Law Commons^™

Fixed Stars: Famous First Amendment Phrases And Their Indelible Impact, David L. Hudson Jr., Jacob David Glenn

Law Faculty Scholarship

Some passages in First Amendment law have taken on a life and legend of their own, entering our cultural lexicon for their particular power, precision or passion. Some phrases are just so beautifully written that they cannot escape notice. Others aptly capture the essence of a key concept in a memorable way. Still others seemingly have grown in importance simply by the frequency for which they are cited in later court decisions. This article analyzes ten phrases from U.S. Supreme Court First Amendment decisions that qualify as some of the most enduring passages in First Amendment jurisprudence.

Will Conservative Justices Sound The Death Knell Of State Action? Be Careful For What You Wish, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

The Content-Discrimination Principle And The Impact Of Reed V. Town Of Gilbert, David L. Hudson Jr.

Law Faculty Scholarship

The content-discrimination principle remains the chief analytical tool used in First Amendment jurisprudence. Under this doctrine, laws are categorized as content-based or content-neutral. Content-based laws are subject to strict scrutiny and content-neutral ones are subject to intermediate scrutiny.

The U.S. Supreme Court ratcheted up the content-discrimination principle in Reed v. Town of Gilbert. Previously, lower courts were divided on whether a law was content-based if the underlying purpose was not to engage in censorship or content-discrimination. In Reed, however, the Court declared that the law’s purpose is not the central inquiry. It concluded that if a law draws facial distinctions …

Thirty Years Of Hazelwood And Its Spread To Colleges And University Campuses, David L. Hudson Jr.

Law Faculty Scholarship

This Article first examines K-12 student speech law before Hazelwood School District v. Kuhlmeier and then discusses the Hazelwood decision. Next, the article focuses on the spread of Hazelwood and its deferential standard to the college and university level. This section examines cases from five different areas where the standard has been utilized with increasing frequency. Finally, the Article offers a few concluding thoughts on the Hazelwood standard and why it should be limited, if not interred.

Essay: Justice Thurgood Marshall, Great Defender Of First Amendment Free-Speech Rights For The Powerless, David L. Hudson Jr.

Law Faculty Scholarship

This essay explains that Justice Thurgood Marshall’s passionate defense of freedom of expression can be seen most clearly in his defense of free-speech rights even when the government acts not as sovereign, but as warden, employer, or educator. In other words, Marshall’s commitment to free-speech is shown most forcefully by how he consistently protected the free-expression rights of inmates, public employees, and public school students.

The Tension Between Equal Protection And Religious Freedom, John M. Greabe

Law Faculty Scholarship

[Excerpt] "The Constitution did not become our basic law at a single point in time. We ratified its first seven articles in 1788 but have since amended it 27 times. Many of these amendments memorialize fundamental shifts in values. Thus, it should come as no surprise to learn that the Constitution is not an internally consistent document."

…

"Other constitutional provisions -- even provisions that were simultaneously enacted -- protect freedoms that can come into conflict with one another. The First Amendment, for example, promises both freedom from governmental endorsement of religion and freedom from governmental interference with religious practice. …

Anti-Profanity Laws And The First Amendment, David L. Hudson Jr.

Law Faculty Scholarship

The essay first examines several current state laws that prohibit profanity under certain circumstances. It then details a few recent cases in which individuals were convicted for uttering profanity. The next section explains how profanity can be a part of an unprotected category of speech, such as fighting words, true threats, or harassment. Finally, the essay examines whether such laws and cases comport with First Amendment principles.

Could There Be Free Speech For Electronic Sheep, Ann Bartow

Law Faculty Scholarship

Review of Toni M. Massaro, Helen L. Norton & Margot E. Kaminski, Siri-ously 2.0: What Artificial Intelligence Reveals about the First Amendment, Minn. L. Rev.(forthcoming 2017)

First Amendment Right To Receive Information And Ideas Justifies Citizens' Videotaping Of The Police, David L. Hudson Jr.

Law Faculty Scholarship

Several courts have declared that members of the public have a First Amendment-protected right to film or videotape the police. At least one legal commentator has posited that this right falls within three of the five textually-based freedoms of the First Amendment - the Speech, Press, and Petition Clauses. This right to receive information and ideas is a "corollary" of the right to speak that triggers the First Amendment interests of not only speakers, but also audiences. This right to receive information and ideas applies in the context of citizens recording the police. The public has a right to know …

Defamation And The Government Employee: Redefining Who Constitutes A Public Official, Jeffrey Omar Usman

Law Faculty Scholarship

This Article embraces neither the narrow nor broad conceptualization of a public official employed currently by state and lower federal courts but instead suggests revisiting the Rosenblatt formulation and the one clear limitation set forth by Hutchinson that whatever the scope of public officialdom may be “it cannot be thought to include all public employees.” Though not all speech about government employees should be deemed to be related to their official capacity, all government employees should be considered public officials, and speech related to their official conduct should be safeguarded by the actual malice standard. To explain and support this …

Time For The Supreme Court To Address Off-Campus, Online Student Speech, David L. Hudson Jr.

Law Faculty Scholarship

An essay discussing the need for public school students and officials to know the limits of officials' authority over off-campus, online speech.

The Secondary-Effects Doctrine: Stripping Away First Amendment Freedoms, David L. Hudson Jr.

Law Faculty Scholarship

An essay on the secondary-effects doctrine and its threat to First Amendment.freedoms.

Foreword: Constitutional Constraints State Health Care & Privacy Regulation After Sorrell V. Ims Health, John M. Greabe

Law Faculty Scholarship

This brief Foreword explains that First Amendment law is fertile ground for analysis under choice of law principles. It then opines that the majority and dissenting opinions in Sorrell v. IMS Health are rooted in different choices of law that would benefit from a more explicit acknowledgment and explanation.

Stolen Valor & The First Amendment: Does Trademark Infringement Law Leave Congress An Opening?, Susan Richey, John M. Greabe

Law Faculty Scholarship

This paper elaborates an argument the authors presented in an amicus brief filed in United States v. Alvarez, the "Stolen Valor" case. The paper contends that Congress could constitutionally protect the Congressional Medal of Honor as a collective membership mark by means of trademark infringement legislation.

Advising Terrorism: Material Support, Safe Harbors, And Freedom Of Speech, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Pearson V. Callahan And Qualified Immunity: Impact On First Amendment Law, David L. Hudson Jr.

Law Faculty Scholarship

An essay on Pearson v. Callahan and its impact on First Amendment Law.

Pornography, Coercion, And Copyright Law 2.0, Ann Bartow

Law Faculty Scholarship

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their …

Defining Religion: The Struggle To Define Religion Under The First Amendment And The Contributions And Insights Of Other Disciplines Of Study, Including Theology, Psychology, Sociology, The Arts, And Anthropology, Jeffrey Omar Usman

Law Faculty Scholarship

This article attempts to explore from many vantage points one word within one context — the word “religion” in the First Amendment of the United States Constitution. The article begins with placing our understanding of religion in a historical context. By exploring the history of religious liberty in the colonies and the Founders’ view thereof, an understanding of what the Founders were seeking to protect by safeguarding religious liberty will be gained. Having established this framework, the article then addresses overarching issues that complicate the quest to define religion. Then, the article transitions into an exploration of the development of …

Art As Speech, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Blogs And The First Amendment, David L. Hudson Jr.

Law Faculty Scholarship

An essay discussing the First Amendment implications of blogs.

Roger Williams On Liberty Of Conscience, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Justice Brennan's Significant Departure And Warning Of An Evisceration, David L. Hudson Jr.

Law Faculty Scholarship

An essay on Justice Brennan's First Amendment jurisprudence regarding obscenity and the secondary effects doctrine.

Student Expression In The Age Of Columbine: Securing Safety And Protecting First Amendment Rights, David L. Hudson Jr.

Law Faculty Scholarship

"Student Expression in the Age of Columbine" is one in an ongoing series of First Reports, published by the First Amendment Center, on major First Amendment issues of our time.

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

Law Faculty Scholarship

No abstract provided.

Justice Clarence Thomas: The Emergence Of A Commercial-Speech Protector, David L. Hudson Jr.

Law Faculty Scholarship

An examination of Justice Clarence Thomas' jurisprudence regarding commercial speech.

Fear Of Violence In Our Schools: Is ‘Undifferentiated Fear’ In The Age Of Columbine Leading To A Suppression Of Student Speech?, David L. Hudson Jr.

Law Faculty Scholarship

An essay on the suppression of student speech in the age of mass school shootings.

The Courts’ Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, David L. Hudson Jr., John E. Ferguson Jr.

Law Faculty Scholarship

The majority of courts have cited Bethel v. Fraser in such a way as to give public school officials free reign to censor vulgar, lewd, or plainly offensive student speech. Some courts have gone a step further and prohibited student speech that contains offensive ideas. This article seeks to explain how the Fraser decision curtailed student rights recognized in the Supreme Court's last pure student speech case, Tinker v. Des Moines Independent Community School District.

Roger Williams's Gift: Religious Freedom In America, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

The Secondary Effects Doctrine: 'The Evisceration Of First Amendment Freedoms', David L. Hudson Jr.

Law Faculty Scholarship

An analysis of First Amendment Jurisprudence and the Secondary Effects Doctrine.

Hate Speech, Offensive Speech, And Public Discourse In America, Edward J. Eberle

Law Faculty Scholarship

In this article, Professor Eberle discusses several limitations on governmental power to regulate public discourse. After examining the United States Supreme Court decisions of R.A.V. v. City of St. Paula nd Wisconsin v. Mitchell, Professor Eberle concludes that government should refrain from regulating speech itself. Rather, any restrictions should focus strictly on the problematic conduct underlying the speech which justifies regulation. Professor Eberle also concludes that the Court has implicitly recognized two distinct subcategories of "content" discrimination and viewpoint discrimination. Both subcategories are presumptively unconstitutional and nominally subject to conventional strict scrutiny. The Court, however, finds viewpoint discrimination more dangerous …