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Full-Text Articles in First Amendment

Can The Irs Silence Religious Organizations, Meghan J. Ryan Jan 2007

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 …

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Obscenity Prosecutions And The Bush Administration: The Inside Perspective Of The Adult Entertainment Industry & Defense Attorney Louis Sirkin, Robert D. Richards, Clay Calvert Jan 2007

Obscenity Prosecutions And The Bush Administration: The Inside Perspective Of The Adult Entertainment Industry & Defense Attorney Louis Sirkin, Robert D. Richards, Clay Calvert

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

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Excuse Me, Sir; You're Sitting In A No Cell Phone Pornography Section, You'll Have To Put That Away: May The Fcc Regulate The Content Of Wireless Broadband Transmissions, H. William Beseth Iii Jan 2007

Excuse Me, Sir; You're Sitting In A No Cell Phone Pornography Section, You'll Have To Put That Away: May The Fcc Regulate The Content Of Wireless Broadband Transmissions, H. William Beseth Iii

Cleveland State Law Review

This Note will argue that the scope of the FCC's authority to regulate traditional broadcast content does not extend to the content transmitted to wireless devices via broadband transmission. Part II of this Note provides a study of the key cases that characterize the scope of the FCC's statutory authority to regulate traditional broadcast content. Additionally, Part II presents a discussion of the First Amendment and the limits it imposes on the FCC's regulation of broadcast content. Part III evaluates whether content transmitted by new technologies fits into the regulatory scope of the FCC's authority according to the tests set …

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Church, State, And The Practice Of Love, Richard W. Garnett Jan 2007

Church, State, And The Practice Of Love, Richard W. Garnett

Villanova Law Review

No abstract provided.

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The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog Jan 2007

The Kerr Principle, State Action, And Legal Rights, Donald J. Herzog

Articles

A Baltimore library refused to admit Louise Kerr to a training program because she was black. Not that it had anything against blacks, but its patrons did. When Kerr launched a civil suit against the library alleging a violation of equal protection of the laws, the courts credited the library's claim that it had no racist purpose, but Kerr still prevailed-even though the case occurred before Title VII and Brown v. Board of Education. Here a neutral and generally applicable rule ("serve the patrons"), when coupled with particular facts about private parties (the white patrons dislike blacks), yielded an …

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Section 1983 Civil Rights Litigation In The October 2005 Term, Martin Schwartz Jan 2007

Section 1983 Civil Rights Litigation In The October 2005 Term, Martin Schwartz

Touro Law Review

No abstract provided.

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Cyber-Libeling The Glitterati: Protecting The First Amendment For Internet Speech, Abbey L. Mansfield Jan 2007

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 …

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Truth, Accuracy And Neutral Reportage: Beheading The Media Jabberwock's Attempts To Circumvent New York Times V. Sullivan, David A. Elder Jan 2007

Truth, Accuracy And Neutral Reportage: Beheading The Media Jabberwock's Attempts To Circumvent New York Times V. Sullivan, David A. Elder

Vanderbilt Journal of Entertainment & Technology Law

In over four decades since the New York Times v. Sullivan decision, the United States Supreme Court has accorded the American media a level of freedom of expression that is unparalleled in the democratic world. Yet, the Supreme Court has also repeatedly affirmed its unwillingness to give the media a constitutional blank check, and has authorized redress where public persons can prove that the defendant published a "calculated falsehood." As any lawyer knows, the calculated falsehood standard is so difficult to satisfy that often none but the impulsive, the intrepid or the naive will contemplate suing for libel. However, Sullivan …

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Twentieth Century Approaches To Defining Religion: Clifford Geertz And The First Amendment, Barbara Barnett Jan 2007

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.

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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 Jan 2007

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.

