Law Commons^™

Review Of The Book The Fight Against Book Bans: Perspectives From The Field, John A. Drobnicki

Publications and Research

Review of the book The Fight against Book Bans: Perspectives from the Field, edited by Shannon M. Oltmann.

Courting Censorship, Philip A. Hamburger

Faculty Scholarship

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship — in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.

This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion …

States Have Long Tried To Ban Ideas From The Classroom: The Current Road Brings A Fresh Evil, Leonard Niehoff

Other Publications

Efforts by state and local officials to ban ideas and books from public school classrooms are nothing new. Recent attempts to do so, however, have a uniquely pernicious characteristic. The current wave of bans doesn’t just seek to censor thoughts or words; it seeks to censor identity.

Campbell V. Reisch: The Dangers Of The Campaign Loophole In Social Media Blocking Litigation, Clare R. Norins, Mark Bailey

Scholarly Works

Since 2016, social media blocking by government officials has been a lively battleground for First Amendment rights of free speech and petition. Government officials increasingly rely on social media to communicate with the public while ever greater numbers of private individuals are voicing their opinions and petitioning for change on government officials' interactive social media accounts. Perhaps not surprisingly, this has prompted many government officials to block those users whose comments they deem to be critical or offensive. But such speech regulation by a government actor introduces viewpoint discrimination—a cardinal sin under the First Amendment.

In 2019, three United States …

Trademarks And Censorship In The Time Of Covid-19, Xuan-Thao Nguyen

Articles

During the devastating year of 2020, China quickly conquered the novel coronavirus and roared back economically while the United States faced staggering deaths and economic losses. But underneath the divergent experience of the two countries is an untold story of trademark and censorship in the time of COVID-19. This Article observes that while the United States Supreme Court has lifted the ban on trademark registrations for unconstitutional viewpoint discrimination, opening the door for offensive COVID-19 trademark applications, China has transformed trademark law into the law for censorship as Chinese authorities press forward to achieve twin victories over the coronavirus and …

Regulating Off-Campus Student Expression: Mahanoy Area School District V. B.L.: The Good News For College Student Journalists, Leslie Klein, Jonathan Peters

Scholarly Works

This essay argues that the 2021 U.S. Supreme Court case Mahanoy Area School District v. B.L. protects off-campus college student journalism (if not published in a school-sponsored outlet) from school censorship and punishment—thanks to the majority opinion's reliance on in loco parentis principles. In short, Mahanoy made clear that K-12 students generally have diminished First Amendment rights on campus because parents have delegated to teachers and staff some of their supervisory authority. That reasoning applies with less force when students speak off campus, and it applies with no force if the speaker is a legal adult, as nearly all college …

Restoring Student Press Freedoms: Why Every State Needs A 'New Voices' Law, Clare R. Norins, Taran Harmon-Walker, Navroz Tharani

Scholarly Works

Scholastic journalists across America have long provided vital reporting, commentary, and fresh perspective on issues of public concern to their readers. Never has this been more true than in the current age of dwindling print media, where scholastic journalists at both the high school and post-secondary levels are stepping in to populate what would otherwise be news deserts. Yet the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), allows school officials to censor both the content and style of school-sponsored media without offending the First Amendment. This essay traces the history of student speech rights …

Justice Anthony Kennedy's Free Speech Legacy [Comments], Nadine Strossen

Articles & Chapters

Justice Kennedy has been hailed by free speech advocates as a leading free speech champion. In contrast, other experts have not only criticized particular opinions and votes by Justice Kennedy that rejected free speech claims, but they also have maintained that Justice Kennedy specifically declined to protect speech that was at odds with his conservative political and religious views. It is certainly true that Justice Kennedy did not uphold freedom of speech in some important contexts, including when the Government asserted countervailing national security or "War on Drugs" concerns. However, in other important cases, Justice Kennedy showed courage in defending …

The Fcc And Profane Language: The Lugubrious Legacy Of A Moral Panic And A Grossly Offensive Definition That Must Be Jettisoned, Clay Calvert

UF Law Faculty Publications

This Article examines the Federal Communications Commission’s (“FCC”) regulation of profane language since 2004. That year is when the FCC, facing a moral panic, radically altered its profanity tack. Unlike obscenity and indecency, profanity—a third content category over which the Commission holds statutory authority—is seldom analyzed.

