Law Commons^™

Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media, Meg Penrose

Faculty Scholarship

This paper takes a closer look at the First Amendment rights of college athletes to access social media while simultaneously participating in intercollegiate athletics. The question posed is quite simple: can a coach or athletic department at a public university legally restrict a student-athlete's use of social media? If so, does the First Amendment provide any restraints on the type or length of restrictions that can be imposed? Thus far, neither question has been presented to a court for resolution. However, the answers are vital, as college coaches and athletic directors seek to regulate their athletes in a constitutional manner.

Tinkering With Success: College Athletes, Social Media And The First Amendment, Meg Penrose

Faculty Scholarship

Good law does not always make good policy. This article seeks to provide a legal assessment, not a policy directive. The policy choices made by individual institutions and athletic departments should be guided by law, but absolutely left to institutional discretion. Many articles written on college student-athletes' social media usage attempt to urge policy directives clothed in constitutional analysis.

In this author's opinion, these articles have lost perspective-constitutional perspective. This article seeks primarily to provide a legal and constitutional assessment so that schools and their athletic departments will have ample information to then make their own policy choices.

Press Definition And The Religion Analogy, Ronnell Andersen Jones

Faculty Scholarship

n a Harvard Law Review Forum response to Professor Sonja West's symposium article, "Press Exceptionalism," Professor RonNell Andersen Jones critiques Professor West's effort to define "the press" for purposes of Press Clause exceptions and addresses the weaknesses of Professor West's analogy to Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC in drawing these definitional lines. The response highlights distinctions between Press Clause and Religion Clause jurisprudence and urges a more functional approach to press definition.

The Dangers Of Press Clause Dicta, Ronnell Andersen Jones

Faculty Scholarship

The United States Supreme Court has engaged in an unusual pattern of excessive dicta in cases involving the press. Indeed, a close examination of such cases reveals that it is one of the most consistent, defining characteristics of the U.S. Supreme Court’s media law jurisprudence in the last half century. The Court’s opinions in cases involving the media, while almost uniformly reaching conclusions based on other grounds, regularly include language about the constitutional or democratic character, duty, value, or role of the press — language that could be, but ultimately is not, significant to the constitutional conclusion reached. Although scholars …

What The Supreme Court Thinks Of The Press And Why It Matters, Ronnell Andersen Jones

Faculty Scholarship

Over the last fifty years, in cases involving the institutional press, the United States Supreme Court has offered characterizations of the purpose, duty, role, and value of the press in a democracy. An examination of the tone and quality of these characterizations over time suggests a downward trend, with largely favorable and praising characterizations of the press devolving into characterizations that are more distrusting and disparaging.

This Essay explores this trend, setting forth evidence of the Court’s changing view of the media—from the effusively complimentary depictions of the media during the Glory Days of the 1960s and 1970s to the …

Hosanna-Tabor In The Religious Freedom Panopticon, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Criminalizing Revenge Porn, Danielle Keats Citron, Mary Anne Franks

Faculty Scholarship

Violations of sexual privacy, notably the non-consensual publication of sexually graphic images in violation of someone's trust, deserve criminal punishment. They deny subjects' ability to decide if and when they are sexually exposed to the public and undermine trust needed for intimate relationships. Then too they produce grave emotional and dignitary harms, exact steep financial costs, and increase the risks of physical assault. A narrowly and carefully crafted criminal statute can comport with the First Amendment. The criminalization of revenge porn is necessary to protect against devastating privacy invasions that chill self-expression and ruin lives.

Politics Of Religious Freedom: Contested Genealogies, Peter G. Danchin, Saba Mahmood

Faculty Scholarship

No abstract provided.

Common Sense And Key Questions, Stuart M. Benjamin

Faculty Scholarship

No abstract provided.

A Primer On Hobby Lobby: For-Profit Corporate Entities' Challenge To The Hhs Mandate, Free Exercise Rights, Rfra's Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby

Faculty Scholarship

No abstract provided.

The Semiotics Of Film In Us Supreme Court Cases, Jessica Silbey, Meghan Hayes Slack

Faculty Scholarship

This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations …

Invisible Women: Why An Exemption For Hobby Lobby Would Violate The Establishment Clause, Frederick Mark Gedicks, Andrew Koppelman

Faculty Scholarship

Can an employer make his employees foot the bill for his religious beliefs? Merely to ask this question is to answer it. “Religious liberty” does not and cannot include the right to impose the costs of observing one's religion on someone else. Indeed, the Supreme Court has consistently interpreted the Free Exercise Clause, the Establishment Clause, and Title VII of the Civil Rights Act of 1964 to forbid permissive accommodations of religion in the for-profit workplace when they impose significant burdens on identifiable and discrete third parties.

