Law Commons^™

Take Your Seats: A Student's Ability To Protest Immigration Reform At Odds With State Truancy And Compulsory Education Laws, Jason Scronic

Florida A & M University Law Review

No abstract provided.

Gay Pornography And The First Amendment: Unique, First-Person Perspectives On Free Expression, Sexual Censorship, And Cultural Images, Clay Calvert, Robert D. Richards

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Inchoate Liability And The Espionage Act: The Statutory Framework And The Freedom Of The Press, Stephen I. Vladeck

Articles in Law Reviews & Other Academic Journals

The debate over the proper balance between national security and freedom of the press has increasingly focused on the media's potential criminal liability for publishing sensitive information, as was threatened after the New York Times and the Washington Post disclosed the U.S. government's secret and warrantless wiretapping of domestic phone calls. With the issue of press liability for the publication of national security information, however, comes a bevy of difficult questions concerning the scope of the protections afforded to the press under the First Amendment.

This essay attempts to survey these questions in light of the absence of an overarching …

Art As Speech, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

A Common Tool For Individual Solutions: Why Countries Should Establish An International Organization To Regulate Internet Content, Paul Przybylski

Vanderbilt Journal of Entertainment & Technology Law

This note advances the case for an international organization to control Internet content. Part I describes the current state of affairs with respect to Internet regulation. First, this part describes briefly how the Internet works, to the extent that such a description is necessary to advance the argument presented in this note. Second, concentrating on Europe, the United States, and China, Part I describes the diverging preferences of countries regarding Internet regulation, the approaches they have taken, and the problems they have encountered due to the international nature of the Internet. Third, this part addresses the major attempt at international …

Panelist Biographies, Introduction By Dana Gold, Editor's Note, Dana L. Gold

Seattle University Law Review

This conference brought together nationally recognized scholars, attorneys, policymakers and activists from across the country who represent a depth of knowledge and range of viewpoints necessary to explore the intersection of corporate and First Amendment law. This discussion was sometimes heated, frequently politically surprising, and always robust. In this symposium issue, the Seattle University Law Review has captured the presentations and exchanges at this unique, multidisciplinary conference.

The Corporatization Of Communication, Eric Chiappinelli, Adam Candeub, Jeffrey Chester, Lawrence Soley

Seattle University Law Review

Our next panel discusses the corporatization of communication.

Bruce Ledewitz, American Religious Democracy: Coming To Terms With The End Of Secular Politics, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Instruments Of Accommodation: The Military Chaplaincy And The Constitution, Robert W. Tuttle, Ira C. Lupu

GW Law Faculty Publications & Other Works

This essay addresses the proliferation of constitutional issues involving the military chaplaincy. The authors query how the chaplaincy is consistent with the Establishment Clause of the Constitution's First Amendment and note that the answer generally derives from one or more of the following paradigms: (1) Establishment Clause history; (2) Public funding of religion; or (3) Governmental display of religious messages. They suggest that an adequate approach for Establishment Clause analysis of the military chaplaincy requires a different framework. To that end, Part I of this essay describes Katcoff v. Marsh, the most important decision on the constitutionality of the military …

Introducing A Takedown For Trade Secrets On The Internet, Elizabeth A. Rowe

UF Law Faculty Publications

This Article explores, for the first time, an existing void in trade-secret law. When a trade-secret owner discovers that its trade secrets have been posted on the Internet, there is currently no legislative mechanism by which the owner can request that the information be taken down. The only remedy to effectuate removal of the material is to obtain a court order, usually either a temporary restraining order or a preliminary injunction. When a trade secret appears on the Internet, the owner often loses the ability to continue to claim it as a trade secret and to prevent others from using …

Corporate Personhood And The Rights Of Corporate Speech, Adam Winkler

Seattle University Law Review

My objective here is to provide a little historical background on business corporations and their place in First Amendment law. In the course of that overview, I will also make a few observations that I believe can be helpful in thinking about corporate speech rights. First, I will argue that one aspect of the constitutional status of corporations-the notion of corporate personhood-has not played the central role in shaping corporate speech rights that some believe. Corporations have free speech rights, but they are more limited than those held by individuals. Second, I will argue that there is not a single …

Should Corporations Have First Amendment Rights?, Kent Greenfield, Daniel Greenwood, Erik Jaffe

Seattle University Law Review

As Professor Winkler correctly stated, current doctrine emphasizes the rights of listeners rather than the identity of corporate speakers. My argument is, in effect, that this emphasis misses the key point. But I will not deal with listeners directly. I am simply going to assume, rather than argue, that if corporate advertising were ineffective in influencing voters or legislators, normal market processes would eliminate it. I'm going to take it for granted that when corporations speak, it makes a difference in the actual results.

