Law Commons^™

Compelled Speech Under The Commercial Speech Doctrine: The Case Of Menu Label Laws, Jennifer L. Pomeranz

Journal of Health Care Law and Policy

No abstract provided.

Symposium: No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision , Jamin B. Raskin

American University Law Review

The Supreme Court's decision in Tinker v. Des Moines Independent Community School District forty years ago did for the ideal of expressive freedom in America's public schools what Brown v. Board of Education did for the ideal of racial equality. It made a core value of the Bill of Rights spring to life for young people facing authoritarian treatment at the hands of adult officials running their school systems. By privileging the right of students to engage in passionate political communication over the school's interest in maintaining discipline or the community’s interest in maintaining pro-war consensus, the Tinker decision was …

Symposium: Shrinking Tinker: Students Are Persons Under Our Constitution - Except When They Aren't , Frank D. Lomonte

American University Law Review

The central proposition of this Article is that the school/student relationship is a distinctive one, and that student speakers on school property stand in a fundamentally different posture than do pamphleteers on the public sidewalk. This unique relationship has been recognized by the courts, but only selectively, where the uniqueness works to the disadvantage of the speaker. It is time that courts acknowledge that, because students are “captive” in school for the best hours of their day, and because students have a legally enforceable right to be on school grounds for purposes that expressly include the exchange of ideas, student …

Judicial Review, Local Values, And Pluralism, Richard W. Garnett

Journal Articles

At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …

Symposium: Tinker At Forty: Defending The Right Of High School Students To Wear Controversial Religious And Pro-Life Clothing, Jay Alan Sekulow, Erik M. Zimmerman

American University Law Review

This Article argues for broad First Amendment protection for “controversial” religious and pro-life student expression. The vast majority of religious and pro-life clothing is no more likely to create an actual disturbance that substantially disrupts school functions than a peace armband worn during Vietnam, the student expression upheld in the seminal case of Tinker v. Des Moines Independent Community School District. Section I of this Article discusses several Supreme Court student speech cases with an emphasis on their applicability to situations involving high school students who wear “controversial” religious and pro-life clothing. This section argues that Tinker’s substantial disruption test—not …

Davis V. Fec: The Roberts Court's Continuing Attack On Campaign Finance Reform, Richard Briffault

Faculty Scholarship

In Davis v. FEC, decided on the last day of the October 2007 Term, a closely divided Supreme Court invalidated the so-called Millionaires' Amendment, which was a provision added to the Federal Election Campaign Act ("FECA") as part of the Bipartisan Campaign Reform Act ("BCRA") of 2002 to make it easier for Senate and House candidates to raise private contributions when they run against an opponent who uses a substantial amount of personal wealth to pay for his or her campaign. From the reform perspective, the loss of the Millionaires' Amendment was not of great moment. The Amendment was …

Book Review. Religious Liberty In America: The First Amendment In Historical And Contemporary Perspective, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

In The Matter Of Ottinger V. Non-Party The Journal News, Daniel Haier

NYLS Law Review

No abstract provided.

A 'Ho New World: Raced And Gendered Insult As Ersatz Carnival And The Corruption Of Freedom Of Expression Norms, Lolita Buckner Inniss

Publications

Carnivalization, a concept developed by literary theorist Mikhail Bakhtin and later employed in broad social and cultural contexts, is the tearing down of social norms, the elimination of boundaries, and the inversion of established hierarchies. It is the world turned upside down. Ersatz carnival is a pernicious, inverted form of carnival, one wherein counter-discourses propounded by outsiders are appropriated by elites and frequently redeployed to silence and exclude those same outsiders. The use of the slur "'ho" by gangsta' rappers in the performance of songs that articulate a vision of urban culture is an example of carnivalization. Thus, when words …

Pleasant Grove V. Summum: Losing The Battle To Win The War, Ian C. Bartrum

Scholarly Works

This short essay explores the potential doctrinal implications of the Supreme Court's recent decision in Pleasant Grove v. Summum.

The First Amendment And Commercial Speech, C. Edwin Baker

All Faculty Scholarship

After a quick summary of constitutional treatment of commercial speech, this essay outlines four reasons why commercial speech should be denied First Amendment protection. Working from the claim that the primary rationale for constitutional protection of speech is the mandate that government respect individual freedom or autonomy, the essay argues: 1) that the individual does not choose, but rather the market dictates the content of commercial speech; 2) that the commercial speech should be attributed to an artificial, instrumentally entity – the business enterprise – rather than the flesh and blood person whose liberty merits protection; 3) market exchanges involve …

Son Of Sam And Dog Of Sam: Regulating Depictions Of Animal Cruelty Through The Use Of Criminal Anti-Profit Statutes, Emma Ricaurte

Animal Law Review

In 1991, Congress enacted 18 U.S.C. § 48, which prohibits the interstate sale and distribution of depictions of animal cruelty, in response to the proliferation of animal “crush videos” on the Internet. In 2008, the Third Circuit, in United States v. Stevens, a case involving dog fighting, held that the law was an unconstitutional restriction on free speech. In April of 2009, the Supreme Court of the United States granted certiorari. Discussions about the regulation of depictions of animal cruelty have largely focused on whether the child pornography or obscenity exceptions to the First Amendment should be extended to include …

Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton

Publications

This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on--and defer to--government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government …

Constitutional Borrowing, Robert L. Tsai

Articles in Law Reviews & Other Academic Journals

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law …

Skirting The Line: Restricting Online Pedophilic Guides Within The Confines Of The First Amendment, Danielle M. Cross

Seattle University Law Review

This Comment argues that parents should not be left to self-help remedies to combat pedophiles in public locations. Part II of this Comment explores the psychological make-up of a pedophile by introducing the diagnostic criteria of pedophilia and by examining lengths to which pedophiles will go to find children. This Part also describes the danger created by websites with seemingly innocuous images and writings, explaining how these websites enable and validate pedophilia. Then, Parts III and IV tackle the issue on two fronts, through state action and federal congressional action, respectively. Part III describes and discusses the SSA, a recent …