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When Teachers Go Viral: Balancing Institutional Efficacy Against The First Amendment Rights Of Public Educators In The Age Of Facebook, Watt Lesley Black Jr.
When Teachers Go Viral: Balancing Institutional Efficacy Against The First Amendment Rights Of Public Educators In The Age Of Facebook, Watt Lesley Black Jr.
Missouri Law Review
How can public school administrators reach legally and ethically defensible decisions in cases as widely divergent as Keith Allison and Karen Fitzgibbons? How can they protect the efficacy of their school systems while still respecting the First Amendment rights of their employees? When can they take adverse employment action against educators on the basis of speech that is posted online, and under what circumstances is that speech protected? Does the Connick public concern requirement effectively remove all constitutional protection from public educators who are active on social media, irrespective of whether their speech is disruptive? This Article addresses these questions …
Defining Peaceably: Policing The Line Between Constitutionally Protected Protest And Unlawful Speech, Tabatha Abu El-Haj
Defining Peaceably: Policing The Line Between Constitutionally Protected Protest And Unlawful Speech, Tabatha Abu El-Haj
Missouri Law Review
The current wave of civil rights demonstrations in response to police killings began on August 9, 2014, after Darren Wilson, a white police officer, fatally shot Michael Brown, an unarmed African-American eighteen-year-old, in Ferguson, Missouri. Outraged by the incident and by the fact that the body was left on the street for four-and-a-half hours – an image that went viral on social media – members of the community took to the streets. They went out without securing the necessary permits and without visible connection to established local civil rights organizations. The mainstream media quickly framed the events in Ferguson as …
After Hobby Lobby: The “Religious For-Profit” And The Limits Of The Autonomy Doctrine, Angela C. Carmella
After Hobby Lobby: The “Religious For-Profit” And The Limits Of The Autonomy Doctrine, Angela C. Carmella
Missouri Law Review
Churches are protected under the autonomy doctrine, which is rooted in the Religion Clauses, to ensure that they are free to define their institutional identity and mission. In more limited circumstances, many religious nonprofits also enjoy autonomy protections. Now that the Supreme Court has decided in Burwell v. Hobby Lobby Stores, Inc. that for-profit corporations are capable of religious exercise and entitled to statutory free exercise protection, this Article poses a question that is on the horizon: would it ever be plausible to extend the autonomy doctrine to a for-profit institution? This Article identifies several types of for-profits (named “religious …
Anthony Lewis And The First Amendment, Adam Liptak
Anthony Lewis And The First Amendment, Adam Liptak
Missouri Law Review
It is a great privilege to be with you today to celebrate the life and work of Anthony Lewis who created modern legal journalism. I thought I would try to do three things today to help us think about Tony’s legacy. One is to sketch out what made Tony such a giant. A second is to reflect for a minute on the state of the modern Supreme Court press corps, which he essentially founded. And a third is to consider a topic Tony returned to again and again in his articles, columns and books: the role of the press in …
Press Freedom And Coverage In The U.S. And Kosovo: A Series Of Comparisons And Recommendations, Ben Holden
Press Freedom And Coverage In The U.S. And Kosovo: A Series Of Comparisons And Recommendations, Ben Holden
Missouri Law Review
The Republic of Kosovo was created from the southernmost section of the former Yugoslavia by American military intervention and subsequent worldwide humanitarian guidance between 1999 and 2008. The resulting nation (which Russia, China, and others do not recognize) was born with one of the most pro-speech and press-friendly constitutions in the world. This Article compares and contrasts four press freedoms in the U.S. and Kosovo: (1) censorship and liability for publication of “truthful” speech; (2) liability for media errors; (3) shield laws; and (4) transparency in courts and records. Where the law and social mores of Kosovo are silent, recommendations …
Anthony Lewis, Dahlia Lithwick
Anthony Lewis, Dahlia Lithwick
Missouri Law Review
Tony Lewis changed everything about Supreme Court reporting. He changed everything because he inserted himself directly into the conversation between the Justices of the Supreme Court and the American public. He wasn’t writing for the constitutional scholars; he wasn’t writing for the history books (although he might have been) and he wasn’t writing to impress the justices (although he did). Instead, Lewis was a translator, an ambassador, who in the Warren Court era fashioned himself as the People’s Solicitor General; he was the advocate for the little guy before the high court, and an advocate to his readers about what …