Corporations And Commercial Speech, Ron Collins, Mark Lopez, Tamara Piety, David Vladeck

Seattle University Law Review

Today's discussion will be about a rather famous case-actually, a non-case, Nike v. Kasky.

Corporations And Political Speech: Should Speech Equal Money?, David Skover, Lisa Danetz, Martin Redish, Scott Thomas

Seattle University Law Review

Welcome now to the panel on corporations and political speech. We will explore the First Amendment jurisprudence of campaign finance regulation and some of the more controversial issues raised by corporate involvement in the marketplace of political ideas and elections.

Institutional Academic Freedom Or Autonomy Grounded Upon The First Amendment: A Jurisprudential Mirage, Richard H. Hiers

UF Law Faculty Publications

In recent decades, several federal judges and Supreme Court Justices have stated that, at some time or another in the past, the Court determined that public universities or their professional schools are entitled to institutional academic freedom (or institutional autonomy) under the First Amendment. Notwithstanding the views of many learned commentators, the Court has never so held. Concurring opinions and dicta do not constitute Constitutional law. This article traces the series of misattributions, misreadings and other errors that have contributed to the present peculiar state of confusion in regard to these matters.

The Establishment Clause And Religious Expression In Governmental Settings: Four Variables In Search Of A Standard, Daniel O. Conkle

Articles by Maurer Faculty

In his controversial but controlling opinion in Van Orden v. Perry, Justice Breyer rejected an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Texas State Capital. Breyer argued that existing Establishment Clause formulations, including the Lemon and endorsement tests, were inadequate to resolve the case, so he relied instead on legal judgment, an approach informed by doctrinal and policy considerations but not controlled by any formal test. In this Essay, I suggest that Justice Breyer may have been right in Van Orden-if not in his result, then at least in approaching the question as he …

Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart

Publications

No abstract provided.

F(R)Ee Expression: Reconciling Copyright & The First Amendment, Raymond Shih Ray Ku

Faculty Publications

This essay explores the relationship between copyright and free speech by critically evaluating the proposition that conflicts between the two can be eliminated because the Framers intended both to be engines for free expression. My purpose is not to set forth a comprehensive theory of copyright and free speech, but is more modest. This essay argues that while useful, reference to the Framers' intent only goes so far in avoiding conflicts between copyright and free speech, and when viewed outside of the facts presented by Harper & Row and Eldred, reliance upon the Framers' intent arguably increases such conflicts. Moreover, …

Can The Irs Silence Religious Organizations, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

In the years following the 2004 presidential election, the Los Angeles Times reported that the Internal Revenue Service threatened revoking the tax-exempt status of the All Saints Episcopal Church in Pasadena because during a 2004 sermon, a church rector stated that he opposed the Vietnam and Gulf wars and that Jesus would have disapproved of the Bush Administration's preemptive war doctrine. The rector did not tell his parishioners who to support in the 2004 election, however. This threat of revoking an organization's tax-exempt status is just one example of the IRS's recent and unprecedented aggressiveness in seeking out violations of …

The Public's Right To Fair Use: Amending Section 107 To Avoid The 'Fared Use' Fallacy, Wendy J. Gordon, Daniel Bahls

Faculty Scholarship

Under provocative titles like "Fared Use"¹ and "The End of Friction,"² commentators argue about whether or not the copyright doctrine of fair use³ should exist in a world of instantaneous transactions. As collecting societies such as the Copyright Clearance Center have become more powerful, and technologies like cellular phones and the internet have made it possible to purchase digital copies by dialing a number or clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. The Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present …

No Reason To Live: Dilution Laws As Unconstitutional Restrictions On Commercial Speech, Mary Lafrance

Scholarly Works

Traditionally, trademark and unfair competition laws have protected trademark owners against unauthorized uses of their marks that are likely to confuse or mislead consumers about the origin of goods or services. If a particular use is not likely to confuse or mislead, then it is not actionable under traditional infringement regimes. When applied to commercial speech, as opposed to noncommercial expression, traditional trademark and unfair competition laws generally have survived scrutiny under the First Amendment, because these laws restrict only commercial speech that is false or misleading.

