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Full-Text Articles in Law
Myspace, Yourspace, But Not Theirspace: The Constitutionality Of Banning Sex Offenders From Social Networking Sites, Jasmine S. Wynton
Myspace, Yourspace, But Not Theirspace: The Constitutionality Of Banning Sex Offenders From Social Networking Sites, Jasmine S. Wynton
Duke Law Journal
In recent years there has been intense public pressure to enact increasingly restrictive and intrusive sex offender laws. The regulation of sex offenders has now moved online, where a growing amount of protected expression and activity occurs. The latest trend in sex offender policy has been the passage of state laws prohibiting sex offenders from visiting social networking sites, such as Myspace or Facebook. The use of these websites implicates the First Amendment right of expressive association. Broad social-networking-site bans threaten the First Amendment expressive association rights of sex offenders, who do not lose all of their constitutional rights by …
Transmitting, Editing, And Communicating: Determining What “The Freedom Of Speech” Encompasses, Stuart Minor Benjamin
Transmitting, Editing, And Communicating: Determining What “The Freedom Of Speech” Encompasses, Stuart Minor Benjamin
Duke Law Journal
How much can one say with confidence about what constitutes "the freedom of speech" that Congress shall not abridge? In this Article, I address that question in the context of the transmission of speech specifically, the regulation of Internet access known as net neutrality. This question has implications both for the future of economic regulation, as more and more activity involves the transmission of bits, and for First Amendment interpretation. As for the latter, the question is what a lawyer or judge can conclude without having to choose among competing conceptions of speech. How far can a basic legal toolkit …
“There Is Something Unique … About The Government Funding Of The Arts For First Amendment Purposes”: An Institutional Approach To Granting Government Entities Free Speech Rights, Leslie Cooper Mahaffey
“There Is Something Unique … About The Government Funding Of The Arts For First Amendment Purposes”: An Institutional Approach To Granting Government Entities Free Speech Rights, Leslie Cooper Mahaffey
Duke Law Journal
The common understanding of the First Amendment is that its purpose is primarily libertarian, serving to protect private citizens' expression from government censorship. In the modern era, however, the government's pervasive presence-especially in the role of funder of private activity-has blurred the lines between governmental and private speech. Further, the relatively new, increasingly influential government speech doctrine-which dictates that the government will not be subjected to First Amendment scrutiny when it is engaging in communication-has been the Supreme Court's guidepost of late when the Court has been confronted with a case involving expression with both private and public elements. The …
Antitrust Censorship Of Economic Protest, Hillary Greene
Antitrust Censorship Of Economic Protest, Hillary Greene
Duke Law Journal
Antitrust law accepts the competitive marketplace, its operation, and its outcomes as an ideal. Society itself need not and does not. Although antitrust is not in the business of evaluating, for example, the "fairness" of prices, society can, and frequently does, properly concern itself with these issues. When dissatisfaction results, it may manifest itself in an expressive boycott: a form of social campaign wherein purchasers express their dissatisfaction by collectively refusing to buy. Antitrust should neither participate in nor censor such normative discourse. In this Article, I explain how antitrust law impedes this speech, argue why it should not, and …
Cybersieves, Derek E. Bambauer
Cybersieves, Derek E. Bambauer
Duke Law Journal
This Article offers a process-based method to assess Internet censorship that is compatible with different value sets about what content should be blocked. Whereas China's Internet censorship receives considerable attention, censorship in the United States and other democratic countries is largely ignored. The Internet is increasingly fragmented by nations' different value judgments about what content is unacceptable. Countries differ not in their intent to censor material-from political dissent in Iran to copyrighted songs in America-but in the content they target, how precisely they block it, and how involved their citizens are in these choices. Previous scholars have analyzed Internet censorship …
Constraining Public Employee Speech: Government’S Control Of Its Workers’ Speech To Protect Its Own Expression, Helen Norton
Constraining Public Employee Speech: Government’S Control Of Its Workers’ Speech To Protect Its Own Expression, Helen Norton
Duke Law Journal
This Article identifies a key doctrinal shift in courts' treatment Of public employees' First Amendment claims-a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on-and defer to-government's claim to control its workers' expression to protect its own speech. More specifically, courts increasingly permit government …
Remembering Democracy In The Debate Over Election Reform, Matthew Michael Calabria
Remembering Democracy In The Debate Over Election Reform, Matthew Michael Calabria
Duke Law Journal
In FEC v. Wisconsin Right to Life, Inc., the United States Supreme Court held that the federal Bipartisan Campaign Reform Act violated the First Amendment right to free speech because the statute restricted a form of political speech known as issue advocacy. In attempting to protect this right from government intrusion, however, the Court improperly excluded considerations of democracy from its free speech analysis. The opinion consequently misrepresented the nature of the right to free speech for two independent but related reasons. First, because preserving a well-functioning democracy is the primary reason free speech is protected, the right to free …
Constitutional Secrecy: Aligning National Security Letter Nondisclosure Provisions With First Amendment Rights, Brian D. Eyink
Constitutional Secrecy: Aligning National Security Letter Nondisclosure Provisions With First Amendment Rights, Brian D. Eyink
Duke Law Journal
First created in the 1980s, national security letters and their nondisclosure provisions evaded judicial review until 2004. These secretive investigative tools allow federal agencies such as the FBI to compel disclosure of information about hundreds of thousands of people while also allowing the same agencies to unilaterally issue gag orders that can silence the people who receive these letters. This Note examines the nondisclosure provisions in the national security letter statutes. It argues that the nondisclosure provisions are unconstitutional prior restraints on speech and content-based speech restrictions. This Note then proposes a three-part solution that constitutionally balances the government's need …
Rendering Turner Toothless: The Supreme Court’S Decision In Beard V. Banks, Jennifer N. Wimsatt
Rendering Turner Toothless: The Supreme Court’S Decision In Beard V. Banks, Jennifer N. Wimsatt
Duke Law Journal
The Supreme Court has long recognized that prisoners' constitutional rights must be balanced against the need for deference to the decisions of prison administrators when prisoners' rights are restricted incident to their incarceration. The Court, however, has never explicitly recognized a theory of proper incarceration, yet it has implicitly adopted such a theory through its decisions regarding the constitutionally permitted level of restriction on particular prisoners' rights. This Note argues that the Court's prisoners' rights jurisprudence evinces a particular definition of proper incarceration and then reads the multiple opinions in Beard v. Banks consistently with that theory.
