Law Commons^™

Speech Beyond Borders: Extraterritoriality And The First Amendment, Anna Su

Vanderbilt Law Review

Does the First Amendment follow the flag? In Boumediene v. Bush, the Supreme Court categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad. Instead, the Court made the application of such rights, the First Amendment presumably included, contingent on "objective factors and practical concerns." In addition, by affirming previous decisions, Boumediene also extended its functional test to cover even U.S. citizens, leaving them in a situation where they might be without any constitutional recourse for violations of their First Amendment rights. But lower courts have found in the recent …

The Chilling Effect And The Problem Of Private Action, Monica Youn

Vanderbilt Law Review

A First Amendment chilling effect occurs when a governmental action creates a consequence that deters an individual from exercising expressive rights. But in some cases, the chilling effect does not stem directly from the governmental action, but instead from intervening private actions. For example, the mandatory disclosure of campaign contributions may "chill" contributors, due to the potential threat of retaliatory acts by private actors, such as criticism, protests, boycotts, threats, or violence. Is there a point at which the chilling effect is attributable to that private reaction, rather than to the challenged governmental action? And should we distinguish between chilling …

Be A Liar Or You're Fired! First Amendment Protection For Public Employees Who Object To Their Employer's Criminal Demands, Keane A. Barger

Vanderbilt Law Review

Public perception of the Roberts Court has been defined, to a significant degree, by its First Amendment jurisprudence. Defending free speech has been hailed as one of the Court's "signature projects." However, as some commentators have noted, once one looks beyond the high-profile cases, the Roberts Court has been decidedly less pro- speech. Recent Supreme Court rulings have not looked kindly upon free speech claims raised by students, humanitarian organizations, and, most pertinent for this Note, public employees. The apparent disparity between the treatment of corporate and financial interests, on the one hand, and the interests of labor, students, and …

First Amendment And "Foreign-Controlled" U.S. Corporations: Why Congress Ought To Affirm Domestic Subsidiaries' Corporate Political-Speech Rights, Scott L. Friedman

Vanderbilt Journal of Transnational Law

Political spending in the modern-day, prolonged election cycle continues to exceed historic proportions. With money equated to speech, whether the First Amendment entitles certain contributors to engage in this political activity remains an open question. Unlike France and Israel, which prohibit corporate contributions, and Canada and the United Kingdom, which turn to public funding for campaign finance, the United States has pushed candidates to rely on political party contributions, personal wealth, and the generosity of individuals, political action committees, and corporations. Concerns about corporate and foreign influence on politics have been especially salient during this lengthy economic downturn, as shown …

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 …

Hope-Fulfilling Or Effectively Chilling? Reconciling The Hate Crimes Prevention Act With The First Amendment, Carter T. Coker

Vanderbilt Law Review

Living on a meager disability pension and without means of transportation, forty-nine-year-old African American James Byrd, Jr. of Jasper, Texas thought he had caught a break when three white men offered him a ride home on June 6, 1998. The following morning, police found Byrd's torso in the middle of the road, his head and arm in a ditch a mile away, and a three-mile trail of blood staining the road. That racial animus was the motivation for Byrd's torture, dragging, and death was hardly in dispute. Two of the three perpetrators were members of white supremacist organizations and bore …

The "Spiritual Temperature" Of Contemporary Popular Music, Tracy Reilly

Vanderbilt Journal of Entertainment & Technology Law

The purpose of this Article is to contribute to the volume of legal scholarship that focuses on popular music lyrics and their effects on children. This interdisciplinary cross-section of law and culture has been analyzed by legal scholars, philosophers, and psychologists throughout history. This Article specifically focuses on the recent public uproar over the increasingly violent and lewd content of death-metal and gangsta-rap music and its alleged negative influence on children. Many legal scholars have written about how legal and political efforts throughout history to regulate contemporary genres of popular music in the name of the protection of children's morals …

Is It Really Possible To Do The Kessel Run In Less Than Twelve Parsecs And Should It Matter? Science And Film And Its Policy Implications, Dov Greenbaum

Vanderbilt Journal of Entertainment & Technology Law

The entertainment media influences our lives in a myriad of different ways--from the way we dress, to the language we use, to the products we buy. What might be less obvious are its influences on national policies. This Article, an introductory foray into the effects of media on policy, focuses on the effect that movies have on science policies in the United States and around the world. Through an analysis of both classic and recent blockbuster films and concurrent events involving science policies, this Article argues that Hollywood exerts an inordinate amount of influence on national science policies, and even …

