Law Commons^™

Liberty, Liberalism And Neutrality: Labor Preemption And First Amendment Values, Harry G. Hutchison

Harry G. Hutchison

In Chamber of Commerce et al v. Edmund G. Brown, the Supreme Court offers one theory of judicial invalidation that protects employers’ freedom of speech claims and reinvigorates federal preemption doctrine within the meaning of the National Labor Relations Act (NLRA). Prescinding from an architectonic conception of freedom of speech that is supported forcefully and explicitly by the First Amendment, the Court relies on preemption doctrine to invalidate two provisions of a California statute because the enactment constitutes regulation, which intrudes into a zone that is protected and reserved for market freedom. The Court properly upholds its previous stance permitting …

The Emerging First Amendment Law Of Managerial Prerogative, Lawrence Rosenthal

Lawrence Rosenthal

In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney’s office, were unprotected by the First Amendment because “his expressions were made pursuant to his duties. . . .” The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.

This article rejects the scholarly consensus …

“All Life Is An Experiment”: Research Tool Patents, Epistemological Monopolies, And The First Amendment, Peter Lee

Peter Lee

This piece explores the largely unexamined relationship between patent law and the First Amendment. It focuses on patents on so-called “research tools”—technological products and processes that comprise vital inputs to basic scientific experimentation. Recent patent scholarship suggests that these patents may inhibit scientific inquiry, as they prevent scientists from accessing foundational technologies necessary to conduct basic research. Applying prevailing theories of the First Amendment, I argue that government-granted exclusive rights on these foundational technologies violate well-established free speech principles. Research tools patents impoverish the marketplace of ideas, undermine “scientific expression,” compromise the communal norms of the scientific community, and hinder …

Listener Interests In Compelled Speech Cases, Laurent Sacharoff

Laurent Sacharoff

The Truth Be Damned: The First Amendment, Attorney Speech, And Judicial Reputation, Margaret C. Tarkington

Margaret C Tarkington

Throughout the United States, courts discipline and sanction attorneys who make disparaging remarks about the judiciary. Yet, in that context, state and federal courts have almost universally rejected the constitutional standard established by the Supreme Court in New York Times v. Sullivan for punishing speech regarding government officials. Indeed, some courts even deny attorneys the defense of truth. Attorneys have been punished even when they were not engaged in a representative capacity and regardless of the forum in which they made their statements (including to the press, in pamphlets, or even in personal letters). The punishment imposed for impugning judicial …

Guns And Speech Technologies: How The Right To Bear Arms Affects Copyright Regulations Of Speech Technologies, Edward Lee

Edward Lee

This Essay examines the possible effect the Supreme Court’s landmark Second Amendment ruling in District of Columbia v. Heller will have on future cases brought under the Free Press Clause. Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment’s right to bear “arms” and the Free Press Clause’s right to the freedom of the “press,” meaning the printing press. Both rights were viewed, moreover, as preexisting, natural rights to …

Parental Rights In Myspace: Reconceptualizing The State’S Parens Patriae Role In The Digital Age, Sheerin N. Shahinpoor

Sheerin N. Shahinpoor

The law grants parents a great deal of leeway in their child-rearing decisions, including choices in the context of their children’s internet use. But there is a harm about which many parents and state and federal governments are unaware: reputational harm. Children and teenagers’ current internet use put them at risk of permanently harming their reputations, and there are no protective measures in place, whether educational or regulatory. They are posting personal information on the internet at an alarming rate mostly via social networking sites like MySpace.com and Facebook.com without an awareness of the present and long-term consequences, such as …

Understanding Post's And Meiklejohn's Mistakes: The Central Role Of Adversary Democracy In The Theory Of Free Expression, Martin H. Redish, Abby Marie Mollen

Martin H Redish

In this article we provide a comprehensive and original critique of the free speech theories of two of the most heralded scholars of all time, Alexander Meiklejohn and Robert Post, and in so doing employ their theories as a foil for the development of an entirely new theory of free expression, grounded in precepts of "adversary democracy." Both Post and Meiklejohn purport to ground their theories of free expression in democratic theory, but both misperceive the true normative and descriptive nature of American political theory, and in any event both fashion free speech theories that undermine even their own perceptions …

The Terrorist Is A Star!: Regulating Media Coverage Of Publicity-Seeking Crimes, Michelle W. Ghetti

Michelle W. Ghetti

Publicity-seeking crimes, including terrorism, almost by definition depend on the media for their effectiveness. Violence or threats of violence have long been deemed “newsworthy” by the media and publicity-seeking criminals have put this fact to full use. By attacking highly visible targets in a dramatic manner, publicity-seeking criminals guarantee themselves saturation news coverage. They make a shocking appeal to traditional news values by making full use of the news industry’s attraction to the dramatic, conflict-laden, and potentially tragic event. The media furthers the criminals’ objectives by publicizing an incident that was staged for the very purpose of obtaining media coverage. …

Kentucky Fried Blog: How The Recent Ejection Of A Blogger From The College World Series Raises Novel Questions About The First Amendment, Intellectual Property, And The Intersection Of Law And Technology In The 21st Century, Christian Keeney

Christian Keeney

The attached comment discusses potential conflicts between law and technology using a recent controversy as an example. Additionally, the author proposes a solution to avoid such conflicts in the future.

