Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- First Amendment (30)
- Constitutional Law (11)
- Supreme Court of the United States (8)
- Communications Law (6)
- Comparative and Foreign Law (6)
-
- Civil Rights and Discrimination (5)
- Legal History (5)
- Entertainment, Arts, and Sports Law (4)
- Law and Society (4)
- Education Law (3)
- Fourteenth Amendment (3)
- Law and Philosophy (3)
- Legislation (3)
- Rule of Law (3)
- Courts (2)
- Criminal Law (2)
- Law and Politics (2)
- National Security Law (2)
- Sexuality and the Law (2)
- State and Local Government Law (2)
- Election Law (1)
- Human Rights Law (1)
- International Law (1)
- Internet Law (1)
- Jurisprudence (1)
- Legal Education (1)
- Legal Writing and Research (1)
- Litigation (1)
- Privacy Law (1)
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 35
Full-Text Articles in Law
Terrible Freedom, Ambiguous Authenticity, And The Pragmatism Of The Endangered: Why Free Speech In Law School Gets Complicated, Leonard M. Niehoff
Terrible Freedom, Ambiguous Authenticity, And The Pragmatism Of The Endangered: Why Free Speech In Law School Gets Complicated, Leonard M. Niehoff
Articles
We idealize colleges and universities as places of unfettered inquiry, where freedom of expression flourishes. The Supreme Court has described the university classroom as “peculiarly the ‘marketplace of ideas.’” It declared: “The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.” The exchange of competing ideas takes place not only in classrooms, but also in public spaces, dormitories, student organizations, and in countless other campus contexts.
The Everyday First Amendment, Leonard M. Niehoff, Thomas Sullivan
The Everyday First Amendment, Leonard M. Niehoff, Thomas Sullivan
Articles
On June 26 and June 27, 2019, some twenty contenders for the Democratic nomination for President of the United States participated in two evenings of political debate. The outsized group included Rep. Tulsi Gabbard of Hawaii, who was struggling to gain traction with voters. Shortly after the debate, while many viewers were conducting online searches to learn more about the candidates, Google temporarily suspended her campaign’s advertising account.
Google claimed that the interruption occurred because an automated system flagged unusual activity on the account. But Gabbard did not accept this explanation; she believed that Google deliberately had tried to undermine …
University Regulation Of Student Speech: In Search Of A Unified Mode Of Analysis, Patrick Miller
University Regulation Of Student Speech: In Search Of A Unified Mode Of Analysis, Patrick Miller
Michigan Law Review
Universities are meant to be open marketplaces of ideas. This requires a commitment to both freedom of expression and inclusivity, two values that may conflict. When public universities seek to promote inclusivity by prohibiting or punishing speech that is protected by the First Amendment, courts must intervene to vindicate students’ rights. Currently, courts are split over the appropriate mode of analysis for reviewing public university regulation of student speech. This Note seeks to aid judicial review by clarifying the three existing approaches—public forum analysis, traditional categorical analysis, and a modified version of the Supreme Court’s education-specific speech doctrine—and proposes a …
The First Queer Right, Scott Skinner-Thompson
The First Queer Right, Scott Skinner-Thompson
Michigan Law Review
A review of Carlos A. Ball, The First Amendment and LGBT Equality: A Contentious History.
In Re Akhbar Beirut & Al Amin, Monica Hakimi
In Re Akhbar Beirut & Al Amin, Monica Hakimi
Articles
On August 29, 2016, the Special Tribunal for Lebanon (Tribunal) sentenced a corporate media enterprise and one of its employees for contemptuously interfering with the Tribunal's proceedings in Ayyash, a prosecution concerning the February 2005 terrorist attack that killed former Lebanese Prime Minister Rafiq Hariri. The contempt decision is significant for two reasons: (1) it adopts an expansive definition of the crime of contempt to restrict a journalist's freedom of expression; and (2) it is the first international judicial decision to hold a corporate entity criminally responsible.