Applying Genericide To The Right Of Publicity, Zoe Argento

Vanderbilt Journal of Entertainment & Technology Law

This article proposes applying genericide to the right of publicity as a way to cabin the over-expansion of publicity rights. The article offers a different approach than previous proposals, which seek to either narrow the definition of publicity rights or bolster defenses, such as the First Amendment. Like trademark genericide, the celebrity's image comes to refer to an idea, not to the identity of the source of the product or to the identity of the celebrity. This article proposes a test: whether the aspect of the celebrity's persona at issue has been used in the public dialogue with a clearly …

Defining Freedom Of The College Press After "Hosty V. Carter", Jessica B. Lyons

Vanderbilt Law Review

The application of the First Amendment to public universities has long been a source of confusion and frustration for both universities and courts. In particular, application of the First Amendment to student publications such as newspapers, magazines, and yearbooks has led to a great deal of litigation and controversy. The protection afforded by the First Amendment to these publications at the university level is extremely unclear and the circuit courts' inconsistent treatment of the college press has further confused the issue.

How should the First Amendment apply to public universities? An instinctive response is that a college student should enjoy …

"Gouging The Government": Why A Federal Contingency Fee Lobbying Prohibition Is Consistent With First Amendment Freedoms, Meredith A. Capps

Vanderbilt Law Review

Washington Post writer David Segal once observed, "[f]or most Americans the words 'Washington lobbyist' have roughly the same cachet as, say, 'deadbeat dad."" Both lawmakers and the public regard lobbying as an unsavory part of the political process. Much of this perception stems from the vast sums of money spent each year on lobbying activity. For example, in the first half of 2004 alone, mortgage funding companies Fannie Mae and Freddie Mac reported spending over $11 million on lobbying activities, General Electric spent $8.5 million, and the U.S. Chamber of Commerce spent $20.1 million-and these were only three of the …

Public Confidence Laws Gone Awry: A Modern Circuit Split Reveals That Some Federal Courts Manipulate Standing Rules To Promulgate Severe First Amendment Restrictions On The Spouses And Children Of Public Employees, Nicholas R. Farrell

Vanderbilt Law Review

Federal courts in the United States have consistently upheld the constitutional doctrine that "[t]he essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery." Given the central role of government workers in maintaining that order, the First Amendment rights of public employees have been particularly susceptible to restriction. For example, in 1940, Congress enacted the Hatch Act, which declared unlawful certain political activities of federal employees. Specifically, section nine of the Act prohibited officers and employees in the executive branch …

"Charitable Choice" And The Accountability Challenge: Reconciling The Need For Regulation With The First Amendment Religion Clauses, Michele E. Gilman

Vanderbilt Law Review

Charitable choice, or the use of federal money to fund social services provided by religious organizations, has engendered controversy and confusion since its inception in the 1996 welfare reform legislation. Under the welfare reform statute, entitled the Personal Responsibility and Work Opportunity Reconciliation Act ("PRA"), states may contract out administration of their welfare programs to private entities, including houses of worship. President Bush is promoting the expansion of charitable choice into other federal social service programs as a major policy initiative of his administration. Federal funding of faith-based organizations has supporters and opponents on both the left and the right. …

First Amendment Limits On Copyright, C. Edwin Baker

Vanderbilt Law Review

Although the tension between copyright and the First Amendment has long been noted and increasing numbers of First Amendment challenges to copyright have recently been filed, few scholarly commentaries have gone beyond relatively narrow attempts at doctrinal accommodation. Under the assumption either that existing copyright law fully accommodates First Amendment interests or that some balance is appropriate, commentators have avoided any principled exploration of the full force of First Amendment principles. This Essay aims to fill that gap. Rather than use mechanical doctrine to evaluate existing copyright law, this Essay begins with a theoretical approach to the First Amendment and …

Public Privacy: Camera Surveillance Of Public Places And The Right To Anonymity, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Government-sponsored camera surveillance of public streets and other public places is pervasive in the United Kingdom and is increasingly popular in American urban centers, especially in the wake of 9/11. Yet legal regulation of this surveillance is virtually non-existent, in part because the Supreme Court has signalled that we have no reasonable expectation of privacy in public places. This article, written for a symposium on the intersection of the Fourth Amendment and technology, contests that stance, at the same time it questions whether the traditional, "probable-cause-forever" view of Fourth Amendment protections makes sense in this technological age. Based on an …

The Graduation Prayer Cases: Coercion By Any Other Name, Colin Delaney

Vanderbilt Law Review

The Supreme Court's decision in Lee v. Weisman held clergy- delivered invocations at public-school graduation ceremonies unconstitutional. In the wake of this landmark case, school boards across the country instituted a variety of policies to avoid the establishmentarian attributes fatal to the prayers in Lee. Several Courts of Appeals soon heard cases involving authorities seeking to divorce themselves from speakers and speaker selection, in the apparent belief that school involvement placed the imprimatur of the state on graduation prayer. Yet two facts mark all of the situations challenged to date. First, an agent of the state, the school board, exercised …