From Keyboard To Schoolhouse: Student Speech In An Age Of Pervasive Technology, Erin M. Leach
From Keyboard To Schoolhouse: Student Speech In An Age Of Pervasive Technology, Erin M. Leach
Missouri Law Review
To most Americans, the First Amendment's Free Speech Clause is among the most sacred provisions of the Constitution. At first reading, it seems a broad guarantee of the right of citizens to speak their mind without limitation. But the jurisprudence on the clause shows that the law governing free speech is far from uncomplicated. The analysis is made more complex in the context of student speech due to a different set of standards governing the rights of students while they are under the care of their schools. S.J.W ex rel. Wilson v. Lee's Summit R-7 School District, a recent Eighth …
Amendment 2 And Its Effect On Missourians' Free Exercise Of Religion, Mishelle Martinez
Amendment 2 And Its Effect On Missourians' Free Exercise Of Religion, Mishelle Martinez
Missouri Law Review
This Comment provides a thorough analysis of Amendment 2. The primary issue addressed is whether Amendment 2 will have an impact on Missourians' religious freedoms or whether Amendment 2 merely reaffirms rights already granted under the old article I, section 5 of the Missouri Constitution. If Amendment 2 does add new rights, an analysis of whether such rights are in accord with the First Amendment is required. Part II outlines the legislative history, text, and general commentary on the key provisions of Amendment 2. In Part III, all new provisions under Amendment 2 are analyzed in light of the legal …
Social Networking And Freedom Of Speech: Not Like Old Times , Zachary Shklar
Social Networking And Freedom Of Speech: Not Like Old Times , Zachary Shklar
Missouri Law Review
In Bland v. Roberts, the United States District Court for the Eastern District of Virginia was presented with the issue of whether “liking” a page on Facebook is speech protectable by the First Amendment. This Note argues that the court’s holding, that “liking” something on Facebook is not worthy of First Amendment protection, is a disturbing result that endangers one of our most fundamental rights guaranteed by the Constitution. In Part II, this Note analyzes the facts and holding of Bland v. Roberts. Next, in Part III, this Note describes in detail how Facebook operates and explains the legal background …
What's It To You: The First Amendment And Matters Of Public Concern , Mark Strasser
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
All Those Like You: Identity Aggression And Student Speech , Ari Ezra Waldman
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
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 …
Giving A Voice To The Inanimate: The Right Of A Corporation To Political Free Speech, Alex Osterlind
Giving A Voice To The Inanimate: The Right Of A Corporation To Political Free Speech, Alex Osterlind
Missouri Law Review
This Note examines the concept of corporate personhood and whether the state-created corporate entity is contemplated by the First Amendment. To discuss this controversy in relation to federal election laws constraining corporate financing, this Note first explains the particulars giving rise to the Citizens United case. Next, this Note examines the legislative and judicial treatment of corporate financing laws in regard to elections. Building upon this milieu, this Note presents the viewpoints of both those opposed to unrestricted corporate political speech as well as those championing a broad interpretation of the First Amendment that encompasses the corporate entity. Finally, this …
Role Of Individuals Discrimination In Free Exercise Claims: Putting Iqbal In Its Place, The, Leila Mcneill
Role Of Individuals Discrimination In Free Exercise Claims: Putting Iqbal In Its Place, The, Leila Mcneill
Missouri Law Review
Ashcroft v. Iqbal has been widely discussed for three reasons: (1) its extension of Twombly's pleading standard to cases outside the realm of antitrust suits, (2) its application of the collateral order doctrine to a district court order denying an official's motion to dismiss on the basis of qualified immunity in a Bivens claim, and (3) its implication for national security and postSeptember 11th terrorist detainments and investigations. However, Iqbal also implicates the nature of what constitutes unconstitutional religious discrimination under the First Amendment's Free Exercise Clause. Therefore, the Iqbal Court's discussion of religious liberty will present problems of interpretation …
First Amendment And Specialty License Plates: The Choose Life Controversy, The, Stephanie S. Bell
First Amendment And Specialty License Plates: The Choose Life Controversy, The, Stephanie S. Bell
Missouri Law Review
This summary will examine the models of specialty license plate creation, the history of "Choose Life" specialty license plates, the litigation surrounding the controversy, and the two differing standards courts have used to distinguish government and private speech: the Fourth Circuit's four-factor test and the Johanns test.
