Law Commons^™

Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown

Faculty Publications

First Amendment doctrine acknowledges the constructive potential of citizens’ criticism of public officials and governmental policies by offering such speech vigilant protection. However, when students speak out about perceived injustice or dysfunction in their public schools, teachers and administrators too often react by squelching and even punishing student-critics. To counteract school officials’ reflexively repressive responses to student protest and petition activities, this Article explains why the faithful performance of public schools’ responsibility to prepare students for constitutional citizenship demands the adoption of a more receptive and respectful attitude toward student dissent. After documenting how both educators and courts have mistakenly …

What's It To You: The First Amendment And Matters Of Public Concern , Mark Strasser

Missouri Law Review

This Article traces the development of the “matters of public concern” doctrine, explaining the role that the concept has played in cases ranging from defamation3 to employment termination to publication of (allegedly) private facts.4 The Article discusses various inconsistencies in the Court’s jurisprudence, both with respect to what counts as a matter of public concern5 and with respect to the relative importance of the protection of such matters. 6 It concludes that the current jurisprudence cannot help but cause confusion and inconsistent results in the lower courts and must be clarified at the earliest opportunity. 7

Brief Of Amicus Curiae, The National Legislative Association On Prescription Drug Prices, The New Hampshire Medical Society, And Prescription Policy Choices In Support Of Defendant's Objection To Plaintiff's Motion For Preliminary Injunction, Sean Flynn

Sean Flynn

Plaintiffs in this case seek a preliminary injunction to prevent the enforcement of the New Hampshire Prescription Confidentiality Act, which protects consumers and the privacy interests of doctors in the state of New Hampshire from the increasingly common practice of using doctor-identifying information in prescription records to facilitate targeting of pharmaceutical marketing and gifts toward doctors who prescribe the most expensive drugs for their patients. This practice raises drug costs for all New Hampshire residents and compromises the professional autonomy of doctors. This brief addresses the failure of the plaintiffs to show that they are likely to succeed on the …

United States V. Stevens: Win, Loss, Or Draw For Animals?, David N. Cassuto

David N Cassuto

Robert J. Stevens, proprietor of “Dogs of Velvet and Steel,” was indicted for marketing dog-fighting videos in violation of 18 U.S.C. §48, a law criminalizing visual or auditory depictions of animals being “intentionally mutilated, tortured, wounded, or killed” if such conduct violated federal or state law where “the creation, sale, or possession [of such materials]” takes place.” The law aimed principally at makers and distributors of “crush videos” wherein women wearing high heels and depicted from the waist down, grind small animals to death. However, the language of 18 U.S.C. §48 extended to dog-fighting as well. Stevens challenged the law …

The 2011-2012 Supreme Court Term: Decisions In Constitutional Law, Wilson Huhn

Akron Law Faculty Publications

This presentation reviews the principal decisions of the Supreme Court in the field of Constitutional Law during the 2011-2012 Term of Court. The presentation primarily focuses on the Court's decisions involving the Arizona immigration law (SB 1070), the federal Stolen Valor Act, the "ministerial exception" to the anti-discrimination laws, and above all the Patient Protection and Affordable Care Act.

The 2011-2012 Supreme Court Term: Decisions In Constitutional Law, Wilson Huhn

Wilson R. Huhn

This presentation reviews the principal decisions of the Supreme Court in the field of Constitutional Law during the 2011-2012 Term of Court. The presentation primarily focuses on the Court's decisions involving the Arizona immigration law (SB 1070), the federal Stolen Valor Act, the "ministerial exception" to the anti-discrimination laws, and above all the Patient Protection and Affordable Care Act.

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky

UF Law Faculty Publications

Like most of us, public colleges and universities increasingly are communicating via Facebook, Second Life, YouTube, Twitter and other social media. Unlike most of us, public colleges and universities are government actors, and their social media communications present complex administrative and First Amendment challenges. The authors of this article — one the dean of a major public university law school responsible for directing its social media strategies, the other a scholar of social media and the First Amendment — have combined their expertise to help public university officials address these challenges. To that end, this article first examines current and …

Tests And Prongs And Factors, Oh My!: An Examination Of The Seventh Circuit's Decision In Doe Ex Rel. Doe V. Elmbrook School District, Jack C. Marshall

Seventh Circuit Review

Interpreting the ten words that make up the Establishment Clause and applying them in the context of public schools has frustrated the U.S. Supreme Court and consequently confused lower courts. The Seventh Circuit's recent opinion in Doe ex rel. Doe v. Elmbrook School District illustrates the quagmire that is modern Establishment Clause jurisprudence.

