Law Commons^™

Examining The Anomalies, Explaining The Value: Should The Usa Freedom Act’S Metadata Program Be Extended?, Susan Landau, Asaf Lubin

Articles by Maurer Faculty

Edward Snowden’s disclosure of National Security Agency (“NSA”) bulk collection of communications metadata was a highly disturbing shock to the American public. The intelligence community was surprised by the response, as it had largely not anticipated a strong negative public reaction to this surveillance program. Controversy over the bulk metadata collection led to the 2015 passage of the USA FREEDOM Act. The law mandated that the intelligence community would collect the Call Detail Records (“CDR”) from telephone service providers in strictly limited ways, not in bulk, and only under order from the Foreign Intelligence Surveillance Court. The new program initially …

Memorializing The Right To Free Speech: Hess V. Indiana And The Iu Bicentennial, Ashley A. Ahlbrand

Articles by Maurer Faculty

No abstract provided.

There Are No Racists Here: The Rise Of Racial Extremism, When No One Is Racist, Jeannine Bell

Articles by Maurer Faculty

At first glance hate murders appear wholly anachronistic in post-racial America. This Article suggests otherwise. The Article begins by analyzing the periodic expansions of the Supreme Court’s interpretation of the protection for racist expression in First Amendment doctrine. The Article then contextualizes the case law by providing evidence of how the First Amendment works on the ground in two separate areas — the enforcement of hate crime law and on university campuses that enact speech codes. In these areas, those using racist expression receive full protection for their beliefs. Part III describes social spaces — social media and employment where …

The Jekyll And Hyde Of First Amendment Limits On The Regulation Of Judicial Campaign Speech, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.

Book Review. Balancing Privacy And Free Speech: Unwanted Attention In The Age Of Social Media By Mark Tunick, Kimberly Mattioli

Articles by Maurer Faculty

No abstract provided.

Online Privacy And The First Amendment: An Opt-In Approach To Data Processing, Joseph A. Tomain

Articles by Maurer Faculty

An individual has little to no ability to prevent online commercial actors from collecting, using, or disclosing data about her. This lack of individual choice is problematic in the Big Data era because individual privacy interests are threatened by the ever increasing number of actors processing data, as well as the ever increasing amount and types of data being processed. This Article argues that online commercial actors should be required to receive an individual’s opt-in consent prior to data processing as a way of protecting individual privacy. I analyze whether an opt-in requirement is constitutionally permissible under the First Amendment …

Religion, Government, And Law In The Contemporary United States, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I discuss the relationship between religion and government in the contemporary United States, addressing the period from the 1940s to the present. In so doing, I explore questions of religious liberty, including the protection of religious “free exercise” as well as the constitutional prohibition on the establishment of religion, a prohibition that sometimes - but not always - has been construed to require a “wall of separation” between church and state. I focus especially on the Supreme Court’s evolving interpretations of the First Amendment during this period, which, I suggest, were influenced by broader religious, cultural, and …

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

Articles by Maurer Faculty

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. …

Free Speech And Autonomy: Thinkers, Storytellers, And A Systemic Approach To Speech, Susan H. Williams

Articles by Maurer Faculty

No abstract provided.

Democracy, Freedom Of Speech, And Feminist Theory: A Response To Post And Weinstein, Susan H. Williams

Articles by Maurer Faculty

No abstract provided.

Book Review. Degradation: What The History Of Obscenity Tells Us About Hate Speech By Kevin W. Saunders, Jeannine Bell

Articles by Maurer Faculty

No abstract provided.

Cyberspace Is Outside The Schoolhouse Gate: Offensive, Online Student Speech Receives First Amendment Protection, Joseph A. Tomain

Articles by Maurer Faculty

Normative and doctrinal analysis shows that schools do not possess jurisdiction over offensive online student speech, at least when it does not cause a substantial disruption of the school environment. This article is a timely analysis on the limits of school jurisdiction over offensive online student speech.

On February 4, 2010, two different Third Circuit panels issued opinions reaching opposite conclusions on whether schools may punish students based on online speech created by students when they are off-campus. The Third Circuit vacated both decisions and is considering these cases in a consolidated en banc appeal. Another case addressing the same …

Dilution's (Still) Uncertain Future, Mark D. Janis, Graeme B. Dinwoodie

Articles by Maurer Faculty

No abstract provided.