Protecting Privacy On The Front Page: Why Restrictions On Commercial Use Of Law Enforcement Records Violate The First Amendment, Jason L. Cagle

Vanderbilt Law Review

An individual is involved in an automobile accident and is arrested for driving under the influence. A few days after being re- leased, he receives several letters in the mail. One is from a chiropractor offering services to treat his injuries. Another is from an alcohol abuse treatment center. Yet another is from an attorney who defends traffic offenses. Each of the solicitors obtained the individual's name and address from publicly available records concerning the incident. The letters are truthful and not misleading, but utilize publicly available information for purely commercial purposes at the expense of the individual's privacy.

Several …

State Regulatory Jurisdiction And The Internet: Letting The Dormant Commerce Clause Lie, James E. Gaylord

Vanderbilt Law Review

Cyberspace seems to pose a dual threat to "Our Federalism." Only one aspect of this threat, however, has captured the scholarly imagination. Commentators have devoted a great deal of attention to the problems of horizontal federalism raised by the new technology. Cyberspace, they point out, is a profoundly integrative social and economic force. As a result, local legislation touching on cyberspace is likely to produce effects beyond local borders. State laws like a recently deceased Georgia statute that arguably would have prohibited all Internet users from "falsely identifying" themselves on- lines convince observers that the information superhighway is a dangerous …

Concern With Public Concern: Toward A Better Definition Of The "Pickering / Connick" Threshold Test, Karin B. Hoppmann

Vanderbilt Law Review

The term "public employer" is something of a legal oxymoron. Although the law has established a jurisprudence for the employer, consisting of a network of state and federal statutory requirements,' and a jurisprudence for the governmental body, governed by the Constitution, the public employer belongs to neither of these. It is an entity that functions as a private business, charged with maintaining an efficient and productive workplace. It is constantly under pres- sure to improve performance, and it is just as concerned with discipline, morale, and efficiency as any private employer. Yet it is also part of the sovereign and …

San Filippo V. Bongiovanni: The Public Concern Criteria And The Scope Of The Modern Petition Right, Kara E. Shea

Vanderbilt Law Review

If the "person on the street" were asked to name a right guar- anteed to all Americans by the First Amendment of the United States Constitution, freedom of speech would likely come quickly to mind, along with the concomitant right of free press. The rights to practice one's religion and peaceably assemble, even the judicially created right of free association might follow closely behind. Few people, how- ever, would mention the "right of the people.., to petition the government for redress of grievances."' Fewer still would be able to give a good definition of petitioning, or to describe the types …

Taking Liberties With The First Amendment: Congress, Section 5, And The Religious Freedom Restoration Act, Jay S. Bybee

Vanderbilt Law Review

In July 1788 the North Carolina legislature was considering ratification of the Constitution, a constitution that did not contain a Bill of Rights. As the delegates reached the Religious Test Clause, Henry Abbot remarked:

"Some are afraid... that, should the Constitution be received, they would be deprived of the privilege of worshiping God according to their consciences, which would be taking from them a benefit they enjoy under the present constitution. They wish to know if their religious and civil liberties be secured under this system, or whether the general government may not make laws in- fringing their religious liberties.... …

Federalism, Untamed, Ann Althouse

Vanderbilt Law Review

Do you rankle at those amorphous rhapsodies about "Our Federalism" indulged in by judges who relegate civil rights litigants to state courts?' Why would anyone see cases in which state officials stand charged of violating the rights of individuals as presenting an occasion for deference to the states? If federal rights take precedence over state policies and practices, is it not perverse to prefer adjudication in the courts that have the strongest bias in favor of state interests? If jurisdiction is a duty and declining jurisdiction consequently a dubious business, shouldn't we reject judge-made doctrine and statutory interpretation that restrict …

The First Amendment And Homosexual Expression: The Need For An Expanded Interpretation, Brent H. Allen

Vanderbilt Law Review

"Homosexuality is today essentially a form of political, social, and moral dissent on par with the best American traditions of dissent and even subversive advocacy.... Those that support criminalization find today in homosexuality what they found before in the family planning of Sanger, the atheism of Darwin, the socialism of Debs, or the Marxist advocacy of the American Communist Party."

