Law Commons^™

A Vicious Cycle: United States’ Failure To Protect Immigrant Women’S Reproductive Rights At The Irwin County Detention Center, Lizet Palomera Torres

Golden Gate University Law Review

The United States Immigration and Customs Enforcement agency (ICE) detained Jane Doe #15, an immigrant woman, at the Irwin County Detention Center (ICDC) in Georgia. During Jane’s time at ICDC, Doctor Mahendra Amin hastily examined her because she was experiencing severe pain in her pelvic area. Abandoning established professional and legal protocols for diagnosis and treatment, the medical staff scheduled Jane for surgery. Jane did not know what to expect from the surgery or what the medical personnel would do. After the surgery, the staff at ICDC neglected Jane’s care. She could not get out of bed on her own; …

Immigration Detention And Dissent: The Role Of The First Amendment On The Road To Abolition, Alina Das

Georgia Law Review

The movement to abolish slavery relied heavily on the exercise and protection of enslaved and formerly enslaved people’s freedom of speech against robust efforts to suppress their messaging. The same is true in the context of the movement to abolish immigration detention. For decades, people in immigration detention, formerly detained people, and their allies have exercised their First Amendment rights to expose the conditions of their confinement and demand their freedom. In response to their protests and other forms of individual and collective expression, detained and formerly detained immigrants have faced suppression and retaliation, threatening not only their right to …

Executive Discretion And First Amendment Constraints On The Deportation State, Jennifer Lee Koh

Georgia Law Review

Given the federal courts’ reluctance to provide clarity on the degree to which the First Amendment safeguards the free speech and association rights of immigrants, the immigration policy agenda of the President now appears to determine whether noncitizens engaging in speech, activism, and advocacy are protected from retaliation by federal immigration authorities. This Essay examines two themes: first, the discretion exercised by the Executive Branch in the immigration context; and second, the courts’ ambivalence when it comes to enforcing immigrants’ rights to be free from retaliation. To do so, this Essay explores the Supreme Court’s influential 1999 decision in Reno …

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

Georgia Law Review

The Supreme Court has long deprived immigrants of the full protection of substantive constitutional rights, including the right to free speech, leaving undocumented immigrants exposed to detention and deportation if they earn the government’s ire through political speech. The best remedy for this would be for the Supreme Court to reconsider its approach. This Essay offers an interim alternative borrowed from an analogous problem that arises under the Fourth Amendment. Under the Constitution, the Supreme Court has indicated that illegally obtained evidence may be suppressed in a removal proceeding only if the Fourth Amendment violation was “egregious.” Yet, some circuit …

Fear Foreigners, And Free Expression: A Brief Reflection On Ideological Exclusion And Deportation In The United States, Julia Rose Kraut

Georgia Law Review

“Why should we be afraid of this man and his ideas?” asked Secretary of State William P. Rogers, referring to Belgian, Marxist economist Ernest Mandel.1 In 1969, Mandel applied for a nonimmigrant visa to visit the United States after receiving invitations to speak at several American colleges and universities, including Amherst College, Columbia University, Princeton University, Massachusetts Institute of Technology, and the New School for Social Research.2 Mandel had received visas to visit the United States twice before: one in 1962 and another in 1968.3 Yet, this time, Mandel’s application for a visa was denied.4

The State Department informed Mandel …

The Contested "Bright Line" Of Territorial Presence, Shalini Ray

Georgia Law Review

For this symposium on “Immigrants and the First Amendment,” this Essay considers the current scope of First Amendment protection for noncitizens abroad. Courts have interpreted the constitutional rights of noncitizens to vary with factors including status, ties, and location. But in a recent case, Agency for International Development v. Alliance for Open Society International, the Supreme Court announced that the First Amendment simply does not apply to noncitizens abroad. This Essay considers this new rule and its implications, concluding that a bright-line rule based on territorial presence masks more complex questions about the meaning of “here” and “abroad.”

