Law Commons^™

Tradition, Policy And The Establishment Clause: Justice Kennedy's Opinion In Town Of Greece V. Galloway, Wilson Huhn

ConLawNOW

The great jurisprudential battle that has raged in the Supreme Court for more than a century and the question that our society has struggled with since the advent of the Civil War is whether the Constitution is a command by our ancestors that we retain the same political structures, social hierarchies, and cultural traditions that they had, or whether it reflects ideals of liberty, equality, fairness, and tolerance that they aspired to and that they expected us to reach for. That struggle between rules and standards, doctrine and principles, conventionalism and consequentialism, tradition and policy in the interpretation of the …

The Unconstitutionality Of Ohio's House Bill 125: The Heartbeat Bill As Analyzed Under The First Amendment Of The United States Constitution, Jessica L. Knopp

ConLawNOW

This article examines the constitutionality of Ohio’s controversial House Bill 125 (“H.B. 125”), which includes new restrictions and requirements for abortion procedures performed in Ohio. The author argues that, while the new abortion measures conflict with the Supreme Court’s Fourteenth Amendment jurisprudence established in Roe v. Wade and in Planned Parenthood v. Casey, H.B. 125 also violates the Establishment Clause of the First Amendment by imputing religious beliefs about conception and the value of life onto all Ohioans.

The article first outlines the current legal framework for constitutionally acceptable and unacceptable abortion restrictions, including a discussion of informed consent …

The Protection Accorded Picketing By The First Amendment, Joseph J. Corso

Akron Law Review

In the context of labor law, the origin of the relationship between free speech and peaceful picketing is the case of Thornhill v. Alabama. The speech aspects of picketing and the necessarily accompanying First Amendment protections were stressed by the Supreme Court in holding unconstitutional a state statute which constituted a broad ban on all picketing. The Court expressly limited the holding by recognizing that a narrowly worded statute, such as one merely interdicting picketing en masse or picketing portending imminent danger may be valid. An additional limitation of the decision is the fact that it was reached under a …

Obscenity - New First Amendment Standards; Miller V. California, Stacy E. Wolfe

Akron Law Review

It has been over fifteen years since the Supreme Court embarked on its precarious course of determining the Constitutional boundaries for control of obscenity by the state and federal governments. The Court's first attempt to define the meaning of obscenity and ultimately determine the Constitutional protection afforded this expression was in Roth v. United States. What has followed can only be characterized as a series of irreconcilable conflicts and discrepancies that have left the law in this area in total confusion. Recently, the Court in Miller v. California has again attempted to provide "concrete guidelines to isolate 'hard core' pornography …

Chipping Away At The First Amendment: Newspapermen Must Disclose Sources, Michael F. Buchicchio

Akron Law Review

This Comment will explore the background and history of the journalistic privilege in light of case law and early constitutional argument. It will analyze the recent Supreme Court decisions denying a privilege to newsmen to conceal their sources, and attempt to explain how this privilege can best be maintained.

The "Compulsory School Attendance" Case: Wisconsin V. Yoder, Michael Buchicchio

Akron Law Review

It is an important constitutional doctrine that a law generally constitutional "on its face," may be unconstitutional "as applied" in specific instances. The Amish case marks the first occasion that the Court has clearly articulated that exception in favor of a minority religious group. It would appear that compulsory education laws are-"on their face"--within a state's constitutional powers, but under the facts of this case, the First Amendment requires that the Amish be exempt.

Corporations; First Amendment Rights; State Ex Rel Grant V. Brown, Theodore David Itzkowitz

Akron Law Review

IN AUGUST 9, 1972 the Relators, Greater Cincinnati Gay Society, tendered articles of incorporation for a non-profit corporation to the Secretary of State of Ohio, under provisions of the Ohio Revised Code. The Secretary of State refused to accept the incorporation papers, however, claiming that the purpose of the group, which was to promote acceptance of homosexuality as a valid life style, was contrary to public policy, since homosexuality was then a criminal act.

