Law Commons^™

United States V. Stevens: Win, Loss, Or Draw For Animals?, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

Robert J. Stevens, proprietor of “Dogs of Velvet and Steel,” was indicted for marketing dog-fighting videos in violation of 18 U.S.C. §48, a law criminalizing visual or auditory depictions of animals being “intentionally mutilated, tortured, wounded, or killed” if such conduct violated federal or state law where “the creation, sale, or possession [of such materials]” takes place.” The law aimed principally at makers and distributors of “crush videos” wherein women wearing high heels and depicted from the waist down, grind small animals to death. However, the language of 18 U.S.C. §48 extended to dog-fighting as well. Stevens challenged the law …

Government May Not Speak Out-Of-Turn, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

Johanns v. Livestock Marketing Association5 was about whether government could compel individual beef producers to pay for general beef advertising credited to "America's Beef Producers;" even if they disagreed with the message and wanted to spend their advertising money to distinguish their certified Angus or Hereford beef. That "compelled subsidy" case became the unlikely authority for a doctrine invented in Pleasant Grove City, Utah v. Summum6 that government could discriminate, based on viewpoint, on a subject for which it had no power to act. Each case has been criticized in its own right, but the attempt to make Johanns precedent …

Teens, Porn, And Video Games: Is It Time To Rethink Ginsberg?, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This term the Supreme Court will decide whether states can constitutionally ban sales of violent videogames to minors. In reaching its decision, the Court will inevitably be faced with how to deal with Ginsberg v. New York, the case that allowed states to forbid sales of non-obscene (constitutionally "protected") pornography to persons under age 17.

The opinion in Ginsberg, if not the result, is an odd duck in First Amendment jurisprudence. It is a case that applied "rational basis" review in an area where the Supreme Court now insists on strict scrutiny. But the Court predicated its use of rational …

The Government-Speech Doctrine: “Recently Minted,” But Counterfeit, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

The foci of this Article are the ill-advised creation of a government-speech doctrine in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), and its potential for substantial First Amendment mischief particularly with respect to the establishment of religion. Created out of whole cloth, with no regard for precedent, and in a case that did not even raise the issue of government speech, the doctrine permits the government to speak with viewpoint about controversial cultural issues upon which the government has no constitutional right to act. Asked to find unconstitutional the refusal of a municipality to allow a Summum …

Returning To Hazelwood's Core: A New Approach To Restrictions On School-Sponsored Speech, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

The Article begins by discussing the Hazelwood decision in depth. It then discusses the various contexts in which courts have applied Hazelwood and the circuit split that has developed over how broadly Hazelwood should reach. Next, it describes the circuit split over whether Hazelwood permits viewpoint-based speech restrictions, highlighting the different speech contexts in which the circuits have reached divergent conclusions. The Article then argues that the overextension of Hazelwood links the two splits. This Part also discusses why Hazelwood is uniquely suited to the student speech context and why other doctrines-namely, the Pickering-Connick framework for teachers' classroom speech and …

Justice Brennan And The First Amendment Minefield: In Respectful Appreciation, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

It is a special privilege, and a personal joy, for me to have the opportunity to contribute a piece honoring such a revered figure. I make no claim to scholarly objectivity. My premise is simple: William J. Brennan has given us a legacy of first amendment decisions, concurrences, and dissents that reflect great honor on the jurist. My portion of this Festschrift provides selected examples of Justice Brennan's contribution, and concludes by thanking him for serving, through his opinions, as a mentor for me throughout my career as a teacher of constitutional law.

Eras Of The First Amendment, David S. Yassky

Elisabeth Haub School of Law Faculty Publications

Part I will begin the story with the Founders' understanding of the structural role of the First Amendment. In this understanding, the First Amendment served as a bulwark of state independence. Along with the rest of the Bill of Rights, the First Amendment had as its primary purpose maintenance of the federal system--or, more precisely, protection of the states against federal government overreaching. The Founders' plan left the individual states entirely free to regulate speech, while strictly prohibiting the federal government from displacing the states' various speech regimes.

When the Civil War dramatically reshaped the federal-state relationship, the structural purpose …

Commentary, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

During the past year, the Court of Appeals for the Second Circuit decided a number of significant appeals involving constitutional issues. As is generally the case, most of the issues presented to the Second Circuit were also under judicial scrutiny in other federal appellate courts. Four first amendment cases decided by the court—three dealing primarily with freedom of religion and a fourth with freedom of the press—are particularly noteworthy and merit review.

Laird V. Tatum: The Supreme Court And A First Amendment Challenge To Military Surveillance Of Lawful Civilian Political Activity, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

This Comment will explore the salient issues raised by Laird v. Tatum and will attempt to answer the following questions: Did the Supreme Court err in denying the political activists an opportunity to present witnesses at a District Court hearing and in deciding the issues on the original papers and appellate brief? Was the Military Intelligence (hereinafter MI) program complained of an impermissible abridgment of First Amendment rights? Did Justice Rehnquist behave improperly by participating in the Laird v. Tatum decision? Last, to what extent has the Supreme Court's decision in this case affected future adjudication of First Amendment class …