Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- First Amendment (19)
- Constitutional Law (15)
- Communications Law (5)
- Law and Society (4)
- Election Law (3)
-
- Entertainment, Arts, and Sports Law (3)
- Arts and Humanities (2)
- Civil Rights and Discrimination (2)
- Criminal Law (2)
- Criminal Procedure (2)
- Education Law (2)
- Feminist, Gender, and Sexuality Studies (2)
- Health Law and Policy (2)
- Internet Law (2)
- Jurisprudence (2)
- Law and Politics (2)
- Legal Ethics and Professional Responsibility (2)
- Legislation (2)
- Lesbian, Gay, Bisexual, and Transgender Studies (2)
- Religion Law (2)
- State and Local Government Law (2)
- Common Law (1)
- Courts (1)
- Environmental Law (1)
- Immigration Law (1)
- Land Use Law (1)
- Military, War, and Peace (1)
- Oil, Gas, and Mineral Law (1)
- Organizations Law (1)
- Institution
-
- Maurer School of Law: Indiana University (4)
- Vanderbilt University Law School (4)
- Cleveland State University (2)
- Cornell University Law School (2)
- George Washington University Law School (2)
-
- Notre Dame Law School (2)
- Selected Works (2)
- St. Mary's University (2)
- Touro University Jacob D. Fuchsberg Law Center (2)
- University of Baltimore Law (2)
- University of Tennessee College of Law (2)
- American University Washington College of Law (1)
- Boston University School of Law (1)
- Columbia Law School (1)
- Emory University School of Law (1)
- Florida Coastal School of Law (1)
- Georgetown University Law Center (1)
- Marquette University Law School (1)
- Northern Illinois University (1)
- Seattle University School of Law (1)
- SelectedWorks (1)
- Texas A&M University School of Law (1)
- University of Arkansas at Little Rock William H. Bowen School of Law (1)
- University of Massachusetts School of Law (1)
- University of Miami Law School (1)
- University of Missouri School of Law (1)
- University of Oklahoma College of Law (1)
- University of South Carolina (1)
- Publication
-
- Vanderbilt Journal of Entertainment & Technology Law (4)
- Faculty Scholarship (3)
- Scholarly Works (3)
- All Faculty Scholarship (2)
- Articles by Maurer Faculty (2)
-
- Cornell Law Faculty Publications (2)
- Faculty Articles (2)
- Federal Communications Law Journal (2)
- GW Law Faculty Publications & Other Works (2)
- Journal Articles (2)
- American University Law Review (1)
- Articles (1)
- Cleveland State Law Review (1)
- College of Law Faculty Scholarship (1)
- Faculty Publications (1)
- Georgetown Law Faculty Publications and Other Works (1)
- James Edward Maule (1)
- Journal of Law and Health (1)
- Marquette Sports Law Review (1)
- Missouri Law Review (1)
- Nancy J. Knauer (1)
- Northern Illinois University Law Review (1)
- Oklahoma Law Review (1)
- Seattle University Law Review (1)
- South Carolina Law Review (1)
- St. Mary's Law Journal (1)
- Stephen Durden (1)
- Tamara R. Piety (1)
- The Journal of Appellate Practice and Process (1)
- Publication Type
Articles 1 - 30 of 43
Full-Text Articles in Law
Disfavored Speech About Favored Rights: Hill V. Colorado, The Vanishing Public Forum And The Need For An Objective Speech Discrimination Test, Jamin B. Raskin, Clark L. Leblanc
Disfavored Speech About Favored Rights: Hill V. Colorado, The Vanishing Public Forum And The Need For An Objective Speech Discrimination Test, Jamin B. Raskin, Clark L. Leblanc
American University Law Review
No abstract provided.
God, Man, And Law: Of Rights And Responsibilities, E. Thomas Ryder
God, Man, And Law: Of Rights And Responsibilities, E. Thomas Ryder
Northern Illinois University Law Review
This comment examines the evolving construction, modifications and improvements made to the "wall of separation between church and state." Initially, the comment presents an analysis of the unifying religious themes of individual responsibilities, which underlie our rights, as a reason why religion is important, even in schools. The author then reviews the historical origins and early development of the Establishment and Free Exercise Clauses, and examines modem Establishment Clause jurisprudence. The comment then examines the Cleveland, Ohio elementary school voucher program, applying current Establishment Clause jurisprudence. The conclusion then recommends embracing anew the dynamic role of religion in United States …
God Bless The Kickoff: School Prayer In South Carolina In The Wake Of Santa Fe V. Doe, Richele Keel Taylor
God Bless The Kickoff: School Prayer In South Carolina In The Wake Of Santa Fe V. Doe, Richele Keel Taylor
South Carolina Law Review
No abstract provided.
