Law Commons^™

The Story Of Beauharnais V. Illinois, Samantha Barbas

Journal Articles

No abstract provided.

The Rise And Fall Of Group Libel: The Forgotten Campaign For Hate Speech Laws, Samantha Barbas

Journal Articles

It is well-known that there is no “hate speech” law in the United States. This has been criticized, especially given the existence of robust hate speech laws in other nations. The absence of hate speech laws in American law has been attributed to legal, cultural, and historical factors, including speech protective First Amendment jurisprudence and long-standing skepticism of group reputation as an interest worthy of legal protection.

This Article presents another reason for the absence of hate speech laws in America: the failure of a large-scale social movement in the 1940s to pass hate speech laws or “group libel” laws, …

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

Journal Articles

No abstract provided.

The Law Of Advertising Outrage, Mark Bartholomew

Journal Articles

This article examines the stimulation of audience outrage, both as a marketing strategy and as a subject of legal regulation. A brief history of advertising in the United States reveals repeated yet relatively infrequent attempts to attract consumer attention through overt transgressions of social norms relating to sex, violence, race, and religion. Natural concerns over audience reaction limited use of this particular advertising tactic as businesses needed to be careful not to alienate prospective purchasers. But now companies can engage in “algorithmic outrage”—social media advertising meant to stimulate individual feelings of anger and upset—with less concern for a consumer backlash. …

When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas

Journal Articles

Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …

An Intersystemic View Of Intellectual Property And Free Speech, Mark Bartholomew, John Tehranian

Journal Articles

Intellectual property regimes operate in the shadow of the First Amendment. By deeming a particular activity as infringing, the law of copyright, trademark, and the right of publicity all limit communication. As a result, judges and lawmakers must delicately balance intellectual property rights with expressive freedoms. Interestingly, each intellectual property regime strikes the balance between ownership rights and free speech in a dramatically different way. Despite a large volume of scholarship on intellectual property rights and free speech considerations, this Article represents the first systematic effort to detail, analyze, and explain the divergent evolution of expression-based defenses in copyright, trademark, …

Ferlinghetti On Trial: The Howl Court Case And Juvenile Delinquency, Joel E. Black

Journal Articles

In spring 1957 the Juvenile Division of the San Francisco Police Department seized copies of Howl and charged the poem's publisher, Lawrence Felinghetti, with obscenity. Tried in summer 1957 and defended by the American Civil Liberties Union, Ferlinghetti was exonerated by a District Court judge. Scholars typically place the Howl trial at the beginning of a cultural and social revolution that flourished in the 1960s or place it amid the personal lives and rebellions of the actors composing the Beat Generation. However, these treatments do not fully consider the ways the prosecution reflected trends in law, shaped debates over juvenile …

The Value Of Valor: Money, Medals And Military Labor, Mateo Taussig-Rubbo

Journal Articles

The United States Supreme Court recently overturned the Stolen Valor Act on the grounds that the law’s blanket prohibition on falsely claiming to have received a military medal or decoration violated the First Amendment right to free speech. This Article uses the controversy provoked by the law to explore the implications of offering compensation for military service in the form of medals. How is compensation in medals related to monetary compensation? Querying the distinctions between money and medals — and the ways in which the boundaries around medals are drawn and policed — offers a means of considering the forms …

How The Movies Became Speech, Samantha Barbas

Journal Articles

In its 1915 decision in Mutual Film v. Industrial Commission of Ohio, the Supreme Court held that motion pictures were, as a medium, unprotected by freedom of speech and press because they were mere “entertainment” and “spectacles” with a “capacity for evil.” Mutual legitimated an extensive regime of film censorship that existed until the 1950s. It was not until 1952, in Burstyn v. Wilson, that the Court declared motion pictures to be, like the traditional press, an important medium for the communication of ideas protected by the First Amendment. By the middle of the next decade, film censorship in the …

The Sidis Case And The Origins Of Modern Privacy Law, Samantha Barbas

Journal Articles

The American press, it’s been said, is freer to invade personal privacy than perhaps any other in the world. The tort law of privacy, as a shield against unwanted media exposure of private life, is very weak. The usual reason given for the weakness of U.S. privacy law as a bar on the publication of private information is the strong tradition of First Amendment freedom. But “freedom of the press” alone cannot explain why liberty to publish has been interpreted as a right to print truly intimate matters or to thrust people into the spotlight against their will. Especially in …

Creating The Public Forum, Samantha Barbas

Journal Articles

The public forum doctrine protects a right of access - “First Amendment easements” - to streets and parks and other traditional places for public expression. It is well known that the doctrine was articulated by the Supreme Court in a series of cases in the 1930s and 1940s. Lesser known are the historical circumstances that surrounded its creation. Critics believed that in a modern world where the mass media dominated public discourse - where the soap box orator and pamphleteer had been replaced by the radio and mass circulation newspaper - mass communications had undermined the possibility of widespread participation …

The Death Of The Public Disclosure Tort: A Historical Perspective, Samantha Barbas

Journal Articles

In 1890, Samuel Warren and Louis Brandeis, in their famous Harvard Law Review article The Right to Privacy, called for a new legal right that would allow the victims of truthful but embarrassing press publicity to recover damages for emotional harm. Currently, in most states, it constitutes a tort if the disclosure of “matter concerning the private life of another” would be highly offensive to a reasonable person and the matter is not “of legitimate concern to the public,” or newsworthy. However, because courts generally consider virtually everything that appears in the news media to be newsworthy, the public disclosure …

Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew J. Steilen

Journal Articles

Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the article …

Parental Rights And The State Regulation Of Religious Schools, Matthew J. Steilen

Journal Articles

In Wisconsin v. Yoder, the United States Supreme Court invalidated convictions of several Amish parents for removing their children from school in violation of state mandatory attendance laws. In reaching its decision, the Court argued that protecting the Amish parents’ decisions fit into a longstanding American tradition of giving parents control over the upbringing of their children. Yet the Supreme Court mischaracterized the history of parental rights and state interests in education. Contemporary historical research shows that parents have long ceded a large measure of control to the state in the education of their children. Still, very little has been …

From Yoder To Yoda: Traditional, Modern And Postmodern Models Of Religion In U.S. Constitutional Law, Rebecca Redwood French

Journal Articles

No abstract provided.

The Political Spectator: Censorship, Protest And The Moviegoing Experience, 1912-1922, Samantha Barbas

Journal Articles

No abstract provided.

Efficiency And Image: Advertising As An Antitrust Issue, Elizabeth B. Mensch, Alan David Freeman

Journal Articles

No abstract provided.

Federal Labor Rights And Access To Private Property: The Nlrb And The Right To Exclude, Dianne Avery

Journal Articles

No abstract provided.

Protecting The Rationality Of Electoral Outcomes: A Challenge To First Amendment Doctrine, James A. Gardner

Journal Articles

No abstract provided.

Conspiracy And The First Amendment, David B. Filvaroff

Journal Articles

No abstract provided.

A Union Member's Right Of Free Speech And Assembly: Institutional Interests And Individual Rights, James B. Atleson

Journal Articles

No abstract provided.

The Conscientious Objector And The First Amendment: There But For The Grace Of God . . ., John Henry Schlegel

Journal Articles

No abstract provided.