Law Commons^™

Tollbooths And Newsstands On The Information Superhighway, Brad A. Greenberg

Michigan Telecommunications & Technology Law Review

Countering the perception that speech limitations affecting distribution necessarily reduce access to information, this Essay proffers that copyright expansions actually can increase access and thereby serve important copyright and First Amendment values. In doing so, this discussion contributes to the growing literature and two recent Supreme Court opinions discussing whether copyright law and First Amendment interests can coexist.

Pro-Whistleblower Reform In The Post-Garcetti Era, Julian W. Kleinbrodt

Michigan Law Review

Whistleblowers who expose government ineptitude, inefficiency, and corruption are valuable assets to a well-functioning democracy. Until recently, the Connick–Pickering test governed public employee speech law; it gave First Amendment protection to government employees who spoke on matters of public concern—-such as whistleblowers-—so long as the government’s administrative concerns did not outweigh the employees’ free speech interests. The Supreme Court significantly curtailed the protection of such speech in its recent case, Garcetti v. Ceballos. This case created a categorical threshold requirement that afforded no protection to speech made as an employee rather than as a citizen. Garcetti’s problematic rule has forced …

Section 5: First Amendment & Separation Of Powers, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 1: Moot Court: Town Of Greece V. Galloway, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Sins Of Hosanna-Tabor, Leslie Griffin

Indiana Law Journal

The Supreme Court has lost sight of individual religious freedom. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court for the first time recognized the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Court ruled unanimously that Cheryl Perich, an elementary school teacher who was fired after she tried to return to school from disability leave, could not pursue an antidiscrimination lawsuit against her employer.

This Article criticizes Hosanna-Tabor as a profound misinterpretation of the First Amendment. The Court mistakenly protected religious institutions’ …

Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole

Touro Law Review

Analogous to the Dreyfus affair, America's reaction to the events of September 11, 2001, subverted the rule of law to impose penalties on those it viewed as a threat. There are lessons to be learned from both the Dreyfus affair and America's reaction to September 11, 2001.

The Judicial Politics Of Obscenity , Robert Rosenblum

Pepperdine Law Review

No abstract provided.

Rethinking Reporter's Privilege, Ronnell Andersen Jones

Michigan Law Review

Forty years ago, in Branzburg v. Hayes, the Supreme Court made its first and only inquiry into the constitutional protection of the relationship between a reporter and a confidential source. This case - decided at a moment in American history in which the role of an investigative press, and of information provided by confidential sources, was coming to the forefront of public consciousness in a new and significant way - produced a reporter-focused "privilege" that is now widely regarded to be both doctrinally questionable and deeply inconsistent in application. Although the post-Branzburg privilege has been recognized as flawed in a …

Policeman, Citizen, Or Both? A Civilian Analogue Exception To Garcetti V. Ceballos, Caroline A. Flynn

Michigan Law Review

The First Amendment prohibits the government from leveraging its employment relationship with a public employee in order to silence the employee's speech. But the Supreme Court dramatically curtailed this right in Garcetti v. Ceballos by installing a categorical bar: if the public employee spoke "pursuant to her official duties," her First Amendment retaliation claim cannot proceed. Garcetti requires the employee to show that she was speaking entirely "as a citizen" and not at all "as an employee." But this is a false dichotomy - especially because the value of the employee's speech to the public is no less if she …

A Barometer Of Freedom Of The Press: The Opinions Of Mr. Justice White , Michael J. Armstrong

Pepperdine Law Review

Since the Zurcher v. Stanford Daily decision which was authored by Justice Byron F. White, the news media has become increasingly concerned with its' first amendment protections from governmental searches. Since Justice White has been the voice of the United States Supreme Court on this very issue, the author submits that an examination of Justice White's media related opinions can serve as a "barometer" for the constitutional protections of the news media. The author examines the use of Justice White to the Supreme Court, his staunch adherence to stare decisis, and the historical foundation of the first amendment as they …

A New Standard Of Review In Free Exercise Cases: Thomas V. Review Board Of The Indiana Employment & Security Division, Lynn Mccutchen Gardner

Pepperdine Law Review

In Thomas v. Review Board of the Indiana Employment Security Division, the United States Supreme Court was called upon to clarify the appropriate level of review to be applied in cases which examine the first amendment right to free exercise of religion. The Court ruled that the "compelling state interest" test is the proper standard to be used. The Court also accorded first amendment protection to beliefs which are not shared by other members of a religious group and which are instead the unique interpretation of an individual member and not acceptable, logical, consistent or comprehensible to others.

