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Articles 1 - 30 of 42
Full-Text Articles in Law
Ub Viewpoint – Dissolving The Shadows, Eric Easton
Ub Viewpoint – Dissolving The Shadows, Eric Easton
All Faculty Scholarship
No abstract provided.
“Exceedingly Vexed And Difficult”: Games And The First Amendment, Michael T. Morley
“Exceedingly Vexed And Difficult”: Games And The First Amendment, Michael T. Morley
Scholarly Publications
No abstract provided.
Choice Programs And Market-Based Separationism, Paul E. Salamanca
Choice Programs And Market-Based Separationism, Paul E. Salamanca
Law Faculty Scholarly Articles
The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious or …
To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne
To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne
Faculty Publications
No abstract provided.
Section 4: First Amendment, Institute Of Bill Of Rights Law, William & Mary Law School
Section 4: First Amendment, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
The Metes And Bounds Of State Sovereign Immunity, Scott Dodson
The Metes And Bounds Of State Sovereign Immunity, Scott Dodson
Faculty Publications
What are the constitutional parameters of state sovereign immunity? The Court has made clear that certain provisions of Article I contain no authority for overriding state sovereign immunity, while at least one other provision, the Fourteenth Amendment, permits Congress to abrogate the states’ sovereign immunity. How is this constitutional line drawn? It is temporally bound? In other words, are only certain Amendments enacted after the Eleventh Amendment free from absolute subservience to state sovereign immunity? Or, does it divide the original Constitution and its Amendments, meaning that state sovereign immunity permeates the original Constitution but does not infiltrate certain Amendments, …
School Vouchers And The Constitution - Permissible, Impermissible, Or Required?, Gary J. Simson
School Vouchers And The Constitution - Permissible, Impermissible, Or Required?, Gary J. Simson
Cornell Law Faculty Publications
No abstract provided.
The First Amendment And The Socialization Of Children: Compulsory Public Education And Vouchers, Steven H. Shiffrin
The First Amendment And The Socialization Of Children: Compulsory Public Education And Vouchers, Steven H. Shiffrin
Cornell Law Faculty Publications
Criticism of American public schools has been a cottage industry since the Nineteenth Century. In recent years the criticism has gone to the roots. Critics charge that to leave children imprisoned in the public school monopoly is to risk the standardization of our children; it is to socialize them in the preferred views of the State. They argue that it would be better to adopt a system of vouchers or private scholarships to support a multiplicity of private schools. A multiplicity of such schools, it is said, would enhance parental choice, would foster competition, and would promote a diversity of …
The First Amendment And "Virtual" Child Pornography, Michael B. Landau
The First Amendment And "Virtual" Child Pornography, Michael B. Landau
Faculty Publications By Year
No abstract provided.
"Charitable Choice" And The Accountability Challenge: Reconciling The Need For Regulation With The First Amendment Religion Clauses, Michele E. Gilman
"Charitable Choice" And The Accountability Challenge: Reconciling The Need For Regulation With The First Amendment Religion Clauses, Michele E. Gilman
All Faculty Scholarship
Since 1996, Congress has included charitable choice provisions in several social welfare statutes to encourage the participation of religious organizations in administering government-funded social service programs. In this Article, Professor Michele Gilman discusses the lack of accountability to beneficiaries that occurs when public funds are given to religious organizations for secular programs, and she proposes solutions to this problem. As Professor Gilman explains, doctrines that constrain abuses of governmental discretion, such as administrative procedure acts and constitutional restrictions, generally do not apply when public programs are privatized. Moreover, religious organizations are often insulated from public scrutiny because of First Amendment …
“Certain Fundamental Truths”: A Dialectic On Negative And Positive Liberty In Hate-Speech Cases, W. Bradley Wendel
“Certain Fundamental Truths”: A Dialectic On Negative And Positive Liberty In Hate-Speech Cases, W. Bradley Wendel
Cornell Law Faculty Publications
No abstract provided.
