Law Commons^™

Is Sexting The New Witchcraft? A Plea For A Common Sense Approach., John O. Hayward

John O. Hayward

Teenagers have enthusiastically embraced digital technology and its myriad assortment of electronic devices and gadgets. But unfortunately they often find themselves the target of numerous laws criminalizing their use. Sending sexy photos of themselves in various stages of undress to their favorite boyfriend or girlfriend earns them unwanted attention from school administrators as well as criminal complaints from the local district attorney accusing them of trafficking in child pornography! This article deals with “sexting,” the practice of “sending, receiving, or forwarding sexually explicit messages, photos, or images via cell phone, computer, or other digital device.” (The term is a combination …

Results-Oriented Jurisprudence: A Second Circuit Panel Meets J. D. Salinger Coming Through The Rye, Kathleen (Kate) M. O'Neill

Kathleen M. O'Neill

ABSTRACT The Second Circuit’s 2010 decision in Salinger v. Colting has been widely noticed for vacating a preliminary injunction J. D. Salinger obtained against distribution in the U.S. of Fredrik Colting’s novel, 60 YEARS LATER – COMING THROUGH THE RYE. In an opinion by Judge Guido Calabresi, the panel adopted the standard for equitable relief from eBay, Inc. v. MercExchange (U.S. 2006), overruled circuit precedent, and held that henceforth district courts must find, not presume, that irreparable harm is in fact likely before enjoining a copyright defendant’s activities. This is the first article to observe that what the Second Circuit …

(Dis)Owning Religious Speech, Jessie Hill

Jessie Hill

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore somewhat troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality. The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as …

You Can Say That Again!: A Way Out Of The Compelled Commercial Speech Conundrum, Dayna B. Royal

Dayna B. Royal

In the last decade the Supreme Court has modified the compelled-speech and commercial-speech doctrines by creating a hybrid of the two—compelled-commercial speech. This nascent doctrine leaves unanswered serious questions about how it coexists with other doctrines in the First Amendment landscape.

This paper proposes a principled means to resolve these questions by drawing on an innovative behavioral-science theory called Cultural Cognition to provide a system for categorizing forced commercial-speech regulations. By establishing which test applies to determine whether regulations violate the First Amendment, this framework should help bring consistency and predictability into a murky area of First Amendment law.

Cultural Cognition As A Tool To Combat The Compelled-Commercial-Speech Conundrum, Dayna B. Royal

Dayna B. Royal

In the last decade the Supreme Court has modified the compelled-speech and commercial-speech doctrines by creating a hybrid of the two—compelled-commercial speech. This nascent doctrine leaves unanswered serious questions about how it coexists with other doctrines in the First Amendment landscape. This paper proposes a principled means to resolve these questions by drawing on an innovative behavioral-science theory called Cultural Cognition to provide a system for categorizing forced commercial-speech regulations. By establishing which test applies to determine whether regulations violate the First Amendment, this framework should help bring consistency and predictability into a murky area of First Amendment law.

Religious Freedom In Private Lawsuits: Untangling When Rfra Applies To Suits Involving Only Private Parties, Sara Lunsford Kohen

Sara Kohen

Religious Freedom in Private Lawsuits: Untangling When RFRA Applies to Suits Involving Only Private Parties, for publication discusses when courts should apply the Religious Freedom Restoration Act (“RFRA”) in cases in which the federal government is not a party. Congress passed RFRA in reaction to the Supreme Court’s decision in Employment Division v. Smith. The Court held in Smith that the Constitution does not require religious exemptions from neutral, generally applicable laws—those that do not target religion and cover non-religious conduct to the same extent as religious conduct. By contrast, RFRA allows a federal law to substantially burden a religious …

Is Sexting The New Witchcraft? A Plea For A Common Sense Approach, John O. Hayward

John O. Hayward

Teenagers have enthusiastically embraced digital technology and its myriad assortment of electronic devices and gadgets. But unfortunately they often find themselves the target of numerous laws criminalizing their use. Sending sexy photos of themselves in various stages of undress to their favorite boyfriend or girlfriend earns them unwanted attention from school administrators as well as criminal complaints from the local district attorney accusing them of trafficking in child pornography! This article deals with “sexting,” the practice of “sending, receiving, or forwarding sexually explicit messages, photos, or images via cell phone, computer, or other digital device.” (The term is a combination …

The Myth Of Church-State Separation, David E. Steinberg

David E. Steinberg

The Myth Of Church-State Separation

by David E. Steinberg

Abstract

This article asserts that the church-state separation interpretation of Establishment Clause history is simply wrong. When they enacted the First Amendment, the framers were focused on the first five words of the amendment, which read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Establishment Clause guaranteed that the federal government would not interfere in state regulation of religion – whatever form that state regulation took. Rather than enacting the Establishment Clause to mandate a separation of church …