Thomas Maule, Colonial American Writer, 1643-1724, Truth Held Forth…, Theological Treatise, 1695, James Edward Maule
Thomas Maule, Colonial American Writer, 1643-1724, Truth Held Forth…, Theological Treatise, 1695, James Edward Maule
James Edward Maule
No abstract provided.
Knockin' On Heaven's Door: Rethinking The Role Of Religion In Death Penalty Cases, Gary J. Simson, Stephen P. Garvey
Knockin' On Heaven's Door: Rethinking The Role Of Religion In Death Penalty Cases, Gary J. Simson, Stephen P. Garvey
Cornell Law Faculty Publications
Religion has played a prominent role at various points of capital trials. In jury selection, peremptory challenges have been exercised against prospective jurors on the basis of their religion. At the sentencing phase, defendants have offered as mitigating evidence proof of their religiosity, and the prosecution has introduced evidence of the victim's religiosity. In closing argument, quotations from the Bible and other appeals to religion have long been common. During deliberations, jurors have engaged in group prayer and tried to sway one another with quotes from scripture.
Such practices have not gone unquestioned. Rather remarkably, however, the questions have almost …
Prosecuting Conduit Campaign Contributions - Hard Time For Soft Money, Robert D. Probasco
Prosecuting Conduit Campaign Contributions - Hard Time For Soft Money, Robert D. Probasco
Faculty Scholarship
In recent years, there have been several high-profile prosecutions for violations of the Federal Election Campaign Act, involving contributions nominally by one individual but funded or reimbursed by another individual deemed to be the true contributor. Prosecutions of these “conduit contribution” cases have been surprising in at least three significant respects. First, the prosecutions have been based on violations of FECA’s reporting requirements and may not have involved any violations of the substantive prohibitions or limitations of contributions. Second, the defendants were the donors rather than campaign officials who actually filed reports with FECA. Third, the cases were prosecuted as …
Rendering Unto Caesar Or Electioneering For Caesar--Loss Of Church Tax Exemption For Participation In Electoral Politics, Alan L. Feld
Rendering Unto Caesar Or Electioneering For Caesar--Loss Of Church Tax Exemption For Participation In Electoral Politics, Alan L. Feld
Faculty Scholarship
The restriction on church participation in political campaigns contained in the Internal Revenue Code operates uneasily. It appears to serve the useful purpose of separating the spheres of religion and electoral politics. But the separation often is only apparent, as churches in practice signal support for a particular candidate in a variety of rays that historically have not cost them their exemptions. Although the limited enforcement by the Internal Revenue Service has reflected the sensitive nature of the First Amendment values present, the federal government should provide more formal elaboration by statute or regulation. Focus on the use of funds …
Use Of Public Record Databases In Newspaper And Television Newsrooms, Brooke Barnett
Use Of Public Record Databases In Newspaper And Television Newsrooms, Brooke Barnett
Federal Communications Law Journal
After almost fifty years of unprecedented freedom, access to public records is under threat today at the state and federal level. Survey research and in-depth interviews of newspaper and television journalists show that public records are being obtained through several mechanisms, including databases. This Comment, together with its underlying study, illustrates that these databases are essential to developing certain stories, including some covering the most critical subjects: investigative reports, crime, and political stories. Therefore, this Comment argues, restricting access to public records has the potential to halt or substantially hinder the media’s ability to serve as a check on business …
Constitutionality Of "No-Citation" Rules, Salem M. Katsh, Alex V. Chachkes
Constitutionality Of "No-Citation" Rules, Salem M. Katsh, Alex V. Chachkes
The Journal of Appellate Practice and Process
No-citation rules raise serious constitutional concerns. Assuming that it is constitutional to designate an opinion as nonprecedential, it is not constitutional to prohibit citing an opinion. No-citation rules are unconstitutional for two reasons. The first, citation prohibitions interfere with a litigant’s First Amendment right of speech and petition. Second, citation prohibitions violate the separation of powers.