Testing Constitutional Pluralism In Strasbourg: Responding To Russia's "Gay Propaganda" Law, Jesse W. Stricklan
Testing Constitutional Pluralism In Strasbourg: Responding To Russia's "Gay Propaganda" Law, Jesse W. Stricklan
Michigan Journal of International Law
In 2013, the Russian Federation amended Federal Law No. 436-FZ, “On Protection of Children from Information Harmful to Their Health and Development” (2013 law), introducing language making illegal the public discussion—or, in the law’s words, “propagandization”—of what it called “non-traditional sexual relationships.” Undertaken during a period of increasing domestic and international hostility, the law was intended by the government to be a bold, two-fold rejection of supposedly “European” values: first, as resistance to the gay rights movement, which is presented as unsuitable for Russia; and second, as a means of further weakening the freedom of expression in Russia. On both …
Globally Speaking—Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta Esperanza Hernández-Truyol
Globally Speaking—Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta Esperanza Hernández-Truyol
Michigan Law Review First Impressions
Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States' First Amendment provides an early historical protection of speech-a safeguard now embraced around the world. The extent of this protection, however, varies among states. The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …
Fumbling The First Amendment: The Right Of Publicity Goes 2-0 Against Freedom Of Expression, Thomas E. Kadri
Fumbling The First Amendment: The Right Of Publicity Goes 2-0 Against Freedom Of Expression, Thomas E. Kadri
Michigan Law Review
Two circuits in one summer found in favor of college athletes in right-of-publicity suits filed against the makers of the NCAA Football videogame. Both panels split 2–1; both applied the transformative use test; both dissenters predicted chilling consequences. By insisting that the likeness of each player be “transformed,” the Third and Ninth Circuits employed a test that imperils the use of realistic depictions of public figures in expressive works. This standard could have frosty implications for artists in a range of media: docudramas, biographies, and works of historical fiction may be at risk. This Comment examines the tension between the …
Graffiti Museum: A First Amendment Argument For Protecting Uncommissioned Art On Private Property, Margaret L. Mettler
Graffiti Museum: A First Amendment Argument For Protecting Uncommissioned Art On Private Property, Margaret L. Mettler
Michigan Law Review
Graffiti has long been a target of municipal legislation that aims to preserve property values, public safety, and aesthetic integrity in the community. Not only are graffitists at risk of criminal prosecution but property owners are subject to civil and criminal penalties for harboring graffiti on their land. Since the 1990s, most U.S. cities have promulgated graffiti abatement ordinances that require private property owners to remove graffiti from their land, often at their own expense. These ordinances define graffiti broadly to include essentially any surface marking applied without advance authorization from the property owner. Meanwhile, graffiti has risen in prominence …
Opinions, Implications, And Confusions, Leonard M. Niehoff
Opinions, Implications, And Confusions, Leonard M. Niehoff
Articles
The law of defamation is haunted by ancient common law principles, such as the distinction between libel per se and libel per quad, that contribute nothing to our current jurisprudence beyond providing opportunities for misunderstanding and perplexity. Unfortunately, more contemporary doctrines have further complicated the field by sowing fresh confusions. This article explores two such doctrines-the principle that a defamation claim cannot rest upon an opinion and the principle that a defamation claim can rest upon unstated implications- and suggests that there are troublesome contradictions both within them and between them. In short, this article respectfully proposes that these two …
The Life Of The Mind And A Life Of Meaning: Reflections On Fahrenheit 451, Rodney A. Smolla
The Life Of The Mind And A Life Of Meaning: Reflections On Fahrenheit 451, Rodney A. Smolla
Michigan Law Review
Fahrenheit 451 still speaks to us, vibrantly and passionately, still haunts and vexes and disturbs. The novel has sold millions of copies, was reset for a fiftieth anniversary printing, and continues to be assigned reading in middle school, high school, and college courses. That power to endure is well worth contemplation, both for what it says about Ray Bradbury's literary imagination, and, more powerfully, for what it teaches us about our recent past, our present, and our own imagined future. First Amendment jurisprudence has taken giant leaps since Fahrenheit 451 was written, and American society has managed to avoid the …
The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum
The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum
Michigan Law Review
This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional …
Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford
Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford
Michigan Law Review
Embodied in the Universal Declaration of Human Rights is the evocative proposition that "[e]veryone has the right to freedom of opinion and expression." Beneath that abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and what speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of participatory democracy. They …
Constitutional Issues In Information Privacy, Fred H. Cate, Robert Litan
Constitutional Issues In Information Privacy, Fred H. Cate, Robert Litan
Michigan Telecommunications & Technology Law Review
