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Full-Text Articles in Law

The Law Of Advertising Outrage, Mark Bartholomew Oct 2018

The Law Of Advertising Outrage, Mark Bartholomew

Journal Articles

This article examines the stimulation of audience outrage, both as a marketing strategy and as a subject of legal regulation. A brief history of advertising in the United States reveals repeated yet relatively infrequent attempts to attract consumer attention through overt transgressions of social norms relating to sex, violence, race, and religion. Natural concerns over audience reaction limited use of this particular advertising tactic as businesses needed to be careful not to alienate prospective purchasers. But now companies can engage in “algorithmic outrage”—social media advertising meant to stimulate individual feelings of anger and upset—with less concern for a ...


Laying Siege To The Ivory Tower: Resource Allocation In Response To The Heckler's Veto On University Campuses, Macklin W. Thornton Oct 2018

Laying Siege To The Ivory Tower: Resource Allocation In Response To The Heckler's Veto On University Campuses, Macklin W. Thornton

San Diego Law Review

High in the towers of academia, the lofty ideals of free speech are tossed around with a deceptive ease. However, as legal minds grapple with heady legal doctrines, free speech has concrete consequences down at the foot of those towers. At this ivory base, the property line between the university and the community blur. Students and nonstudents assemble and deliver conflicting speech that, at times, foments violence. Molotov cocktails, gun shots, broken windows, disgruntled students. All attempts to trigger the dreaded heckler’s veto—an attempt the government has an obligation to prevent. In addition to the public relations disasters ...


Trafficking Technology: A Look At Different Approaches To Ending Technology-Facilitated Human Trafficking, David Barney Sep 2018

Trafficking Technology: A Look At Different Approaches To Ending Technology-Facilitated Human Trafficking, David Barney

Pepperdine Law Review

In 2018, many believe that slavery is an antiquated concept. But as with anything else, if it has not become extinct, it has evolved with time. Human trafficking is no different. Each year, millions of men, women and children are trafficked in the United States, and internationally, and forced to work against their will. Through the rise of technology and an increasingly globalized world, traffickers have learned to use technology as a tool to help facilitate the trafficking of persons and to sell those victims to others they never could have reached before. But what are we doing about it ...


The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad Sep 2018

The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad

San Diego International Law Journal

To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with ...


Punitive Preemption And The First Amendment, Rachel Proctor May Aug 2018

Punitive Preemption And The First Amendment, Rachel Proctor May

San Diego Law Review

In recent years, state legislators have begun passing a new breed of “punitive” preemption laws–those that impose fines, civil and criminal sanctions, and other sanctions on local governments and their officials as a consequence of passing laws or enacting policies that are inconsistent with state laws. This represents a significant change from traditional preemption, under which a local government could enact laws based on its view of preempting state statutes and applicable state constitutional provisions and, if necessary, defend its interpretation in court. When punitive preemption prevents a local lawmaking process from taking place, the state forecloses a unique ...


Culture Wars On Campus: Academic Freedom, The First Amendment, And Partisan Outrage In Polarized Times, Jason M. Shepard, Kathleen B. Culver Aug 2018

Culture Wars On Campus: Academic Freedom, The First Amendment, And Partisan Outrage In Polarized Times, Jason M. Shepard, Kathleen B. Culver

San Diego Law Review

After a California community college professor called the election of President Donald Trump an “act of terrorism” in her classroom the week after the vote, a student-recorded viral video sparked a national conservative media firestorm. Critics said the professor should be fired for outrageous liberal bias, while supporters defended her comments as being protected by academic freedom and the First Amendment. The student, meanwhile, was suspended for his unauthorized recording while defenders decried his punishment as evidence of anti-conservative discrimination and harassment. By examining tensions between faculty and student speech rights, the use of technologies to take ideological disagreements viral ...


How Courts Analyze Voter Identification Laws Under The First Amendment, Joby Len Richard Jul 2018

How Courts Analyze Voter Identification Laws Under The First Amendment, Joby Len Richard

LSU Master's Theses

Some scholarship and political experts describe voter ID laws as a form of voter suppression because they make it harder for certain groups of people to vote. First, this thesis considers the historical backdrop of voter discrimination resulting in the passage of the Voting Rights Act of 1965, and subsequent state uses of registration and voter ID laws. Then, this study reviews the theoretical foundation of freedom of expression as developed by Thomas Emerson and individual and social free expression values, including the social value of self-governance explicated by Alexander Meiklejohn. Some scholars also suggest that voter ID laws may ...