Terrorism And The Bill Of Rights, Rodney A. Smolla
Terrorism And The Bill Of Rights, Rodney A. Smolla
Scholarly Articles
In this article, Professor Smolla examines the right to free speech in the context of Black v. Commonwealth, a case which dealt with a Virginia law that banned cross-burning. While the legal doctrines argued in the Black case were certainly important then, they took on a whole new importance in light of the attacks on September 11, 2001. Professor Smolla discusses whether the terrorist attacks should affect the freedoms of speech and expression in America, concluding that, while horrific and life-changing, the attack on America should not alter our First Amendment rights.
The Puffery Of Lawyers, Rodney A. Smolla
Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman
Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman
All Faculty Scholarship
In recent decades, the doctrine of content neutrality has become the cornerstone of First Amendment jurisprudence. In the leading case of Police Department v. Mosley (1972), the Supreme Court declared that speech may "never" be regulated because of its content, for that would be "the essence of . . . censorship." If this view were taken literally, however, it would disable government from regulating speech even when necessary to prevent serious injury to individuals or society. In response to this concern, the Court has carved out several exceptions to the neutrality doctrine. Yet the Justices have never succeeded in explaining …
Compelled Expression And The Public Forum Doctrine, Howard M. Wasserman
Compelled Expression And The Public Forum Doctrine, Howard M. Wasserman
Faculty Publications
This Article analyzes the theory underlying the Fist Amendment protection against being compelled by government to utter, present, or fund unwanted expression. The author creates a three-part model for determining when the fire speech rights of an objecting payer have been triggered. Under that model, First Amendment rights are implicated when there has been an actual government compulsion requiring an individual to give money to, or for the express benefit of, a specific private speaker for some use that, in itself, should be understood as expressive. This model strikes a necessary balance between the important theoretical underpinnings of the protection …
Commercial Speech And The Unconstitutional Conditions Doctrine: A Second Look At "The Greater Includes The Lesser", Mitchell N. Berman
Commercial Speech And The Unconstitutional Conditions Doctrine: A Second Look At "The Greater Includes The Lesser", Mitchell N. Berman
All Faculty Scholarship
No abstract provided.
Prior Restraint In Wartime, Paul E. Salamanca
Prior Restraint In Wartime, Paul E. Salamanca
Law Faculty Popular Media
In this article for Bench & Bar Magazine (the Kentucky Bar Association's magazine), Professor Paul E. Salamanca discusses the First Amendment during times of war or conflict.
Use "The Filter You Were Born With": The Unconstitutionality Of Mandatory Internet Filtering For The Adult Patrons Of Public Libraries, Richard J. Peltz-Steele
Use "The Filter You Were Born With": The Unconstitutionality Of Mandatory Internet Filtering For The Adult Patrons Of Public Libraries, Richard J. Peltz-Steele
Faculty Publications
The only federal court (at the time of this writing) to consider the question ruled unconstitutional the mandatory filtering of Internet access for the adult patrons of public libraries. That 1998 decision helped the American Library Association and other free speech advocates fend off mandatory filtering for two years at the state and federal level, against the vigorous efforts of filtering proponents. Then, in 2000, the U.S. Congress conditioned federal funding of libraries on filter use, forcing the question into the courts as the latest colossal struggle over Internet regulation. This Article contends that the federal court in 1998 was …
The Establishment Clause As A Structural Restraint: Validations And Ramifications, Carl H. Esbeck
The Establishment Clause As A Structural Restraint: Validations And Ramifications, Carl H. Esbeck
Faculty Publications
The opening phrase of the First Amendment to the U.S. Constitution provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The free exercise clause functions as an individual right with its purpose being to forestall personal religious harm. Its underlying principle is that in religious matters a person ought to be free of coercion caused by the government and thereby not made to suffer for cause of conscience. The function of the establishment clause is altogether different, for its purpose is to restrain government from using its powers to act on matters …
Brandenburg And The United States War On Incitement Abroad: Defending A Double Standard, Lyrissa Lidsky
Brandenburg And The United States War On Incitement Abroad: Defending A Double Standard, Lyrissa Lidsky
