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Full-Text Articles in Law

Trust And Retaliation: The First Amendment And Trump’S Taxes, Timothy Zick Jul 2019

Trust And Retaliation: The First Amendment And Trump’S Taxes, Timothy Zick

Popular Media

No abstract provided.


The President’S Utterly Un-American Response To Dissent, Timothy Zick Jul 2019

The President’S Utterly Un-American Response To Dissent, Timothy Zick

Popular Media

No abstract provided.


The Sickness Unto Death Of The First Amendment, Marc O. Degirolami Jul 2019

The Sickness Unto Death Of The First Amendment, Marc O. Degirolami

Faculty Publications

The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their ...


Brief Amici Curiae Of Electronic Frontier Foundation, 1851 Center For Constitutional Law, And Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O’Neill, Margaret Tarkington, Aaron H. Caplan, And Eugene Volokh In Support Of Respondent-Appellant, Joni Bey And Rebecca Rasawehr V. Jeffrey Rasawehr, Supreme Court Of Ohio (Case No. 2019-0295), David Forte, Stephen R. Lazarus, Kevin F. O'Neill, Jonathan L. Entin, Andrew Geronimo, Raymond Ku, Margaret Tarkington, Aaron H. Kaplan, Eugene Volokh Jul 2019

Brief Amici Curiae Of Electronic Frontier Foundation, 1851 Center For Constitutional Law, And Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O’Neill, Margaret Tarkington, Aaron H. Caplan, And Eugene Volokh In Support Of Respondent-Appellant, Joni Bey And Rebecca Rasawehr V. Jeffrey Rasawehr, Supreme Court Of Ohio (Case No. 2019-0295), David Forte, Stephen R. Lazarus, Kevin F. O'Neill, Jonathan L. Entin, Andrew Geronimo, Raymond Ku, Margaret Tarkington, Aaron H. Kaplan, Eugene Volokh

Law Faculty Briefs

The brief argues that the Third District Court of Appeals, in violation of the First Amendment, erred in upholding an injunction that barred defendant from any online postings regarding plaintiff, whether or not those postings were to plaintiff or to third parties.


Modern Misconceptions On The Wall Of Separation: An Analysis On The Influence And Misinterpretation Of Jefferson’S Separation Of Church And State, Marissa Swope Apr 2019

Modern Misconceptions On The Wall Of Separation: An Analysis On The Influence And Misinterpretation Of Jefferson’S Separation Of Church And State, Marissa Swope

Senior Honors Theses

The symbolic concept of separation between church and state defines the relationship between government and religion. While Jefferson did not author the phrase, the third President of the United States promoted the philosophy of a wall of separation between church and state in his letter to the Danbury Baptists in 1802. Jefferson’s support for a wall of separation stemmed from a strong belief in liberty of conscience and relied heavily upon the conviction to protect religious liberty. Through an analysis on the contextual history of the phrase, the original intent and application of separation of church and state becomes ...


How Media Impact Race Relations: Positive And Negative Historical Examples And Applied Psychological Principles, Sophia Nocera Mar 2019

How Media Impact Race Relations: Positive And Negative Historical Examples And Applied Psychological Principles, Sophia Nocera

Honors Theses, University of Nebraska-Lincoln

This thesis sought to examine how media influenced interracial relations in the 1920s and 1930s. It starts by defining necessary terms like media, race, racism, and stereotypes. Afterwards, studies which demonstrate that media reflect society are analyzed as well as studies which determine the extent of media influence on society. Media are the most influential on people who agree with the content provided and those who have no specific opinion on the issue at hand.

Next, psychological studies which determine the circumstances in which racist ideology is accepted the most are analyzed. This analysis determined that in-group versus out-group sentiments ...


Brief For Professor Kent Greenfield As Amicus Curiae In Support Of Respondents, State Of Washington Vs. Arlene's Flowers And Ingersoll Vs. Arlene's Flowers, Kent Greenfield Mar 2019

Brief For Professor Kent Greenfield As Amicus Curiae In Support Of Respondents, State Of Washington Vs. Arlene's Flowers And Ingersoll Vs. Arlene's Flowers, Kent Greenfield

Boston College Law School Faculty Papers

This amicus curiae brief addresses a fundamental state-law premise of Appellants’ constitutional claims that has gone largely unexplored in the prior briefing: whether Arlene’s Flowers, a Washington for-profit corporation, may obtain an exemption from generally applicable laws based on the religious beliefs of a shareholder, Mrs. Stutzman. Citing the U.S. Supreme Court’s decisions in Burwell v. Hobby Lobby Stores and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Appellants assert that “Arlene’s free-exercise rights are synonymous with Mrs. Stutzman’s.” Those two cases, however, had nothing to do with Washington corporate law and took no stance ...