Centering Noncitizens' Free Speech, Gregory P. Margarian

Georgia Law Review

First Amendment law pays little attention to noncitizens’ free speech interests. Perhaps noncitizens simply enjoy the same First Amendment rights as citizens. However, ambivalent and sometimes hostile Supreme Court precedents create serious cause for concern. This Essay advocates moving noncitizens’ free speech from the far periphery to the center of First Amendment law. Professor Magarian posits that noncitizens epitomize a condition of speech inequality, in which social conditions and legal doctrines combine to create distinctive, unwarranted barriers to full participation in public discourse. First Amendment law can ameliorate speech inequality by promoting an ethos of free speech obligation, amplifying the …

Table Of Contents

Seattle University Law Review

Table of Contents

"Water Is Life!" (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade

Indiana Law Journal

Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy "dissent," including blacklists, …

What's At Stake?: Bluman V. Federal Election Commission And The Incompatibility Of The Stake-Based Immigration Plenary Power And Freedom Of Speech, Alyssa Markenson

Northwestern University Law Review

Section 441e of the U.S. Code prohibits “foreign nationals”—all noncitizens except lawful permanent residents—from making any contribution or expenditure in any federal, state, or local election. In Bluman v. Federal Election Commission, the Supreme Court summarily affirmed a three-judge district court’s decision to uphold the law based on the government’s compelling interest in preventing foreign influence over U.S. elections. Notably, Bluman’s holding was animated by its reasoning that the extent of First Amendment protection should be directly tied to the aliens’ stake in American society—a reflection of the Supreme Court’s jurisprudence since the middle of the twentieth century that seeks …

The Future Of Discriminatory Local Ordinances Aimed At Regulating Illegal Immigration, John Ryan Syllaios

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz

St. Mary's Law Journal

The Establishment Clause crisis exists due to the Supreme Court’s promise that America would have a secular government—meaning one which was neutral between religion and irreligion, as well as being neutral to all religions. This promise evolved pursuant to the Supreme Court’s interpretation of the Establishment Clause. Nevertheless, the commitment to neutrality was never carried to fulfillment by the Court. The crisis may be illustrated by Congress’ addition of the words “under God” to the Pledge of Allegiance in 1954. This addition seemed to violate the promise of neutrality made by the Supreme Court in Everson v. Board of Education …

Take Your Seats: A Student's Ability To Protest Immigration Reform At Odds With State Truancy And Compulsory Education Laws, Jason Scronic

Florida A & M University Law Review

No abstract provided.

Reading, Writing, And Radicalism: The Limits On Government Control Over Private Schooling In An Age Of Terrorism., Avigael N. Cymrot

St. Mary's Law Journal

There are constitutional limitations that govern attempts to regulate the teaching of terrorism-encouraging ideologies. According to a 1999-2000 study by the National Center of Education Statistics, there are 152 full-time Islamic schools in the United States, schooling about 19,000 students. The primary concern is not that children will be instructed to immediately engage in terrorist acts, but that the teaching of a radical Islamist ideology will predispose them to join radical Islamist terrorist movements and engage in violence. The Free Exercise Clause and parental rights doctrine, however, might not by themselves bar the state from interfering in private education to …

Iolta In The Balance: The Battle Of Legality And Morality Between Robin Hood And The Miser Recent Development., Katherine L. Smith

St. Mary's Law Journal

Interest on Lawyers Trust Account (IOLTA) programs recently survived a constitutional challenge. IOLTA programs require interest earned from trust accounts deposited with client money to fund legal services for the poor. Many states, including Texas, maintain a mandatory IOLTA program, requiring all lawyers who handle client funds to participate. Proponents of IOLTA argue it benefits civil justice. Opponents argue it is an unconstitutional taking in violation of the Fifth Amendment. The Fifth Circuit held IOLTA accounts to be an unconstitutional taking of client property. The Ninth Circuit, however, found IOLTA accounts constitutional, holding that IOLTA accounts are not a taking …

The Decision In United States V. Brown: The Fifth Circuit Interprets Justice Is Blind Literally., Robert M. Anselmo