This Article argues that the FCC’s current definition of profane language not only strips its meaning from its religious roots, but also: (1) is both unconstitutionally vague and overbroad; and (2) violates core First Amendment principles against censoring speech that merely offends. The U.S. Supreme Court’s reinvigorated emphasis on safeguarding offensive expression in cases …

We’Ve Come A Long Way (Baby)! Or Have We? Evolving Intellectual Freedom Issues In The Us And Florida, L. Bryan Cooper, A.D. Beman-Cavallaro

Works of the FIU Libraries

This paper analyzes a shifting landscape of intellectual freedom (IF) in and outside Florida for children, adolescents, teens and adults. National ideals stand in tension with local and state developments, as new threats are visible in historical, legal, and technological context. Examples include doctrinal shifts, legislative bills, electronic surveillance and recent attempts to censor books, classroom texts, and reading lists.

Privacy rights for minors in Florida are increasingly unstable. New assertions of parental rights are part of a larger conservative animus. Proponents of IF can identify a lessening of ideals and standards that began after doctrinal fruition in the 1960s …

Corporate Social Responsibility And Social Media Corporations: Incorporating Human Rights Through Rankings, Self-Regulation And Shareholder Resolutions, Erika George

Utah Law Faculty Scholarship

This article examines the emergence and evolution of selected ranking and reporting frameworks in the expanding realm of business and human rights advocacy. It explores how indicators in the form of rankings and reports evaluating the conduct of transnational corporate actors can serve as regulatory tools with potential to bridge a global governance gap that often places human rights at risk. This article examines the relationship of transnational corporations in the Internet communications technology sector (ICT sector) to human rights and the risks presented to the right to freedom of expression and the right to privacy when ICT sector companies …

Ethical Decision Making: Balancing The Rights And Needs Of Stakeholders, Sarah Becker

Richard T. Schellhase Essay Prize in Ethics

No abstract provided.

John Stuart Mill And Political Correctness, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

This article will examine Mill’s arguments in favor of unrestrained freedom of speech and his objection to the social censorship of speech. It will then discuss the origins and impact of what is now characterized as political correctness. The article will then define the concept of social censorship and attempt to distinguish pure social censorship from private tangible punishment of speech. Next, the article will examine the ways in which social censorship serves important social goals and promotes free speech as well as the ways in which it undermines free speech. It will especially focus on the damage to intellectual …

Irb Licensing, Philip A. Hamburger

Faculty Scholarship

This chapter examines conflicting norms in the government's licensing of speech and the press on “human-subjects research” through institutional review boards (IRBs). It begins by discussing licensing and why the prohibition of it is so fundamental and prroceeds by providing an overview of the structure of institutional review board licensing. It then highlights the unconstitutionality of IRB laws, arguing that the use of IRBs violates the principles of academic freedom. It asserts that licensing of speech or the press was a method of controlling the press employed by the Inquisition and the Star Chamber, and the First Amendment unequivocally barred …

Censorship 101, Sonja R. West

Popular Media

This article looks at censorship in the public school setting.

Back To The Bad Old Days: President Putin's Hold On Free Speech In The Russian Federation, Rebecca Favret

Law Student Publications

This paper addresses new laws promulgated in Russia that restrict freedom of speech. Each implicitly reflects the Kremlin's hostility toward political dissidence in the aftermath of serious protests following President Putin's reelection and elections to the legislature. Disturbed by the outcry, which took place in cities across Russia but also infiltrated the Internet, the Russian legislature passed strict laws censoring Internet speech, prohibiting behavior and speech deemed "extremist," and curbing the size and type of public gatherings.

The new legislation is examined through the lens of some of the Kremlin's most infamous and recent targets: namely, the Internet blacklist and …

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 …

When Bad Speech Does Good, Mary Anne Franks

Articles

No abstract provided.