Religious Freedom In Private Lawsuits: Untangling When Rfra Applies To Suits Involving Only Private Parties, Sara Lunsford Kohen

Sara Kohen

Religious Freedom in Private Lawsuits: Untangling When RFRA Applies to Suits Involving Only Private Parties, for publication discusses when courts should apply the Religious Freedom Restoration Act (“RFRA”) in cases in which the federal government is not a party. Congress passed RFRA in reaction to the Supreme Court’s decision in Employment Division v. Smith. The Court held in Smith that the Constitution does not require religious exemptions from neutral, generally applicable laws—those that do not target religion and cover non-religious conduct to the same extent as religious conduct. By contrast, RFRA allows a federal law to substantially burden a religious …

Civility In Government Meetings: Balancing First Amendment, Reputational Interests, And Efficiency, Terri R. Day, Erin Bradford

Terri R. Day

This article addresses the issue of civility in local government meetings and the constitutional considerations for adopting rules of decorum. While not constitutionally guaranteed, the right of citizens to participate in public meetings can be created by state statute or judicial fiat. Once created, any restrictions placed on citizen speech are subject to constitutional dictates. Matters of local government business inflame passions; and public comment sessions can become explosive. When disruption occurs, presiding officials must act to silence citizens’ voices or eject them from public meetings, in ways that do not trample on First Amendment rights. In creating parameters that …

Civility In Government Meetings: Balancing First Amendment, Reputations Intests, And Efficiency, Terri R. Day, Erin Bradford

Terri R. Day

This article addresses the issue of civility in local government meetings and the constitutional considerations for adopting rules of decorum. While not constitutionally guaranteed, the right of citizens to participate in public meetings can be created by state statute or judicial fiat. Once created, any restrictions placed on citizen speech are subject to constitutional dictates. Matters of local government business inflame passions; and public comment sessions can become explosive. When disruption occurs, presiding officials must act to silence citizens’ voices or eject them from public meetings, in ways that do not trample on First Amendment rights. In creating parameters that …

Wikileaks Would Not Qualify To Claim Federal Reporter’S Privilege In Any Form, Jonathan Peters

Jonathan Peters

This article addresses whether WikiLeaks could claim a federal reporter’s privilege if the U.S. government or a U.S. entity tried to compel one of the site’s staff members to disclose the source(s) of any documents it has released. After exploring the origins of the First Amendment-based privilege, I argue that WikiLeaks would not be able to claim it. First, the website does not engage in investigative reporting. Second, it has not taken steps consistently to minimize harm. I also discuss congressional attempts to pass a federal shield law, paying special attention to H.R. 985 and S. 448, the two most …

Wikileaks, The First Amendment, And The Press, Jonathan Peters

Jonathan Peters

This article focuses on one question: When can the government, consonant with the First Amendment, punish the publication of classified information related to national security? To that end, Part I outlines the constitutional standards that could apply to such a prosecution of WikiLeaks. Part II discusses whether WikiLeaks is part of the press and whether that matters for constitutional purposes. Part III concludes by urging the Justice Department to consider carefully whether it should prosecute WikiLeaks.

Property Rights To Information, Jamie Lund

Jamie Lund

Laws against defamation regulate information sharing by correcting misstatements of fact in order to protect reputations. One benefit of enforcement of defamation laws is the reduction of information pollution. Misinformation increases search costs and thereby reducing efficiency in the procurement of accurate information. First Amendment protection over false speech has expanded over the last half century, decreasing the occurrence of defamation suits, leaving the information field wide open for information pollution undeterred by defamation suits. The market for information has changed dramatically with the popularization of the Internet, the exponential growth of speakers in the past decade, and the corresponding …

Hostile Educational Environments: On The Apparent First Amendment Barrier To Cyberbullying Punishments, Ari E. Waldman

Ari E Waldman

This Article is one in a series about bullying and cyberbullying in schools. I argue that the proper analysis for a First Amendment challenge to school discipline for off-campus misuse of the Internet to harm or offend a member of the school community depends on the nature of the offending behavior. For students who are punished for a single incident – what I will call cyberattacking – a Tinker analysis makes sense. Except in extraordinary circumstances, the First Amendment should immunize these single-incident attackers from punishment. For students who engage in a pattern of repeated incidents of cyberattacking – what …

Copyright And The Vagueness Doctrine, Bradley E. Abruzzi

Bradley E Abruzzi

The Constitution’s void-for-vagueness doctrine is itself vaguely stated. The law does little to describe at what point vague laws — other than those that are entirely standardless — might be unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three “collateral factors” that affect its inclination to invalidate a law for vagueness, including (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Against this backdrop, it is fair to say that copyright law, in its current configuration, does …