The U.S. Constitution has been largely ignored in the recent flurry of privacy laws and regulations designed to protect personal information from incursion by the private sector despite the fact that many of these enactments and efforts to enforce them significantly implicate the First Amendment. Questions about the role of the Constitution have assumed new importance in the aftermath of the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon. Recent efforts to identify and apprehend terrorists and to protect against future attacks threaten to weaken constitutional protections against government intrusions into personal privacy. However, these …
Attempting To Ensure Fairness In The Glare Of The Media, Richard D. Friedman
Attempting To Ensure Fairness In The Glare Of The Media, Richard D. Friedman
Book Chapters
All legal systems worthy of credit have a commitment to achieving fairness between the parties to the litigation. In addition, common law legal systems have a longstanding commitment to openness in judicial proceedings. At the same time, and in part for the same reasons, they also have a longstanding commitment to freedom of expression. There is inevitably a tension among these three goals, because in cases of great public interest openness leads to publicity, and publicity may threaten or at least appear to threaten the fairness of a trial. In addition, sometimes publicity may create an intrusion on the lives …
The First Amendment Comes Of Age: The Emergence Of Free Speech In Twentieth-Century America, G. Edward White
The First Amendment Comes Of Age: The Emergence Of Free Speech In Twentieth-Century America, G. Edward White
Michigan Law Review
As the number of issues perceived as having First Amendment implications continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen - including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and economic orthodoxy - alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some recent commentators have proposed a retrenchment from the long twentieth- century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the …
Equality And Freedom Of Speech (Eighteenth Annual Law Review Symposium: Demise Of The First Amendment? Focus On Rico And Hate Crime Litigation), Terrance Sandalow
Equality And Freedom Of Speech (Eighteenth Annual Law Review Symposium: Demise Of The First Amendment? Focus On Rico And Hate Crime Litigation), Terrance Sandalow
Other Publications
The editors responsible for today's symposium have posed an alarming question: whether we are witnessing the demise of the First Amendment. I want to dispel at the outset any anxiety the question may have aroused. The First Amendment is alive and well; indeed, it is thriving. I believe, though I cannot prove, that public respect for the values it expresses has never been greater than it has been in recent years. Whether or not I am correct in that belief, however, it is certain that constitutional protections against governmental efforts to limit speech and other forms of expressive activity are …
A Distant Heritage: The Growth Of Free Speech In Early America, Jim Greiner
A Distant Heritage: The Growth Of Free Speech In Early America, Jim Greiner
Michigan Law Review
A Review of A Distant Heritage: The Growth of Free Speech in Early America by Larry D. Eldridge
The Apologetics Of Suppression: The Regulation Of Pornography As Act And Idea, Steven G. Gey
The Apologetics Of Suppression: The Regulation Of Pornography As Act And Idea, Steven G. Gey
Michigan Law Review
The first three parts of this article discuss in detail the relationship between the Supreme Court's obscenity rulings and the academic theories that have been offered to bolster the conclusions reached by the Court in this area. Part IV of the article considers a contrary theory of free expression that requires constitutional protection for the dissemination and possession of pornography. In this section I argue that the present efforts to ban pornography are directly linked to a tolerance model of free expression. The tolerance model, which is usually contrasted with an analytical approach characterized by Holmesian skepticism, necessarily relies upon …
Freedom Of Speech, Melissa H. Maxman
Freedom Of Speech, Melissa H. Maxman
Michigan Law Review
A Review of Freedom of Speech by Eric Barendt
Levy Vs. Levy, David A. Anderson
Levy Vs. Levy, David A. Anderson
Michigan Law Review
A Review of Emergence of a Free Press by Leonard W. Levy
Administrative Regulation Of The High School Press, Michigan Law Review
Administrative Regulation Of The High School Press, Michigan Law Review
Michigan Law Review
This Note examines the constitutional limits on administrative regulation of publications by and for public high school students. Part I discusses the widely divergent standards adopted by different circuits. Part II describes the hard line the Supreme Court has taken against restraints on free expression in the adult context and the different circumstances that justify limiting freedom of expression in high schools. Part III discusses the timing of administrative regulation of student speech. This Part argues that prior restraint is constitutionally acceptable and, in fact, preferable to subsequent punishment so long as its use is governed by proper criteria. Part …
In Search Of A Free Speech Principle, Mark G. Yudof
In Search Of A Free Speech Principle, Mark G. Yudof
Michigan Law Review
A Review of Free Speech: A Philosophical Enquiry by Frederick Schauer
The Public Broadcasting Act: The Licensee Editorializing Ban And The First Amendment, John C. Grabow
The Public Broadcasting Act: The Licensee Editorializing Ban And The First Amendment, John C. Grabow
University of Michigan Journal of Law Reform
This article contends that the public is deprived of an important source of information on public affairs issues as a result of the section 399(a) prohibition on editorializing. After an examination of the legislative history of Section 399(a), and the heritage of broadcast regulation in the United States, the article concludes that the prohibition on editorializing is an improper restriction on free expression in violation of the First Amendment.