Bob Dylan On Lenny Bruce: More Of An Outlaw Than You Ever Were, Louise Harmon

Scholarly Works

No abstract provided.

Regulating Offensiveness: Snyder V. Phelps, Emotion, And The First Amendment, Christina E. Wells

Faculty Publications

In its upcoming term, the Court will decide in Snyder v. Phelps whether Albert Snyder can sue the Reverend Fred Phelps and other members of the Westboro Baptist Church for invasion of privacy and intentional infliction of emotional distress for protesting near his son’s funeral. Those arguing in favor of tort liability claim that the Phelps’ speech during a time of mourning and vulnerability is especially outrageous and injurious and that the First Amendment allows such regulation. Their arguments, however, effectively rely on the offensiveness of the Phelps’ message rather than on any external indicia of harm, such as noisy …

Foreword: On Publishing Anonymously, Anthony C. Infanti

Articles

In this foreword to the fall 2010 issue of the Pittsburgh Tax Review, I explain the troubling set of circumstances that led to our decision to publish one of the articles anonymously. All of the articles in this issue share a focus on suggestions for state and local tax reform in Pennsylvania. The circumstances surrounding the decision to publish this one article anonymously raise a host of questions regarding the extent to which tax professionals are free to make suggestions for tax reform without being subject to employer censorship.

Law In The Plays Of Elmer Rice, Randolph N. Jonakait

Articles & Chapters

While novels, short stories, television shows, movies, and classic dramas are often analyzed for insights into the law, modern plays are seldom similarly examined. The plays of Elmer Rice, however, should be discussed by those interested in our legal system. Rice, although now largely forgotten, was a leading playwright of the last century. He was a law school graduate, and his work often incorporated legal themes. His plays provide provocative commentaries about the law and raise dilemmas about justice and ethics that resonate today. This essay explores the interplay between plays and the law by examining the life and work …

Censorship By Proxy: The First Amendment, Internet Intermediaries, And The Problem Of The Weakest Link, Seth F. Kreimer

All Faculty Scholarship

The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private actors …

The New Censorship: Institutional Review Boards, Philip A. Hamburger

Faculty Scholarship

Do federal regulations on Institutional Review Boards violate the First Amendment? Do these regulations establish a new sort of censorship? And what does this reveal about the role of the Supreme Court?

Cross Burning, Hate Speech, And Free Speech In America, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

The First Amendment, The Public-Private Distinction, And Nongovernmental Suppression Of Wartime Political Debate, Gregory P. Magarian

Scholarship@WashULaw

This article proposes a major expansion in the scope of First Amendment law and offers a fresh way of understanding the public-private distinction. It contends that the Supreme Court should invoke the First Amendment to enjoin nongovernmental behavior that substantially impedes public political debate during times of war and national emergency. As the article explains, the present campaign against international terrorism has seen employers, property owners, and media corporations restrict political discussion more frequently and aggressively than the government has. If political debate is the most important object of First Amendment protection - which the article contends it is - …

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 Scholarship

No abstract provided.

Rewriting Near V. Minnesota: Creating A Complete Definition Of Prior Restraint, Michael I. Meyerson

All Faculty Scholarship

The decision in Near v. Minnesota, while establishing the prior restraint doctrine as a critical element for First Amendment analysis, failed to give a definition of prior restraint. The result has been inconsistent and unpredictable application of the doctrine as well as diminished protection of free expression. This article takes the next critical step in the journey begun by Near v. Minnesota; it attempts to create a comprehensive definition of prior restraint using the principles of separation of powers. Because all three branches can create 'prior restraints,' the prevention of unconstitutional restraints will necessitate different safeguards depending on which branch …

Quo Vadis, Posadas?, William W. Van Alstyne

Faculty Scholarship

This examination looks at Virginia's ban on speech advertising motorcycles and revisits the question raised in the Posadas decision - may a state ban speech about a legal product the state could ban if it so desired. This article uses comparisons to the government employee speech cases to further illuminate the issue.

The First Amendment, Children, The Internet, And America's Public Libraries, Fred H. Cate

Articles by Maurer Faculty

No abstract provided.