American-Arab -- Getting The Balance Wrong -- Again!, John A. Scanlan

Articles by Maurer Faculty

No abstract provided.

The First Amendment, Children, The Internet, And America's Public Libraries, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.

Untying The State Action Knot, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Telephone Companies, The First Amendment, And Technological Convergence, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.

The Death Of Graduation Prayer: The Parrot Sketch Redux, J. Alexander Tanford

Articles by Maurer Faculty

No abstract provided.

The First Amendment And The National Information Infrastructure, Fred H. Cate

Articles by Maurer Faculty

What the First Amendment status of electronic information should be is a fundamental question which must be addressed in any attempt to arrive at appropriate legal standards to protect the multifarious interests of the users of cyberspace. Yet, despite its importance, the First Amendment has largely been ignored in the debate surrounding what sort of legal framework should control the emerging National Information Infrastructure. Professor Cate surveys the current terrain of First Amendment jurisprudence and describes the different analytical approaches which may be taken. Doctrinal anomalies such as the law of common carriage indicate that at times the courts have …

The Religious Freedom Restoration Act: The Constitutional Significance Of An Unconstitutional Statute, Daniel O. Conkle

Articles by Maurer Faculty

This article addresses the constitutionality and the constitutional significance of the Religious Freedom Restoration Act of 1993 (RFRA), through which Congress, relying on Section 5 of the 14th Amendment, attempted to repudiate the Supreme Court's restrictive interpretation of the Free Exercise Clause, as announced in Employment Division v. Smith, and to adopt in its place a more generous regime of religious freedom. The article advances two major propositions. First, it contends that despite the Act's noble purpose, RFRA circumvents the process of constitutional amendment, frustrates the Supreme Court's role as the primary interpreter of the Constitution, and improperly intrudes on …

N.O.W. V. Scheidler: Rico Meets The First Amendment, Craig M. Bradley

Articles by Maurer Faculty

A look at the controversial N.O.W. v. Scheidler case.

Feminist Jurisprudence And Free Speech Theory, Susan H. Williams

Articles by Maurer Faculty

No abstract provided.

Different Religions, Different Politics: Evaluating The Role Of Competing Religious Traditions In American Politics And Law, Daniel O. Conkle

Articles by Maurer Faculty

In addressing the role of religion in politics and law, American political theory has strongly embraced the principle of religious equality. In this article, I explain how this principle has evolved and how it has nourished the privatization of religion and the secularization of public discourse by generating the view that public evaluations of religion are inappropriate. Under this view, religion is a private good that lacks public significance. As matters merely of private taste, matters that cannot be evaluated publicly, religious positions on political issues are not to be "imposed" on other citizens.

I challenge this reading of the …

Harm, Morality, And Feminist Religion: Canada's New -- But Not So New -- Approach To Obscenity, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Lemon Lives, Daniel O. Conkle

Articles by Maurer Faculty

This article responds to an article by Professor Michael Stokes Paulsen, entitled "Lemon Is Dead," in which Paulsen interprets the Supreme Court's decision in Lee v. Weisman to repudiate the Establishment Clause test of Lemon v. Kurtzman and to replace it with a test that limits the Clause to cases involving direct or indirect coercion. The article disputes Paulsen's interpretation of Weisman, and it also disputes his normative argument in support of the coercion approach. It contends that Lemon survives Weisman, and that Lemon's multi-faceted and context-specific approach, however vague, is preferable to a test that focuses exclusively on the …

Book Review. Choosing The Dream: The Future Of Religion In American Public Life By F. M. Gedicks And R. Hendrix, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Does The United States Need An Establishment Clause?: God Loveth Adverbs, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Volitionalism And Religious Liberty, David C. Williams, Susan H. Williams

Articles by Maurer Faculty

No abstract provided.

Content Discrimination And The First Amendment, Susan H. Williams

Articles by Maurer Faculty

No abstract provided.

The Regulation Of Speech Incident To The Sale Or Promotion Of Goods And Services: A Multifactor Approach, Charles G. Geyh

Articles by Maurer Faculty

No abstract provided.