Dilution laws, however, do not restrict speech that is false or misleading. Dilution …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Scholarly Works

This Article examines the metaphorical and metonymical framing of corporate money in Supreme Court decisions about campaign finance regulation. Metaphorical influences (corporation as a person, spending money as speech, marketplace of ideas as the model for First Amendment analysis) affected early decisions about the regulation of corporate spending in election campaigns. Later, a metonymical move to isolate corporate money and then to focus on its malevolent tendencies displaced the earlier view of corporate money as speech. This movement was best depicted in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court's 2003 decision on the Bipartisan Campaign …

Substantive Media Regulation In Three Dimensions, Gregory P. Magarian

Scholarship@WashULaw

Changes in the political and regulatory climates are prompting calls to revive substantive government regulation of the broadcast media, specifically the now-defunct fairness doctrine. In this article, Professor Magarian attempts to sharpen the present debate over substantive regulation by closely examining earlier defenses and criticisms of the fairness doctrine. The article assesses how supporters and opponents of the fairness doctrine have characterized three issues essential for assessing the doctrine's wisdom and constitutionality: who is regulating; who is being regulated; and the goal of the regulatory scheme. As to the first issue, who is regulating, fairness doctrine supporters emphasize the democratic …

The First Amendment As Criminal Procedure, Daniel J. Solove

GW Law Faculty Publications & Other Works

This Article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other despite the fact that many instances of government information gathering can implicate First Amendment freedoms of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case Boyd v. United States, in which the Supreme Court held that the government was prohibited from seizing a person's private papers. Over time, however, Fourth and Fifth Amendment protection has shifted, …

Should Law Schools Bar Student Organizations From Inviting The Military To Campus For Recruitment Purposes?, Joan Schaffner

GW Law Faculty Publications & Other Works

The military's discrimination against gays combined with the Solomon Amendment that forces schools to allow equal access to military recruiters in violation of their non-discrimination policies, upheld by the Supreme Court under constitutional challenge in FAIR v. Rumsfeld, 126 S.Ct. 1297 (2006), has created many difficulties for law schools. The law schools are torn between protecting their gay students from discrimination and enforcing their non-discrimination policy and violating the Solomon Amendment and thus risking the loss of substantial federal funding. In September 2006, the George Washington Law School was presented with a question of first impression. To what extent should …

Cyber-Libeling The Glitterati: Protecting The First Amendment For Internet Speech, Abbey L. Mansfield

Vanderbilt Journal of Entertainment & Technology Law

Celebrity gossip is disseminated on the Internet not only by profitable publications and Internet tabloids with professional writers and sophisticated legal teams, but also by countless numbers of "blogs" posted by ordinary individuals, often with nothing more than a dial-up connection. Americans posting speech on the Internet must be aware of the implications of the Gutnick decision and recognize that they could be dragged into court and held liable for defamation abroad. This note explores theoretical changes to the law that should be adopted to protect the First Amendment as it applies to Internet speech. Additionally, this note discusses various …

Twentieth Century Approaches To Defining Religion: Clifford Geertz And The First Amendment, Barbara Barnett

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Shifting Toward Balance, Not Conservatism: The Court's Interpretation Of The Lemon Test's Legislative Intent Prong And Reaction From The Electorate, Kedrick N. Whitmore

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Subverting Justice: An Indictment Of The Animal Enterprise Terrorism Act, Kim Mccoy

Animal Law Review

The Animal Enterprise Terrorism Act (AETA) creates yet another obstacle for the animal advocacy movement. This article explores the reasons behind the AETA’s enactment and its implications for those who advocate on behalf of animals. The author notes the AETA targets individuals based solely on their political ideology and can deter these individuals from exercising their right to free speech due to the threat of being permanently branded as a terrorist. It is this infringement on First Amendment rights, coupled with the AETA’s overbreadth and vagueness, that lead the author to conclude the AETA is unconstitutional. The author also notes …

Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett

Journal Articles

The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.

How, then, should we understand church-state separation? …