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Articles 31 - 60 of 81
Full-Text Articles in Law
Dun & Bradstreet V. Greenmoss Builders As An Example Of Justice Powell's Approach To Constitutional Jurisprudence, Paul M. Smith
Dun & Bradstreet V. Greenmoss Builders As An Example Of Justice Powell's Approach To Constitutional Jurisprudence, Paul M. Smith
Washington Law Review
Given this welcome opportunity to comment on the Levine and Wermiel account, I thought I would use it to offer some thoughts about Justice Powell’s approach to constitutional jurisprudence, particularly in First Amendment cases—an approach well illustrated by the story of Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.
Dun And Bradstreet Revisited—A Comment On Levine And Wermiel, Scott L. Nelson
Dun And Bradstreet Revisited—A Comment On Levine And Wermiel, Scott L. Nelson
Washington Law Review
Lee Levine and Stephen Wermiel’s account of the internal history of the Supreme Court’s decision in Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. convincingly demonstrates the utility of the papers of retired Justices in facilitating a painstaking reconstruction of the Court’s deliberations. As someone who clerked for Justice Byron White in the October 1984 and 1985 Terms and was thus present during the second of the two years in which the Court considered Dun & Bradstreet, I will not comment on the accuracy of the particular details the Article reports or add any inside information about the Court’s …
Talking Drugs: The Burden Of Proof In Post-Garcetti Speech Retaliation Claims, Thomas E. Hudson
Talking Drugs: The Burden Of Proof In Post-Garcetti Speech Retaliation Claims, Thomas E. Hudson
Washington Law Review
Law Enforcement agencies fire their employees for speaking out in favor of drug legalization, which leads the employees to sue their former employers for violating their First Amendment Free Speech rights. These employee claims fall under the U.S. Supreme Court’s complex speech retaliation test, most recently articulated in Garcetti v. Ceballos. The analysis reveals that circuit courts are inconsistent as to who bears the burden of proving that they prevail under “Pickering balancing,” and how they should construct that burden. This Comment argues that U.S. Supreme Court precedent demands that the employer bears the “Pickering balancing” burden, and that …
The First Amendment's Epistemological Problem, Paul Horwitz
The First Amendment's Epistemological Problem, Paul Horwitz
Washington Law Review
In this Article, I treat the recent interest in these epistemological issues as an opportunity to explore an important aspect of Post’s project: the uneasy role of truth within First Amendment doctrine, and the relationship between courts and those institutions that we view generally as epistemically reliable sources of knowledge. My examination suggests that the First Amendment faces what I call an epistemological problem: specifically, the problem of figuring out just how knowledge fits within the First Amendment. The growing attention to the epistemology problem among leading First Amendment scholars is significant enough to warrant examination. Although I offer some …
A View From The First Amendment Trenches: Washington State's New Protections For Public Discourse And Democracy, Bruce E.H. Johnson, Sarah K. Duran
A View From The First Amendment Trenches: Washington State's New Protections For Public Discourse And Democracy, Bruce E.H. Johnson, Sarah K. Duran
Washington Law Review
In his latest book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Dean Robert Post promotes the concept of “democratic legitimation” as the cornerstone of democratic decision making. Dean Post defines “democratic legitimation” as “all efforts” to influence “public opinion.” As Post explains, “[d]emocracy requires that government action be tethered to public opinion” because “public opinion can direct government action in an endless variety of directions.” As a result, First Amendment coverage should extend to all communications that form public opinion, he contends. Those who object to speech aimed at influencing public opinion have …
Democratic Competence, Constitutional Disorder, And The Freedom Of The Press, Stephen I. Vladeck
Democratic Competence, Constitutional Disorder, And The Freedom Of The Press, Stephen I. Vladeck
Washington Law Review
In Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Robert Post offers a powerful argument for why the First Amendment should protect the manner in which professional disciplines produce expert speech. This symposium Essay responds to Post’s book by focusing on the potential interaction between Post’s theory of “democratic competence” and the freedom of the press. Using the WikiLeaks affair as a foil, this Essay concludes that a “democratic competence” approach might provide a more coherent theoretical underpinning for according constitutional protection to newsgathering (as distinct from publication), and might thereby help to answer …
The Guardians Of Knowledge In The Modern State: Post's Republic And The First Amendment, Ronald K.L. Collins, David M. Skover
The Guardians Of Knowledge In The Modern State: Post's Republic And The First Amendment, Ronald K.L. Collins, David M. Skover
Washington Law Review
No abstract provided.