Rwu First Amendement Blog: Jared Goldstein's Blog: The First Amendment And The Foxy Lady 01-08-2019, Jared A. Goldstein Jan 2019

Rwu First Amendement Blog: Jared Goldstein's Blog: The First Amendment And The Foxy Lady 01-08-2019, Jared A. Goldstein

Law School Blogs

No abstract provided.


A Piece Of Cake Or Religious Expression: Masterpiece Cakeshop And The First Amendment, Richard F. Duncan Jan 2019

A Piece Of Cake Or Religious Expression: Masterpiece Cakeshop And The First Amendment, Richard F. Duncan

College of Law, Faculty Publications

Sadly, religious liberty has become a matter of great controversy and division in our society. Although not so many years ago there was a nearly unanimous, bi-partisan consensus supporting the legal protection of religious liberty from laws substantially burdening the free exercise of religion, irreconcilable differences among us over contraception, abortion, sexuality, and the nature of marriage have made religious liberty a divisive partisan issue. Although most religious liberty cases concern religious minorities whose religiously-motivated conduct has been disregarded “by an insensitive majority,” a handful of cases involving Christian-owned businesses and ministries claiming a religious liberty right to refuse to ...


Pregnancy And The First Amendment, Helen Norton Jan 2019

Pregnancy And The First Amendment, Helen Norton

Articles

Suppose that you are pregnant and seated in the waiting room of a Planned Parenthood clinic, or maybe in a facility that advertises “Pregnant? We Can Help You.” This Essay discusses the First Amendment rules that apply to the government’s control of what you are about to hear.

If the government funds your clinic’s program, the U.S. Supreme Court has held that it does not violate the First Amendment’s Free Speech Clause when it forbids your health-care provider from offering you information about available abortion services. Nor does the government violate the Free Speech Clause, the ...


Powerful Speakers And Their Listeners, Helen Norton Jan 2019

Powerful Speakers And Their Listeners, Helen Norton

Articles

In certain settings, law sometimes puts listeners first when their First Amendment interests collide with speakers’. And collide they often do. Sometimes speakers prefer to tell lies when their listeners thirst for the truth. Sometimes listeners hope that speakers will reveal their secrets, while those speakers resist disclosure. And at still other times, speakers seek to address certain listeners when those listeners long to be left alone. When speakers’ and listeners’ First Amendment interests collide, whose interests should prevail? Law sometimes – but not always – puts listeners’ interests first in settings outside of public discourse where those listeners have less information ...


An Incomplete Masterpiece, Chad Flanders, Sean Oliveira Jan 2019

An Incomplete Masterpiece, Chad Flanders, Sean Oliveira

All Faculty Scholarship

The recent wave of popular and academic commentary on Masterpiece Cakeshop sounded a common theme: disappointment, even frustration. Masterpiece was held out as a case that was finally going to explain and resolve the conflicts between free expression, free exercise, and discrimination that were coming up again and again in the lower courts. But Justice Kennedy, the critical consensus went, avoided reaching many of the main First Amendment issues in the case and had instead ruled narrowly, giving us a prime example of"judicial minimalism:•

This assessment may be far too generous. In our short Article, we make the case ...


Platforms And The Fall Of The Fourth Estate: Looking Beyond The First Amendment To Protect Watchdog Journalism, Erin C. Carroll Jan 2019

Platforms And The Fall Of The Fourth Estate: Looking Beyond The First Amendment To Protect Watchdog Journalism, Erin C. Carroll

Georgetown Law Faculty Publications and Other Works

Journalists see the First Amendment as an amulet, and with good reason. It has long protected the Fourth Estate—an independent institutional press—in its exercise of editorial discretion to check government power. This protection helped the Fourth Estate flourish in the second half of the twentieth century and ably perform its constitutional watchdog role.