For years, Elmbrook School District held their high school graduation ceremonies in a nearby church. In 2010, students and parents of children who attended Elmbrook School District filed suit, arguing that holding graduation in a church violates the Establishment Clause. Sitting en banc, the Seventh Circuit held …

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

Robert L Tsai

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

Prophetic Speech, Jeremy G. Mallory

Jeremy G Mallory

Snyder v. Phelps presented the Supreme Court with a shocking set of facts leading to a result that surprised some and confused many. On a more unsettling note, it showed that existing First Amendment doctrine has difficulty addressing prophetic speakers as they are. Prophetic rhetoric is a unique speech category that warrants nuanced consideration due to its sui generis nature. Seven characteristics of prophetic speech undermine assumptions usually taken to hold true in the Court’s free speech jurisprudence. The law as it currently exists can only address prophetic speech as some variant of a known problem, but it is not …

Leaving The Dale To Be More Fair: On Cls And First Amendment Jurisprudence, Mark Strasser

Mark Strasser

In Christian Legal Society of the University of California, Hastings College of Law v. Martinez, the Supreme Court upheld the Hastings College of Law’s requirement that all recognized student groups have an open membership policy. The decision has been criticized for a variety of reasons, e.g., that the Court conflated the First Amendment tests for speech and association. What has not been adequately explored is the degree to which the Court has modified limited purpose public forum analysis in the university context over the past few decades, resulting in a jurisprudence that is virtually unrecognizable in light of the more …

The Constitutional Jurisprudence Of Justice Kennedy On Speech, Charles D. Kelso, R. Randal Kelso

San Diego Law Review

Justice Kennedy's basic principles in free speech cases are supporting political freedom, supporting individual autonomy, and protecting freedom to teach, learn, and innovate. Given these principles, his opinions in free speech cases protect free speech from government regulation unless the government can provide strong reasons for any restrictive action and show that the means it has chosen to carry out its purposes are closely tailored to its goals. At a minimum, judicial review is by strict scrutiny for content-based regulations and intermediate review for content-neutral time, place, and manner regulations. In some cases, Justice Kennedy has indicated a preference for …

Adolescent Identity Versus The First Amendment: Sexuality And Speech Rights In The Public Schools, Steven J. Macias

San Diego Law Review

This Article examines the legal tensions that currently exist between public schools' attempts to protect gay students from bullying and harassment and antigay students' First Amendment rights to engage in allegedly harassing speech. First, it looks at the popular conception of the relationship between childhood or adolescence and sexuality by considering the political and legal fallout of the same-sex marriage debate. Then this Article turns to a conception of public schooling that would allow for the constitutionally permissible regulation of antigay-identity speech. Next, through the use of critical theory, this Article explains why First Amendment defenses to gay harassment have …

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 …

All Those Like You: Identity Aggression And Student Speech , Ari Ezra Waldman

Missouri Law Review

This Article answers two categories of questions, one social and another legal. The first series of questions is about the sociology of identity aggression and it seeks to determine whether there is a difference between, say, calling someone a "faggot" and calling someone a "dork." If there is a difference, to what extent is there empirical evidence that suggests that one is more harmful to the victim, to his community, and to his school? The legal problem flows directly from the relative harm posed by identity aggression: it is too simplistic to see the Court's student speech jurisprudence like a …

How Not To Criminalize Cyberbullying, Lyrissa Lidsky, Andrea Pinzon Garcia

Missouri Law Review

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 …

Judicial Line-Drawing And The Broader Culture: The Case Of Politics And Entertainment, R. George Wright

San Diego Law Review

This article puts in a broader legal and cultural context and critically evaluates Justice Scalia's reluctance to distinguish politics from entertainment or, more precisely, political speech from entertainment speech. Some may think of Justice Scalia's reluctance as the embodiment of judicial modesty or realistic practical wisdom. Others may think of it as an unnecessary expression of relativism or subjectivism that is ominous in its implications. Either way, whether we can appropriately distinguish between entertainment speech and political speech, and then apply appropriately different free speech standards in each case, says much about our status and priorities as a culture. Placing …

Privacy Rights: The Virtue Of Protecting A False Reputation, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

What is the virtue of protecting a false reputation? The thesis of this paper is that there is none. There is none, at least, that justifies the suppression of free speech. Yet, there is a growing trend to see the protection of reputation from truth as a key function of the so-called “right of privacy.”

Unfortunately, people often do things that they are not proud of or do not want others to know about. Often, however, these are precisely the things that others want or need to know. For our own protection, each of us is better off being aware …

E-Incitement: A Framework For Regulating The Incitement Of Criminal Flash Mobs, Hannah Steinblatt

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

A Collective Right To Public Education, Antonette Barilla

Antonette Barilla

This article explores the role of public education and the present ability of the government to provide quality education in light of recent legal, legislative, and social trends, spotlighting the protection of individual rights in public schools. Rapidly mutating societal norms diminish the clarity of expectations for appropriate decorum, and this phenomenon manifests itself in the classroom as well. The growing number of disciplinary issues in public schools across the United States has given rise to questions of the effectiveness of public education. Can the government support this nation’s devotion and reverence for individual rights while still providing an education …