Preparing Students For Democratic Participation: Why Teacher Curricular Speech Should Sometimes Be Protected By The First Amendment, Anne Gardner
Missouri Law Review
This note will examine the legal basis and educational framework for First Amendment protection of classroom speech. The Supreme Court of the United States has not directly addressed the constitutional issues implicated in teacher classroom speech. As a result, the circuit courts are split in the application of an appropriate analysis.15 In most circuits, teacher curricular speech is not protected speech.' 6 Among the circuit courts, teacher curricular speech is governed by three competing doctrines: public employee speech, student speech, and academic freedom. 1 7 While the Fourth, Fifth, Sixth, and Seventh Circuits have applied the Pickering public employee analysis,' …
Right To Remain Silent: A First Amendment Analysis Of Abortion Informed Consent Laws, The, Whitney D. Pile
Right To Remain Silent: A First Amendment Analysis Of Abortion Informed Consent Laws, The, Whitney D. Pile
Missouri Law Review
Since the United States Supreme Court legalized abortion in the 1973 decision Roe v. Wade, the law governing the regulation of abortions has been in a constant state of flux. After the legalization of abortion, states began enacting informed consent laws in order to regulate what information a woman must be given before terminating her pregnancy; today, a total of 32 states have an informed consent law of some kind. Many informed consent laws, such as that of Missouri, require that a woman receive information at least 24 hours before undergoing an abortion and that the abortion providers disclose the …
First Amendment And Non-Political Speech: Exploring A Constitutional Model That Focuses On The Existence Of Alternative Channels Of Communication, The, Patrick M. Garry
First Amendment And Non-Political Speech: Exploring A Constitutional Model That Focuses On The Existence Of Alternative Channels Of Communication, The, Patrick M. Garry
Missouri Law Review
This Article attempts to illustrate how media entertainment speech currently possesses a constitutional advantage over the traditional political speech of physical protest. Part I discusses current First Amendment doctrines relating to permissible types of speech regulation. Although these doctrines claim to be content-neutral, they effectively discriminate against the speech of on-site political protest. Part II examines how this discrimination comes into being. Since many of the constitutional doctrines relating to speech regulation are geared to the "place" where the speech occurs, these doctrines essentially let media entertainment off the hook, since the vast majority of that entertainment has no "place" …
Honk To Remove This Demonstration: The Eighth Circuit Adopts A Heckler's Veto, Aaron E. Schwartz
Honk To Remove This Demonstration: The Eighth Circuit Adopts A Heckler's Veto, Aaron E. Schwartz
Missouri Law Review
Freedom of speech is a pillar of American ideology, providing protection from rule by the majority and allowing those with minority opinions to participate in political dialog. Generally, the courts have allowed extremely limited restrictions. However, in Frye v. Kansas City Police Department, the Eighth Circuit appears decide the opposite, placing convince for the many over the rights of the few.
Missouri's Interfacing Of The First Amendment And Right Of Publicity: Is The Predominant Purpose Test Really That Desirable, Michael S. Kruse
Missouri's Interfacing Of The First Amendment And Right Of Publicity: Is The Predominant Purpose Test Really That Desirable, Michael S. Kruse
Missouri Law Review
Many jurisdictions have struggled with the difficult question of how they should interface the interest of a celebrity in his or her right of publicity and the interest society holds in the freedom of artistic expression. The United States Supreme Court has not definitively addressed this issue, and, as a result, the approach to dealing with these types of First Amendment claims varies from jurisdiction to jurisdiction. This Note examines how the Missouri Supreme Court recently confronted this issue. To appreciate the court's analysis, it is important to understand the interests that the right of publicity seeks to protect and …
Eminent Domain Actions Targeting First Amendment Land Uses, Shelley Ross Saxer
Eminent Domain Actions Targeting First Amendment Land Uses, Shelley Ross Saxer
Missouri Law Review
This Article advocates that courts should distinguish between typical land use regulation and should impose stricter constitutional limitations on the eminent domain power. Under our current concept of public welfare the potential for government abuse of its eminent domain power is great. The government's attempt to eliminate an undersirable, but constitutionally protected, use from its community through condemnation must be carefully scrutinized to ensure that there is not an impermissible motive behind the action. Eminent domain actions targeting land uses protected by the First Amendment should be subject to heightened scrutiny.
Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Goverment Pac, Christina E. Wells
Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Goverment Pac, Christina E. Wells
Missouri Law Review
Part I of this Essay discusses legal background, focusing first on the Court's decision in Buckley and then on the Shrink litigation. Part II itemizes Shrink's flaws, ultimately concludng that those flaws cannot be attributed solely to Buckley. Finally, Part III examines the Court's standards of scrutiny in First Amendment cases and argues that Shrink results at least in part from flaws found in those standards.
Introduction: The Difficult First Amendment, Christina E. Wells
Introduction: The Difficult First Amendment, Christina E. Wells
Missouri Law Review
The First Amendment looks easy. After all, its proscriptions are expressed in fewer than forty-five words. It further embodies a concept elegant in its simplicity: "Everyone has the right to say what they believe and to believe what they want." Yet even a superficial glance at modern Supreme Court jurisprudence reveals that, from its inception, the First Amendment was never easy. DEspite the Amendment's express mandate that Congress "make no law," the Court has never inerpreted it as an absolute. Instead, the court has embarked upon a delicate and sometimes treacherous balancing act attemping to determine when free speech or …
Clash Between The First Amendment And Civil Rights: Public University Nondiscrimination Clauses, The, Richard M. Paul Iii, Derek Rose
Clash Between The First Amendment And Civil Rights: Public University Nondiscrimination Clauses, The, Richard M. Paul Iii, Derek Rose
Missouri Law Review
Individual rights have become increasingly important in this country in the past few decades. University campuses across the country form part of the current bedrock of this movement. Therefore, it should come as no surprise that public universities,' the closest representative of the government to college students, are the subject of much of the pressure to enact rules protecting the rights, viewpoints, and actions of minority members of society. Universities originally intended that nondiscrimination clauses ensure student groups recognized by the university did not exercise improper prejudices based on gender, nationality, or religious belief. Recently, however, the gay rights movement …
Conditional Spending And The First Amendment: Maintaining The Commitment To Rational Liberal Dialogue, Donald L. Beschle
Conditional Spending And The First Amendment: Maintaining The Commitment To Rational Liberal Dialogue, Donald L. Beschle
Missouri Law Review
Questions concerning the constitutional validity of conditions placed on recipients of government funds have a long history,' but they recently have received greater attention as the types of constitutional concerns have changed. Earlier cases dealt with issues of federalism, and claims that conditions unduly limited states in the exercise of their reserved powers. As courts moved to a generally consistent position of deference to Congressional choices concerning the proper distribution of power between the states and the national government, challenges to conditional spending faded in both their significance and interest.' This Article maintains that the government must take and express …
Promises Of Confidentiality: Do Reporters Really Have To Keep Their Word, Harold B. Oakley
Promises Of Confidentiality: Do Reporters Really Have To Keep Their Word, Harold B. Oakley
Missouri Law Review
In an industry in which information is the ultimate commodity, a new dilemma that confronts the media world is whether the First Amendment protects news gatherers from sources who try to enforce promises of confidentiality. The debate raised in Cohen v. Cowles Media Co. pits the First Amendment freedoms of the press and speech against concepts of contracts and torts that are deeply rooted in our legal heritage. At least two reasons make promises of confidentiality important to the newsgathering profession. First, breaking a promise of confidentiality that has induced a source to provide information is dishonorable. Second, sources may …
Professional Responsibility And The First Amendment: Are Missouri Attorneys Free To Express Their Views, Elizabeth A. Bridge
Professional Responsibility And The First Amendment: Are Missouri Attorneys Free To Express Their Views, Elizabeth A. Bridge
Missouri Law Review
The history of First Amendment cases in our country demonstrates that many attorneys have argued successfully for the free speech rights of their clients. When an attorney seeks to invoke the same right as a defense in a professional disciplinary action, however, the attorney may find less shelter under the First Amendment. This Note examines the extent of first amendment protection a Missouri attorney receives when criticizing courts or judges.
Secular Contribution Of Religion To The Political Process: The First Amendment And School Aid, The , Louis J. Sirico Jr.
Secular Contribution Of Religion To The Political Process: The First Amendment And School Aid, The , Louis J. Sirico Jr.
Missouri Law Review
In this Article, I first develop the thesis and evaluate objections to it. I also relate it to the thinking of the Constitution's Framers. Modern Supreme Court cases on church and state then are reviewed in search of acknowledgement of the positive dimensions of church-state relations. I conclude by applying the thesis to cases dealing with government aid to church-related schools and their students.