Rewriting Near V. Minnesota: Creating A Complete Definition Of Prior Restraint, Michael I. Meyerson
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 …
Filth, Filtering, And The First Amendment: Ruminations On Public Libraries’ Use Of Internet Filtering Software, Bernard W. Bell
Filth, Filtering, And The First Amendment: Ruminations On Public Libraries’ Use Of Internet Filtering Software, Bernard W. Bell
Federal Communications Law Journal
Traditionally, whenever the government has sought to regulate speech, analysis of its action focused on conventional issues, such as the type of forum involved, whether the government acted in a regulatory or a proprietary role, and whether the regulation could be defined as a prior restraint. With the advent of the Internet and the opportunity for the widespread dissemination of viewpoints, however, new issues have arisen. This Article focuses on the complex questions public libraries face when filtering material, usually of a sexually explicit nature, from the public using filtering software. This Article contends that public libraries require a unique …
Expiating The Sins Of Yoder And Smith: Toward A Unified Theory Of First Amendment Exemptions From Neutral Laws Of General Applicability, Brian A. Freeman
Expiating The Sins Of Yoder And Smith: Toward A Unified Theory Of First Amendment Exemptions From Neutral Laws Of General Applicability, Brian A. Freeman
Missouri Law Review
This Article explores the extent to which the Constitution requires exemptions from neutral laws of general applicability in order to protect the free exercise of religion. Part I sets forth the current Supreme Court jurisprudence in this area, focusing on the most recent cases, which suggest that only laws that are not neutral or generally applicable are subject to strict scrutiny; otherwise, the majority believes that neutral generally applicable laws are subject to rational basis review. Part I also includes a discussion of analogous First Amendment freedom of expression cases, especially the “expressive conduct” cases, in which the court uses …
First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz
First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz
Scholarly Works
No abstract provided.
The Neglected History Of The Prior Restraint Doctrine: Rediscovering The Link Between The First Amendment And The Separation Of Powers, Michael I. Meyerson
The Neglected History Of The Prior Restraint Doctrine: Rediscovering The Link Between The First Amendment And The Separation Of Powers, Michael I. Meyerson
All Faculty Scholarship
The prior restraint doctrine, once so fundamental to Constitutional Jurisprudence, has lost much of its effectiveness over the years. Nevertheless, prior restraint doctrine is crucial to preserving the line between protected and unprotected speech. One of the fundamental problems that contribute to the current ineffectiveness of prior restraint doctrine is that there exists no comprehensive definition of "prior restraint". This article chronicles the historical roots of prior restraint in order to arrive at a generally accepted legal definition. Through the course of this historical journey, the article yields a heretofore unexplored aspect of prior restraint doctrine, namely that prior restraint …
"Closet Case": Boy Scouts Of America V. Dale And The Reinforcement Of Gay, Lesbian, Bisexual, And Transgender Invisibility, Darren L. Hutchinson
"Closet Case": Boy Scouts Of America V. Dale And The Reinforcement Of Gay, Lesbian, Bisexual, And Transgender Invisibility, Darren L. Hutchinson
Faculty Articles
This Article argues that the Supreme Courts decision in Boy Scouts of America v. Dale misapplies and ignores controlling First Amendment precedent and incorrectly dermes "sexual identity" as a clinical or biological imposition that exists apart from expression or speech. This Article provides a doctrinal alternative to Dale that would protect vital interests in both equality and liberty and that would not condition, as does Dale, sexual "equality" upon the silencing of gay, lesbian, bisexual, and transgender individuals.
Free Speech For Lawyers, W. Bradley Wendel
Free Speech For Lawyers, W. Bradley Wendel
Cornell Law Faculty Publications
One of the most important unanswered questions in legal ethics is how the constitutional guarantee of freedom of expression ought to apply to the speech of attorneys acting in their official capacity. The Supreme Court has addressed numerous First Amendment issues involving lawyers, of course, but in all of them has declined to consider directly the central conceptual issue of whether lawyers possess diminished free expression rights, as compared with ordinary, non-lawyer citizens.
The arguments of this Article are synthetic in structure. I do not aim just to criticize reported cases, but rather to show how the regulation of lawyers' …
Censorship Tsunami Spares College Media: To Protect Free Expression On Public Campuses, Lessons From The "College Hazelwood" Case, Richard J. Peltz-Steele
Censorship Tsunami Spares College Media: To Protect Free Expression On Public Campuses, Lessons From The "College Hazelwood" Case, Richard J. Peltz-Steele
Faculty Publications
Since the advent of journalism schools in the college academy, student publications have taken their place as a vital component of campus life. As counterparts to the Fourth Estate in the society at large, college journalists act as watchdogs on student government, ensuring that student money is wisely spent and student justice equitably administered. As an outpost of the Fourth Estate, college journalism serves all the public by monitoring the administration of higher education. In September 1999, a decision from the U.S. Court of Appeals for the Sixth Circuit threatened to radically distort the face of college journalism by rendering …
Religious Freedom And The Interscholastic Athlete, Scott C. Idleman
Religious Freedom And The Interscholastic Athlete, Scott C. Idleman
Marquette Sports Law Review
No abstract provided.
