Law Commons^™

Closing The Barn Door After The Genie Is Out Of The Bag: Recognizing A "Futility Principle" In First Amendment Jurisprudence, Eric Easton

All Faculty Scholarship

This article argues for a simple proposition: the First Amendment imposes a presumption against the suppression of speech when suppression would be futile. Suppression is futile when the speech is available to the same audience through some other medium or at some other place. The government can overcome this presumption of futility only when it asserts an important interest that is unrelated to the content of the speech in question, and only when the suppression directly advances that interest.

In Part I, the article explores the role that this unarticulated "futility principle" has played in Supreme Court and other decisions …

New Restrictions On Academic Free Speech: Jeffries V. Harleston Ii, Richard H. Hiers

UF Law Faculty Publications

Notwithstanding academic freedom's venerable and near-sacrosanct place among academicians in the United States today, the Supreme Court first accorded it constitutional status only in the 1950s. The Court did not recognize First Amendment speech rights of public employees generally until 1968. In subsequent years, the Court evolved two separate lines of cases: the one relating to, and generally protective of, academic freedom in public colleges and universities; the other, relating to the speech rights of public school teachers and public employees in other work contexts. The Supreme Court has yet to address the question whether the severely restrictive standards developed …

The Progeny Of Lee V. Weisman: Can Student-Invited Prayer At Public School Graduation Still Be Constitutional?, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Authors, Editors, And Uncommon Carriers: Identifying The "Speaker" Within The New Media, Michael I. Meyerson

All Faculty Scholarship

First Amendment analysis has historically depended on whether a party is a speaker, an editor, or a carrier. With communications technology rapidly evolving, determining which category is appropriate becomes increasingly complex, and ascertaining the First Amendment protections that are applied to various actors in the process of diffusing ideas becomes difficult. This article looks to the historical treatment of the First Amendment rights of speakers, editors, and distributors. This article traces the Supreme Court’s treatment of speech regulations on new technologies, from telegraph and telephone regulations to the seminal Turner Broadcast System, Inc. v. FCC case that created rules for …

The Second Adoption Of The Establishment Clause: The Rise Of The Non-Establishment Principle, Kurt T. Lash

Law Faculty Publications

In the 70 years since Gitlow first incorporated the First Amendment protections of speech and press against the states, the Establishment Clause has been a boon to incorporation's enemies and an embarrassment to its friends. Scholars who make the historical case for general incorporation either ignore, or carefully distinguish, the case of the Establishment Clause. Anti-incorporationists, on the other hand, use the case against incorporation of the Establishment Clause as their cause celebre. In fact, so wonderfully ambiguous is the history surrounding this opening line of the Bill of Rights that originalists use it to attack incorporation, and nonoriginalists use …

Anonymous Campaign Literature And The First Amendment, Erika Lietzan

Faculty Publications

Presently, forty-eight states and the District of Columbia have statutes that require the disclosure of some party's identity (for example, an author or a sponsor) on political literature pertaining to elections. The most common explanations given for these statutes are that they deter fraud and libel in the election arena and that they provide valuable information to the voters. Because these statutes regulate core political speech, however, they necessarily implicate the First Amendment to the United States Constitution. Although campaign disclosure laws have been both struck down and sustained by state courts reviewing appealed convictions, the decisions have been disappointingly …

Counter-Demonstration As Protected Speech: Finding The Right To Confrontation In Existing First Amendment Law, Kevin F. O'Neill, R. Vasvari

Law Faculty Articles and Essays

Accordingly, this Article is aimed at disentangling lines of precedent that are all too frequently entwined by urging an analysis of public protest cases that distinguishes among the four regulatory players. Thus, this Article devotes separate sections to the regulatory roles of legislators,16 administrators,17 judges,18 and police,19 with an introductory section on the doctrinal bedrock in this field: the public forum doctrine.20

N.O.W. V. Scheidler: Rico Meets The First Amendment, Craig M. Bradley

Articles by Maurer Faculty

A look at the controversial N.O.W. v. Scheidler case.

The First Amendment And The National Information Infrastructure, Fred H. Cate

Articles by Maurer Faculty

What the First Amendment status of electronic information should be is a fundamental question which must be addressed in any attempt to arrive at appropriate legal standards to protect the multifarious interests of the users of cyberspace. Yet, despite its importance, the First Amendment has largely been ignored in the debate surrounding what sort of legal framework should control the emerging National Information Infrastructure. Professor Cate surveys the current terrain of First Amendment jurisprudence and describes the different analytical approaches which may be taken. Doctrinal anomalies such as the law of common carriage indicate that at times the courts have …

Taking Liberties With The First Amendment: Congress, Section 5, And The Religious Freedom Restoration Act, Jay S. Bybee

Scholarly Works

In 1993 Congress enacted the Religious Freedom Restoration Act (“RFRA”), which provided that government, including the United States and the states, “shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” except where the government can demonstrate that the burden furthers “a compelling governmental interest” and is “the least restrictive means of furthering that interest.”

Unfortunately, whatever consistency RFRA might bring to the substance of church-state relations comes at the expense of clarity in federal-state relations. This is unfortunate because the First Amendment does not address church-state relations; it concerns …

Report Of The Committee On Land Use, Planning And Zoning Law - Report Of The Subcommittee On Land Use And The First Amendment, Alan C. Weinstein

All Maxine Goodman Levin School of Urban Affairs Publications

The past year saw no cessation in cases reporting on the conflicts that arise when local land use regulation is applied to uses claiming protection under the First Amendment. This report highlights the two major developments in this area - the courts' the treatment of claims brought under the Religious Freedoms Restoration Act of 1993 and the latest decision of the U.S. Supreme Court concerning sign regulation, City of Ladue v. Gilleo, and discusses other cases involving regulation of religious institutions, adult businesses and signs.

Congressional Control Over Agency Rulemaking: The Nutrition Labeling And Education Act's Hammer Provisions, Elizabeth Magill

All Faculty Scholarship

On November 8, 1990, President Bush signed into law the Nutrition Labeling and Education Act of 1990 (NLEA). The law embodied an aggressive agenda, dictating a comprehensive overhaul of food labels. The law clarified and enhanced the Food and Drug Administration's (FDA's) authority to require nutrition labels on foods, and established circumstances under which health claims could be made about the nutritional composition or value of foods. Culminating two years of activity on Capitol Hill, the consideration and passage of the bill coincided with a major initiative at the FDA to overhaul food labeling requirements.

The provision of the NLEA …

Initiative Petition Reforms And The First Amendment, Emily Calhoun

Publications

No abstract provided.