Justice Stevens, Religion, And Civil Society, Gregory P. Magarian

Gregory P. Magarian

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his 35 years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he flatly opposed exempting religious believers from laws that interfered with their religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with disdain for religion. In this article, Professor …

Mill, Holmes, Brandeis, And A True Threat To Brandenburg, Mark Strasser

Mark Strasser

John Stuart Mill argues for robust protection of free speech, and some of the essential elements of that position reflect the protections advocated by Justices Holmes and Brandeis that were eventually incorporated in Brandenburg. However, Brandenburg protections have not been analyzed in light of the developing true threats jurisprudence, most recently described and employed in Virginia v. Black. After analyzing the positions of Mill, Holmes, and Brandeis and discussing true threats jurisprudence, this article concludes that unless the Court explains how to differentiate between advocacy and true threats and, further, identifies the extent to which the Constitution protects advocacy that …

"Put Colloquially, American Law Believes That Talking Out Prevents Acting Out." A First Amendment Primer, David D. Butler

David D. Butler

"Put Colloquially, American Law Believes that Talking Out Prevents Acting Out:" A Free Speech Primer argues that the Federal First Amendment, textually against Congress,and as incorporated by reference against the Several States, states a preference for (1) sanctioning harmful speech or expression in civil proceedings (2) rather than penalizing the speaker or actor in criminal prosecutions. The essay argues that whether in the 1988 theft of an unflattering painting of Chicago Mayor Harold Washington, titled "Mirth and Girth," by three Chicago aldermen from the Chicago Art Institute ranging to then president Clinton's perjury regarding his earlier sexual abuse of an …

The Skinny On The Federal Menu-Labeling Law & Why It Should Survive A First Amendment Challenge, Dayna B. Royal

Dayna B. Royal

In America’s battle of the bulge, the bulge is winning. Contributing to this obesity epidemic is Americans’ increasingly widespread practice of eating at restaurants where deceptively fattening food is served to patrons who grossly underestimate the calories in their meals.

To combat this problem and promote public health, Congress enacted a federal menu-labeling law, which requires that restaurants post calorie information next to menu offerings. The constitutionality of this law has yet to be tested in court. But New York City’s law, enacted prior, has survived First Amendment scrutiny.

Like New York’s menu-labeling law, the federal law should withstand a …

The First Amendment And The Common Law Constitution, Chris Stangl

Chris Stangl

No abstract provided.

How Much Does A Belief Cost?: Revisiting The Marketplace Of Ideas, Gregory Brazeal

Gregory Brazeal

Justice Oliver Wendell Holmes, Jr. is often credited with creating the metaphor of “the marketplace of ideas,” though he did not use the exact phrase and his argument for free speech was not based on distinctively economic reasoning. Truly economic investigations of the marketplace of ideas have progressed in step with developments and trends in the law and economics literature. These investigations have tended to be one-sided, with writers focusing primarily either on the production of ideas (for example, Posner) or their consumption (for example, behavioral law and economics), without considering in depth how producers and consumers interact. This may …

Painting Black Spaces Red, Black, And Green: The Constitutionality Of The Mural Movement, Jesse R. Merriam

Jesse R Merriam

“We live by symbols,” Justice Oliver Wendell Holmes wrote. This aphorism certainly rings true in many American inner cities, where murals depicting racial images, such as African symbols and portraits of famous African Americans, pervade the urban landscape. Indeed, the “by” in Holmes’s statement applies to inner-city residents with special force because these residents not only live close to murals, but also according to the symbols contained therein. Pablo Neruda, the Chilean writer and politician, is reported to have described this relationship in more populist language, claiming: “Murals are the people’s blackboard.” But Neruda’s statement obscures the fact that murals …

An Unlikely Solution: Securities Fraud Regulation As A Model For Protecting Fortunetelling As Free Speech, Daniel Hare

Daniel Hare

No abstract provided.

The First Amendment Lost In Translation: Preventing Foreign Influence In U.S. Elections After Citizens United V. Fec, Matt A. Vega

Matt A Vega

This Article invites readers to consider an unusual approach to curtailing the threat of foreign corruption: limiting political speech. The Article argues that permitting foreign-owned and foreign-controlled corporations to pour money into U.S. elections has undermined self-governance and threatens our democracy. By exploring both constitutional and extra-constitutional theory, this Article adds several novel arguments to the ongoing debate on the First Amendment’s relationship to campaign finance laws governing foreign corporations. The Article benefits from the author’s own anti-corruption experience as senior counsel for FedEx and legal advisor to the World Customs Organization Private Sector Consulting Group.

The basic question addressed …