Nude Entertainment Zoning, Stephen Durden
Nude Entertainment Zoning, Stephen Durden
Stephen Durden
Local government regulation, as opposed to prohibition, of nude entertainment began in earnest in the 1970's. These regulations generally fell into four categories: (1) zoning; (2) prohibiting nude entertainment in conjunction with the service of alcohol; (3) licensing; and (4) regulating conduct, e.g., hours of operation, distance from customers, prohibition of private booths. The proliferation of these many and varied approaches began soon after the Supreme Court in California v. LaRue held that nude dancing is, or at least might be, protected by the First Amendment. Prior to LaRue, states regularly prohibited nude entertainment via general prohibitions on lewd and …
"Simply So Different": The Uniquely Expressive Character Of The Openly Gay Individual After Boy Scouts V. Dale, Nancy J. Knauer
"Simply So Different": The Uniquely Expressive Character Of The Openly Gay Individual After Boy Scouts V. Dale, Nancy J. Knauer
Nancy J. Knauer
Boy Scouts v. Dale was uniformly considered a set back for gay rights. Undeniably, it was not a good result for James Dale or other openly gay individuals who would like to participate in the largest youth organization in the U.S. This Article views Boy Scouts v. Dale in a different light and suggests that the expressive character of the openly gay individual endorsed by the majority may signal an opportunity to argue for greater First Amendment protections. The majority recognized that a single avowal of homosexuality imbues the openly gay individual with a uniquely expressive character. Wherever he goes, …
The Supreme Court Rules In Favor Of Religious Club’S Right To Meet On Public School Premises: Is This “Good News” For First Amendment Rights?, Thomas A. Schweitzer
The Supreme Court Rules In Favor Of Religious Club’S Right To Meet On Public School Premises: Is This “Good News” For First Amendment Rights?, Thomas A. Schweitzer
Scholarly Works
No abstract provided.
Defining “Church” In American Law, Michael S. Ariens
Defining “Church” In American Law, Michael S. Ariens
Faculty Articles
Balancing the autonomy of religious organizations against regulatory laws remains both a difficult and hotly contested issue. It is helpful to survey labor, property, tax, and education laws to illustrate the tensions between religion and government in American law.
Labor law cases show the autonomy of religious organizations concerning governmental regulations through the National Labor Relations Act and Title VII. In regard to church property, the government has an interest in regulating how religious organizations buy and sell land, run day care centers and food kitchens, raise and borrow money, commit torts, and enter into contracts. Section 501(c)(3) of the …
Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault
Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault
Faculty Scholarship
In Nixon v. Shrink Missouri Government PAC, the Supreme Court emphatically reaffirmed a key element of the campaign finance doctrine first articulated in Buckley v. Valeo a quarter-century earlier that governments may, consistent with the First Amendment, impose limitations on the size of contributions to election campaigns. Shrink Missouri was significant because the Eighth Circuit decision reversed by the Supreme Court had sought to strengthen the constitutional protection provided to contributions and had invalidated limitations on donations to Missouri state candidates that were actually higher than the limits on donations to federal candidates that the Supreme Court had previously …
The Peculiar Case Of State V. Terry Lynn Nichols: Are Television Cameras Really Banned From Oklahoma Criminal Proceedings?, Robert D. Nelon
The Peculiar Case Of State V. Terry Lynn Nichols: Are Television Cameras Really Banned From Oklahoma Criminal Proceedings?, Robert D. Nelon
Vanderbilt Journal of Entertainment & Technology Law
The truck bomb ripped into A.P. Murrah Federal Building on April 19, 1995, at 9:02 a.m. One hundred sixty-eight men, women, and children died. None knew Timothy McVeigh or Terry Lynn Nichols, nor did McVeigh and Nichols know them. In fact, Nichols was not even in Oklahoma City when the bombing occurred. He is now--occupying a special cell in the Oklahoma County Jail, awaiting trial on state charges of murder, conspiracy to commit murder, and aiding in placing a bomb near a public building.
