Law Commons^™

Master Metaphors And Double-Coding In The Encounters Of Religion And State, Perry Dane

San Diego Law Review

That term “existential encounter” is meant to convey several important ideas. First, it suggests that what is at stake here is not merely a set of legal doctrines or policy prescriptions, but something deeper and more constitutive. The sovereign nation-state, in some sense, looks out at the world around it and sees other entities that do not easily fit into its own internal sovereign architecture. Some of these are other nation-states. Some might be other types of essentially secular, but non-state, human associations. And others are, or should be, communities—large and small, organized or not, united or splintered—whose normative commitment …

Religion In The Public Square, H.E. Baber

San Diego Law Review

The First Amendment to the U.S. Constitution both prohibits the establishment of religion and guarantees its free exercise. There is, however, a tension between the Free Exercise Clause and the Establishment Clause, which has been understood to erect a “wall of separation” between church and state. Prima facie, the Establishment Clause prohibits the state from providing special benefits to institutions or individuals in virtue of their religious affiliations or convictions. The Free Exercise Clause, however, is cited in support of accommodations for individuals who, because of their religious commitments, cannot in good conscience conform to laws or regulations. This seems …

Gone But Not Forgotten: Recognizing The Right To Be Forgotten In The U.S. To Lessen The Impacts Of Data Breaches, Ashley Stenning

San Diego International Law Journal

This Comment will explore the right to be forgotten, how it is recognized in the European Union, and the trend toward the existence of such a right in the United States. Additionally, this comment will discuss how the right to be forgotten could lessen the impact data breaches have on individuals through the lens of the Ashley Madison hack. Lastly, this comment will discuss how, if the United States narrowed the scope of the European Union’s concept of the right to be forgotten to fit into the United States’ view of privacy and the First Amendment, the impact of data …

After Caronia: First Amendment Concerns In Off-Label Promotion, Stephanie M. Greene

San Diego Law Review

The government has successfully prosecuted pharmaceutical companies for off-label promotion of drugs, maintaining that such promotion impermissibly undermines the FDA’s premarket approval process and jeopardizes the public health. In several recent cases, however, pharmaceutical companies have alleged that regulations prohibiting such promotion are unconstitutional because off-label promotion is protected under the First Amendment. Two recent U.S. Supreme Court cases contain language that gives broad protection to advertising and marketing in the pharmaceutical field. This Article questions the reach of these cases as applied to the practice of off-label promotion through detailing.

False Speech: Quagmire?, Christopher P. Guzelian

San Diego Law Review

Recently decided cases in several Federal Courts of Appeals and the United States Supreme Court show that First Amendment false speech case law is contradictory and unpredictable. This Article gives examples and concludes that legal liability for false speech will continue to be arbitrary and even susceptible to intentionally unjust decisionmaking if judges and juries individually and collectively disregard or downplay the necessity of an honest search for truth under the guise of tolerance and evenhandedness. If Americans wish to avoid an anything-goes “quagmire” about truth, they must—despite inevitable resistance in a civilization increasingly rife with skeptics—undergo transformations of their …

The Constitutional Jurisprudence Of Justice Kennedy On Speech, Charles D. Kelso, R. Randal Kelso

San Diego Law Review

Justice Kennedy's basic principles in free speech cases are supporting political freedom, supporting individual autonomy, and protecting freedom to teach, learn, and innovate. Given these principles, his opinions in free speech cases protect free speech from government regulation unless the government can provide strong reasons for any restrictive action and show that the means it has chosen to carry out its purposes are closely tailored to its goals. At a minimum, judicial review is by strict scrutiny for content-based regulations and intermediate review for content-neutral time, place, and manner regulations. In some cases, Justice Kennedy has indicated a preference for …

Adolescent Identity Versus The First Amendment: Sexuality And Speech Rights In The Public Schools, Steven J. Macias

San Diego Law Review

This Article examines the legal tensions that currently exist between public schools' attempts to protect gay students from bullying and harassment and antigay students' First Amendment rights to engage in allegedly harassing speech. First, it looks at the popular conception of the relationship between childhood or adolescence and sexuality by considering the political and legal fallout of the same-sex marriage debate. Then this Article turns to a conception of public schooling that would allow for the constitutionally permissible regulation of antigay-identity speech. Next, through the use of critical theory, this Article explains why First Amendment defenses to gay harassment have …