First Amendment; Freedom Of Speech; Obscenity; Pinkus V. United States, Cary Douglass Caesa

Akron Law Review

“In its latest attempt to define a workable standard for obscenity rulings, the United States Supreme Court has held that children may not be included in a court's instruction as to the social group to whom the material would or would not be obscene. However, the Court held that sensitive persons and deviant groups may be included without unduly lowering the threshold of a finding of obscenity. Thus, Pinkus v. United States clarified the "community" whose judgment should define obscenity.”

First Amendment; Freedom Of Speech; Commerical Speech And Advertising; Metpath, Inc. V. Imperato, Sheryl S. Kantz

Akron Law Review

"The decision of Metpath, Inc. v. Imperato is indicative of the growing trend of the judiciary toward affording "commercial speech" the protective shield of the first amendment. As shown by Metpath, where the concern is advertising by a medical clinic, speech with commercial overtones is afforded protection where a public interest in the subject and content of the speech is demonstrated. However, the perimeters of such protection have not been defined by this or previous decisions."

First Amendment; Freedom Of The Press; Access Of News Media To County Jail; Houchins V. Kqed, Inc., Thomas W. Renwand

Akron Law Review

"Although United States history is replete with struggles over the rights and prerogatives of the press, until recently these disputes rarely made their way to the nation's highest court.' In the last several years the Supreme Court has been confronted with a number of important, complex questions dealing with the role of a free press in a free society.'"

First Amendment; Freedom Of Speech; Broadcasting; Obscenity; Fcc V. Pacifica Foundation, James E. Moliterno

Akron Law Review

“ ‘I was thinking about the curse words and the swear words, the cuss L words and the words you can't say . . .the words you couldn't say on the public, ah, airwaves... the ones that will curve your spine [and] grow hair on your hands ....’ While this is the satiric opinion of George Carlin, the Federal Communications Commission (FCC) and a bare majority of the United States Supreme Court have embraced it as their genuine opinion.' They have decided to protect the public from the fate of hearing Carlin's social criticism regarding seven ‘dirty’ words.”

The Supreme Court And The Press: Freedom Or Privilege?, Sandra Bradley

Akron Law Review

This comment will examine the Supreme Court's spring, 1978 decisions as they affected first amendment rights, and will assess their impact upon the press. Particular emphasis will be placed on Zurcher v. Stanford Daily as it affects first amendment, as well as fourth amendment, protections.

Unwanted Publicity, The News Media, And The Constitution: Where Privacy Rights Compete With The First Amendment, Ernest D. Giglio

Akron Law Review

It is ironic that while recent legal history records the emergence of a constitutional right to privacy, the Supreme Court, in a line of cases from New York Times to Firestone, has restricted the common law tort of privacy. The legal issues are particularly complex and admittedly difficult to reconcile when the public disclosure tort comes in conflict with first amendment privileges. Expansion of the privacy tort need not necessarily impose an unreasonable burden on the news media, provided the Supreme Court distinguishes between defamation and privacy invasion and establishes and applies to the latter wrong its own legal principles.

First Amendment; Freedom Of The Press; Erosion Of New York Times Co. V. Sullivan; Herbert V. Lando, Edward Howlett

Akron Law Review

In Herbert v. Lando the Supreme Court announced that the first amendment does not require a constitutional privilege foreclosing direct inquiry into the editorial process. While the decision may seem correct in its overturning of the absolute privilege afforded to the editorial process by the Second Circuit, nevertheless, by refusing to grant even a qualified privilege to the editorial process the Court may have upset the delicate balance between an individual's interest in his reputation and society's interest in a free flow of information recognized in New York Times Co. v. Sullivan.

Conscientious Objection And The First Amendment, Gail White Sweeney

Akron Law Review

This comment will examine the possible constitutional consequences of the three other probabilities. 1) that Congress will revive the previous C.O. exemption without amendment; 2) that Congress will amend the statute to narrow the exemption; and, 3) that Congress will eliminate the C.O. exemption altogether. An analysis of earlier statutes is necessary to this end.