The First Amendment And The Legal Profession: Is Silence Golden?, Jan L. Jacobowitz Ms.

Jan L Jacobowitz

No abstract provided.

Indecent Speech On Broadcast Television: A Constitutional Challenge To The Government’S Time-Channeling Provisions, Krista Jacobsen

Krista S. Jacobsen

What is the correct level of scrutiny under which to evaluate the constitutionality of restrictions of indecent speech in broadcast television? The Supreme Court has never articulated the answer to this question. Since the mid-1970s, however, courts have seemingly afforded a lower-than-strict level of scrutiny to governmental restrictions of indecent speech in broadcast television.

The Federal Communications Commission (FCC) attempts to “time-channel” indecent content on television to the hours when children are unlikely to be in the audience. In 2006, the FCC announced that it was adopting a more aggressive approach to indecent speech on television. In the future, even …

Public Access And Media Rules For Administrative Adjudicators In High Profile Hearings, Chris Mcneil

Christopher B. McNeil, J.D., Ph.D.

This article offers a brief overview of the legal issues relevant to creating media access policies for administrative agencies. It also provides a model policy for use by executive-branch adjudicators in anticipation of high profile agency evidentiary hearings.

Book Review, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

Book Review of: MURRAY DRY. Civil Peace and the Quest for Truth: The First Amendment Freedoms in Political Philosophy and American Constitutionalism. Lanham, Maryland: Lexington Books, 2004. x, 307 pp. $88.00 (cloth); 29.95 (paper). Murray Dry attempts to draw a number of links between the ‘speech’ and ‘religion’ clauses of the First Amendment. Unfortunately, he fails in a number of respects. He confuses core elements of the Establishment and Free Exercise Clauses, and fails to examine Freedom of Speech within the context of fundamental controversies that have arisen throughout the post-World War II era. The errors he makes stand as …

Digitus Impudicus: The Middle Finger And The Law, Ira P. Robbins

Ira P. Robbins

Speech, Spam, And Central Hudson: Redefining The Terms Of Commercial Speech, Justin Torres

Justin Torres

Congressional attempts to curtail the growth of email spam consistent with the First Amendment highlight the uncertainty and confusion surrounding the Supreme Court’s commercial speech doctrine. This confusion stems from two central yet ambiguous terms central: “commercial speech” and “substantial state interest.” Throughout its commercial speech cases, the Court has broadened and narrowed the definition of commercial speech in various contexts, subjecting some speech to commercial speech regulations while exempting other speech. And it has steadily broadened the definition of “substantial state interest” to take in a number of dignitary and moral harms, to the point that the requirement is …

Omniveillance, Privacy In Public, And The Right To Your Digital Identity: A Tort For Recording And Disseminating An Individual’S Image Over The Internet, Josh Blackman

Josh Blackman

Internet giant Google recently began photographing American streets with a new technology they entitled Google Street View. These high-resolution cameras capture people, both outside, and inside of their homes, engaged in private matters. Although the present iteration of this technology only displays previously recorded images, current privacy laws do not prevent Google, or other technology companies, or wealthy individuals, from implementing a system that broadcasts live video feeds of street corner throughout America. Such pervasive human monitoring is the essence of the phenomenon this Article has termed omniveillance. This threat is all the more realistic in light of projected trends …

Brandenburg In A Time Of Terror, Thomas Healy

Thomas Healy

No abstract provided.

The Chains Of The Constitution And Legal Process In The Library: A Post-Patriot Reauthorization Act Assessment, Susan Nevelow Mart

Susan Nevelow Mart

Since the Patriot Act was passed in 2001, controversy has raged over nearly every provision. The controversy has been particularly intense over provisions that affect the patrons of libraries. This article follows those Patriot Act provisions that affect libraries, and reviews how they have been interpreted, how the Patriot Reauthorization Acts have changed them, and what government audits and court affidavits reveal about the use and misuse of the Patriot Act. The efforts of librarians and others opposed to the Patriot Act have had an effect, both legislatively and judicially, in changing and challenging the Patriot Act. Because libraries are …

Brandenburg In A Time Of Terror, Thomas Healy

Thomas Healy

No abstract provided.

Brandenburg In A Time Of Terror, Thomas Healy

Thomas Healy

No abstract provided.

Brandenburg In A Time Of Terror, Thomas Healy

Thomas Healy

No abstract provided.