Conspiracy Law's Threat To Free Speech, Steven R. Morrison

Steven R Morrison

Conspiracy law has been the consistent subject of controversy, but most commentators do not consider its negative effect on freedom of speech. When they do, their concerns focus only on the use of speech as the crime’s actus reus. The use of speech as evidence to prove this actus reus is as important and raises conceptually related issues, so current scholarship tells only half of the story. This Article addresses the use of speech as the actus reus of conspiracy and evidence thereof. It sets forth what I call the All-Purpose Speech Model. I argue that this Model accurately describes …

Rethinking “Murderabilia”: How States Can Restrict Some Depictions Of Crime As They Restrict Child Pornography, Joseph C. Mauro

Fordham Intellectual Property, Media and Entertainment Law Journal

Murderabilia refers to items whose commercial value stems from their relation to a notorious crime or criminal. To protect victims of crime from psychological harm, most states have passed laws restricting the sale of murderabilia. Many of these laws have been challenged on First Amendment grounds, and observers consider them to be of questionable constitutionality. I propose that the constitutional framework allowing states to restrict child pornography can solve this problem. In New York v. Ferber, the Supreme Court held that states may restrict child pornography as speech, without regard to its First Amendment value, because it is “intrinsically related” …

When Is A Lie An Affront To The Law?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Conspiracy Law's Threat To Free Speech, Steven R. Morrison

Steven R Morrison

Conspiracy law has been the consistent subject of controversy, but most commentators do not consider its negative effect on freedom of speech. When they do, their concerns focus only on the use of speech as the crime’s actus reus. The use of speech as evidence to prove this actus reus is as important and raises conceptually related issues, so current scholarship tells only half of the story. This Article addresses the use of speech as the actus reus of conspiracy and evidence thereof. It sets forth what I call the All-Purpose Speech Model. I argue that this Model accurately describes …

Conspiracy Law's Threat To Free Speech, Steven R. Morrison

Steven R Morrison

Conspiracy law has been the consistent subject of controversy, but most commentators do not consider its negative effect on freedom of speech. When they do, their concerns focus only on the use of speech as the crime’s actus reus. The use of speech as evidence to prove this actus reus is as important and raises conceptually related issues, so current scholarship tells only half of the story. This Article addresses the use of speech as the actus reus of conspiracy and evidence thereof. It sets forth what I call the All-Purpose Speech Model. I argue that this Model accurately describes …

Whistleblowing, Public Employees, And The First Amendment, Mark Strasser

Mark Strasser

Recent revelations of extensive public wrongdoing illustrate the need for whistleblower protection so that governmental wrongdoing is more likely to come to light. While there is some statutory protection of whistleblowing as long as certain conditions have been met, a separate issue is the degree to which the Constitution protects whistleblowers under the First Amendment. Ironically, the constitutional protections for whistleblowers have decreased over the past several decades, leaving an impoverished system of protection for discussions of great public interest. This article analyzes the respects in which First Amendment protections for matters of great public import were once fairly robust …

The Onslaught On Academic Freedom, Mark Strasser

Mark Strasser

The United States Supreme Court has long recognized the importance of academic freedom both within and outside of the classroom. However, in a case having nothing to do with the academy, Garcetti v. Ceballos, the Court cast into doubt the validity of an entire line of cases, almost inviting the circuits to rewrite First Amendment doctrine in the entire area. The circuits have responded, creating a jurisprudence that threatens to bring about the negative consequences discussed over the past half-century. This article explores the First Amendment protections of academic freedom, explaining how Garcetti and the courts interpreting it have eviscerated …

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.

Below Investment Grade And Above The Law: A Past, Present And Future Look At The Accountability Of Credit Rating Agencies, Marilyn Blumberg Cane, Adam Shamir, Tomas Jodar

Faculty Scholarship

This article covers the evolution of the credit rating industry, in particular, the noteworthy shift from purchaser-subscriber to issuer pay model. It then describes the history of SEC CRA regulatory measures, most notably the adoption of SEC Rule 436(g), adopted in 1982, which specifically eliminated liability for the big CRAs (Moody’s, Standard & Poor’s, Fitch’s and Duff and Phelps) as “experts” under Sections 7 and 11 of the Securities Act of 1933. The article then covers the Credit Rating Agency Reform Act of 2006 and the adoption of SEC Rule 17g-5 in an attempt to control conflicts of interest within …

2 Standards 1 Cup: How Geotargeting Will End The Battle Between National And Local Obscenity Standards, Joseph Mason Kjar

J. Mason Kjar

The First Amendment guarantees the right to free speech—but that protection is not absolute. Some speech is banned outright, such as child pornography. Other speech is nearly fully protected, such as erotic speech. Caught in the middle of the two is obscene speech, which can be owned in the privacy of one’s home, but cannot be disseminated publicly.

The line between obscenity and eroticism is hard to pinpoint, and varies from community to community. In general, the process of analyzing whether a work is obscene includes asking whether the content violates the community standards of the local geographic area where …