St. Mary's Law Journal

In United States v. Brown, the Fifth Circuit affirmed the district courts use of anonymous jury orders. The use of anonymous juries, however, is either a necessary protection for jury members or an unfair procedural practice. The Fifth Circuit’s support for anonymous juries included concerns over threats, intimidation, and possible attempts to influence juror members in order to secure a favorable verdict. The promise of a jury of one's peers is a cornerstone of the United States judicial system. Implicit in this guarantee is the assurance of an impartial jury. Nonetheless, a jury that sits in fear may not fulfill …

Religion In Public Schools: Let Us Pray - Or Not., Carolyn Hanahan, David M. Feldman

St. Mary's Law Journal

This Essay addresses judicial interpretation and application of the religious protections of students in public schools. Part II addresses the evolution of the law governing prayer in public schools, including the creation of judicial tests utilized in determining whether a school district has impeded the rights of students in the area of religion. Part III examines the application of these tests to various activities, including a discussion of the disparity in judicial interpretation with respect to the permissibility of prayer at public school functions. This Essay concludes with a discussion analyzing the effect of the recent United States Supreme Court …

Much Ado About Spam: Unsolicited Advertising, The Internet, And You., Scot M. Graydon

St. Mary's Law Journal

Internet users need protection from unsolicited commercial emails (UCEs), and this protection should come from federal legislation. Despite seventeen states having passed some sort of legislation regulating UCEs, this is insufficient to protect Internet users from UCEs. State laws are not uniformed and UCEs frequently cross state lines. Internet advertisers prefer commercial emails because of the ability to market to millions of consumers at a low cost. Consumers, however, suffer delays to their Internet access because of the amount of data UCEs accumulate, and in some cases may have to pay additional fees if they exceed the data limits of …

From Little Acorns Great Oaks Grow: The Constitutionality Of Protecting Minors From Harmful Internet Material In Public Libraries Comment., Kimberly S. Keller

St. Mary's Law Journal

Congress should focus on the receiver's end of Internet transmissions to overcome the anonymity and transmogrification elements of the Internet to protect minors from harmful material. Throughout the years, librarians have struggled with monitoring minors’ access to the accumulating number of controversial texts in the library. The Internet’s unique infrastructure affords librarians virtually no opportunity for the pre-shelf review available with books and videos. Congress enacted the Communications Decency Act (CDA) in 1996 in an attempt to protect minors from the underbelly of the internet. The United States Supreme Court, in Reno v. ACLU, struck down the CDA ruling that …

The Natural Law Tradition On The Modern Supreme Court: Not Burke, But The Enlightenment Tradition Represented By Locke, Madison, And Marshall., R. Randall Kelso

St. Mary's Law Journal

A traditional common-law style of judicial decisionmaking exists which was present at this nation’s founding. This common law style is derived from natural law tradition. And this tradition stands as an alternative to the formalism of Justice Scalia or the Holmesian style of Chief Justice Rehnquist. This natural law style, with its focus on the religious and communitarian ethical tradition, was the dominant view of judicial interpretation for the framing and ratifying generation of the original Constitution and the Civil War Amendments. The decisionmaking style of Justices O’Connor, Kennedy, and Souter appears to have great affinity with this traditional common-law …

Congressional Reform: Can Term Limitations Close The Door On Political Careerism., Julia C. Wommack

St. Mary's Law Journal

Addressing Congressional woes requires reform. Entrenched incumbency is a detriment to the legislative system. Although the enactment of initiatives restricting Congressional terms limits signal voters agree, better alternatives exist. The only prerequisites found in the Constitution for serving in Congress are age, residency, and citizenship. While the twenty-second amendment proscribes the presidential office limit maximum as two terms, no such limitations exist for a congressman or congresswoman. Sitting incumbents have substantial advantages over their challengers. Incumbents success ratio exceeds 80% in Senate races and is approximately 90% for elections in the House of Representatives. Congressional term limitations attempt to eliminate …

The Political Philosophy Of Campaign Finance Reform As Articulated In The Dissents In Austin V. Michigan Chamber Of Commerce., John S. Shockley, David A. Schultz

