Law Commons^™

Ministerial Magic: Tax-Free Housing And Religious Employers, Bridget J. Crawford, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

Religious organizations enjoy many of the same benefits that other non-profit organizations do. Churches, temples and mosques, for example, generally are exempt from local real estate taxes. Economically speaking, a tax exemption has the same effect as a subsidy; freedom from tax liability means that the organization can devote its financial resources to other activities. But where an exemption afforded to a religious employee is broader than the equivalent exemption available to a secular employee, a significant Establishment Clause concern is raised. The parsonage exemption of Internal Revenue Code Section 107 presents such an issue: ministers are permitted to exclude …

University Imprimaturs On Student Speech: The Certification Cases, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

The Article begins in Part I by describing these three student speech cases and then examining what makes them a distinct category within the larger student speech landscape. As I discuss, the student speech framework was largely developed by the Supreme Court in the K-12 public school context. Conflicts over student speech in universities, in turn, have generally centered on the extent to which the K-12 framework should carry over to the higher education context, given the greater independence and maturity of university students. Recent cases about universities' ability to control student publications, for example, fall into this mold, with …

No Jokes About Dope: Morse V. Frederick's Educational Rationale, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This piece begins with a “protective” reading of Morse v. Frederick, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens’ dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools—as part of teaching students about the gravity of drug use—should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to explain why …

Privacy Rights: The Virtue Of Protecting A False Reputation, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

What is the virtue of protecting a false reputation? The thesis of this paper is that there is none. There is none, at least, that justifies the suppression of free speech. Yet, there is a growing trend to see the protection of reputation from truth as a key function of the so-called “right of privacy.”

Unfortunately, people often do things that they are not proud of or do not want others to know about. Often, however, these are precisely the things that others want or need to know. For our own protection, each of us is better off being aware …

Privacy And The Right Of Free Expression, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Nobody likes to be talked about but everybody likes to talk. Trying to stop the dissemination of private information is, however, an impingement on free expression and the freedom to observe. A freestanding “right of privacy” that violates these interests is constitutionally permissible only if it can be justified using one of the standard bases for allowing restrictions on First Amendment rights. The three most likely possibilities are that the law in question: (1) can pass strict scrutiny, (2) fall within a recognized “categorical” exception, or (3) places only an “incidental” burden on First Amendment interests. Of these three, only …

United States V. Stevens: Win, Loss, Or Draw For Animals?, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

Robert J. Stevens, proprietor of “Dogs of Velvet and Steel,” was indicted for marketing dog-fighting videos in violation of 18 U.S.C. §48, a law criminalizing visual or auditory depictions of animals being “intentionally mutilated, tortured, wounded, or killed” if such conduct violated federal or state law where “the creation, sale, or possession [of such materials]” takes place.” The law aimed principally at makers and distributors of “crush videos” wherein women wearing high heels and depicted from the waist down, grind small animals to death. However, the language of 18 U.S.C. §48 extended to dog-fighting as well. Stevens challenged the law …

Copyright Law And Pornography, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

Sex-for-hire is usually illegal, unless it is being filmed. Debates about pornography tread uneasily into legal terrain that implicates freedom of expression under the First Amendment, the specter of censorship, and genuine concerns about the function and role of pornography in persistent gender inequality. It is less common for conversations about pornography to include a discussion of copyright law. Yet copyright law is a powerful tool that operates to protect the financial interests of pornographers. Owners of copyrighted pornography frequently threaten public exposure of an alleged infringer’s consumption habits in order to force a financial settlement. Thus copyright law operates …

Government May Not Speak Out-Of-Turn, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

Johanns v. Livestock Marketing Association5 was about whether government could compel individual beef producers to pay for general beef advertising credited to "America's Beef Producers;" even if they disagreed with the message and wanted to spend their advertising money to distinguish their certified Angus or Hereford beef. That "compelled subsidy" case became the unlikely authority for a doctrine invented in Pleasant Grove City, Utah v. Summum6 that government could discriminate, based on viewpoint, on a subject for which it had no power to act. Each case has been criticized in its own right, but the attempt to make Johanns precedent …

Eras Of The First Amendment, David S. Yassky

Elisabeth Haub School of Law Faculty Publications

Part I will begin the story with the Founders' understanding of the structural role of the First Amendment. In this understanding, the First Amendment served as a bulwark of state independence. Along with the rest of the Bill of Rights, the First Amendment had as its primary purpose maintenance of the federal system--or, more precisely, protection of the states against federal government overreaching. The Founders' plan left the individual states entirely free to regulate speech, while strictly prohibiting the federal government from displacing the states' various speech regimes.

When the Civil War dramatically reshaped the federal-state relationship, the structural purpose …