of speech. It’s an appealing approach. On the other hand, there are reasons not to extend heightened constitutional protection to unlimited quantities of …

In Search Of Federal Remedies For Lgbtq Students Who Are Victims Of Assault And Harassment In School., Jerry R. Foxhoven Mr.

Jerry R. Foxhoven Mr.

This article describes details of the harassment that was inflicted upon the individual LGBTQ students involved in many of the federal reported cases, as well as the lack of response by, and sometimes even the participation of, school personnel in the harassment. The article then goes on to examine the various legal theories that were employed by the victim-students, including constitutional theories (Due Process, Equal Protection, and First Amendment claims) as well as statutory remedies (Title IX and the Equal Access Act).

This article is written in a format that is not only interesting (by providing the details of the …