Law Commons^™

Free Speech For Me But Not For Airbnb”: Restricting Hate-Group Activity In Public Accommodations, Sabrina Apple -- J.D. Candidate, 2024

Vanderbilt Law Review

As digital services grow increasingly indispensable to modern life, courts grow inundated with novel claims of entitlement against these platforms. As narrow, formalistic interpretations of Title II permit industry leaders to sidestep equal access obligations, misinformed interpretations of First Amendment protections allow violent speech and conduct to parade uninhibited. Within the mistreatment of these two established doctrines lies a critical distinction: the former is in desperate need of modernization to fulfill its original intent, and the latter is in desperate need of restoration for the same ends. This climate creates conditions ripe for doctrinal upheaval. This Note considers how the …

Can't Really Teach: Crt Bans Impose Upon Teachers' First Amendment Pedagogical Rights, Mary L. Krebs

Vanderbilt Law Review

The jurisprudence governing K-12 teachers’ speech protection has been a convoluted hodgepodge of caselaw since the 1960s when the Supreme Court established that teachers retain at least some First Amendment protection as public educators. Now, as new so-called Critical Race Theory bans prohibit an array of hot button topics in the classroom, K-12 teachers must either preemptively censor themselves or risk running afoul of these vague bans with indeterminate legal protection. This Note proposes an elucidation of K-12 teachers’ free speech rights via a two-part test to assess the reasonability of instructional speech. Rather than analogizing K-12 teacher speech to …

What Was The "Dartmouth College" Case Really About?, Charles R.T. O'Kelley

Vanderbilt Law Review

This Article is the first modern work of corporation law scholarship fully examining the Dartmouth College case as it was lived and understood at the time. Earlier scholars, the author of this Article included, have relied on the case to make doctrinal and theory-of-the firm arguments about Supreme Court precedents regarding the constitutional rights of corporations. Moreover, these earlier works have primarily focused on, and found talismanic meaning, in two sentences in Marshall’s opinion:

"A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties …

Licensing Knowledge, Claudia E. Haupt

Vanderbilt Law Review

When professionals give advice, they disseminate professional knowledge to their clients. Professional advice is valuable to clients because they gain access to a body of knowledge they do not otherwise possess. To preserve the accuracy, and hence the value, of this knowledge transfer, the First Amendment should protect professional speech against state interference that seeks to alter the content of professional advice in a way that contradicts professional knowledge. But before professionals can give professional advice, they are routinely subject to licensing by the state. This seemingly creates a tension between state involvement in professional licensing and protection against state …

Terrorist Speech On Social Media, Alexander Tsesis

Vanderbilt Law Review

The presence of terrorist speech on the internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of civil liberties. The Supreme Court has erected a bulwark of associational and communicative protections to curtail government from stifling debate through overbroad regulations. On the other hand, the protection of free speech has never been an absolute bar against the regulation of low value expressions, such as calls to violence and …

High Value Lies, Ugly Truths, And The First Amendment, Alan K. Chen, Justin Marceau

Vanderbilt Law Review

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies-such as perjury and fraud-are simply not covered by the Constitution's free speech clause.' But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. Until very recently, however, it has been taken for granted in Supreme Court doctrine and academic writing that any constitutional protection for lies is purely prophylactic-it provides protection to the truth-speaker by also incidentally protecting the liar. What remains unresolved is whether other rationales might also justify First Amendment protection for …

Qualifying Qualified Immunity, John C. Williams

Vanderbilt Law Review

I imagine Leslie Weise and Alex Young had similar feelings when, in 2005, they attended a government-funded speech by President George W. Bush in Denver. But those feelings appear to have been mixed with ones of discontent and dissent toward the President-for the pair arrived in a car with a bumper sticker reading "No More Blood for Oil," an obvious jab at Bush's Iraq War policies. On instructions from the White House Advance Office, a volunteer named Michael Casper approached Weise and Young at their seats and ejected them from the event. The Secret Service later told Weise and Young …

Just Shoot Me: Public Accommodation Anti-Discrimination Laws Take Aim At First Amendment Freedom Of Speech, James M. Gottry

Vanderbilt Law Review

Imagine a young woman, Elaine, who is a gifted photographer. She launches a small photography business with her husband, and soon she is in demand throughout the state. Her specialty is weddings. One day Elaine receives a request to photograph a same-sex commitment ceremony. Politely, she declines, explaining that she only photographs traditional weddings. Several months later, she is contacted by the state's Human Rights Commission. Elaine learns that a complaint has been filed against her, and she is being charged with discrimination on the basis of sexual orientation.