The First Amendment, The Courts, And "Picking Winners", Thomas L. Ambro, Paul J. Safier
The First Amendment, The Courts, And "Picking Winners", Thomas L. Ambro, Paul J. Safier
Washington Law Review
Dean Robert Post’s book—Democracy, Expertise, and Academic Freedom—reflects and requires serious thought about our First Amendment. This Essay addresses just two of the many interesting assertions Dean Post makes. The first is his claim that the advancement of knowledge in a democracy springs primarily from the knowledge that experts gather in discerning good from bad ideas, and that recognizing this value requires courts to develop criteria for determining which viewpoints are better in ongoing debates among experts. The second is Dean Post’s contention that the U.S. Constitution protects an individual right to academic freedom, which requires enforcing this …
Public Discourse, Expert Knowledge, And The Press, Joseph Blocher
Public Discourse, Expert Knowledge, And The Press, Joseph Blocher
Washington Law Review
This Essay identifies and elaborates two complications raised by Robert Post’s Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post’s theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public …
Selected Bibliography Of First Amendment Scholarship, Robert C. Post
Selected Bibliography Of First Amendment Scholarship, Robert C. Post
Washington Law Review
Consists of articles, books, and book chapers.
Understanding The First Amendment, Robert Post
Understanding The First Amendment, Robert Post
Washington Law Review
It is a rare privilege to be read and engaged by such thoughtful and insightful commentators as the Washington Law Review has assembled. It is exhilarating to participate in a conversation of this range and intensity. I am very grateful to the Washington Law Review, Ronald K.L. Collins and David Skover, and the University of Washington School of Law, for making this symposium possible.
False Valor: Amending The Stolen Valor Act To Conform With The First Amendment's Fraudulent Speech Exception, Jeffery C. Barnum
False Valor: Amending The Stolen Valor Act To Conform With The First Amendment's Fraudulent Speech Exception, Jeffery C. Barnum
Washington Law Review
The Stolen Valor Act (SVA or “the Act”) was enacted to protect against “fraudulent claims” of receipt of military honors or decorations. It does so by criminalizing false verbal or written claims regarding such awards. However, the Act failed to include all of the elements of an anti-fraud measure required by the First Amendment. Most critically, the SVA fails to require actual reliance on the part of the defrauded. Although fraud is generally not protected by the First Amendment, courts cannot construe the SVA as an anti-fraud measure if the statute does not require actual reliance. Therefore, the SVA as …
A Cure For A "Public Concern": Washington's New Anti-Slapp Law, Tom Wyrwich
A Cure For A "Public Concern": Washington's New Anti-Slapp Law, Tom Wyrwich
Washington Law Review
In March 2010, the Washington State Legislature passed its Act Limiting Strategic Lawsuits Against Public Participation. The new Act fills a critical void in Washington’s protection of free expression and petition rights. The Washington Act protects the free expression of Washington citizens by shielding them from meritless lawsuits designed only to incur costs and chill future expression. This Comment offers interpretive guidance for Washington courts by examining the new law, its legislative history, its constitutional underpinnings, and its relationship to the influential California anti-SLAPP statute on which it is modeled. Although the Washington Act shares many identical provisions with the …
From Substance To Shadows: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens
From Substance To Shadows: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens
Articles
Most disputes about the Establishment Clause center on its substantive meaning; whether, for example, a state subsidy promotes religion, the phrase “In God We Trust” can appear on currency, or a display of the Ten Commandments is unconstitutional. Often overlooked and lurking behind these substantive disputes is a question about what remedies are available when an Establishment Clause violation is found. Typically, an injunction prohibiting the subsidy, practice, or display is the choice. In Salazar v. Buono, however, the Supreme Court was confronted with an unusual case for two reasons. First, the doctrine of res judicata formally barred the …
Article I, Section 11: A Poor "Plan B" For Washington's Religious Pharmacists, Noel E. Horton