Banning Books In Public Schools: Board Of Education V. Pico, Kelly Bowers

Pepperdine Law Review

In Island Trees Union Free School District v. Pico five members of the Supreme Court, in three separate opinions, held that the first amendment places some constraints on a school board's power to remove books from its school libraries. Although the opinions were couched in terms of preventing censorship, the effect of this decision was to create a right guaranteeing students access to books approved by the federal judiciary.

Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney

Pepperdine Law Review

Justice Hugo L. Black served on the United States Supreme Court over a period of thirty-four years, encompassing Supreme Court terms from 1937 to 1971. During this period, the subject of the constitutional limitations of the freedom of religion was increasingly subjected to intense social pressures. Justice Black figured prominently in the development of constitutional law as the Supreme Court attempted to give meaning to the establishment and free exercise clause of the first amendment. He wrote the majority opinions which dealt with the establishment clause in the Everson, McCulloin, Engel and Torcaso cases. Yet, on later occasions, Justice Black …

Marsh V. Chambers: The Supreme Court Takes A New Look At The Establishment Clause, Diane L. Walker

Pepperdine Law Review

No abstract provided.

Public Policy Against Religion: Doubting Thomas , Richard H. Seeburger

Pepperdine Law Review

In free exercise cases, the Supreme Court has adopted a least restrictive alternative test in an attempt to maximize protection for religiously motivated practices. Because the least restrictive alternative test only considers the importance of the governmental interest and the availability of alternative means to accomplish those interests, thereby ignoring the importance of the burdened religious activity to the individual and the degree of burden on religious activity, all religious interests are treated equally when asserted against a governmental interest. Under such an inflexible and brittle test, the Supreme Court has recently denied religious claims which had previously been recognized. …

Justice O'Connor And The First Amendment 1981-84, Edward V. Heck, Paula C. Arledge

Pepperdine Law Review

No abstract provided.

Dun & Bradstreet, Inc. V. Greenmoss Builders, Inc.: Does The Actual Malice Standard Of Gertz V. Robert Welch, Inc. Apply To Speech On Matters Of Purely Private Concern?, Jeff Boykin

Pepperdine Law Review

No abstract provided.

Baring Inequality: Revisiting The Legalization Debate Through The Lens Of Strippers' Rights, Sheerine Alemzadeh

Michigan Journal of Gender & Law

The debate over legalization of prostitution has fractured the feminist legal community for over a quarter century. Pro-legalization advocates promote the benefits attending government regulation of prostitution, including the ability to better prosecute sex crimes, increase public health and educational resources for individuals in the commercial sex trade, and apply labor and safety regulations to the commercial sex industry in the same manner as they are applied to other businesses. Some anti-legalization advocates identify themselves as "new abolitionists," and argue that government recognition of prostitution reinforces gender inequality. Often, this debate is framed in the hypothetical: What would happen if …

Outing The Majority: Gay Rights, Public Debate, And Polarization After Doe V. Reed, Marc Allen

Michigan Journal of Gender & Law

In 2010, the United States Supreme Court ruled in Doe v. Reed that Washington citizens who signed a petition to eliminate legal rights for LGBT couples did not have a right to keep their names secret. A year later, in ProtectMarriage.com v. Bowen, a district court in California partially relied on Reed to reject a similar request from groups who lobbied for California Proposition 8-a constitutional amendment that overturned the California Supreme Court's landmark 2008 gay marriage decision. These holdings are important to election law, feminist, and first amendment scholars for a number of reasons. First, they flip the traditional …

The North Carolina Woman’S Right To Know Act: An Unconstitutional Infringement On A Physician’S First Amendment Right To Free Speech, Ryan Bakelaar

Michigan Journal of Gender & Law

The North Carolina Woman’s Right to Know Act represents the crossroads of the Supreme Court’s First Amendment, informed consent, and abortion-related jurisprudence. The Act requires physicians to perform an obstetric ultrasound, verbally convey specific information regarding ultrasonographic findings, and communicate a host of other information to patients seeking abortions. The purported goal of the Act is to ensure that physicians obtain appropriate informed consent from such patients. By compelling a physician to convey this information, the State violates the physician’s First Amendment rights. Indeed, the State may not compel an individual to convey the State’s ideological message. Further, any statute …