Law Commons^™

What's It To You: The First Amendment And Matters Of Public Concern , Mark Strasser

Missouri Law Review

This Article traces the development of the “matters of public concern” doctrine, explaining the role that the concept has played in cases ranging from defamation3 to employment termination to publication of (allegedly) private facts.4 The Article discusses various inconsistencies in the Court’s jurisprudence, both with respect to what counts as a matter of public concern5 and with respect to the relative importance of the protection of such matters. 6 It concludes that the current jurisprudence cannot help but cause confusion and inconsistent results in the lower courts and must be clarified at the earliest opportunity. 7

Tests And Prongs And Factors, Oh My!: An Examination Of The Seventh Circuit's Decision In Doe Ex Rel. Doe V. Elmbrook School District, Jack C. Marshall

Seventh Circuit Review

Interpreting the ten words that make up the Establishment Clause and applying them in the context of public schools has frustrated the U.S. Supreme Court and consequently confused lower courts. The Seventh Circuit's recent opinion in Doe ex rel. Doe v. Elmbrook School District illustrates the quagmire that is modern Establishment Clause jurisprudence.

For years, Elmbrook School District held their high school graduation ceremonies in a nearby church. In 2010, students and parents of children who attended Elmbrook School District filed suit, arguing that holding graduation in a church violates the Establishment Clause. Sitting en banc, the Seventh Circuit held …

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 …

All Those Like You: Identity Aggression And Student Speech , Ari Ezra Waldman

Missouri Law Review

This Article answers two categories of questions, one social and another legal. The first series of questions is about the sociology of identity aggression and it seeks to determine whether there is a difference between, say, calling someone a "faggot" and calling someone a "dork." If there is a difference, to what extent is there empirical evidence that suggests that one is more harmful to the victim, to his community, and to his school? The legal problem flows directly from the relative harm posed by identity aggression: it is too simplistic to see the Court's student speech jurisprudence like a …

How Not To Criminalize Cyberbullying, Lyrissa Lidsky, Andrea Pinzon Garcia

Missouri Law Review

This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …

Judicial Line-Drawing And The Broader Culture: The Case Of Politics And Entertainment, R. George Wright

San Diego Law Review

This article puts in a broader legal and cultural context and critically evaluates Justice Scalia's reluctance to distinguish politics from entertainment or, more precisely, political speech from entertainment speech. Some may think of Justice Scalia's reluctance as the embodiment of judicial modesty or realistic practical wisdom. Others may think of it as an unnecessary expression of relativism or subjectivism that is ominous in its implications. Either way, whether we can appropriately distinguish between entertainment speech and political speech, and then apply appropriately different free speech standards in each case, says much about our status and priorities as a culture. Placing …

E-Incitement: A Framework For Regulating The Incitement Of Criminal Flash Mobs, Hannah Steinblatt

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Rethinking “Murderabilia”: How States Can Restrict Some Depictions Of Crime As They Restrict Child Pornography, Joseph C. Mauro

Fordham Intellectual Property, Media and Entertainment Law Journal

Murderabilia refers to items whose commercial value stems from their relation to a notorious crime or criminal. To protect victims of crime from psychological harm, most states have passed laws restricting the sale of murderabilia. Many of these laws have been challenged on First Amendment grounds, and observers consider them to be of questionable constitutionality. I propose that the constitutional framework allowing states to restrict child pornography can solve this problem. In New York v. Ferber, the Supreme Court held that states may restrict child pornography as speech, without regard to its First Amendment value, because it is “intrinsically related” …

Will Free Speech Get A License To Drive In Florida?: A Proposal For Distinguishing Free Speech From Government Speech In Florida Specialty Plate Cases, Christopher Robert Dillingham Ii

Florida A & M University Law Review

Specialty license plates for automobiles, which publish individual and special interest Free Speech, present a quagmire for the courts when analyzed through the lens of the First Amendment's Free Speech Clause. While citizens and groups can obtain personalized license plates that publish both symbolic and written speech, state governments often exercise strict editorial control over their license plates. This regulatory scenario raises the dual questions of who is speaking - the government or the private party - and how much constitutional power the government has to engage in viewpoint restriction in regulating that speech in this traditional government forum. The …

Falsely Shouting Fire In A Global Theater: Emerging Complexities Of Transborder Expression, Timothy Zick

Vanderbilt Law Review

This Article examines the First Amendment complexities associated with the dissemination of potentially harmful information in the global theater. These complexities include global dissemination of offensive expression, incitement to unlawful activities abroad, enemy-aiding expression that crosses territorial borders, and global free press concerns. The author argues that traditional First Amendment doctrines and principles ought generally to apply in the global theater. Reliance on marketplace and self-governance principles, application of speech-protective incitement standards, and continued support for an expansive and robust conception of press freedoms will preserve transborder First Amendment liberties in the digital era and allow the global theater to …