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Full-Text Articles in Law

Compelled Disclosures, Caroline Mala Corbin Jan 2014

Compelled Disclosures, Caroline Mala Corbin

Articles

Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples ...


Copyright Crime And Punishment: The First Amendment's Proportionality Puzzle, Margot Kaminski Jan 2014

Copyright Crime And Punishment: The First Amendment's Proportionality Puzzle, Margot Kaminski

Articles

The United States is often considered to be the most speech-protective country in the world. Paradoxically, the features that have led to this reputation have created areas in which the United States is in fact less speech protective than other countries. The Supreme Court's increasing use of a categorical approach to the First Amendment has created a growing divide between the US. approach to reconciling copyright and free expression and the proportionality analysis adopted by most of the rest of the world.

In practice, the U.S. categorical approach to the First Amendment minimizes opportunities for judicial oversight of ...


Hobby Lobby And The Pathology Of Citizens United, Ellen D. Katz Jan 2014

Hobby Lobby And The Pathology Of Citizens United, Ellen D. Katz

Articles

Four years ago, Citizens United v. Federal Election Commission held that for-profit corporations possess a First Amendment right to make independent campaign expenditures. In so doing, the United States Supreme Court invited speculation that such corporations might possess other First Amendment rights as well. The petitioners in Conestoga Wood Specialties Corp. v. Sebelius are now arguing that for-profit corporations are among the intended beneficiaries of the Free Exercise Clause and, along with the respondents in Sebelius v. Hobby Lobby Stores, that they also qualify as “persons” under the Religious Freedom Restoration Act (RFRA). Neither suggestion follows inexorably from Citizens United ...


The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos Jan 2014

The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos

Articles

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Article begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although ...


Setting The Tipping Point For Disclosing The Identity Of Anonymous Online Speakers: Lessons From Other Disclosure Contexts, Helen Norton Jan 2014

Setting The Tipping Point For Disclosing The Identity Of Anonymous Online Speakers: Lessons From Other Disclosure Contexts, Helen Norton

Articles

At what point should anonymous online speakers alleged to have engaged in defamatory, threatening, or other unprotected and illegal speech be required to “unmask” themselves – i.e., to disclose their identities? Courts confronted with such questions have proposed a variety of tests that seek to determine the point – I’ll call this the tipping point – at which they become sufficiently confident that disclosure’s accountability gains justify the unmasking of an anonymous online speaker. This essay suggests that an intradisciplinary approach may be helpful when choosing among these alternative tests. To this end, it recalls parallel disclosure challenges in campaign ...


Too Strict?, Richard B. Collins Jan 2014

Too Strict?, Richard B. Collins

Articles

Should the strict scrutiny standard govern judicial review of claims that government has burdened religious freedom? American law’s patchwork of rules applies that demanding standard to some claims but denies any meaningful review to others. A major difficulty is that most claims alleging denial of religious freedom depend on beliefs that cannot be reviewed by secular courts. Claims based on allegations alone shift the burden to the defending government. Strict scrutiny purports to make justification very difficult; governments are supposed to lose most cases. A second defect of the test in religious freedom cases is its failure to consider ...


Emotional Compelled Disclosures, Caroline Mala Corbin Jan 2014

Emotional Compelled Disclosures, Caroline Mala Corbin

Articles

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