Judicial Line-Drawing And The Broader Culture: The Case Of Politics And Entertainment, R. George Wright

San Diego Law Review

This article puts in a broader legal and cultural context and critically evaluates Justice Scalia's reluctance to distinguish politics from entertainment or, more precisely, political speech from entertainment speech. Some may think of Justice Scalia's reluctance as the embodiment of judicial modesty or realistic practical wisdom. Others may think of it as an unnecessary expression of relativism or subjectivism that is ominous in its implications. Either way, whether we can appropriately distinguish between entertainment speech and political speech, and then apply appropriately different free speech standards in each case, says much about our status and priorities as a culture. Placing …

Neoformalism And The Reemergence Of The Right-Privilege Distinction In Public Employment Law, Paul M. Secunda

San Diego Law Review

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, the unconstitutional conditions doctrine has now been increasingly used to rob these employees of their constitutional rights.

Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought--the "subsidy school"--has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the "penalty school." Second, although initially developed in the …

Do Sexting Prosecutions Violate Teenagers' Constitutional Rights?, Joanne Sweeny

San Diego Law Review

The media has recently been highlighting a rash of prosecutions of teenagers who engage in "sexting"--sending nude or sexually explicit images of themselves or their peers--under child pornography laws. These prosecutions have led to mass criticism for threatening teens with long prison terms and registration as sex offenders for activities that are perceived to be relatively innocent. Many, if not most, of these sexting teens are legally permitted to engage in sexual activities through their states' statutory rape laws, which leads to an absurd situation in which teens are permitted to engage in sex but not photograph it. This mismatch …

“The Corporate Conscience” And Other First Amendment Follies In Pacific Gas & Electric

San Diego Law Review

No abstract provided.

Violence, Video Games, And A Voice Of Reason: Judge Posner To The Defense Of Kids' Culture And The First Amendment, Clay Calvert

San Diego Law Review

"We are in the world of kids' popular culture. But it is not lightly to be suppressed."' So wrote Judge Richard A. Posner on behalf of a unanimous three judge panel for the Seventh Circuit Court of Appeals in March 2001 in striking down, on First Amendment grounds, an Indianapolis ordinance that blocked minors' access to video games depicting violence. Judge Posner's erudite opinion could not have come at a more important time-a time when the entertainment industries in the United States seemingly are under government siege and when the media blame game is peaking. The judge's cogent reasoning and …

Braun V. Soldier Of Fortune: Tort Law Enters The Braun's Age As Constitutional Safeguards For Commercial Speech Buckle 'Neath The Crunch Of Third-Party Liability, Timothy J. Tatro

San Diego Law Review

Advertising is more than just a substantial source of revenue for publications. This author contends that advertising embodies the liberties of free speech and free press secured to all of us so fundamentally by the First Amendment. This Casenote analyzes Braun v. Soldier of Fortune Magazine, Inc., in which the Eleventh Circuit held a magazine liable for negligently publishing a gun-for-hire advertisement that allegedly resulted in the death of the plaintiff's father. The author is critical of this decision, noting the detrimental, long-reaching effects of sustaining a negligence action that penetrates so deeply into First Amendment freedoms.

Draft Card Burning Denied Symbolic Speech Protection Under Governmental Interest Rationale, James R. Goodwin

San Diego Law Review

On the morning of March 31, 1966, David O’Brien and three companions burned their draft cards on the steps of the South Boston Courthouse in protest against the Selective Service System and the war in Vietnam. The District Court of Massachusetts rejected O’Brien’s claim that his act was protected "symbolic speech" and convicted him of willfully and knowingly mutilating and destroying by burning his Registration Certificate in violation of section 12(b)(3) of the Universal Military Training and Service Act, 50 U.S.C. App. § 462(b), as amended, 79 Stat. 586.

The Constitutional Right Of Association. By David Fellman, Edward L. Barrett Jr.

San Diego Law Review

Professor Fellman's little book provides a helpful survey of the cases dealing with freedom of association. It is written simply enough to satisfy the demand of interested citizens who wish to be informed as to the legal principles applied in giving content to that "right of association" which has long been regarded as part of our constitutional heritage. Beyond that, however, the collection of cases and literature is sufficiently exhaustive to provide the base point form which legal scholars and social scientists may continue the research necessary for the "truly comprehensive study of the right of association" to which Professor …