Federal Communications Commission, Administrative Law, Cbs, Inc. V. F.C.C., Rochelle K. Seide

Akron Law Review

The broadcast media has an obligation to permit a legally qualified candidate for federal office to purchase reasonable amounts of time on behalf of his candidacy. In so holding, the Supreme Court went beyond a mere codification of the public interest standard. Pursuant to section 312(a)(7) of the Communication Act of 1934, as amended, candidates for federal office have an affirmative right of reasonable access to the broadcast media. In addition, the Court found that the statutory right of access provided by section 312(a)(7), as defined and applied by the Federal Communications Commission (FCC), was not violative of the first …

Book Removal In Secondary Schools: A Violation Of The First Amendment? Board Of Education V. Pico, Cherlyn Pherigo

Akron Law Review

In the American democratic system, it is not uncommon for small, publicly-elected bodies to control the workings of societal institutions. These bodies may be federal, state or local in realm and function, and are usually given wide discretion. But who is it that controls the actions of these bodies This question is paramount to the myriad of recent cases involving the removal of books from secondary school libraries. The body involved is the local school board - an elected unit charged with the duty of managing school affairs. In that process of management, however, local school boards are apparently not …

Richmond Newspapers And The First Amendment Right Of Access, George W. Kelly

Akron Law Review

This paper argues that the Court's reasoning in Richmond provides a basis for a first amendment right to governmental information. Just as openness benefits the trial process, it further enhances the operation of government. To the extent that history justifies trial access, it also provides support for open information. As the Supreme Court has yet to decide the exact nature of the public's right of access to trials, this paper makes no effort to define precisely the extent of the right to information. It simply assumes that enough similarities exists between the two allowing a valid comparison. And it suggests …

School Board Authority And First Amendment Rights: The View After Board Of Education, Island Trees V. Pico, Joseph D. Mccann

Akron Law Review

This analysis will begin with an examination of the historical bases for the state's educational authority and the traditional limitations placed on this authority by the courts. Next, the genesis of students' rights will be reviewed along with the restrictions the growth of these rights has imposed upon school board authority. The paper will then turn to the Pico case itself - surveying the various judicial approaches taken in balancing the interests of school board authority and students' rights and scrutinizing these approaches for the proper theoretical framework for student first amendment rights analysis. Finally, the paper will examine the …

Mathew Fraser Sheds His Consititutional Rights To Freedom Of Speech At The Schoolhouse Gates, Karrie M. Kalai

Akron Law Review

The Constitution does not bestow an "unbridled license giving immunity for every possible use of language." The first amendment is not the guardian of unregulated talkativeness. Accordingly, the state's power to control the conduct of children reaches beyond the scope of its authority over adults, and the well-being of children is one subject entirely within the state's constitutional power to regulate. While children clearly have some first amendment rights, these rights differ in important respects from the rights enjoyed by adults. As the Supreme Court noted, "the world of children is not strictly part of the adult realm of free …

The Constitution And Revenge Porn, John A. Humbach

Pace Law Review

While the Supreme Court has recognized a number of circumstances that justify government impingements on free expression, the Court has been extremely reluctant to permit speech restrictions that discriminate based on a message’s content, its viewpoint, or the speaker. It has nearly always refused to tolerate such discrimination unless the case falls within one of the several historically established exceptions to First Amendment protection. Because of the special place that the modern First Amendment cases accord to content discrimination (and the allied discriminations based on viewpoint and speaker), any statutes designed specifically to outlaw revenge porn as such would seem …

Tinkering With Success: College Athletes, Social Media And The First Amendment, Mary Margaret Meg Penrose

Pace Law Review

Good law does not always make good policy. This article seeks to provide a legal assessment, not a policy directive. The policy choices made by individual institutions and athletic departments should be guided by law, but absolutely left to institutional discretion. Many articles written on college student-athletes’ social media usage attempt to urge policy directives clothed in constitutional analysis.

In this author’s opinion, these articles have lost perspective – constitutional perspective. This article seeks primarily to provide a legal and constitutional assessment so that schools and their athletic departments will have ample information to then make their own policy choices.

Compelled Commercial Speech, Robert Post

West Virginia Law Review

No abstract provided.

Doe V. Elmbrook School District And The Importance Of Refocusing Establishment Clause Jurisprudence, Julie M. Karaba

Northwestern University Law Review

No abstract provided.