The Strange Case Of Josh Wolf: What It Tells Us About Privilege Law, Anthony L. Fargo

Anthony L Fargo

The case of Josh Wolf, a blogger jailed for nearly six months for failing to comply with a subpoena, highlights several problems with the law of journalist's privilege. In particular, the Wolf case demonstrates the problems of defining who is a journalist and reconciling the law among different federal circuits and between federal and state courts. A proposed federal shield law may solve some, but not all, of these problems.

The Supreme Court Perspective Of Media Effects As Expressed In Campaign Finance Reform, John A. Fortunato

John A Fortunato

The Bipartisan Campaign Reform Act (BCRA) of 2002 amended campaign finance law by banning unlimited soft money contributions to political parties and reforming the financing of advertising close to an election. In this ruling the Court is clearly concerned with the amount of money being donated to political candidates which leads to the appearance of impropriety in gaining access to elected officials that in turn may influence legislation. In ruling on the constitutionality of this legislation, the Supreme Court also provided insight into its view of mass media effects. In applying the principles of cultivation theory and the media framing …

‘Baby Boomers’ And The Branding Of Political Speech: An Unintended Consequence Of Bono’S Red Campaign, Robert E. Koulish

Robert E. Koulish

In this paper I will examine the likely demise of the commercial speech doctrine. The paper examines Bono's Red Campaign and cause related marketing as a case study to reveal how the supreme court is likely to vote on commercial speech the next time it visits the issue. The Court came close to overthrowing the doctrine in its 2002 Nike non-decision. Next time out, the Court is likely to blur the distinction between commercial speech and political speech, and thus give corporations the right of personhood to mislead consumers in advertising, marketing and public relations. The demise of commercial speech …

Falsity, Insincerity, And The Freedom Of Expression, Mark Spottswood

Mark Spottswood

Three decades ago, the Supreme Court announced that false statements of fact are devoid of constitutional value, without providing either a reasoned explanation for that principle or any supporting citations. Since then, this assertion has become one of the most frequently repeated dogmas of First Amendment law and theory, endlessly repeated and never challenged. Disturbingly, this idea has provided the theoretic foundation for a regime in which some speakers can be penalized for even honestly-believed factual errors. Even worse, this dogma is flat wrong.

False statements have value in themselves, and we should protect them even in situations where we …

Really Leaving No Child Behind: How The Supreme Court’S Student Speech Doctrine Compromises Modern Education Reform— And How It Can Use The In Loco Parentis Doctrine To Change It, Scott J. Street

Scott J Street

REALLY LEAVING NO CHILD BEHIND: HOW THE SUPREME COURT’S STUDENT SPEECH DOCTRINE COMPROMISES MODERN EDUCATION REFORM— AND HOW IT CAN USE THE IN LOCO PARENTIS DOCTRINE TO CHANGE IT In June, the Supreme Court decided that a high school principal did not violate one of her student’s First Amendment rights when she punished him for displaying a sign that read “Bong Hits 4 Jesus” as the Olympic torch passed their Alaska school. See Morse v. Frederick, 127 S. Ct. 2618 (2007). But in reaching that conclusion, the Court answered hardly any of the compelling questions that have arisen since it …

Institutions In The Marketplace Of Ideas, Joseph Blocher

Joseph Blocher

If any area of constitutional law has been defined by a metaphor, the First Amendment is the area, and the “marketplace of ideas” is the metaphor. Ever since Justice Holmes invoked the concept in his Abrams dissent, academic and popular understandings of the First Amendment have embraced the notion that free speech, like the free market, creates a competitive environment in which the best ideas ultimately prevail. But as with the free market for goods and services, there are discontents who point to the market failures that make the marketplace metaphor aspirational at best, and inequitable at worst.

Defenders of …

Freedom Of Religion, Avihay Dorfman

Avihay Dorfman

Why it is that the principle of freedom of religion, rather than a more general principle such as liberty or liberty of conscience, figures so prominently in our lived experience and, in particular, in the constitutional commitment to the free exercise of religion? The Paper argues, negatively, that the most prominent answers offered thus far fall short; and positively, that the principle of freedom of religion arises out of a thicker understanding of the much neglected relationship between religious liberty and democracy. Indeed, a proper account of the legitimacy of the democratic process, I argue, dissolves the mystery surrounding freedom …

Hostile Public Accommodations Laws And The First Amendment, Daniel Koontz

Daniel Koontz

State and municipal Human Rights Commissions have recently begun aggressively interpreting public accommodations laws to punish the speech of proprietors of bars, restaurants, country clubs, and other public accommodations. The theory is that if a proprietor says something to a customer—or even displays artwork, decorations, or signs—that could potentially offend the customer based on race, religion, sex, or ancestry, the proprietor has created a “hostile environment” which denies the customer “full and equal enjoyment” of the public accommodation.

Proprietors can face liability even in the absence of allegations that they refused service to a customer. In one case, a human …