But in the last two decades, the media ecology has changed. The Fourth Estate has been subsumed by a Networked Press in which journalists are joined by engineers, algorithms, audience, and other human and non-human actors in creating and distributing news. The Networked Press’s ...


The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth Jan 2019

The (Limited) Constitutional Right To Compete In An Occupation, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

Is there a constitutional right to compete in an occupation? The “right to earn a living” movement, gaining steam in policy circles and winning some battles in the lower courts, says so. Advocates for this right say that the right to compete in an occupation stands on equal footing with our most sacred constitutional rights such as the right to be free from racial discrimination. This Article takes a different view, arguing that while there is a limited constitutional right to compete in an occupation, it is—and should be—weaker than these advocates claim. Some state licensing laws run ...


The Invention Of First Amendment Federalism, Jud Campbell Jan 2019

The Invention Of First Amendment Federalism, Jud Campbell

Law Faculty Publications

When insisting that the Sedition Act of 1798 violated the First Amendment, Jeffersonian Republicans cast their argument in historical terms, claiming that the Speech and Press Clauses eliminated any federal power to restrict expression. Scholars, in turn, have generally accepted that Republicans had a consistent understanding of the First Amendment throughout the 1790s. But Founding Era constitutionalism was dynamic in practice, even while often conservative in rhetoric, and scholars have missed the striking novelty of the principal argument against the Sedition Act. Republicans had taken a rights provision and transformed it into a federalism rule.

Mostly ignored in the literature ...


Compelled Subsidies And Original Meaning, Jud Campbell Jan 2019

Compelled Subsidies And Original Meaning, Jud Campbell

Law Faculty Publications

The rule against compelled subsidization of speech is at the forefront of modem First Amendment disputes. Challenges to mandatory union dues, laws preventing discrimination on the basis of sexual orientation, and the federal "contraceptive mandate" have all featured variants of the anti-subsidization principle, reasoning that the government cannot compel people to support the objectionable activities of others. But the literature currently fails to evaluate modem compelled-subsidy doctrine in terms of the original meaning of the First Amendment. This Essay takes up that task.

Approaching any question of original meaning requires a willingness to encounter a constitutional world that looks very ...


The Rise Of The Working Class Shareholder: An Application, An Extension And A Challenge, Kent Greenfield Jan 2019

The Rise Of The Working Class Shareholder: An Application, An Extension And A Challenge, Kent Greenfield

Boston College Law School Faculty Papers

A review and analysis of David Webber's book The Rise of the Working Class Shareholder, with ideas on how to extend his points, and a challenge to one of his underlying assumptions with regard to the impact of Citizens United v Federal Election Commission.


Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin Jan 2019

Christian Legislative Prayers And Christian Nationalism, Caroline Mala Corbin

Articles

No abstract provided.


A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen Jan 2019

A Skeptical View Of Information Fiduciaries, Lina Khan, David E. Pozen

Faculty Scholarship

The concept of “information fiduciaries” has surged to the forefront of debates on online platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad ...


Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir Jan 2019

Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir

Law Faculty Articles and Essays

In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.

For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex ...


Ventura V. Kyle And American Sniper; The Anatomy Of A Public Figure’S Lawsuit, Michael K. Steenson Jan 2019

Ventura V. Kyle And American Sniper; The Anatomy Of A Public Figure’S Lawsuit, Michael K. Steenson

Faculty Scholarship

Chris Kyle's book, American Sniper, detailed his exploits as a prolific Navy SEAL sniper. In a book subchapter Kyle detailed an encounter with a "Mr. Scruff Face" in a San Diego Bar. The book states that Ventura made certain statements that were demeaning of the United States and the Navy SEALS. Scruff Face was subsequently identified by Chris Kyle as Jesse Ventura, former governor of Minnesota. Ventura sued Chris Kyle for defamation, appropriation, and unjust enrichment. Relying on trial court documents, briefs, and the opinions in the case, this article probes those theories of recovery with an emphasis on ...


The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman Jan 2019

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

Scholarly Articles

In Near v. Minnesota, the Supreme Court added the injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgments. The prior restraint label resembles a death sentence. This article maintains that such massive retaliation is overkill.

A judge’s injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine because defamation isn’t protected by the First Amendment. Arguing that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will ...


