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Tinkering With Success: College Athletes, Social Media And The First Amendment, Mary Margaret Meg Penrose
Tinkering With Success: College Athletes, Social Media And The First Amendment, Mary Margaret Meg Penrose
Meg Penrose
Good law does not always make good policy. This article seeks to provide a legal assessment, not a policy directive. The policy choices made by individual institutions and athletic departments should be guided by law, but absolutely left to institutional discretion. Many articles written on college student-athletes’ social media usage attempt to urge policy directives clothed in constitutional analysis.
In this author’s opinion, these articles have lost perspective – constitutional perspective. This article seeks primarily to provide a legal and constitutional assessment so that schools and their athletic departments will have ample information to then make their own policy choices.
When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas
When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas
Samantha Barbas
Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …
The Sidis Case And The Origins Of Modern Privacy Law, Samantha Barbas
The Sidis Case And The Origins Of Modern Privacy Law, Samantha Barbas
Samantha Barbas
The American press, it’s been said, is freer to invade personal privacy than perhaps any other in the world. The tort law of privacy, as a shield against unwanted media exposure of private life, is very weak. The usual reason given for the weakness of U.S. privacy law as a bar on the publication of private information is the strong tradition of First Amendment freedom. But “freedom of the press” alone cannot explain why liberty to publish has been interpreted as a right to print truly intimate matters or to thrust people into the spotlight against their will. Especially in …
Privatizing And Publicizing Speech, Nelson Tebbe
Privatizing And Publicizing Speech, Nelson Tebbe
Nelson Tebbe
When and how should governments be permitted to use private-law mechanisms to manage their public-law obligations? This short piece poses that question in the context of Summum, which the Supreme Court decided earlier this year, and Buono, which it will hear in the fall. In both cases, the government manipulated formal property rules in order to fend off constitutional challenges. In Summum, the government took ownership of a religious symbol in the face of a free speech challenge, while in Buono it shed ownership of land containing another sectarian symbol in an effort to moot an Establishment Clause problem. Although …
This Is Why We Protect Hate Speech, Alan E. Garfield
This Is Why We Protect Hate Speech, Alan E. Garfield
Alan E Garfield
First Amendment Decisions From The October 2006 Term, Erwin Chemerinsky, Marci A. Hamilton
First Amendment Decisions From The October 2006 Term, Erwin Chemerinsky, Marci A. Hamilton
Erwin Chemerinsky
No abstract provided.
Civil Rights, Erwin Chemerinsky
An Overview Of The October 2006 Supreme Court Term, Erwin Chemerinsky
An Overview Of The October 2006 Supreme Court Term, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Precedent And Speech, Randy J. Kozel
Precedent And Speech, Randy J. Kozel
Randy J Kozel
The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.
The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …
Right To Write - Free Expression Rights Of Pennsylvania's Creative Students After Columbine, Barbara Brunner
Right To Write - Free Expression Rights Of Pennsylvania's Creative Students After Columbine, Barbara Brunner
Barbara Brunner
This comment analyzes the current state of students' free speech rights in the context of creative writing assignments and examines potential First Amendment applications to the Pennsylvania System of School Assessment (PSSA), a statewide, mandatory, standards-based exam administered to Pennsylvania public school students. The PSSA, which currently contains a writing assessment for students in sixth, ninth, and eleventh grades requiring students to write essays in response to prompts, is scored anonymously by private entities under contract with the Pennsylvania Department of Education. Those private subcontractors have "red-flagging" procedures in place to identify essays containing imagery or themes that indicate imminent …
First Amendment; Freedom Of Speech; Broadcasting; Obscenity; Fcc V. Pacifica Foundation, James E. Moliterno
First Amendment; Freedom Of Speech; Broadcasting; Obscenity; Fcc V. Pacifica Foundation, James E. Moliterno
James E. Moliterno
“ ‘I was thinking about the curse words and the swear words, the cuss L words and the words you can't say . . .the words you couldn't say on the public, ah, airwaves... the ones that will curve your spine [and] grow hair on your hands ....’ While this is the satiric opinion of George Carlin, the Federal Communications Commission (FCC) and a bare majority of the United States Supreme Court have embraced it as their genuine opinion.' They have decided to protect the public from the fate of hearing Carlin's social criticism regarding seven ‘dirty’ words.”
Will Tabloid Journalism Ruin The First Amendment For The Rest Of Us?, Rodney A. Smolla
Will Tabloid Journalism Ruin The First Amendment For The Rest Of Us?, Rodney A. Smolla
Rod Smolla
Not available.
Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla
Categories, Tiers Of Review, And The Roiling Sea Of Free Speech Doctrine And Principle: A Methodological Critique Of United States V. Alvarez, Rodney A. Smolla
Rod Smolla
None available.