Suppression Of Free Tweets: How Packingham Impacts The New Era Of Government Social Media And The First Amendment, Elise Berry Jun 2018

Suppression Of Free Tweets: How Packingham Impacts The New Era Of Government Social Media And The First Amendment, Elise Berry

ConLawNOW

As social media popularity grows, so too does the constitutional conflicts between the First Amendment’s public forum doctrine and a public official’s social media. More and more claims of viewpoint discrimination are arising from the district courts, stemming from a public official’s use of his or her social media to delete comments or ban users from their official social media pages. Similarly, President Donald Trump’s use of his Twitter has also instigated a law suit against him for viewpoint discrimination under the public forum doctrine. While the Supreme Court has been silent on the issue, its ...


Religious Freedom And Recycled Tires, Richard W. Garnett, Jackson C. Blais Jun 2018

Religious Freedom And Recycled Tires, Richard W. Garnett, Jackson C. Blais

Journal Articles

The Supreme Court's decision in Trinity Lutheran clearly affirmed a First Amendment rule against anti-religious discrimination. At the same time, it raised or left open a number of important and interesting questions about education reform, the relevance of anti-Catholic bias to states' so-called Blaine Amendments, and the sharpening tension between religious freedom and the application of antidiscrimination laws.


Church, State And The Lemon Test: The Shortcomings Of The Supreme Court When Deciding Establishment Clause Cases, Jonathan Broida Jun 2018

Church, State And The Lemon Test: The Shortcomings Of The Supreme Court When Deciding Establishment Clause Cases, Jonathan Broida

#History: A Journal of Student Research

This paper argues that the Lemon test is a clear and pragmatic method for ensuring that Justices of the U.S. Supreme Court remain objective when interpreting the Constitution’s Establishment Clause. Critics of the Lemon test have mistakenly suggested that it provides an overly broad interpretation of the Establishment Clause that surpasses its original intent. Analysis of the Supreme Court’s decisions in Lemon v. Kurtzman (1971), Marsh v. Chambers (1983) and Lee v. Weisman (1992) will reveal that blame for the test’s supposed flaws rests on the Justices themselves. Analysis of relevant studies will shed light on ...


Cheers To Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable, Daniel J. Croxall May 2018

Cheers To Central Hudson: How Traditional Intermediate Scrutiny Helps Keep Independent Craft Beer Viable, Daniel J. Croxall

NULR Online

Independent craft breweries contributed approximately $68 billion to the national economy last year. However, an arcane regulatory scheme governs the alcohol industry in general and the craft beer industry specifically, posing both obstacles and benefits to independent craft brewers. This Essay examines regulations that arguably infringe on free speech: namely, commercial speech regulations that prohibit alcohol manufacturers from purchasing advertising space from retailers. Such regulations were enacted to prohibit undue influence and anticompetitive behavior stemming from vertical and horizontal integration in the alcohol market. Although these regulations are necessary to prevent global corporate brewers from dominating the craft beer market ...


Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum Apr 2018

Harmonizing The Tension Between The First Amendment And Publicity Rights And Finding The Right Balance: Discerning How Much Freedom Is Warranted And What Needs Protection, William Buchsbaum

The University of Cincinnati Intellectual Property and Computer Law Journal

This paper examines the tension between the First Amendment and Publicity Rights considering why and how friction is emerging, the legal underpinnings and theories behind the development of publicity rights and how to reconcile this with values raised in support of the First Amendment. This collision course of rights occurs where property interests have vested in human identity itself which brings us face to face with the outer limits of free speech and expression under the First Amendment and evens tests the notion of how we define speech. The paper takes a dive into some of the currently arising issues ...


Police Misconduct, Video Recording, And Procedural Barriers To Rights Enforcement, Howard M. Wasserman Apr 2018

Police Misconduct, Video Recording, And Procedural Barriers To Rights Enforcement, Howard M. Wasserman

Howard M Wasserman

The story of police reform and of "policing the police" has become the story of video and video evidence, and "record everything to know the truth" has become the singular mantra. Video, both police-created and citizen-created, has become the singular tool for ensuring police accountability, reforming law enforcement, and enforcing the rights of victims of police misconduct. This Article explores procedural problems surrounding the use of video recording and video evidence to counter police misconduct, hold individual officers and governments accountable, and reform departmental policies, regulations, and practices. It considers four issues: 1) the mistaken belief that video can "speak ...


Being Forced To Code In The Technology Era As A Violation Of The First Amendment Protection Against Compelled Speech, Adrianna Oddo Mar 2018

Being Forced To Code In The Technology Era As A Violation Of The First Amendment Protection Against Compelled Speech, Adrianna Oddo

Catholic University Law Review

Over the past several decades, technological advancements led several courts to hold that computer code is protected as speech under the First Amendment of the Constitution. However, after fourteen people were killed in the 2015 San Bernardino massacre the U.S. Government sought to ignore those findings when it ordered Apple, Inc. to write a computer code to bypass the encryption software on the shooter’s cell phone. To access this particular phone Apple would need to write a code that could potentially compromise its customers’ data and personal information. Apple vehemently opposed the Government’s order and claimed that ...