Ministerial Magic: Tax-Free Housing And Religious Employers, Bridget J. Crawford, Emily Gold Waldman Jan 2019

Ministerial Magic: Tax-Free Housing And Religious Employers, Bridget J. Crawford, Emily Gold Waldman

Pace Law Faculty Publications

Religious organizations enjoy many of the same benefits that other non-profit organizations do. Churches, temples and mosques, for example, generally are exempt from local real estate taxes. Economically speaking, a tax exemption has the same effect as a subsidy; freedom from tax liability means that the organization can devote its financial resources to other activities. But where an exemption afforded to a religious employee is broader than the equivalent exemption available to a secular employee, a significant Establishment Clause concern is raised. The parsonage exemption of Internal Revenue Code Section 107 presents such an issue: ministers are permitted to exclude ...


Fiduciary Blind Spot: The Failure Of Institutional Investors To Prevent The Illegitimate Use Of Working Americans' Savings For Corporate Political Spending, Leo E. Strine Jr. Dec 2018

Fiduciary Blind Spot: The Failure Of Institutional Investors To Prevent The Illegitimate Use Of Working Americans' Savings For Corporate Political Spending, Leo E. Strine Jr.

Faculty Scholarship at Penn Law

For decades, American workers have been subjected to increasing pressure to become forced capitalists, in the sense that to provide for retirement for themselves, and to pay for college for their children, they must turn part of their income every month over to mutual funds who participate in 401(k) and 529 programs. These “Worker Investors” save for the long term, often hold portfolios that are a proxy for the entire economy, and depend on the economy’s ability to generate good jobs and sustainable growth in order for them to be able to have economic security. In recent years ...


Rwu First Amendment Blog: David Logan's Blog: Recognizing The Free Press In The Crosshairs Across The Globe 12-12-2018, David A. Logan Dec 2018

Rwu First Amendment Blog: David Logan's Blog: Recognizing The Free Press In The Crosshairs Across The Globe 12-12-2018, David A. Logan

Life of the Law School (1993- )

No abstract provided.


The Esquire Case: A Lost Free Speech Landmark, Samantha Barbas Dec 2018

The Esquire Case: A Lost Free Speech Landmark, Samantha Barbas

Journal Articles

No abstract provided.


Corporate Constitutional Rights: Easy And Hard Cases, Kent Greenfield Nov 2018

Corporate Constitutional Rights: Easy And Hard Cases, Kent Greenfield

Boston College Law School Faculty Papers

No abstract provided.


Patin V. Lee, 134 Nev. Adv. Op. 87 (Nov. 15, 2018) (En Banc), Haley Jaramillo Nov 2018

Patin V. Lee, 134 Nev. Adv. Op. 87 (Nov. 15, 2018) (En Banc), Haley Jaramillo

Nevada Supreme Court Summaries

The Court held that a statement by an attorney on her firm’s website summarizing a jury’s verdict is not a statement in direct connection with an issue under consideration by a judicial body. The Court explained that because the statement is not a “good faith communication in furtherance of the right . . . to free speech in direct connection with an issue of public concern,” it would not receive anti-SLAPP (Strategic Lawsuit Against Public Participation) protection under NRS § 41.660(1).


Restoring The Establishment Clause To The States; Restoring Religious Tolerance, Golden Gate University Law Review Oct 2018

Restoring The Establishment Clause To The States; Restoring Religious Tolerance, Golden Gate University Law Review

GGU Law Review Blog

In recent years, the Supreme Court has recognized the downturn of consistent and reliable Establishment Clause jurisprudence. The inconsistency of opinions and the often hostile outcomes have left the Establishment Clause in “shambles”. Justices have commented that there is no other area of law in more desperate need of repair than the Establishment Clause. One reason posited for the current state of confusion is that the Establishment Clause was never intended to be incorporated. Because of this, even the Supreme Court cannot agree on a single test or even consistently apply the many tests it currently employs.


Rwu First Amendment Blog: Jenna Wims Hashway's Blog: First Amendment Lets Officials Mute But Not Block Twitter Critics 10/09/2018, Jenna Wims Hashway Oct 2018

Rwu First Amendment Blog: Jenna Wims Hashway's Blog: First Amendment Lets Officials Mute But Not Block Twitter Critics 10/09/2018, Jenna Wims Hashway

Law School Blogs

No abstract provided.