Article I, Section 11: A Poor "Plan B" For Washington's Religious Pharmacists, Noel E. Horton
Washington Law Review
In Stormans, Inc. v. Selecky, a group of Washington pharmacists contended their religious beliefs precluded them from dispensing the drug Plan B, a post-coital emergency contraceptive. They based their argument on rights conferred by the Free Exercise Clause of the First Amendment to the United States Constitution. A United States District Court found in the pharmacists’ favor and enjoined enforcement of rules issued by the Washington State Board of Pharmacy requiring pharmacies to deliver medications. The Ninth Circuit reversed, finding that the district court erroneously applied a heightened level of scrutiny to a neutral law of general applicability. Interestingly, …
Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan
Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan
Washington Law Review
The torts of negligent hiring, supervision, and retention place a duty on employers to prevent their employees from using the places, things, or tasks entrusted to them to harm foreseeable victims. The negligent employment torts create an independent duty under which plaintiffs may pursue an action when suits brought under a vicarious liability or breach of fiduciary duty theory would fail. For victims of sexual misconduct by religious leaders, negligent supervision claims against religious organizations are a crucial means of remedying serious and lasting injuries. Washington state law recognizes negligent supervision, and Washington courts have applied it to religious organizations, …
Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan
Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan
Washington Law Review
The torts of negligent hiring, supervision, and retention place a duty on employers to prevent their employees from using the places, things, or tasks entrusted to them to harm foreseeable victims. The negligent employment torts create an independent duty under which plaintiffs may pursue an action when suits brought under a vicarious liability or breach of fiduciary duty theory would fail. For victims of sexual misconduct by religious leaders, negligent supervision claims against religious organizations are a crucial means of remedying serious and lasting injuries. Washington state law recognizes negligent supervision, and Washington courts have applied it to religious organizations, …
Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan
Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan
Washington Law Review
The torts of negligent hiring, supervision, and retention place a duty on employers to prevent their employees from using the places, things, or tasks entrusted to them to harm foreseeable victims. The negligent employment torts create an independent duty under which plaintiffs may pursue an action when suits brought under a vicarious liability or breach of fiduciary duty theory would fail. For victims of sexual misconduct by religious leaders, negligent supervision claims against religious organizations are a crucial means of remedying serious and lasting injuries. Washington state law recognizes negligent supervision, and Washington courts have applied it to religious organizations, …
Media Subpoenas: Impact, Perception, And Legal Protection In The Changing World Of American Journalism, Ronnell Andersen Jones
Media Subpoenas: Impact, Perception, And Legal Protection In The Changing World Of American Journalism, Ronnell Andersen Jones
Washington Law Review
Forty years ago, at a time when the media were experiencing enormous professional change and a surge of subpoena activity, First Amendment scholar Vincent Blasi investigated the perceptions of members of the press and the impact of subpoenas within American newsrooms in a study that quickly came to be regarded as a watershed in media law. That empirical information is now a full generation old, and American journalism faces a new critical moment. The traditional press once again finds itself facing a surge of subpoenas and once again finds itself at a time of intense change—albeit on a different trajectory—as …
Four-Factor Disaster: Courts Should Abandon The Circuit Test For Distinguishing Government Speech From Private Speech, Lilia Lim
Washington Law Review
A recent addition to First Amendment jurisprudence, the government-speech doctrine was developed by the Supreme Court to insulate government speech from certain First Amendment challenges. Broadly, the doctrine rests on the notion that when the government speaks for itself, it may say what it wishes. Recently, government entities facing claims of viewpoint discrimination against speech have asserted a government-speech defense, claiming that their viewpoint-based actions were justifiable because they were not regulating private speech but speaking for themselves. Several federal courts deciding these cases have applied a circuit-developed, four-factor test to determine whether the speech at issue was private speech …
Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang
Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang
Washington Law Review
The First Amendment to the United States Constitution guarantees the right to free speech. The guarantee is not absolute, however, and the U.S. Supreme Court has said that the First Amendment does not fully protect student speech in public schools. In Bethel School District v. Fraser, the Court held that schools could regulate "plainly offensive" speech. Circuit courts have interpreted and applied Fraser in an inconsistent manner, disagreeing as to what constitutes plainly offensive speech. The resulting case law is confusing and fails to provide lower courts with a clear analytical framework for evaluating First Amendment challenges to regulations …
Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang
Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang
Washington Law Review
The First Amendment to the United States Constitution guarantees the right to free speech. The guarantee is not absolute, however, and the U.S. Supreme Court has said that the First Amendment does not fully protect student speech in public schools. In Bethel School District v. Fraser, the Court held that schools could regulate "plainly offensive" speech. Circuit courts have interpreted and applied Fraser in an inconsistent manner, disagreeing as to what constitutes plainly offensive speech. The resulting case law is confusing and fails to provide lower courts with a clear analytical framework for evaluating First Amendment challenges to regulations …
Nineteenth-Century Free Exercise Jurisprudence And The Challenge Of Polygamy: The Relevance Of Nineteenth-Century Cases And Commentaries For Contemporary Debates About Free Exercise Exemptions, Clark B. Lombardi
Articles
Does the Free Exercise Clause of the U.S. Constitution require judges to exempt religious objectors from the application of nondiscriminatory and otherwise applicable laws? Over the last twenty years, judges and academics have debated fiercely whether the Clause should be interpreted to provide religiously observant citizens with a right to “free exercise exemptions.” The debate has led indirectly to a new interest in nineteenth-century views on free exercise jurisprudence. In this Article, I will examine the scholarship on nineteenth-century free exercise jurisprudence to date and ask what it adds to our understanding of the Clause and the question of exemptions.
Solomon's Choice: The Spending Clause And First Amendment Rights In Forum For Academic & Institutional Rights V. Rumsfeld, Emily R. Hutchinson
Solomon's Choice: The Spending Clause And First Amendment Rights In Forum For Academic & Institutional Rights V. Rumsfeld, Emily R. Hutchinson
Washington Law Review
The Solomon Amendment denies federal funding to institutions of higher education that interfere with military recruiting on campus. In Forum for Academic & Institutional Rights v. Rumsfeld, the United States Court of Appeals for the Third Circuit examined the constitutionality of the Solomon Amendment using traditional First Amendment analysis. The court applied strict scrutiny and held that it was reasonably likely that the Solomon Amendment impermissibly infringed the First Amendment rights of an association of law schools and law faculty. This Note argues that the Solomon Amendment is a valid exercise of Congress's constitutionally-mandated duties to spend for the …
Defining The Relevant Forum: The United States Postal Service Constitutes A Single Forum For Communication, Melissa C. Manke
Defining The Relevant Forum: The United States Postal Service Constitutes A Single Forum For Communication, Melissa C. Manke
Washington Law Review
The United States Postal Service fulfills a vital public function by enabling people to communicate in an effective and efficient way. The United States Supreme Court has firmly established the use of the mails as a free speech right guaranteed by the First Amendment. Courts apply a three-part forum analysis when analyzing First Amendment challenges to restrictions on the use of the mail system. This analysis requires courts to define the forum to which the plaintiff seeks access, to determine if that forum is public or nonpublic, and to apply the level of scrutiny proper to the type of forum …
