Law Commons^™

Wanted Posters, Bulletproof Vests, And The First Amendment: Distinguishing True Threats From Coercive Political Advocacy, Leigh Noffsinger

Washington Law Review

In February 1999, an Oregon jury returned a $107 million verdict for doctors who successfully argued that antiabortion activists' propaganda, in the form of posters and a web site, constituted true threats in violation of federal law. The judge rejected the activists' argument that the First Amendment protected their speech and instructed that if a reasonable person would have foreseen that the communication would be interpreted as threatening, the jury must find in favor of the plaintiffs. This Comment argues that the dichotomy of analysis under two leading U.S. Supreme Court cases has led to conflicting standards that provide insufficient …

The Press: Its Sins And Grace, Anthony Lewis

Washington Law Review

Under the First Amendment, as it has come to be understood, the American press has more freedom than the press of any other country. I want to explore the question of what our press does with that great freedom. Does it show a matching responsibility? How well does it perform the role that the framers of the Constitution thought justified the protection they were giving us, the role of holding government accountable to the people? James Madison put it that in the United States "the people, not the government, possess the absolute sovereignty." That was "altogether different" from Britain, he …

Right Of Publicity Tarnishment And The First Amendment, Edgar Sargent

Washington Law Review

This Comment proposes a new cause of action for tarnishment of the right of publicity. The claim would protect the rights holder from uses that create offensive or degrading associations and thus harm the value of the protected persona. To prevent undue constraint upon First Amendment protected speech about public figures, publicity rights protection must be carefully balanced against free speech interests. In most cases, a speaker's right to refer to a public figure will be superior to the publicity rights holder's interest in controlling the manner in which a persona is used. However, publicity rights holders should prevail when …

The Hidden First Amendment Values Of Privacy, Sean M. Scott

Washington Law Review

The private facts tort protects the privacy of individuals by punishing the publication of private information. The First Amendment protects the press when it publishes information in which the public has a legitimate interest. The right to keep information private and the right to publish information sometimes conflict. The First Amendment is often the victor in these conflicts; courts are concerned that the private facts tort threatens First Amendment values. This Article challenges the argument that punishing a media defendant for publishing truthful information will threaten unduly First Amendment values. The Article argues instead that the private facts tort promotes, …

Are Oliver Stone And Tom Clancy Journalists? Determining Who Has Standing To Claim The Journalist's Privilege, Kraig L. Baker

Washington Law Review

Most circuits recognize a qualified privilege that provides a partial First Amendment shield for journalists to protect the confidentiality of their sources and materials. Few courts, however, discuss the scope of the class protected by this privilege. This Comment examines who has traditionally been part of the protected class and explores the trends and concerns of courts in granting standing. This Comment also recommends a framework that courts can use to determine whether to extend the journalist's privilege to new formats of communication and applies this framework to two examples.

A New Paradign For Protection: First Amendment Principles And The Environment, Jennifer D. Jones

Washington Law Review

Currently, environmental plaintiffs pursue protection for the ancient forests of the Pacific Northwest by litigating procedural violations of environmental statutes. This method, however, will not provide the long-term protection these plaintiffs desire. This Comment proposes a new model for protection using the First Amendment of the United States Constitution.

Between The Devil And The Deep Blue Sea: Crime Victims' Dilemma After Simon & Schuster, Inc. V. Members Of The New York Crime Victims Board, 112 S. Ct. 501 (1991), Michele C. Meske

Washington Law Review

In Simon & Schuster, Inc. v. Members of the New York Crime Victims Board, the Supreme Court held that a statute, New York's "Son of Sam" law, that allowed crime victims to reach the proceeds of their victimizers' media reenactments of the criminals' wrongful acts violated the First Amendment. By invalidating the statute, the Supreme Court eliminated the only presently available means to prevent criminals from profiting from their crimes and exploiting their victims. This Comment examines the origins of this problem and proposes that courts use restitutions common law doctrines to prevent criminals who sell their stories from profiting …

Regulating Cable Television Rates: A Phantom First Amendment Problem, Matthew Jolly

Washington Law Review

Public concern over cable television's status as a monopoly has generated a movement to allow local franchising authorities to regulate cable service rates. Because the courts have yet to hear a First Amendment challenge to imposing rate regulation on a member of the media, the constitutionality of cable rate regulation is not settled. This Comment argues that the restriction on speech resulting from rate regulation is outweighed by the substantial government interest in preventing unfair monopoly pricing practices.

