Law Commons^™

Compelled Disclosures, Caroline Mala Corbin

Articles

Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples …

Material Falsity In Defamation Cases: The Supreme Court's Call For Contextual Analysis, Charles D. Tobin, Leonard M. Niehoff

Articles

In the book The Phantom Tollbooth, one of the characters, Milo, declares that he comes from a faraway land called Context. After a circuitous journey through many strange cities, bearing names that have meanings Milo struggles to understand, he finds himself back at home in his bedroom.

Context, by and large, is the home base for courts in defining the boundaries between actionable and nonactionable speech. Often, after circuitous travels through precedent and logic, courts meander back to the simple notion that the meaning and legal significance of words are determined by their context.

The Aftermath Of Hobby Lobby: Hsas And Hras As The Least Restrictive Means, Edward A. Zelinsky

Articles

In Burwell v. Hobby Lobby Stores, Inc., the United States Supreme Court held that the Religious Freedom Restoration Act of 1993 (RFRA) does not require closely-held corporations’ employer-sponsored medical plans to provide forms of contraception that shareholders of such corporations object to on religious grounds. The question now raised is how the President, Congress, and the departments of Health and Human Services (HHS), Treasury and Labor, ought to respond to the Hobby Lobby decision.

The Collision Between The First Amendment And Securities Fraud, Wendy Gerwick Couture

Articles

This Article seeks to correct the imbalance that occurs when the First Amendment and securities fraud collide. Under current precedent, securities analysts, credit rating agencies, and financial journalists are subject to differing liability standards depending on whether they are sued for defamation or for securities fraud. Under New York Times Co. v. Sullivan, First Amendment protections apply in the defamation context in order to prevent the chilling of valuable speech, yet courts have declined to extend these protections to the securities fraud context. This imbalance threatens to chill valuable speech about public companies. To prevent the dangerous chilling effect of …

Hobby Lobby And The Pathology Of Citizens United, Ellen D. Katz

Articles

Four years ago, Citizens United v. Federal Election Commission held that for-profit corporations possess a First Amendment right to make independent campaign expenditures. In so doing, the United States Supreme Court invited speculation that such corporations might possess other First Amendment rights as well. The petitioners in Conestoga Wood Specialties Corp. v. Sebelius are now arguing that for-profit corporations are among the intended beneficiaries of the Free Exercise Clause and, along with the respondents in Sebelius v. Hobby Lobby Stores, that they also qualify as “persons” under the Religious Freedom Restoration Act (RFRA). Neither suggestion follows inexorably from Citizens United, …

Emotional Compelled Disclosures, Caroline Mala Corbin

Articles

No abstract provided.

Zombies Among Us: Injunctions In Defamation Cases Come Back From The Dead, Jim Stewart, Leonard M. Niehoff

Articles

Here's a scary thought: an individual, unhappy with negative statements that have been made about him, sues for defamation and persuades the trial court to issue an injunction prohibiting the speaker from engaging in that speech again. An appellate court reviews the injunction and, in large measure, upholds it. This creepy scenario brings shudders to free speech and media advocates, who have long viewed such injunctions as prior restraints that the First Amendment forbids in all but the most extreme and extraordinary cases. As a recent decision from the Michigan Court of Appeals demonstrates, however, decades of United States Supreme …

The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos

Articles

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Article begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the …