Imagine a young man, Michael, who is a gifted filmmaker. While …

Street Shootings: Covert Photography And Public Privacy, Nancy D. Zeronda

Vanderbilt Law Review

Street photographers, like snipers, pride themselves on stealth.' Camouflaged in nondescript clothing, they wander the streets undetectable, armed, and on the hunt. When they find their mark, they act quickly. As the famous twentieth-century street photographer Henri Cartier-Bresson described: "The creative act lasts but a brief moment, a lightning instant of give-and-take, just long enough for you to level the camera and to trap the fleeting prey in your little box." While methods of "trapping prey" vary from shooter to shooter, the mission remains the same-staying as covert as possible and catching an unknowing subject in a candid pose. In …

Toward A Rfra That Works, Nicholas Nugent

Vanderbilt Law Review

The history of the Supreme Court's First Amendment jurisprudence regarding the proper standard of protection for the free exercise of religion is complicated. In determining how the First Amendment speaks to situations in which generally applicable health, welfare, and safety laws incidentally or accidentally burden certain individuals' religious practices, the Court has vacillated between different standards and different extremes, overruling itself several times. Early on, the Court held that, provided the government did not interfere deliberately with religion for religious reasons, an inadvertent interference with religious practice raised no Free xercise Clause problem,' "no matter how trivial the state's nonreligious …

"The House Was Quiet And The World Was Calm The Reader Became The Book", Burt Neuborne

Vanderbilt Law Review

Professor Neuborne argues that we err in reading the Bill of Rights "in splendid isolation" as a randomly ordered set of clause-bound norms. Instead, he argues that the disciplined order and placement of the thirty-three ideas in the Bill of Rights, especially the six textual ideas united in the First Amendment, reveals a deep contextual structure imposed by the Founders that sheds important light on the meaning of the constitutional text. He argues that the "vertical" order of the first ten amendments, as well as the "horizontal" order of ideas within each amendment, provides important clues to a judge seeking …

The Right Of Access: Is There A Better Fit Than The First Amendment?, Amy Jordan

Vanderbilt Law Review

James Madison once said, "a popular Government, without popular information, or a means of acquiring it, is but a Prologue to a Farce or Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives." For almost forty years, the Supreme Court has anchored the press's and public's right of access to government proceedings and information in the language of the First Amendment. Grounding the right of access in the language of the First Amendment is unsatisfactory not only because it goes beyond …

Commercial Speech And The Unconstitutional Conditions Doctrine: A Second Look At "The Greater Includes The Lesser", Mitchell N. Berman

Vanderbilt Law Review

Over half a century ago, the Puerto Rico legislature legalized casino gambling in an effort to promote tourism to the island.' To help ensure that the local population would not overindulge in this particular vice, however, the legislature at the same time provided that "[n]o gambling room shall be permitted to advertise or other- wise offer their facilities to the public of Puerto Rico."' Thirty years later a casino operator challenged the statutory advertising ban and its implementing regulations as violating the freedom of speech guaranteed by the First Amendment. Although the Superior Court of Puerto Rico agreed with the …

Lamb's Chapel V. Center Moriches Union Free School District, 113 S. Ct. 2141 (1993), John E. Burgess

Vanderbilt Law Review

The First Amendment to the United States Constitution provides the primary foundation for the protection of several individual rights, including free speech and religious autonomy.' At times, how- ever, efforts to protect these rights appear to conflict with competing restraints on state action. The drafters of the First Amendment's Religion Clauses, for example, sought to guarantee religious freedom while maintaining a separation between church and state. The goal or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances."