The Nonpartisan Freedom Of Expression Of Public Employees, Michigan Law Review
The Nonpartisan Freedom Of Expression Of Public Employees, Michigan Law Review
Michigan Law Review
Governmental activities affect each of us in a myriad of ways. The government's role as employer may pale in comparison with the more glamorous activities of the government as national defender, law enforcer, and allocator of scarce resources. Yet the legal ramifications of public employment-where the public interest in efficient governmental operation often conflicts with the public employee's freedom-have a profound influence upon American society.
In 1968, the Supreme Court in Pickering v. Board of Education formulated a test designed to balance these interests in defining the scope of a public employee's freedom of expression. In examining the nonpartisan free …
Political Candidates' Loyalty Oaths, Jeffrey F. Liss
Political Candidates' Loyalty Oaths, Jeffrey F. Liss
University of Michigan Journal of Law Reform
When Washington mustered his revolutionary army, when South Carolinians called for secession, and when Senator Joseph P. McCarthy kindled fears of Communist infiltration, many people affirmed their loyalty to the nation by swearing oaths. Perhaps the oath givers hoped to subdue the anxieties of those anxious times by reducing the ambiguities in the behavior and beliefs of others. Candidates for political office have not escaped suspicion; eight states still require political candidates to swear oaths of loyalty before their names can appear on the ballot. But constitutional doctrine and changing times have diminished the loyalty oath's scope and significance. This …
Campus Pamphleteering: The Emerging Constitutional Standards, Morton M. Rosenfeld
Campus Pamphleteering: The Emerging Constitutional Standards, Morton M. Rosenfeld
University of Michigan Journal of Law Reform
Beginning with Lovell v. City of Griffin, the Supreme Court has consistently held the distribution of handbills to be a fundamental right under the first amendment. Since Lovell, the Court has liberally construed the concept of a public forum where first amendment rights can be properly exercised. More recently, the Court has held that schools cannot arbitrarily or absolutely regulate students' constitutional rights of expression. These three principles would suggest great protection for handbilling rights on state university campuses. A further analysis of case law indicates that broad free speech standards governing such rights exist and that the …
Carmen: Movies, Censorship And The Law, Abner J. Mikva
Carmen: Movies, Censorship And The Law, Abner J. Mikva
Michigan Law Review
A Review of Movies, Censorship and the Law by Ira H. Carmen
Bedi: Freedom Of Expression And Security: A Comparative Study Of The Function Of The Supreme Courts Of The United States And India, Chester J. Antieau
Bedi: Freedom Of Expression And Security: A Comparative Study Of The Function Of The Supreme Courts Of The United States And India, Chester J. Antieau
Michigan Law Review
A Review of Freedom of Expression and Security: A Comparative Study of the Function of the Supreme Courts of the United States and India by A.S. Bedi
Constitutional Law-Relation Of State And Federal Governments-Application Of The Hatch Act To The Political Activity Of A State Official, Rolfe A. Worden S.Ed.
Constitutional Law-Relation Of State And Federal Governments-Application Of The Hatch Act To The Political Activity Of A State Official, Rolfe A. Worden S.Ed.
Michigan Law Review
Plaintiff brought an action to set aside a determination of the United States Civil Service Commission that his political activities while Illinois State Director of Conservation were in violation of the Hatch Act. The district court held that such an application of the Hatch Act would infringe upon the plaintiff's vested rights, and would contravene the constitutional guarantee to the state of a republican form of government. On appeal, held, reversed. Application of the Hatch Act to state employees does not deprive them of any vested rights under the United States Constitution. Palmer v. United States Civil Sero. Comm'n …