In Sebelius v. Hobby Lobby Stores, Inc., however, an employer is claiming that …

The Forgotten Law Of Lobbying, Zephyr Teachout

Faculty Scholarship

For most of American history, until the 1950s, courts treated paid lobbying as a civic wrong, not a protected First Amendment right. Lobbying was presumptively against public policy, and lobbying contracts were not enforced. Paid lobbying threatened the integrity of individuals, legislators, lobbyists, and the integrity of society as a whole. Some states had laws criminalizing lobbying; Georgia had an anti-lobbying provision in its Constitution. Inasmuch as there was a personal right to either petition the government, or share views with officers of the government, this right was not something one could sell -- it was not, in the term …

Government Endorsement: A Reply To Nelson Tebbe's Government Nonendorsement, Abner S. Greene

Faculty Scholarship

In this response to Nelson Tebbe’s Government Nonendorsement, Abner Greene continues to develop his “thick perfectionist” view of government speech, arguing that the state may use its speech powers to advance various views of the good, from left, center,

The ‘Competition Of The Market’: “Enter The Elephant!” [A Restatement Of A Most Perplexing First Amendment Conundrum], William W. Van Alstyne

Faculty Scholarship

This short essay revisits the enduring problem of “government propaganda” in the domestic marketplace of “competing ideas.” Drawing his argument from the suggestions and from strongly worded dicta by several famous twentieth century justices (most notably Oliver Wendell Holmes, Jr., Louis Brandeis, Robert Jackson and Hugo Black), Van Alstyne suggests that the First Amendment invests every ordinary citizen with suitable standing (akin to that of a corporate shareholder) to call upon any judge bound by oath of office, as set forth in Article VI, and whose aid is thus appropriately invoked, to enjoin the government from acting as an ideological …

When Truth Cannot Be Presumed: The Regulation Of Drug Promotion Under An Expanding First Amendment, Christopher Robertson

Faculty Scholarship

The Food, Drug, and Cosmetic Act (FDCA) requires that, prior to marketing a drug, the manufacturer must prove that it is safe and effective for the manufacturer’s intended uses, as shown on the proposed label. Nonetheless, physicians may prescribe drugs for other “off-label” uses, and often do so. Still, manufacturers have not been allowed to promote the unproven uses in advertisements or sales pitches.

This regime is now precarious due to an onslaught of scholarly critiques, a series of Supreme Court decisions that enlarge the First Amendment, and a landmark court of appeals decision holding that the First Amendment precludes …

The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler

Faculty Scholarship

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch's suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to …

Market Structure And Political Law: A Taxonomy Of Power, Zephyr Teachout, Lina M. Khan

Faculty Scholarship

The goal of this Article is to create a way of seeing how market structure is innately political. It provides a taxonomy of ways in which large companies frequently exercise powers that possess the character of governance. Broadly, these exercises of power map onto three bodies of activity we generally assign to government: to set policy, to regulate markets, and to tax. We add a fourth category – which we call "dominance," after Brandeis – as a kind of catchall describing the other political impacts. The activities we outline will not always fit neatly into these categories, nor do all …

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Faculty Scholarship

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is at least absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent.

The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. …

Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion, Frederick Mark Gedicks, Rebecca G. Van Tassell

Faculty Scholarship

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked the Establishment Clause limits on such exemptions.

The heated religious-liberty rhetoric aimed at the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion — a government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …

That We Are Underlings: The Real Problems In Disciplining Political Spending And The First Amendment, Jedediah S. Purdy

Faculty Scholarship

We’re gathered at the intersection of professional reason and popular passion. The roughly two-thirds of Americans who have said they strongly oppose Citizens United don’t have a theory of the First Amendment; they have a felt sense that the decision is an emblem of the political condition that unites Tea Partiers, Occupiers, and the Warren wing of the Democratic Party in shared disgust: the superior political influence and access of big business and great fortunes. This is the condition, or a subset of the condition, that Larry Lessig and Zephyr Teachout call corruption rightly understood: structural corruption that tethers the …