Law Commons^™

Government Speech And The Establishment Clause, Alexander Tsesis

Scholarly Publications

This Article argues that the Establishment Clause prohibits public actors or agencies from adopting religious messages and symbols. The limitation is explicitly stated in the First Amendment, which restricts government from encroaching on religious belief and ritual. Separation between private and public spheres protects thought, belief, and practice under the Free Exercise Clause and prevents official orthodoxy under the Establishment Clause. One religion clause requires government to respect deeply held personal beliefs that are parallel to beliefs in God, while the other clause prohibits government from participating in sectarian conduct. Government speech can describe, explain, contextualize, and characterize religious rituals …

City Of Boerne V. Flores And The Religious Freedom Restoration Act: The Delicate Balance Between Religious Freedom And Historic Preservation, Elizabeth C. Williamson

Florida State University Journal of Land Use and Environmental Law

This Article analyzes the clash between historic preservation and religious freedom in the context of the United States Supreme Court's decision in City of Boerne v. Flores. (117 S. Ct. 2157 (1997). In Flores, the Court ruled on the constitutionality of the Religious Freedom Restoration Act (RFRA), an act which affords additional protection to religious practices by subjecting neutral, non-religion based government laws such as preservation ordinances to judicial scrutiny. Using the backdrop of the Flores decision, the Article analyzes the constitutionality and policy behind RFRA and examines RFRA's effect on preservation. The Article includes a history of both the …

Big Brother Or Big Pharma: The Lion Fight Over The Surveillance And Promotion Of Pharmaceutical Use In America, Patrick Bailey

Florida State University Law Review

No abstract provided.

Intermediate Scrutiny For Corporate Political Contributions, Joseph K. Leahy

Florida State University Law Review

A corporation contributes to a Super PAC that supports a candidate for public office. A shareholder sues, alleging that management breached its duty of loyalty by making the contribution to promote its own political views rather than to serve the corporation’s best interests—i.e., by acting in bad faith. What standard will a Delaware court apply when reviewing management’s decision to cause the corporation to make the contribution?

Myriad scholars have opined that the court will apply the standard of review for ordinary business decisions: the management-friendly business judgment rule. Unfortunately for our shareholder plaintiff, this rule presumes that management acts …

Privacy Petitions And Institutional Legitimacy, Lauren Henry Scholz

Scholarly Publications

This Article argues that a petitions process for privacy concerns arising from new technologies would substantially aid in gauging privacy social norms and legitimating regulation of new technologies. An accessible, transparent petitions process would empower individuals who have privacy concerns by making their proposals for change more visible. Moreover, data accumulated from such a petitions process would provide the requisite information to enable institutions to incorporate social norms into privacy policy development. Hearing and responding to privacy petitions would build trust with the public regarding the role of government and large companies in shaping the modern privacy technical infrastructure. This …

Voting Is Association, Daniel P. Tokaji

Florida State University Law Review

No abstract provided.

Shareholder Political Primacy, Jay B. Kesten

Scholarly Publications

Corporate political activity raises an important and diffcult question of corporate law: who decides when the corporation should speak and what it should say? In several cases, the Supreme Court has provided a clear answer: shareholders, acting through the procedures of corporate democracy. While this holding has attracted substantial academic and public criticism, there has been no sustained evaluation (beyond identifying the potential agency costs of corporate political activity) of the possibility that the Supreme Court's appeal to the fraught concept of "corporate democracy," though woefully under-theorized, might be the best allocation of power in the limited context of corporate …

A New Test To Reconcile The Right Of Publicity With Core First Amendment Values, Nat Stern, Mark Joseph Stern

Scholarly Publications

No abstract provided.

The Dangerous Right To Food Choice, Samuel R. Wiseman

Scholarly Publications

Scholars, advocates, and interest groups have grown increasingly concerned with the ways in which government regulations—from agricultural subsidies to food safety regulations to licensing restrictions on food trucks—affect access to local food. One argument emerging from the interest in recent years is that choosing what foods to eat, what I have previously called “liberty of palate,” is a fundamental right.1 The attraction is obvious: infringements of fundamental rights trigger strict scrutiny, which few statutes survive. As argued elsewhere, the doctrinal case for the existence of such a right is very weak. This Essay does not revisit those arguments, but instead …

Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan

Florida State University Law Review

Citizens United v. FEC articulated a pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. It is possible that protection from speaker identity discrimination had long been implicit in free speech case law, but has now been given more full-throated …

Partitioning And Rights: The Supreme Court's Accidental Jurisprudence Of Democratic Process, James A. Gardner

Florida State University Law Review

In democracies that allocate to a court responsibility for interpreting and enforcing the constitutional ground rules of democratic politics, the sheer importance of the task would seem to oblige such courts to guide their rulings by developing an account of the nature and prominent features of the constitutional commitment to democracy. The U.S. Supreme Court, however, has from the beginning refused to develop a general account—a theory—of how the U.S. Constitution establishes and structures democratic politics. The Court’s diffidence left a vacuum at the heart of its constitutional jurisprudence of democratic process, and like most vacuums, this one was almost …

Graphic Labels, Dire Warnings And The Facile Assumption Of Factual Content In Compelled Commercial Speech, Nat Stern

Scholarly Publications

No abstract provided.

Secondary Speech And The Protective Approach To Interpretive Dualities In The Roberts Court, Nat Stern

Scholarly Publications

No abstract provided.