Modern Media And The First Amendment: Rediscovering Freedom Of The Press, Donald E. Lively

Washington Law Review

Freedom of the press, like other constitutional guarantees is not an absolute. Nor does it have the same meaning for all media. For more than a century after the constitution was framed and ratified, the press was coextensive with publishing. Over the course of the twentieth century, electronic media have emerged and extended the contours of the press. At the same time, however, liberty of the press has developed in idiosyncratic terms that have fostered a First Amendment hierarchy. While print media continue to be afforded maximum constitutional security, newer communications methodologies have been more susceptible to official management and …

Confidentially Speaking: Protecting The Press From Liability For Broken Confidentiality Promises—Cohen V. Cowles Media Co., 111 S. Ct. 2513 (1991), Jeffrey A. Richards

Washington Law Review

In Cohen v. Cowles Media Co., the Supreme Court held that the First Amendment does not bar suits against newspapers for breaches of confidentiality promises. By following its cases holding that the press is subject to neutral laws, the Court ignored its precedent mandating that state laws inhibiting publication violate the First Amendment absent a compelling state interest. This Note explores both lines of cases and concludes that application of a state law that inhibits publication is unconstitutional if its utility in effecting a legitimate state interest is outweighed by the public's interest in receiving the information. Therefore, courts should …

Antimask Laws: Exploring The Outer Bounds Of Protected Speech Under The First Amendment—State V. Miller, 260 Ga. 669, 398 S.E.2d 547 (1990), Oskar E. Rey

Washington Law Review

In State v. Miller, the Supreme Court of Georgia held that the Georgia Antimask Statute does not violate free speech rights under the first amendment of the United States Constitution. Antimask statutes prohibit, with certain exceptions, the wearing of masks in a public place. The stated purposes of these statutes vary, but it is fairly clear that antimask laws are designed to deter Ku Klux Klan activity. This Note explores the first amendment implications of antimask laws, and concludes that antimask statutes are unconstitutional.

Sex, Lies And Videotape: The Pornographer As Censor, Marianne Wesson

Washington Law Review

The legal branch of the women's movement, although of one mind on some subjects, is divided on the proper approach to pornography. Some feminists oppose the imposition of any legal burdens on pornography because they fear that feminist speech will be caught in the general suppression, and others believe that any such burdens must violate the first amendment. Professor Wesson suggests that pornography should be defined to include only those materials that equate sexual pleasure with the infliction of violence or pain, and imply approval of conduct that generates the actor's arousal or satisfaction through this infliction. So defined, pornography …

"Libelous" Petitions For Redress Of Grievances -- Bad Historiography Makes Worse Law, Eric Schnapper

Articles

Both the majority and concurring opinions in McDonald v. Smith, 472 U.S. 479 (1985), concluded that there was no historical basis for McDonald's contention that the framers understood the right to petition to include an unqualified right to do so without being subject to suit for libel. This Article argues that the historical analysis in McDonaldis incorrect; indeed, this appears to be one instance in which the relevant historical materials are both voluminous and crystal clear.

Part I evaluates the McDonald Court's discussion of the intent of the framers. Subsequent sections discuss the wide variety of materials that …

Abortion, Protest, And Constitutional Protection—Bering V. Share, 106 Wn. 2d 212, 721 P.2d 918 (1986), Carrie Miller

Washington Law Review

In Bering v. Share, the Washington Supreme Court upheld a broad injunction against the activities of Share, an anti-abortion activist group. The court found that a restriction of Share's free speech rights was necessary to protect children from the harmful effects of Share's language, and to protect the constitutional right to abortion. Consequently, the court restricted Share's use of the words "murder" and "kill," and limited Share's picketing to the side of the medical building. This Note assesses the Bering court's federal constitutional foundation for its restrictions of protected speech, and suggests an alternative basis and reduced scope for the …

Federal Court Interpretation Of The Washington Obscenity Statute—Brockett V. Spokane Arcades, Inc., 105 S. Ct. 2794 (1985), Amy L. Swingen