Remedies Symposium: On Critical Junctures, Intercurrence, And Dynamic Political Orders, Paul Baumgardner Mar 2018

Remedies Symposium: On Critical Junctures, Intercurrence, And Dynamic Political Orders, Paul Baumgardner

ConLawNOW

Relying on contemporary historical-institutionalist literature concerning processes of American political development, this article argues that the nebulous status of religious rights in the United States is largely a recent phenomenon—the result of one coalition (centered around rights protections for the LGBTQ community) growing and making important strides at the same time that a separate "religious rights” coalition attempts to push beyond a disorienting critical juncture. How long this state of intercurrence will persist, and how it will be resolved, are unresolved questions.


Las Vegas Review-Journal V. Eighth Judicial Dist. Court, 134 Nev. Adv. Op. 7 (Feb. 27, 2018), Matthew J. Mckissick Feb 2018

Las Vegas Review-Journal V. Eighth Judicial Dist. Court, 134 Nev. Adv. Op. 7 (Feb. 27, 2018), Matthew J. Mckissick

Nevada Supreme Court Summaries

The Court determined that the First Amendment does not allow a court to prevent the press from reporting on a redacted autopsy report already released to the public.


Deference And Prisoner Accommodations Post-Holt: Moving Rluipa Toward "Strict In Theory, Strict In Fact", Barrick Bollman Feb 2018

Deference And Prisoner Accommodations Post-Holt: Moving Rluipa Toward "Strict In Theory, Strict In Fact", Barrick Bollman

Northwestern University Law Review

The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires prisons to make accommodations to regulations that substantially burden a prisoner’s religious exercise, unless the prison can show that the regulation is the least restrictive means to meeting a compelling interest. This language suggests strict scrutiny, and yet in Cutter v. Wilkinson, the Supreme Court instead intimated in dicta that courts should give prison officials “due deference” when applying this test. The 2015 case of Holt v. Hobbs presented the Court with an opportunity to clarify how much deference is due under RLUIPA. Though Holt declared that there should ...


Reconciling Agency Fee Doctrine, The First Amendment, And The Modern Public Sector Union, Courtlyn G. Roser-Jones Feb 2018

Reconciling Agency Fee Doctrine, The First Amendment, And The Modern Public Sector Union, Courtlyn G. Roser-Jones

Northwestern University Law Review

Few institutions have done more to improve working conditions for the middle class than labor unions. Their efforts, of course, cost money. To fund union activities, thousands of collective bargaining agreements across the nation have long included provisions permitting employers to require employees to pay “fair share” or “agency” fees. In public unions—when the employer is the government—this arrangement creates tension between two important values: the First Amendment’s protection against compelled expression and the collective benefits of worker representation. When confronted with this tension forty years ago in Abood v. Detroit Board of Education, the Supreme Court ...


Boy Scouts & Burning Crosses: Bringing Balance To The Court’S Lopsided Approach To The Intersection Of Equality And Speech, Russell K. Robinson Jan 2018

Boy Scouts & Burning Crosses: Bringing Balance To The Court’S Lopsided Approach To The Intersection Of Equality And Speech, Russell K. Robinson

Russell K Robinson

This article identifies a previously-ignored pattern of Supreme Court decisions that privilege one competing constitutional value, either speech or equality, and subordinate the other—with little or no reasoning explaining its choice. In adjudicating such cases, including two cases decided last term, the Supreme Court has steadfastly treated these disputes as either a basic equality case or a simple speech case. This dichotomy is a problem because once the Court places a case within either a speech or equality paradigm, it is constrained by certain rigid analytical presumptions. These presumptions threaten to stunt the analysis and to deprive the Court ...


Sex, Lies, And Ultrasound, B. Jessie Hill Jan 2018

Sex, Lies, And Ultrasound, B. Jessie Hill

Faculty Publications

State-mandated falsehoods are rampant in the context of abortion regulation. State legislatures have required doctors, before performing abortions, to provide scientifically unsupported information to women, such as that having an abortion increases the risk of breast cancer, or that it has negative mental health effects. Given the lack of evidence to sustain these sorts of claims, it seems reasonable to refer to such statements as government-mandated lies. However, this article argues that government mandated lies in the abortion context are unique in several ways that make them unlikely to be found unconstitutional, despite the fact that they obviously hinder patients ...


What Did The First Amendment Originally Mean?, Jud Campbell Jan 2018

What Did The First Amendment Originally Mean?, Jud Campbell

Law Faculty Publications

The First Amendment says that “Congress shall make no law … abridging the freedom of speech, or of the press.” For Americans, this language is familiar. But what exactly does it mean? How far do the speech and press clauses restrict governmental power? The founders, as we will see, answered these questions very differently than we typically do today. And the reasons why highlight fundamental shifts in American constitutional thought.