Court-Ordered Restrictions On Trial Participant Speech, Jonathan Eric Pahl
Court-Ordered Restrictions On Trial Participant Speech, Jonathan Eric Pahl
Duke Law Journal
This Note considers court-ordered limitations on the extrajudicial speech of trial participants in high-profile cases. After providing a history of Supreme Court decisions, informative though not dispositive of the topic, it presents the divergent approaches lower courts take when faced with trial participants' extrajudicial speech. The Note highlights the extreme legal uncertainty facing trial participants who desire to speak publicly about court proceedings. Finally, it concludes that courts would better balance First Amendment and fair trial values by rejecting the reasonable likelihood of prejudice standard.
Protecting The Least Of These: A New Approach To Child Pornography Pandering Provisions, Stephen T. Fairchild
Protecting The Least Of These: A New Approach To Child Pornography Pandering Provisions, Stephen T. Fairchild
Duke Law Journal
The pandering of child pornography - selling, distributing, or conveying the impression that one possesses sexually graphic images of children for sale or distribution - facilitates actual harm to children, such as molestation. Yet legislative attempts to curb pandering inevitably implicate concerns about panderers' First Amendment rights. This Note argues that in balancing the vulnerability of children against the power of the First Amendment, the law must shift to focus more on the subject of this grievous harm - children. This approach will appropriately extend protection to a subset of the population that is least able to protect itself.
First Amendment Protection Of Teacher Instructional Speech, Walter E. Kuhn
First Amendment Protection Of Teacher Instructional Speech, Walter E. Kuhn
Duke Law Journal
No abstract provided.
Conduit-Based Regulation Of Speech, Jim Chen
Conduit-Based Regulation Of Speech, Jim Chen
Duke Law Journal
Architecture is destiny. As much as information today determines the contemporary wealth of nations, the physical world retains its relevance. Architecture affects crime rates, arguably even collegiality among professors. The interplay between the physical and the ethereal likewise shapes the constitutional doctrine that facilitates the free flow of ideas. The structure of a communicative medium dictates its performance. Awareness of the structure of information markets improves the calibration of intellectual property and refines legal responses to potential electronic bottlenecks. This Article takes the next logical step: revealing the deep doctrinal structure of legal efforts to influence the design and maintenance …
Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla
Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla
Duke Law Journal
No abstract provided.
Freedom In The Commons: Towards A Political Economy Of Information, Yochai Benkler
Freedom In The Commons: Towards A Political Economy Of Information, Yochai Benkler
Duke Law Journal
In 1999, George Lucas released a bloated and much maligned “prequel” to the Star Wars Trilogy, called The Phantom Menace. In 2001, a disappointed Star Wars fan made a more tightly cut version, which almost eliminated a main sidekick called Jar-Jar Binks and subtly changed the protagonist—rendering Anakin Skywalker, who was destined to become Darth Vader, a much more somber child than the movie had originally presented. The edited version was named “The Phantom Edit.” Lucas was initially reported amused, but later clamped down on distribution. It was too late. The Phantom Edit had done something that would have been …
The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin
The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin
Duke Law Journal
The Supreme Court has distinguished the regulation of radio spectrum from the regulation of printing presses, and applied more lenient scrutiny to the regulation of spectrum, based on its conclusion that the spectrum is unusually scarce. The Court has never confronted an allegation that government actions resulted in unused or underused frequencies, but there is good reason to believe that such government-created idle frequencies exist. Government limits on the number of printing presses almost assuredly would be subject to heightened scrutiny and would not survive such scrutiny. This Article addresses the question whether the scarcity rationale-or any other reasoning-supports distinguishing …
Keeping Mud Off The Bench: The First Amendment And Regulation Of Candidates’ False Or Misleading Statements In Judicial Elections, Adam R. Long
Duke Law Journal
No abstract provided.