Washington Law Review

A recent series of federal court decisions regarding an obscenity statute in the State of Washington provides an example of the context in which the state-federal conflict arises and the impact of the use of the various alternatives. In Brockett v. Spokane Arcades, Inc., the federal district court, the Ninth Circuit, and the Supreme Court ignored the efficient procedural solution of certification, and rejected the more time-consuming abstention as well. The question before the court involved the definition of obscenity. By refusing to allow the Washington Supreme Court to interpret the word "lust" for purposes of the state's newly enacted …

The Deceptive 'Right To Know': How Pessimism Rewrote The First Amendment, Gerald J. Baldasty, Roger A. Simpson

Washington Law Review

In the decade of the 1940's, particularly in the years just after World War II, freedom of the press, which had been newly elevated and protected by the Supreme Court in the 1930's, began to suffer the corrosive effects of doubt about the strength of the American political system. Among the devastations of war was the failure of the intellectuals' confidence in the mettle of the American citizenry. By the mid-1960's, one consequence was clear: The first amendment no longer meant that the American press was expected to speak freely; it had begun to mean that much of what the …

Defamation And The First Amendment: Protecting Speech On Public Issues, Bruce J. Borrus

Washington Law Review

The common law of defamation collided with the United States Constitution in New York Times Co. v. Sullivan, and aftershocks from that collision have been rumbling for sixteen years. Ever since the New York Times Court asserted that the first and fourteenth amendments impose restraints on a state's power to afford a civil remedy for wrongful injury to reputation, the Supreme Court has been torn between its concern for personal reputation and its competing concern for free expression. The difficulty of resolving the conflict between these two concerns has forced the Court to decide a long line of cases …

Defamation And The First Amendment: Protecting Speech On Public Issues, Bruce J. Borrus

Washington Law Review

The common law of defamation collided with the United States Constitution in New York Times Co. v. Sullivan, and aftershocks from that collision have been rumbling for sixteen years. Ever since the New York Times Court asserted that the first and fourteenth amendments impose restraints on a state's power to afford a civil remedy for wrongful injury to reputation, the Supreme Court has been torn between its concern for personal reputation and its competing concern for free expression. The difficulty of resolving the conflict between these two concerns has forced the Court to decide a long line of cases in …

Constitutional Law—The Public Forum In Nontraditional Areas—Lehman V. City Of Shaker Heights, 418 U.S. 298 (1974), David D. Swartling

Washington Law Review

In 1970, Harry Lehman, a candidate for election to the Ohio state legislature, attempted to purchase advertising space on local buses belonging to the city of Shaker Heights' rapid transit system. Although space was available, the advertising agent for the transit company rejected Lehman's request because its contract with the city proscribed political advertising on buses. Lehman sought a declaratory judgment and an injunction, alleging violation of the first and fourteenth amendments. The trial court denied relief, and the state supreme court affirmed. In a 5-4 decision, the United States Supreme Court affirmed. In the plurality opinion, Justice Blackmun concluded …

Constitutional Law—Freedom Of Religion—Compulsory School Attendance Law: State Interests Balanced Against Beliefs Of Members Of The Amish Faith—State V. Yoder, 49 Wis.2d 430, 182 N.W.2d 539, Cert. Granted, 402 U.S. 994 (1971), Anon

Washington Law Review

Defendants, members of the Old Order Amish religion and of the Conservative Amish Mennonite Church, refused to enroll their children, eighth-grade public school graduates, in public high school and were subsequently convicted of violating the Wisconsin Compulsory School Attendance Law. The trial court held the attendance law to be a reasonable exercise of a governmental function of the state even though the law interfered with the defendants' sincere religious beliefs. The convictions and assessments of fines were affirmed by the circuit court. On appeal, the Wisconsin Supreme Court reversed. Held: The Wisconsin Compulsory School Attendance Law, as applied to the …

Freedom To Hear: A Political Justification Of The First Amendment, John M. Steel

Washington Law Review

Historical analysis of the first amendment reveals that it was adopted primarily to safeguard and promote self-government through the communication of political ideas and attitudes among citizens. The author argues that these political underpinnings support the recognition of a freedom to hear corresponding to the freedoms of speech and press. Implementation of this freedom, recognizing its political basis, would eliminate many infringements on activity the Framers intended to protect. A freedom to hear would also provide a useful analytic tool in alleviating much of the repressive influence on political activity exerted by the private sector.