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How Does "Equal Liberty" Fare In Relation To Other Approaches To The Religion Clauses?, Kent Greenawalt Jan 2007

How Does "Equal Liberty" Fare In Relation To Other Approaches To The Religion Clauses?, Kent Greenawalt

Faculty Scholarship

As one of four contributors to an issue celebrating Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution, I have chosen to write an Essay that differs from an ordinary review. I compare the authors' approach with two other recent formulations of what should be central for the jurisprudence of the Religion Clauses. Since I have recently published my own treatment of the Free Exercise Clause, and a second volume on the Establishment Clause is in the pipeline toward publication, I do not here present my own positive views (though I provide references for interested readers). Those views …

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The Public's Right To Fair Use: Amending Section 107 To Avoid The 'Fared Use' Fallacy, Wendy J. Gordon, Daniel Bahls Jan 2007

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 …

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The Test That Ate Everything: Intermediate Scrutiny In First Amendment Jurisprudence, Ashutosh Bhagwat Jan 2007

The Test That Ate Everything: Intermediate Scrutiny In First Amendment Jurisprudence, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

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Introducing A Takedown For Trade Secrets On The Internet, Elizabeth A. Rowe Jan 2007

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 …

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Authorship, Audiences, And Anonymous Speech, Lyrissa Barnett Lidsky, Thomas F. Cotter Jan 2007

Authorship, Audiences, And Anonymous Speech, Lyrissa Barnett Lidsky, Thomas F. Cotter

UF Law Faculty Publications

This Article aims to assist lawmakers and courts to find the proper balance between the right to speak without disclosing one's true identity and the rights of those injured by anonymous speech. To this end, we present both a positive and a normative analysis of anonymous speech. In the positive analysis, we examine the private costs and benefits that speakers encounter when deciding whether to publish with or without attribution; among these costs and benefits are the potentially differing responses of audiences to attributed and nonattributed speech. For example, speakers may feel less vulnerable to retaliation when they speak anonymously, …

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Institutional Academic Freedom Or Autonomy Grounded Upon The First Amendment: A Jurisprudential Mirage, Richard H. Hiers Jan 2007

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.

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The Jurisprudence Of Colliding First Amendment Interests: From The Dead End Of Neutrality To The Open Road Of Participation-Enhancing Review, Gregory P. Magarian Jan 2007

The Jurisprudence Of Colliding First Amendment Interests: From The Dead End Of Neutrality To The Open Road Of Participation-Enhancing Review, Gregory P. Magarian

Scholarship@WashULaw

First Amendment interests in both speech and religion often collide with one another. A political activist claims a free speech interest in the right to purchase advertising time on a television network, while the network claims a free speech interest in its decision not to sell the time. A religious enclave claims a free exercise interest in having a dedicated public school district, while its neighbors claim a nonestablishment interest in the government's not extending the group special treatment. In this article Professor Magarian examines the phenomenon of colliding First Amendment interests, explains and critiques the Supreme Court's failure to …

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Substantive Media Regulation In Three Dimensions, Gregory P. Magarian Jan 2007

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 …

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Institutional Review Boards, Regulatory Incentives, And Some Modest Proposals For Reform, Dale Carpenter Jan 2007

Institutional Review Boards, Regulatory Incentives, And Some Modest Proposals For Reform, Dale Carpenter

Faculty Journal Articles and Book Chapters

It is time to rethink the role of Institutional Review Boards (IRBs) in approving social science research. While most law professors conduct their research in an almost unregulated environment - pouring through cases, statutes, and each other's articles, all without the kind of human interaction subject to IRB regulation - their colleagues elsewhere in the university have been coping for decades with an increasingly intrusive bureaucracy that sometimes undermines basic academic values. Three things seem very clear. First, there are a lot of IRBs - at least 4,000 - and their numbers are growing. Second, they have recently "increased their …

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First Amendment Protection For The Publication Of Private Information, Jared Lenow Jan 2007

First Amendment Protection For The Publication Of Private Information, Jared Lenow

Vanderbilt Law Review

Over one hundred years ago, Samuel Warren and Louis Brandeis wrote, "Of the desirability-indeed of the necessity-of some protection [of the right of privacy], there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and decency." This observation rings even more true today than it did when it was made in 1890. In the past hundred years, members of the media have drastically revised the unwritten rules regarding what topics are fair game. While media outlets uniformly declined to publish photographs of Franklin Delano Roosevelt in a wheelchair while he …

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Above The Law? The Constitutionality Of The Ministerial Exemption From Antidiscrimination Law, Caroline Mala Corbin Jan 2007

Above The Law? The Constitutionality Of The Ministerial Exemption From Antidiscrimination Law, Caroline Mala Corbin

Articles

No abstract provided.