Words "Which By Their Very Utterance Inflict Injury": Evolving Treatment Of Inherently Dangerous Speech In Free Speech Law And Theory, Rodney A. Smolla
Words "Which By Their Very Utterance Inflict Injury": Evolving Treatment Of Inherently Dangerous Speech In Free Speech Law And Theory, Rodney A. Smolla
Rod Smolla
Not available.
From Hit Man To Encyclopedia Of Jihad: How To Distinguish Freedom Of Speech From Terrorist Training, Rodney A. Smolla
From Hit Man To Encyclopedia Of Jihad: How To Distinguish Freedom Of Speech From Terrorist Training, Rodney A. Smolla
Rod Smolla
Not available.
What Passes For Policy And Proof In First Amendment Litigation?, Rodney A. Smolla
What Passes For Policy And Proof In First Amendment Litigation?, Rodney A. Smolla
Rod Smolla
Not available.
Should The Brandenburg V. Ohio Incitement Test Apply In Media Violence Cases?, Rodney A. Smolla
Should The Brandenburg V. Ohio Incitement Test Apply In Media Violence Cases?, Rodney A. Smolla
Rod Smolla
None available.
Antidiscrimination Laws & Artistic Expression, Steven H. Shiffrin, Gregory R. Smith
Antidiscrimination Laws & Artistic Expression, Steven H. Shiffrin, Gregory R. Smith
Steven H. Shiffrin
No abstract provided.
Defamatory Non-Media Speech And First Amendment Methodology, Steven H. Shiffrin
Defamatory Non-Media Speech And First Amendment Methodology, Steven H. Shiffrin
Steven H. Shiffrin
In the course of his eloquent commentary upon New York Times Co. v. Sullivan, the late Professor Kalven enthused that the Court had written "an opinion that may prove to be the best and most important it has ever produced in the realm of freedom of speech." This excitement was generated not by the Court's rather narrow holding but rather by the hope that Sullivan would serve as the opening wedge to dislodge the clear and present danger test, to dismantle the "two-level" approach to first amendment analysis (reflected in cases such as Chaplinsky, Beauharnais, and Roth), and instead to …
The First Amendment And Economic Regulation: Away From A General Theory Of The First Amendment, Steven H. Shiffrin
The First Amendment And Economic Regulation: Away From A General Theory Of The First Amendment, Steven H. Shiffrin
Steven H. Shiffrin
No abstract provided.
Second Thoughts About The First Amendment, Randy J. Kozel
Second Thoughts About The First Amendment, Randy J. Kozel
Randy J Kozel
The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech. Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article …
Incendiary Speech And Social Media, Lyrissa Barnett Lidsky
Incendiary Speech And Social Media, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …
Globally Speaking - Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta E. Hernández-Truyol
Globally Speaking - Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta E. Hernández-Truyol
Berta E. Hernández-Truyol
Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States’ First Amendment provides an early historical protection of speech—a safeguard now embraced around the world. The extent of this protection, however, varies among states. The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …
The First Thing We Do, Jorge R. Roig
The First Thing We Do, Jorge R. Roig
Jorge R Roig
Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett
Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett
Richard W Garnett
What role do religious communities, groups, and associations play - and, what role should they play - in our thinking and conversations about religious freedom and church-state relations? These and related questions - that is, questions about the rights and responsibilities of religious institutions - are timely, difficult, and important. And yet, they are often neglected.
It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if …
Tyranny Or Liberty? The Public Sector Union And The First Amendment, Emily A. Jackson-Hall
Tyranny Or Liberty? The Public Sector Union And The First Amendment, Emily A. Jackson-Hall
Emily A Jackson-Hall
What speech is fit for public consumption? What political speech? Thomas Paine said, "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself." The First Amendment protects the right to speak by protecting us from laws which would silence us. “Congress shall make no law....abridging the freedom of speech...” A law which permits the government to pick and choose among speakers is dangerous. Preserving the right of your political opponents to voice their opinion is as critical as the fight …
Talking Chalk: Talking Chalk: Defacing The First Amendment In The Public Forum, Marie A. Failinger
Talking Chalk: Talking Chalk: Defacing The First Amendment In The Public Forum, Marie A. Failinger
Marie A. Failinger
Over the past few years, protesters have been arrested for chalking messages on public forum sidewalks. This article discusses why such arrests are discriminatory and violate the jurisprudence of, and values behind, the Speech Clause
Dropping F-Bombs At The Supreme Court, Alan E. Garfield
Dropping F-Bombs At The Supreme Court, Alan E. Garfield
Alan E Garfield
No abstract provided.
First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz
First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Balancing Freedom Of Speech, David S. Bogen