Nichols' trip to Oklahoma City was circuitous. Initially, separate federal proceedings against McVeigh and Nichols were …
Voluntary Campaign Finance Reform, John C. Nagle
Voluntary Campaign Finance Reform, John C. Nagle
Journal Articles
Any effort to achieve voluntary campaign finance reform raises two questions: Is it really voluntary, and does it really work? In Part I of this Essay, I examine the voluntariness of "voluntary" campaign finance reform. Agreements like that reached by Clinton and Lazio last year—what I term "purely voluntary agreements"—satisfy most legal tests for voluntariness. By contrast, the voluntariness of spending limits and other campaign restrictions that are imposed as a condition for receiving government funding of a political campaign—what I term "governmentally induced agreements"—is more doubtful. The extant jurisprudence recognizes that Buckley prohibits governmental actions that are more coercive …
Irreconcilable Congressional Treatment Of Internet Service Providers As Speakers, Raymond Shih Ray Ku
Irreconcilable Congressional Treatment Of Internet Service Providers As Speakers, Raymond Shih Ray Ku
Vanderbilt Journal of Entertainment & Technology Law
This Article argues that under the CDA and OCILLA, Congress adopted facially inconsistent approaches towards ISP liability for expression. Nonetheless, despite the overt differences, it is possible to discern an underlying principle for determining when ISPs should be considered speakers that reconciles this inconsistency. Put simply, the CDA and OCILLA support an approach toward determining when ISPs are speakers that focuses on whether an ISP exercises editorial control over its network. This approach is evidenced by the fact that both statutes recognize that ISPs are able to exercise editorial control over any and all content on their networks, and both …
For Entertainment Purposes Or Ad Majorem Dei Gloriam: Televangelism In The Marketplace Of Ideas, Juan G. Villasenor
For Entertainment Purposes Or Ad Majorem Dei Gloriam: Televangelism In The Marketplace Of Ideas, Juan G. Villasenor
Vanderbilt Journal of Entertainment & Technology Law
This Note discusses the proposed legal responses to the problem of fraud by televangelists. Finding the solutions constitutionally deficient, politically unsound, or practically ineffective as deterrents, it then explores the possibility of a content-based restriction on televangelists' speech. The Note concludes that such a deliberate restriction on speech cannot withstand First Amendment scrutiny, regardless of the dishonesty or disingenuousness one may find in televangelists' tactics. Accordingly, despite the great potential for deception, televangelists' activities are, and should be, absolutely protected by the First Amendment. Any proposed remedy to deal with televangelism must occur in the marketplace of ideas, which is …
"Merchants Of Discontent": An Exploration Of The Psychology Of Advertising, Addiction, And The Implications For Commercial Speech, Tamara R. Piety
"Merchants Of Discontent": An Exploration Of The Psychology Of Advertising, Addiction, And The Implications For Commercial Speech, Tamara R. Piety
Seattle University Law Review
In this paper, I attempt to draw parallels between the psychology of commercial advertising and marketing and the psychology of addiction. Both appear to be characterized by denial, escapism, narcissism, isolation, insatiability, impatience, and diminished sensitivity. Advertising appeals to these impulses and addiction is marked by them. In what follows, I explore these parallels in general and then explore the potential consequences or side effects in three specific contexts: the advertising of addictive products, advertising and children, and advertising and women. In these three areas, there is some evidence that advertising may be contributing to negative social phenomena in a …
Misperception And Misapplication Of The First Amendment In The American Pluralistic System: Mergers Between Catholic And Non-Catholic Healthcare Systems, Jason M. Kellhofer
Misperception And Misapplication Of The First Amendment In The American Pluralistic System: Mergers Between Catholic And Non-Catholic Healthcare Systems, Jason M. Kellhofer
Journal of Law and Health
This note questions the wisdom of those who content that Catholic health providers, to constitutionally qualify for government assistance or be permitted to merge with public entities, must be stripped of that which makes them most effective - their religious identity. The threat to sectarian healthcare has steadily been on the rise as can be seen in actions such as the American Public Health Association's recent approval of a policy statement recommending more government oversight to preclude the dropping of reproductive services when Catholic and Non-Catholic hospitals merge. Section II explores why these mergers occur and why certain services are …
The Free Exercise Clause: How Redundant, And Why?, Daniel O. Conkle
The Free Exercise Clause: How Redundant, And Why?, Daniel O. Conkle
Articles by Maurer Faculty
This article responds to Professor Mark Tushnet's article, "The Redundant Free Exercise Clause?" Although its analysis and specific conclusions are distinctive, the article reaches a general conclusion similar to Tushnet's - namely, that the contemporary Free Exercise Clause is largely redundant, in that it provides little protection that is not afforded independently by other First Amendment doctrines. The article first contends that the core principle of the contemporary Free Exercise Clause, the nondiscrimination requirement of Employment Division v. Smith, might be subsumed, perhaps entirely, within the free speech principle that disfavors content discrimination. To that extent, the Free Exercise Clause …