St. Mary's Law Journal

The 1992 presidential candidacy of Jerry Brown, who called for campaign contribution limits, has reignited the issue of campaign finance reform. Indeed, the United States Supreme Court has recognized the importance of campaign finance reform as a judicial issue. The importance of this issue is marked by the Court’s continued willingness to address the regulation of campaign finance since the 1976 landmark case of Buckley v. Valeo. The case of Austin v. Michigan Chamber of Commerce emphasized the somewhat confused nature of the Supreme Court’s campaign finance reform decisions. The Supreme Court and state legislatures will likely continue to address …

Educational Choice Legislation After Edgewood V. Kirby: A Proposal For Clearing The Sectarian Hurdle., C. Lee Cusenbary Jr.

St. Mary's Law Journal

States can reform the ineffective educational system by adopting a free educational choice system. A free educational choice system would reimburse parents of educational expenditures through a voucher or tax deduction and will give parents the freedom to select the school their child attends. While free choice may present a viable solution for educational reform, one major obstacle is the possibility free choice would violate the Establishment Clause of the First Amendment by providing aid to sectarian schools. A free educational choice legislation will be subject to review under the Lemon v. Kurtzman test to determine if the financial aid …

Nude Dancing Conveying A Message Or Eroticism And Sexuality Is Protected By The First Amendment But Can Be Limited Under State Police Powers Provided The Government Establishes A Substantial, Content-Neutral Purpose., Fred S. Wilson

St. Mary's Law Journal

In Barnes v. Glen Theatre, Inc., the Supreme Court held the First Amendment protects nude dancing as conveying an expressive message, but state police powers may limit protection if the government establishes a substantial, content-neutral purpose. It is a principal of constitutional law where an actor intends to convey a message by expressive conduct, the First Amendment protection extends to that expression. Traditionally, time, place, and manner regulations restricting expressive conduct based on either the subject-matter of the message or the viewpoint of the actor receive content-based classification. However, content-based regulation of expressive conduct is constitutional only when narrowly drawn …

The Whole Truth Or Nothing But The Truth - Should Attorneys Who Advertise Be Required To Disclose Prior Disciplinary Actions Taken Against Them., Sara Murray

St. Mary's Law Journal

A state should not require attorneys who advertise to disclose all prior disciplinary actions in their advertisements. Attorney advertising, like other forms of commercial speech, is not immune to state regulation. The American public deserves access to accurate information about legal services, and lawyers have a duty to provide such information. However, attorneys and all other citizens have a constitutional right not to speak. A state must balance the competing interests carefully when the public’s right to know clashes with an individual’s right not to speak. There are several arguments against requiring attorneys to disclose all prior disciplinary actions in …

Shouting Incitement In The Courtroom: An Evolving Theory Of Civil Liability Comment., Michael P. Kopech

St. Mary's Law Journal

Civil incitement is an evolving theory, intended to ascribe liability to a publisher. Civil incitement charges that the contents of a publication proximately caused the plaintiff’s physical injury, thus holding publishers civilly liable for the physical consequences of their communications. However, the validity of civil incitement as an actionable tort clashes with the principles of freedom of speech and press embodied within the First Amendment. Incitement, as a successful cause of action, demands following the standards set out in Brandenburg v. Ohio. Prior attempts to hold publishers civilly liable for the physical consequences of their communications have rarely survived motions …

An At-Will Employee May Be Fired Despite Motives Which Violate State Public Policy., Kelsey Menzel

St. Mary's Law Journal

Scholars generally agree children possess fewer rights than adults under the Constitution. Moreover, the school, as a restricted environment, places additional constraints on the constitutional rights of minors. In recent years, however, the Supreme Court extended to minor students the rights of equal protection and civil due process. In Tinker v. Des Moines Independent Community School District, the Court acknowledged children have First Amendment rights of self-expression in a school environment. This marked a significant change from the judiciary’s traditional reluctance to interfere in school matters. Subsequent First Amendment challenges to school board decisions have focused on library book removal. …