Of Course The First Amendment Protects Google And Facebook (And It’S Not A Close Question), Eric Goldman Jan 2018

Of Course The First Amendment Protects Google And Facebook (And It’S Not A Close Question), Eric Goldman

Faculty Publications

It has become trendy in some circles to strategize how to negate Constitutional protection for Internet giants like Google and Facebook so that they can be more heavily regulated. As part of the Knight First Amendment Institute’s Emerging Threats series, Heather Whitney published a paper in this genre, Search Engines, Social Media, and the Editorial Analogy, questioning whether Google and Facebook were properly analogized to newspapers for First Amendment purposes.

This short essay responds to Ms. Whitney's paper with two main points. First, the newspaper analogy isn't necessary to determine that Google and Facebook engage in speech ...


Citing Baker’S “Win,” Arizona Court Rejects Stationary Store’S Opt-Out Claim, Arthur S. Leonard Jan 2018

Citing Baker’S “Win,” Arizona Court Rejects Stationary Store’S Opt-Out Claim, Arthur S. Leonard

Other Publications

No abstract provided.


(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton Jan 2018

(At Least) Thirteen Ways Of Looking At Election Lies, Helen Norton

Articles

Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of delivery ...


Decisive Win For Lesbians In Oregon Cake Case, Arthur S. Leonard Jan 2018

Decisive Win For Lesbians In Oregon Cake Case, Arthur S. Leonard

Other Publications

No abstract provided.


Masterpieces Or Simply Wedding Cakes? Exploring The Boundaries Of Freedom Of Speech Through United States Supreme Court Case Masterpiece Cakeshop V. Colorado Civil Rights Commission, Margaret Mclean Quick Jan 2018

Masterpieces Or Simply Wedding Cakes? Exploring The Boundaries Of Freedom Of Speech Through United States Supreme Court Case Masterpiece Cakeshop V. Colorado Civil Rights Commission, Margaret Mclean Quick

Honors Theses and Capstones

No abstract provided.


Watching Big Brother: A Citizen’S Right To Record Police, Vincent Nguyen Jan 2018

Watching Big Brother: A Citizen’S Right To Record Police, Vincent Nguyen

Fordham Intellectual Property, Media and Entertainment Law Journal

Due to growing technological advances and the ubiquity of mobile phones, it has become increasingly common for citizens to use these devices to photograph and record events. Though largely uncontroversial, when used to record public police activity, some citizens have been arrested and charged under state wiretapping r eavesdropping statutes. Over time, various circuit courts have held that this right to record public police actions is a protected activity. Most recently, however, the U.S. Court of Appeals for the Eighth Circuit affirmed a lower court decision, which held that this act of recording is unprotected, thereby exemplifying how circuit ...


Supreme Court Amicus Brief Of 22 Corporate Law Professors, Mark Janus V. American Federation Of State, County And Municipal Employees, Council 31, Et Al, No. 16-1466, John C. Coates, Iv, Lucian A. Bebchuk, John C. Coffee, Bernard S. Black Jan 2018

Supreme Court Amicus Brief Of 22 Corporate Law Professors, Mark Janus V. American Federation Of State, County And Municipal Employees, Council 31, Et Al, No. 16-1466, John C. Coates, Iv, Lucian A. Bebchuk, John C. Coffee, Bernard S. Black

Faculty Scholarship

The Supreme Court has looked to the rights of corporate shareholders in determining the rights of union members and non-members to control political spending, and vice versa. The Court sometimes assumes that if shareholders disapprove of corporate political expression, they can easily sell their shares or exercise control over corporate spending. This assumption is mistaken. Because of how capital is saved and invested, most individual shareholders cannot obtain full information about corporate political activities, even after the fact, nor can they prevent their savings from being used to speak in ways with which they disagree. Individual shareholders have no “opt ...


Shielding Children From Pornography By Incentivizing Private Choice, Karen Hinkley Jan 2018

Shielding Children From Pornography By Incentivizing Private Choice, Karen Hinkley

Washington University Law Review

In March of 2016, Playboy stopped publishing images of naked women in their magazines. According to the company’s chief executive, Scott Flanders, “[the] battle has been fought and won . . . . You’re now one click away from every sex act imaginable for free. And so it’s just passé at this juncture.” In stark contrast to the world of past generations, “[n]ow every teenage boy has an Internet-connected phone . . . . Pornographic magazines, even those as storied as Playboy, have lost their shock value, their commercial value and their cultural relevance.”

One consequence of modern technological advancements is that online pornography ...


Action And Reaction: The Trump Executive Orders And Their Reception By The Federal Courts, Anthony S. Winer Jan 2018

Action And Reaction: The Trump Executive Orders And Their Reception By The Federal Courts, Anthony S. Winer

Mitchell Hamline Law Review

No abstract provided.