Law Commons^™

The First Religious Charter School: A Viable Option For School Choice Or Prohibited Under The State Action Doctrine And Religion Clauses?, Julia Clementi

Fordham Law Review

After the First Amendment’s Religion Clauses were ratified, church and state became increasingly divorced from one another, as practicing religion became a private activity on which the government could not encroach. This separation, however, was slow, and much credit is owed to the U.S. Supreme Court for its efforts to disentangle the two. One particular area in which the Supreme Court exercised its influence was the U.S. education system; the Court invoked the Religion Clauses and neutrality principles to rid public schools of religious influences and ensure that private religious schools could partake in government programs that were available to …

Two Tests Unite To Resolve The Tension Between The First Amendment And The Right Of Publicity, Dora Georgescu

Fordham Law Review

The right of publicity is an established legal doctrine that grants individuals the exclusive right to control the commercial use of their image. Though it has many important and laudable uses, one unfortunate consequence of the right of publicity is that it restricts artists’ abilities to portray real persons in their works. In so doing, the right of publicity directly conflicts with the First Amendment protections of an individual’s freedom of expression.

While the U.S. Supreme Court addressed this tension in Zacchini v. Scripps-Howard Broadcasting Co., the Court did not create a clear standard for balancing the interests of …

Tinker Gone Viral: Diverging Threshold Tests For Analyzing School Regulation Of Off-Campus Digital Student Speech, Daniel Marcus-Toll

Fordham Law Review

In the context of students’ free speech rights, courts have traditionally premised school regulatory authority on geography, deferring to school officials on campus and limiting a school’s capacity to discipline students for conduct taking place beyond school hours or property. In the contemporary setting, however, where wireless devices, mobile phones, and other communicative technologies abound, a student may affect the school environment significantly without setting foot on school property. In the absence of guidance from the U.S. Supreme Court, the limits of school authority to regulate such “off-campus” student speech are uncertain.

Several courts have permitted school discipline in response …

Meta Rights, Charlotte Garden

Fordham Law Review

Are individuals entitled to notice of their constitutional rights or assistance in exercising those rights? In most contexts, the answer is no. Yet, there are some important exceptions, in which the U.S. Supreme Court has held that special circumstances call for notice and procedural protections designed to facilitate rights invocations. This Article refers to these entitlements as “meta rights”—rights that protect rights. The most famous of these is the Miranda warning, which notifies suspects of their Fifth Amendment rights to silence and an attorney. There are others as well—among them, the First Amendment right of individuals represented by public sector …

Anonymity In Cyberspace: Judicial And Legislative Regulations, Sophia Qasir

Fordham Law Review

Historically, the scope of constitutional protections for fundamental rights has evolved to keep pace with new social norms and new technology. Internet speech is on the rise. The First Amendment protects an individual’s right to speak anonymously, but to what extent does it protect a right to anonymous online speech? This question is difficult because the government must balance the fundamental nature of speech rights with the potential dangers associated with anonymous online speech, including defamation, invasion of privacy, and intentional infliction of emotional distress. While lower courts have held that there is a right to anonymous online speech, they …

Recognizing The Right To Petition For Victims Of Domestic Violence, Tamara L. Kuennen

Fordham Law Review

Like any citizen, a victim of domestic violence (DV) may call the police for help when she needs it. And yet, when a victim calls the police, she not only seeks law enforcement assistance but also invokes her constitutional right to seek one of the most fundamental services the government can provide—protection from harm. That right, recently described by the Supreme Court as “essential to freedom,” is the right “to petition the Government for a redress of grievances” guaranteed by the First Amendment.

This Article argues that a combination of law and policy initiatives produces negative collateral consequences for DV …

Funding Conditions And Free Speech For Hiv/Aids Ngos: He Who Pays The Piper Cannot Always Call The Tune, Alexander P. Wentworth-Ping

Fordham Law Review

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act pledges billions of dollars to fund NGOs combating the HIV/AIDS epidemic but requires recipients to adopt a policy explicitly opposing prostitution and sex trafficking. A possible recipient NGO confronts a tough decision: adopt an affirmative statement against prostitution and sex trafficking to accept the funds, alienating a vital partner in its efforts to eradicate HIV/AIDS; or deny the funds to speak its own message, though without the benefit of government assistance.