Faculty Publications
While it is perfectly legitimate for the United States to attempt to persuade foreign citizens and media not to engage in advocacy of violent acts, the administration's rhetoric suggests that the United States expects foreign governments to take action against speech that would be protected by the First Amendment in the United States. What explains this apparent hypocrisy? Is this simply another example of the United States touting democracy at home while supporting despotism abroad? Or is the Brandenburg incitement standard so socially and culturally contingent that it is not appropriate for export, at least to the Arab Middle East? …
Your Money Or Your Speech: The Children's Internet Protection Act And The Congressional Assault On The First Amendment In Public Libraries, Steven D. Hinckley
Your Money Or Your Speech: The Children's Internet Protection Act And The Congressional Assault On The First Amendment In Public Libraries, Steven D. Hinckley
Journal Articles
This article examines the inherent conflict between This article examines the inherent conflict between two Congressional approaches to public access to the Internet - the provision of federal funding support to schools and public libraries to ensure broad access to online information regardless of financial means, and federal restrictions on children's use of school and public library computers to access content that the government feels could be harmful to them. It analyzes the efficacy and constitutionality of the Children's Internet Protection Act (CIPA), Congress's attempt to use its powers of the purse to control objectionable online content in the very …
The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, 10 Wm. & Mary Bill Rts. J. 249 (2002), Samuel R. Olken
UIC Law Open Access Faculty Scholarship
In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …
The First Amendment And The New Civil Liability, Rodney A. Smolla
The First Amendment And The New Civil Liability, Rodney A. Smolla
Scholarly Articles
Not available.
From Hit Man To Encyclopedia Of Jihad: How To Distinguish Freedom Of Speech From Terrorist Training, Rodney A. Smolla
From Hit Man To Encyclopedia Of Jihad: How To Distinguish Freedom Of Speech From Terrorist Training, Rodney A. Smolla
Scholarly Articles
Not available.
Information As Contraband: The First Amendment And Liability For Trafficking In Speech, Rodney A. Smolla
Information As Contraband: The First Amendment And Liability For Trafficking In Speech, Rodney A. Smolla
Scholarly Articles
Not available.
Criminal Speech And The First Amendment, Benjamin Means
Criminal Speech And The First Amendment, Benjamin Means
Faculty Publications
No abstract provided.
Telemarketing, Commercial Speech, And Central Hudson: Potential First Amendment Problems For Indiana Code Section 24-4.7 And Other "Do-Not-Call" Legislation, Steven R. Probst
Telemarketing, Commercial Speech, And Central Hudson: Potential First Amendment Problems For Indiana Code Section 24-4.7 And Other "Do-Not-Call" Legislation, Steven R. Probst
Law Faculty Publications
No abstract provided.
Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin Roger Scordato
Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin Roger Scordato
Scholarly Articles
The tragic events of September 11th generated numerous proposals for greater security measures and increased police powers that might, if implemented, constrict the customary scope of free speech in the United States. Legitimate concerns for internal security have placed increased pressures on traditional constitutional protections for expressive activity. It is against this backdrop that this article presents a careful examination of the basic rationales for adopting constitutional level protections for free speech. The article analyzes the nature of, and many of the conflicts among, the traditional rationales for a constitutional right of free expression. It also suggests that much of …
Law And Information Platforms, Philip J. Weiser
Threats, Free Speech, And The Jurisprudence Of The Federal Criminal Law, G. Robert Blakey, Brian J. Murray
Threats, Free Speech, And The Jurisprudence Of The Federal Criminal Law, G. Robert Blakey, Brian J. Murray
Journal Articles
In these materials, we set out a road map for the task of reforming the jurisprudence of threats and an articulation of its rationale under the First Amendment. In addition, we examine the basic jurisprudence of the federal criminal law, in particular, its traditional roots in notions of individual responsibility based on personal conduct and state of mind. In Part I, we analyze the district court and the Ninth Circuit opinions in the American Coalition litigation. In Part II, we trace the traditional theory and practice of free speech under the First Amendment, rooted in the history and various rationales …