R.A.V. V. City Of St. Paul: The Continuing Confusion Of The Fighting Words Doctrine, Melody L. Hurdle

Vanderbilt Law Review

Communication contributes to the marketplace of ideasI which is the only way to promote the discovery of truth in society. The importance of communication has led the United States Supreme Court to herald freedom of expression as "the matrix, the indispensable condition, of nearly every other form of freedom." Indeed, the Court protects few other constitutional rights with such fervor. First Amendment protection is not absolute, however, and the United States Supreme Court consistently has asserted that certain forms or classes of expression may be regulated without violating the Constitution. Generally speaking, the Court has carved exceptions to First Amendment …

A Precarious Path: The Bill Of Rights After 200 Years, Tony A. Freyer

Vanderbilt Law Review

The Bill of Rights occupies an ambiguous place in American society. Americans favor the Bill of Rights in principle, but when asked whether they support particular rights guarantees for real-life practices such as gun ownership, capital punishment, abortion, and flag burning, Americans fervently and profoundly disagree. The essays David J. Bodenhamer and James W. Ely, Jr. have compiled in The Bill of Rights in Modern America After 200 Years, richly suggest why Americans have reconciled principle and practice with such difficulty. Written for a popular audience by specialists who possess a profound knowledge of and differing views concerning the technical …

Liberal Visions Of The Freedom Of The Press, Michael Gerhardt

Vanderbilt Law Review

Liberals have long regarded the First Amendment's freedom of the press guarantee as their special plaything.' For most of this century, liberals have dominated the scholarship and the doctrinal debate on the freedom of the press. They have often urged the federal courts to establish the press as "a fourth institution outside the Government as an additional check on the three official branches." Liberal judges have ensured virtual autonomy for the print media through the cumulative effect of their rulings to immunize the press from damages for the publication of falsehoods about public figures unless the publication was done knowingly, …

A Unifying Theory For The Religion Clauses Of The First Amendment, Thomas R. Mccoy, Gary A. Kurtz

Vanderbilt Law Review

According to Justice Powell, the first amendment religion clauses are the source of "some of the most perplexing questions"that the Supreme Court confronts. In a long and rapidly expanding line of religion clause cases the Court has struggled, with a conspicuous lack of success, to articulate principles of broad applicability. The Court's efforts to date have resulted in a jumble of tests, standards, and theoretical approaches from which predicting the outcome in future cases is very difficult.

The conceptual problems that have frustrated the Court's attempts at doctrinal development center in two broad areas: first,the meaning and effect of the …

Tension Between The First And Twenty-First Amendments In State Regulation Of Alcohol Advertising, Brian S. Steffey

Vanderbilt Law Review

This Recent Development examines the tension between the first and twenty-first amendments when a state uses its twenty-first amendment power to regulate advertisements of alcoholic beverages that qualify for first amendment protection. Part II of this Recent Development explores the Court's standard of review in cases in which the twenty-first amendment impinges upon a fourteenth amendment right. Part II also reviews the scope of constitutional protection that the first amendment accords commercial speech. Part III examines three recent cases in which states have regulated alcohol advertising. Part IV criticizes these decisions for misapplying the appropriate standard and for relying extensively …

The Future Of First Amendment Overbreadth, J. W. Torke

Vanderbilt Law Review

In Broadrick, Justice White suggests that the willingness of the Court in the past to accord standing to litigants to raise the over-broad aspects of a statute without regard to their own conduct'depended on a "judicial prediction or assumption" regarding the threat to liberty that the statute posed.' The spirit with which the Court makes such predictions would appear to be determinative not only of the underlying standing issue but of the overbreadth claimas well." The key to discovering the paths by which the Court is "retreating" from its overbreadth holiday of the sixties lies in the recognition that the …

Obscenity -- Federal Statutes Prohibiting Importation And Mail Distribution Of Obscene Materials Do Not Violate First Amendment, Law Review Staff

Vanderbilt Law Review

Near the end of the 1970-71 term, the Supreme Court considered two cases, United States v. Reidell and United States v. Thirty-Seven (37) Photographs, in which constitutional challenges were raised against federal statutes regulating the distribution and importation of obscene materials. These challenges were engendered by the apparent irreconcilability of the Court's decisions in Roth v. United States and Stanley v. Georgia. In Roth, the Court held that obscenity is not within the scope of first amendment protection for speech and press. In Stanley, however, a first amendment right to possess obscene materials in one's home was recognized, and the …

School Board Authority And The Right Of Public School Teachers To Negotiate--A Legal Analysis, Reynolds C. Seitz

Vanderbilt Law Review

Realistically, the hurdle erected at one time by some courts, and legislative bodies to prevent public employees from joining employee organizations, including unions, no longer exists. Today it seems certain that the first amendment, through its protection of freedom to assemble, insures the right to join an employee organization. The issue with which this article deals still remains: whether there is an infringement on the legislative power of the school board if it is required to negotiate with teachers through representatives of their choosing.