Scylla Or Charybdis: Navigating The Jurisprudence Of Visual Clutter, Ryan Calo
Scylla Or Charybdis: Navigating The Jurisprudence Of Visual Clutter, Ryan Calo
Articles
State and local governments seeking to address the proliferation of billboards and other outdoor advertising must negotiate two obstacles of First Amendment law. The first is the Supreme Court’s 1981 decision in Metromedia, Inc. v. City of San Diego. Following Metromedia, regulators can neither select among noncommercial messages nor privilege commercial messages over noncommercial ones. For years, regulators navigated around Metromedia by drawing a distinction between commercial and noncommercial speech. Then came the Supreme Court’s decision in City of Cincinnati v. Discovery Network, holding that regulators had to account for why they were privileging noncommercial over commercial …
The Freedom To Speak And The Freedom To Listen: The Admissibility Of The Criminal Defendant's Taste In Entertainment, Helen A. Anderson
The Freedom To Speak And The Freedom To Listen: The Admissibility Of The Criminal Defendant's Taste In Entertainment, Helen A. Anderson
Articles
In Part I of this Article, I will establish that the First Amendment protects both consumers and producers of expression, although the scope of consumer protection has not been greatly elaborated. Part II discusses attempts to hold the entertainment industry liable for crimes by third persons, as well as legislative efforts to restrict or ban certain kinds of entertainment or art deemed to cause violence. For the most part, these efforts against producers have failed.
Part III then shows how a criminal defendant's viewing, listening, or reading habits may be used as evidence against that defendant, and that the constitutional …
Only The News That's Fit To Print: The Effect Of Hazelwood On The First Amendment Viewpoint-Neutrality Requirement In Public School-Sponsored Forums, Janna J. Annest
Only The News That's Fit To Print: The Effect Of Hazelwood On The First Amendment Viewpoint-Neutrality Requirement In Public School-Sponsored Forums, Janna J. Annest
Washington Law Review
In Hazelwood School District v. Kuhimeier, the U.S. Supreme Court held that public school administrators can restrict expression in school-sponsored forums in a manner reasonably related to legitimate pedagogical concerns. Regulating First Amendment rights in any public forum usually requires that no point of view be suppressed in favor of its counterpoint, but the Hazelwood Court omitted the viewpoint-neutrality requirement from its holding. While the Sixth, Ninth and Eleventh Circuits continue to require viewpoint-neutral regulation of school-sponsored speech, the First and Third Circuits interpret Hazelwood as abrogating the viewpoint-neutrality requirement in school-sponsored forums. This Comment argues in favor of …
Lavine V. Blaine School District: Fear Silences Student Speech In The Ninth Circuit, Shannon M. Mcminimee
Lavine V. Blaine School District: Fear Silences Student Speech In The Ninth Circuit, Shannon M. Mcminimee
Washington Law Review
In LaVine v. Blaine School District, the Ninth Circuit allowed a school to expel a student for writing a poem about a school shooting. The court held that the school did not violate the student's First Amendment rights because the school could reasonably forecast that the student would cause a substantial disruption or material interference with school activities. This Note argues that the LaVine court incorrectly applied the established standards for evaluating the constitutionality of a school's decision to expel a student. The LaVine court also unwisely extended the Tinker doctrine to a new area of student speech. In …
The First Amendment Versus The World Trade Organization: Emergency Powers And The Battle In Seattle, Aaron Perrine
The First Amendment Versus The World Trade Organization: Emergency Powers And The Battle In Seattle, Aaron Perrine
Washington Law Review
The 1999 World Trade Organization (WTO) ministerial meeting in Seattle was the target of highly organized, widely supported protest demonstrations. In response to the protests, city officials declared a state of emergency, ordering nighttime curfews and a daytime "no-protest zone" in downtown Seattle. They reasoned that the zone was necessary to protect the rights of WTO delegates and to restore public order. This Comment argues that mass nonviolent protests deserve more First Amendment protection than was afforded to demonstrators in Seattle. Even when violence occurs and public order is threatened, governments must narrowly tailor emergency orders to avoid trampling on …