Ostensibly, the First Amendment guarantees all people freedom of expression of every belief. The free exchange of ideas forms the basis of a democratic government. Only citizens with unhindered access to the famed "marketplace of ideas" can participate meaningfully in …

Duke V. Cleland: The Eleventh Circuit Neglects The First Amendment Rights Of Political Parties And Allows States To Limit Ballot Access Of Presidential Primary Candidates, Steven A. Kirsch

Vanderbilt Law Review

Notwithstanding H. Ross Perot's strong third place finish in the 1992 Presidential election,' history suggests a successful presidential candidate must be a member of one of the two major political parties to win. As a result, many candidates compete for each major party's nomination. Moreover, the leaders of state Democratic and Republican parties that hold presidential primaries often have attempted to remove the lesser-known, and sometimes politically unpopular, candidates from the ballot. One argument advanced by state party leaders in support of their attempts to prevent some candidates from appearing on the ballot is that the political party has a …

State Restrictions On Violent Expression: The Impropriety Of Extending An Obscenity Analysis, Jessalyn Hershinger

Vanderbilt Law Review

A group of minors allegedly attacked a nine-year-old girl at a San Francisco beach and "artificially raped" her with a bottle. The minors attacked the girl after watching and discussing a television network movie that portrayed a similar rape. The victim sued the network, claiming that it was negligent in airing the program.' In Miami Beach, a teenage boy shot and killed his eighty-three- year-old neighbor. Following his conviction, the minor sued three television networks for damages, alleging that a decade of viewing extensive television violence had incited him to imitate the acts that he had seen. Nineteen-year-old John McCollum …

Barnes V. Glen Theatre, Inc.: Nude Dancing And The First Amendment Question, Zachary T. Fardon

Vanderbilt Law Review

Erotic dancers Gayle Sutro, Carla Johnson, and Darlene Miller can no longer dance nude in Indiana. In Barnes v. Glen Theatre, Inc. the United States Supreme Court held that Indiana's prohibition of nude dancing did not violate the First Amendment to the United States Constitution. The Court's holding ended years of controversy and debate over Indiana's public indecency statute.

In 1979, in State v. Baysinger, the Indiana Supreme Court held that Indiana's public indecency statute could be used to prohibit nude dancing. The court stated that the statute could not prohibit some larger forms of expression involving the communication of …

Prescription Drug Approval And Terminal Diseases: Desperate Times Require Desperate Measures, John P. Dillman

Vanderbilt Law Review

It is no surprise that the press, in exercising its traditional first amendment freedom, often discloses truthful information about individuals that those individuals would prefer to keep private. An inevitable tension exists between the public's right to know and the individual's right to be let alone.' What is surprising, however, especially given the historic recognition of both a free press and individual privacy as rights fundamental to the preservation of American society, is that the privacy interests of the individual almost always lose. The prevalent rationale for this lopsided result is that the first amendment protects the values promoted by …

Privacy In The First Amendment: Private Facts And The Zone Of Deliberation, James R. Beattie, Jr.

Vanderbilt Law Review

It is no surprise that the press, in exercising its traditional first amendment freedom, often discloses truthful information about individuals that those individuals would prefer to keep private. An inevitable tension exists between the public's right to know and the individual's right to be let alone.' What is surprising, however, especially given the historic recognition of both a free press and individual privacy as rights fundamental to the preservation of American society, is that the privacy interests of the individual almost always lose.

The prevalent rationale for this lopsided result is that the first amendment protects the values promoted by …

Product Health Claims And The First Amendment: Scientific Expression And The Twilight Zone Of Commercial Speech, Martin H. Redish

Vanderbilt Law Review

Imagine, for a moment, that Congress has enacted the "False and Misleading Medical and Scientific Reporting Act of 1990." The law is premised on a fear that scientific quackery may cause significant societal harm by confusing the public and inducing its members to seek out costly, worthless, and possibly harmful medical cures or supposed scientific advances. The Act establishes a special commission of scientific and medical experts to rule on the accuracy of any proposed scientific or medical theory that conceivably could cause public harm or confusion. Such scientific or medical assertions must be substantiated to the commission's satisfaction, or …

Regulating Violent Pornography, Deana Pollard

Vanderbilt Law Review

In recent years the regulation of pornography has received much attention. Traditionally, conservatives have scorned pornography of all types on the basis that pornography is immoral. More recently, some feminists have attacked pornography from a civil rights perspective,claiming that pornography is the sexually explicit subordination of women that leads to discrimination against women in all aspects of life. Nonetheless, the first amendment currently protects all forms of pornography from regulation unless the material is deemed "obscene.

"Researchers, however, have shown that certain types of pornography, such as violent, sexually explicit materials, specifically harm women. The proven relationship between violent pornography …