Whose Who? The Case For A Kantian Right Of Publicity, Alice Haemmerli
Whose Who? The Case For A Kantian Right Of Publicity, Alice Haemmerli
Duke Law Journal
Rapidly developing technological opportunities for unauthorized uses of identity-from "virtual kidnapping" to digitalcasting-coincide with growing demand for a preemptive federal right of publicity that can replace the existing welter of inconsistent state laws. Progress is impeded, however, by intractable doctrinal confusion and academic hostility to the right as allegedly inimical to society's cultural need to manipulate celebrity images. Because the right of publicity is traditionally based on Lockean labor theory and analogized to intellectual property in created works, it is vulnerable to such attacks; to date, no serious attempt has been made to elaborate an alternative philosophical justification that can …
Freedom Of Speech And Injunctions In Intellectual Property Cases, Mark A. Lemley, Eugene Volokh
Freedom Of Speech And Injunctions In Intellectual Property Cases, Mark A. Lemley, Eugene Volokh
Duke Law Journal
Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Even though libel may inflict truly irreparable harm on its victim, the most a libel plaintiff can hope for is damages, or perhaps a permanent injunction after final adjudication, not preliminary relief. Professors Lemley and Volokh argue the same rule should apply to preliminary injunctions in many copyright, trademark, right of publicity, and trade secret cases. They note that intellectual property rights, unlike other property rights, are a form of content-based, government-imposed speech restriction. The mere fact that the restriction is denominated a "property …
Ridding Foia Of Those “Unanticipated Consequences”: Repaving A Necessary Road To Freedom, Charles J. Wichmann Iii
Ridding Foia Of Those “Unanticipated Consequences”: Repaving A Necessary Road To Freedom, Charles J. Wichmann Iii
Duke Law Journal
No abstract provided.
The Electronic First Amendment: An Essay For The New Age, Glen O. Robinson
The Electronic First Amendment: An Essay For The New Age, Glen O. Robinson
Duke Law Journal
No abstract provided.
Stretching Rico To The Limit And Beyond, Alexander M. Parker
Stretching Rico To The Limit And Beyond, Alexander M. Parker
Duke Law Journal
No abstract provided.
The Freedom Of Speech At Risk In Cyberspace: Obscenity Doctrine And A Frightened University’S Censorship Of Sex On The Internet, Jeffrey E. Faucette
The Freedom Of Speech At Risk In Cyberspace: Obscenity Doctrine And A Frightened University’S Censorship Of Sex On The Internet, Jeffrey E. Faucette
Duke Law Journal
No abstract provided.
Unfriendly Persuasion: Enjoining Residential Picketing, Hazel A. Landwehr
Unfriendly Persuasion: Enjoining Residential Picketing, Hazel A. Landwehr
Duke Law Journal
Imagine that one pleasant Sunday afternoon, you look out your window and see a group of twenty to fifty people picketing on the street in front of your home. The picketers are carrying signs that name you. Although the gathering is ''peaceful,'' the very presence of the crowd is threatening, prompting you to close your windows, draw your blinds, and keep your family in the house until,the picketers leave. Now imagine that these same picketers, in greater or lesser numbers, re-create this same event at your home every Sunday afternoon. What should be a day of rest spent with your …
Milkovich Revisited: “Saving” The Opinion Privilege, Edward M. Sussman
Milkovich Revisited: “Saving” The Opinion Privilege, Edward M. Sussman
Duke Law Journal
No abstract provided.
The Chilly Climate On College Campuses: An Expansion Of The “Hate Speech” Debate, Katharine T. Bartlett, O'Barr Jean
The Chilly Climate On College Campuses: An Expansion Of The “Hate Speech” Debate, Katharine T. Bartlett, O'Barr Jean
Duke Law Journal
No abstract provided.
Some Realism About Pluralism: Legal Realist Approaches To The First Amendment, J. M. Balkin
Some Realism About Pluralism: Legal Realist Approaches To The First Amendment, J. M. Balkin
Duke Law Journal
No abstract provided.
Regulating Racist Speech On Campus: A Modest Proposal?, Nadine Strossen
Regulating Racist Speech On Campus: A Modest Proposal?, Nadine Strossen
Duke Law Journal
No abstract provided.
If He Hollers Let Him Go: Regulating Racist Speech On Campus, Charles R. Lawrence Iii
If He Hollers Let Him Go: Regulating Racist Speech On Campus, Charles R. Lawrence Iii
Duke Law Journal
No abstract provided.
First Amendment Claims Against Public Broadcasters: Testing The Public’S Right To A Balanced Presentation, Rebecca L. Torrey
First Amendment Claims Against Public Broadcasters: Testing The Public’S Right To A Balanced Presentation, Rebecca L. Torrey
Duke Law Journal
No abstract provided.