Advancing An Adaptive Standard Of Strict Scrutiny For Content-Based Commercial Speech Regulation, Nat Stern, Mark Joseph Stern

Scholarly Publications

No abstract provided.

Roe's Race: The Supreme Court Decision, Legal History, And The Racial Politics Of Abortion, Mary Ziegler

Scholarly Publications

Questions of race and abortion have shaped current legal debates about defunding Planned Parenthood and banning race-selection abortion. In these discussions, abortion opponents draw a close connection between the eugenic or population-control movements of the twentieth century and the contemporary abortion-rights movement. In challenging legal restrictions on abortion, abortion-rights activists generally insist that their movement and its predecessors have primarily privileged reproductive choice.

Notwithstanding the centrality of race to abortion politics, there has been no meaningful history of the racial politics of abortion that produced or followed Roe v. Wade. This Article bridges this gap in the abortion discussion by …

Implications Of Libel Doctrine For Nondefamatory Falsehoods Under The First Amendement, Nat Stern

Scholarly Publications

No abstract provided.

Taxes, Free Expression, And Adult Entertainment, Steve R. Johnson

Scholarly Publications

The interaction of morality and money produces interesting results. One manifestation is legislation in some states and proposals in others to impose higher taxes on “gentlemen’s show lounges” (OK, I mean strip clubs) and other venues of adult entertainment.

In 2010 and 2011 two state supreme courts passed on the legality of different forms of those taxes, upholding them against challenges that they infringed on free speech/free expression rights protected by the First Amendment of the U.S. Constitution. This installment of the column considers those two decisions: the February 2010 Utah decision in Bushco v. Utah State Tax Commi …

“Exceedingly Vexed And Difficult”: Games And The First Amendment, Michael T. Morley

Scholarly Publications

No abstract provided.

Choppy Waters Are Forecast For Academic Free Speech, Rachel E. Fugate

Florida State University Law Review

No abstract provided.

The Politics Of Ethics And Elections: Can Negative Campaign Advertising Be Regulated In Florida?, Cleveland Ferguson Iii

Florida State University Law Review

No abstract provided.

Revealing The Constitutional Infirmities Of The "Crime Victims Protection Act," Florida's New Privacy Statute For Sexual Assault Victims, Brett Jarad Berlin

Florida State University Law Review

No abstract provided.

Constitutional Law — "Words That Injure: Laws That Silence:" Campus Hate Speech Codes And The Threat To American Education, Jeanne M. Craddock

Florida State University Law Review

No abstract provided.

Protecting The Animals: The Free Exercise Clause And The Prevention Of Ritual Sacrifice, Caroline E. Johnson

Florida State University Law Review

No abstract provided.

When Government Speaks Religiously, E. Gregory Wallace

Florida State University Law Review

No abstract provided.

Public Funds And The Historical Preservation Of Churches: Preserving History Or Advancing Religion?, Dina A. Keever

Florida State University Law Review

No abstract provided.

Barnes V. Glen Theatre, 111 S. Ct. 2456 (1991), George M. Cabaniss, Jr.

Florida State University Law Review

Constitutional Law-THE FIRST AMENDMENT, NUDE DANCING, AND JUDICIAL ACTIVISM

No More Teachers' Dirty Looks -- Now They Sue: Analysis Of Plaintiff Status Determinations In Defamation Actions By Public Educators, Richard E. Johnson

Florida State University Law Review

The constitutionalization of defamation law in 1964 created a revolution in first amendment jurisprudence. The United States Supreme Court established protection for statements concerning public officials unless the statements were made with actual malice, i.e., knowledge of falsity or reckless disregard of truth or falsity. Later, the Court extended much of that protection to statements about public figures who are not government employees. Though the Court eventually narrowed the scope of its public figure doctrine, it never receded from the protection accorded to statements about public officials. The author of this Article contends that this distinction has eluded many state …

Religious Accommodation And Criminal Liability, Christine A. Clark

Florida State University Law Review

Florida's religious accommodation statute leads some parents to believe that they are free to rely on spiritual healing in lieu of medical treatment for their ill children. However, the statute fails to protect these parents in a criminal prosecution arising from their children's deaths. The author of this Article describes the various types of accommodation statutes, analyzes a recent prosecution, and concludes that such prosecutions are unconstitutional. The author also proposes revisions to Florida's law designed to eliminate ambiguities about what protections it provides.

Texas V. Johnson, 109 S. Ct. 2533 (1989), Deborah Tully Eversole

Florida State University Law Review

Constitutional Law-A VOYAGE THROUGH MURKY WATERS: ASSESSING FLAG MISUSE PROHIBITIONS IN THE WAKE OF Texas v. Johnson, 102 S. Ct. 2533 (1989)

The Prosecution Of Religious Fraud, Stephen Senn

Florida State University Law Review

The first amendment to the United States Constitution protects the religious freedom of individuals through its establishment and free exercise clauses. Should the government's hands-off policy under the free exercise clause provide a protective blanket for fraudulent moneymaking schemes carried out in the name of religion? The author of this Article argues that the protection of religious freedom can comfortably coexist with protection from religious fraud where courts employ a "sincerity test." He concludes that with appropriate procedural safeguards, courts can use this test to distinguish sincere religious exercise from criminally fraudulent enterprise.