The issue with which this article deals still remains: whether there is an infringement on the …

Chief Justice Waite And The "Twin Relic": Reynolds V. United States, C. Peter Magrath

Vanderbilt Law Review

In the landmark case of Reynolds v. United States, the United States Supreme Court held that a general law prohibiting polygamy did not abridge the religious freedom of members of the Mormon faith guaranteed by the first amendment. The author here explores the background of Chief Justice Waite's opinion in Reynolds v. United States: the tenets and development of the Mormon faith in the United States, the character of the Waite Court, and the sources and development of Chief Justice Waite's opinion in the case.

The Clear And Present Danger Test--A Reply To Mr. Meiklejohn, Wallace Mendelson

Vanderbilt Law Review

As educator and philosopher Alexander Meiklejohn has won a lion's share of the honors of his profession. Few have seen so clearly, or done more to enrich, the meaning of America. When in a provoking little volume' that appeared in 1948, Mr. Meiklejohn examined the meaning of democracy and free speech and found that Mr. Justice Holmes' clear and present danger test was incompatible with both, he obviously struck fire. His theme was that when men govern themselves it is they and not government who must judge as to the wisdom, fairness and danger of ideas. This means that unwise, …

Book Reviews, Edmund M. Morgan (Reviewer), Albert Williams (Reviewer), J. Warren Madden (Reviewer), Melvin M. Belli (Reviewer), George H. Tyne (Reviewer), William J. Bowe (Reviewer)

Vanderbilt Law Review

Book Reviews

The Hearsay Rule

By R. W. Baker

London: Sir Isaac Pitman & Sons,Ltd., 1950. Pp. xxi, 180

reviewer: Edmund M. Morgan

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Self-Incrimination: What Can an Accused Person be Compelled to Do?

By Fred E. Inbau

Springfield, Illinois: Charles C. Thomas, 1950.Pp. x, 91. $2.50

reviewer: Albert Williams

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Administrative Law

By Kenneth C. Davis

St. Paul: West Pub. Co.,1951. Pp. xvi, 1024. $8.00

Administrative Law: A Test

By Reginald Parker

Indianapolis: The Bobbs-Merrill Co., 1952. Pp. x, 344. $5.50

Administrative Agencies and the Courts

By Frank E. Cooper

Ann Arbor; University of Michigan Law School, 1951. Pp. …

The Problems Of Yesteryear -- Commerce And Due Process, Robert L. Stern

Vanderbilt Law Review

Less than fifteen years ago, there were constitutional problems important enough to stir the country, to threaten the sanctity of the Supreme Court. These were the culmination of at least three decades of judicial controversy, in which the pressure of events brought criticism of the Court's decisions, both in noteworthy dissenting opinions and outside, to a new height. Fifteen years later, there still are difficult and important constitutional problems, and there still is criticism of the Supreme Court's decisions--though on a relatively minor scale. But the issues which rocked more than the legal world in the 1930's and in the …

The Supreme Court And Civil Liberties, Paul A. Freund

Vanderbilt Law Review

The evolution of the enforcement of First Amendment guarantees under the aegis of the Fourteenth is an interesting study in the throwing up of bridges before and the burning of them behind, characteristic of juridical-advance. The protection of property and of liberty of contract had long since been assured under decisions applying'the Fourteenth Amendment. The interests of a teacher and of a private school, challenging interference with their pursuits, were well calculated to furnish the span between proprietary and forensic rights. When the span was crossed the newly taken ground provided a new base for advance. Freedom of speech, recognized …

State Constitutions, State Courts And First Amendment Freedoms, Monrad G. Paulsen

Vanderbilt Law Review

We have recently been reminded that one of the current and recurrent quandaries of the Supreme Court of the United States arises from the American constitutional system's counterpart of the philosophical problem of the One and the Many. When an individual's freedom is involved, the question is whether and to what degree state legislators, public officials and judicial officers shall be called upon to enforce standards of respect for personal liberties defined by the Federal Constitution and the United States Supreme Court; or, put another way, how far the first eight amendments of the Federal Constitution are incorporated into the …