Courts are split on whether the Leadership Act’s policy requirement places an unconstitutional condition on federal funds that requires …

Reconciling Morse With Brandenburg, Steven Penaro

Fordham Law Review

This Note examines Morse v. Frederick in connection with the Brandenburg v. Ohio test governing speech that advocates unlawful acts. In Morse, the U.S. Supreme Court devised a new test that gives school officials the power to restrict student speech promoting the use of illegal drugs. However, in Brandenburg, the Supreme Court held that speech must be struck down if the speaker intends to incite imminent lawless action and that speech is likely to produce such action. This Note argues that a relaxed application of the Brandenburg standard would be useful in prohibiting student drug speech within a school setting.

The Emerging First Amendment Law Of Managerial Prerogative, Lawrence Rosenthal

Fordham Law Review

In Garcetti v. Ceballos, the U.S. Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney's office, were unprotected by the First Amendment because “his expressions were made pursuant to his duties.” The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself. This Article rejects the scholarly consensus on Garcetti. …

Justice Stevens, Religious Freedom, And The Value Of Equal Membership, Christopher L. Eisgruber

Fordham Law Review

No abstract provided.

The Pragmatic Populism Of Justice Stevens's Free Speech Jurisprudence, Gregory P. Magarian

Fordham Law Review

No abstract provided.

Treating Religion As Speech: Justice Stevens's Religion Clause Jurisprudence, Eduardo Moises Penalver

Fordham Law Review

No abstract provided.

England's Chilling Forecast: The Case For Granting Declaratory Relief To Prevent English Defamation Actions From Chilling American Speech, Raymond W. Beauchamp

Fordham Law Review

No abstract provided.

The Ten Commandments On The Courthouse Lawn And Elsewhere, Paul Finkelman

Fordham Law Review

No abstract provided.

Society's Software , Beth S. Noveck, David R. Johnson

Fordham Law Review

No abstract provided.

Some Realism About The Free-Speech Critique Of Copyright , David Mcgowan

Fordham Law Review

No abstract provided.

Gender, Negotiating Gender And (Free And Equal) Citizenship: The Place Of Associations, Linda C. Mcclain

Fordham Law Review

No abstract provided.

Is The True Threats Doctrine Threatening The First Amendment? Planned Parenthood Of The Columbia/Willamette, Inc. V. American Coalitiion Of Life Activists Signals The Need To Remedy An Inadequate Doctrine, Lori Weiss

Fordham Law Review

No abstract provided.

Constitutional Reductionism, Rawls, And The Religion Clauses, Abner S. Greene

Fordham Law Review

No abstract provided.

Freedom To Exclude After Boy Scouts Of America V. Dale: Do Private Schools Have A Right To Discriminate Against Homosexual Teachers?, Karen Lim

Fordham Law Review

No abstract provided.

"Yelling Fire" And Hacking: Why The First Amendment Does Not Permit Distributing Dvd Decryption Technology?, Bonnie L. Schriefer

Fordham Law Review

No abstract provided.

Filling The Void In First Amendment Jurisprudence: Is There A Solution For Replacing The Impotent System Of Prior Restraints?, Richard Favata

Fordham Law Review

No abstract provided.

Secularism's Laws: State Blaine Amendments And Religious Persecution, Kyle Duncan

Fordham Law Review

No abstract provided.

Nonlawyer Legal Assistance And Access To Justice, Alex J. Hurder

Fordham Law Review

No abstract provided.

Prior Restraint, Incommensurability, And The Constitutionalism Of Means, Ariel L. Bendor

Fordham Law Review

No abstract provided.

In Finley's Wake: Forging A Viable First Amendment Approach To The Government's Subsidization Of The Arts, Eric J. Cleary

Fordham Law Review

No abstract provided.

Trademark Regulations And The Commercial Speech Doctrine: Focusing On The Regulatory Objective To Classify Speech For First Amendment Analysis, John V. Tait

Fordham Law Review

No abstract provided.

The Intersection Of Free Speech And The Legal Profession: Constraints On Lawyers' First Amendment Rights, Kathleen M. Sullivan

Fordham Law Review

No abstract provided.

Rico Forfeiture And Obscenity: Prior Restraint Or Subsequent Punishment?, John J. O'Donnell

Fordham Law Review

No abstract provided.

The Signal Cable Sends, Part Ii--Interference From The Indecency Cases, Laurence H. Wilner

Fordham Law Review

No abstract provided.