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In Search Of Regulatory Equilibrium, Lili Levi Jan 2007

In Search Of Regulatory Equilibrium, Lili Levi

Articles

No abstract provided.

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Mashed Up Videos And Broken Down Copyright: Changing Copyright To Promote The First Amendment Values Of Transformative Video, Andrew S. Long Jan 2007

Mashed Up Videos And Broken Down Copyright: Changing Copyright To Promote The First Amendment Values Of Transformative Video, Andrew S. Long

Oklahoma Law Review

No abstract provided.

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Slapping Around The First Amendment: An Analysis Of Oklahoma’S Anti-Slapp Statute And Its Implications On The Right To Petition, Laura Long Jan 2007

Slapping Around The First Amendment: An Analysis Of Oklahoma’S Anti-Slapp Statute And Its Implications On The Right To Petition, Laura Long

Oklahoma Law Review

No abstract provided.

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First Amendment Cases In The Supreme Court 2005 Term, Joel Gora Jan 2007

First Amendment Cases In The Supreme Court 2005 Term, Joel Gora

Faculty Scholarship

No abstract provided.

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Deus Ex Machina And The Unfulfilled Promise Of New York Times V. Sullivan: Applying The Times For All Seasons, Joseph H. King Jr. Jan 2007

Deus Ex Machina And The Unfulfilled Promise Of New York Times V. Sullivan: Applying The Times For All Seasons, Joseph H. King Jr.

Kentucky Law Journal

No abstract provided.

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Uncivil Religion: Judeo-Christianity And The Ten Commandments, Frederick Mark Gedicks, Roger Hendrix Jan 2007

Uncivil Religion: Judeo-Christianity And The Ten Commandments, Frederick Mark Gedicks, Roger Hendrix

Faculty Scholarship

In the recent Decalogue Cases, Justice Scalia argued that when it comes to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits th[e] disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists. Justice Scalia's argument represents the latest attempt to insulate American civil religion from Establishment Clause attack. A civil religion is a set of nondenominational values, symbols, rituals, and assumptions which create both reverence of national history and formation of a communal national bond.

The most recent incarnation of American civil …

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Students And Workers And Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine, Scott A. Moss Jan 2007

Students And Workers And Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine, Scott A. Moss

Publications

First Amendment free speech doctrine has been called "institutionally oblivious" for ignoring how different institutions present different legal questions. This Article analyzes a little-discussed phenomenon in the growing literature about institutional context in constitutional law. With certain institutions, the situation is not institutional obliviousness but the opposite: extreme institutional tailoring of speech doctrine. The burden of proof ordinarily is on the government to justify speech restrictions, but in three institutions--public schools, workplaces, and prisons--courts allow heavy speech restrictions and defer to government officials. Even if these institutions need to restrict speech unusually often, why do we need different doctrine--institutionally tailored …

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Hemlock In The Marketplace: How Freedom Of The Press For College Newspapers Poisons The First Amendment, 40 J. Marshall L. Rev. 1365 (2007), Michael Hopkins Jan 2007

Hemlock In The Marketplace: How Freedom Of The Press For College Newspapers Poisons The First Amendment, 40 J. Marshall L. Rev. 1365 (2007), Michael Hopkins

UIC Law Review

No abstract provided.

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Two-Dimensional Doctrine And Three-Dimensional Law: A Response To Professor Weinstein, Philip A. Hamburger Jan 2007

Two-Dimensional Doctrine And Three-Dimensional Law: A Response To Professor Weinstein, Philip A. Hamburger

Faculty Scholarship

Professor Weinstein examines how the IRB laws would fare under Supreme Court doctrine, and whereas it is my view that these laws should be considered unconstitutional, he reaches largely the opposite conclusion. His article therefore offers a valuable opportunity for further exploration of the constitutional questions, and although there is not sufficient space here to discuss all of his analysis, it seems important at least to draw attention to the major points on which we take different perspectives.

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