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Full-Text Articles in Law
First Amendment Protection For Union Appeals To Consumers, Michael C. Harper
First Amendment Protection For Union Appeals To Consumers, Michael C. Harper
Faculty Scholarship
This article explains why decisions of the National Labor Relations Board under President Obama holding non-picketing secondary appeals to consumers not to be illegal under the National Labor Relations Act were necessary under a 1988 decision of the Supreme Court, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council. The article also explains why both the Supreme Court decision and the Board’s recent decisions were compelled by the first amendment and could not be based on the language of § 8(b)(4)(ii)(B) of the National Labor Relations Act as interpreted by the Court in other cases. The …
How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia
How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia
UF Law Faculty Publications
This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …
New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo
New Technologies And Constitutional Law, Thomas Fetzer, Christopher S. Yoo
All Faculty Scholarship
No abstract provided.
Of Speech And Sanctions: Toward A Penalty-Sensitive Approach To The First Amendment, Michael Coenen
Of Speech And Sanctions: Toward A Penalty-Sensitive Approach To The First Amendment, Michael Coenen
Journal Articles
Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise …
Contextualizing Disclosure's Effects: Wikileaks, Balancing And The First Amendment, Christina E. Wells
Contextualizing Disclosure's Effects: Wikileaks, Balancing And The First Amendment, Christina E. Wells
Faculty Publications
This essay responds to Professor Fenster’s article in the Iowa Law Review, Disclosure’s Effects: WikiLeaks and Transparency, assessing the effects of the recent WikiLeaks disclosures. The essay agrees with many of Professor Fenster’s conclusions regarding the promise and peril of those disclosures, especially his concern regarding the problematic balancing approaches used to assess the likely impact when confidential information is revealed. It specifically elaborates on courts’ current application of the Espionage Act, a criminal law likely to be applied to the WikiLeaks disclosures, and the implications of that deferential application for WikiLeaks, Julian Assange and journalists in general.
Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla
Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla
Scholarly Articles
None available.
The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr.
The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr.
Articles
The Thirteenth Amendment’s Framers envisioned the Amendment as providing federal authority to eliminate the “badges and incidents of slavery.” The freemen and their descendants are the most likely to be burdened with the effects of stigma, stereotypes, and structural discrimination arising from the slave system. Because African Americans are therefore the most obvious beneficiaries of the Amendment’s promise to eliminate the legacy of slavery, it is often mistakenly assumed that federal power to eradicate the badges and incidents of slavery only permits remedies aimed at redressing the subordination of African Americans. While African Americans were the primary victims of slavery …
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Journal Articles
More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …
Second Things First: What Free Speech Can And Can’T Say About Guns, Joseph Blocher
Second Things First: What Free Speech Can And Can’T Say About Guns, Joseph Blocher
Faculty Scholarship
Professor Blocher responds to Gregory Magarian’s article on the implications of the First Amendment for the Second.
Sorrell V. Ims Health And The End Of The Constitutional Double Standard, Ernest A. Young
Sorrell V. Ims Health And The End Of The Constitutional Double Standard, Ernest A. Young
Faculty Scholarship
No abstract provided.
Public Discourse, Expert Knowledge, And The Press, Joseph Blocher
Public Discourse, Expert Knowledge, And The Press, Joseph Blocher
Faculty Scholarship
This Essay identifies and elaborates two complications raised by Robert Post’s Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post’s theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public discourse …
Government May Not Speak Out-Of-Turn, Steven H. Goldberg
Government May Not Speak Out-Of-Turn, Steven H. Goldberg
Elisabeth Haub School of Law Faculty Publications
Johanns v. Livestock Marketing Association5 was about whether government could compel individual beef producers to pay for general beef advertising credited to "America's Beef Producers;" even if they disagreed with the message and wanted to spend their advertising money to distinguish their certified Angus or Hereford beef. That "compelled subsidy" case became the unlikely authority for a doctrine invented in Pleasant Grove City, Utah v. Summum6 that government could discriminate, based on viewpoint, on a subject for which it had no power to act. Each case has been criticized in its own right, but the attempt to make Johanns precedent …
The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole
The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole
Georgetown Law Faculty Publications and Other Works
In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …