Law Commons^™

The Fossil Fuel Industry’S Push To Target Climate Protesters In The U.S., Grace Nosek

Pace Environmental Law Review

At the very moment when the United Nations has called for profound shifts in social and economic systems to avert climate catastrophe, state and non-state actors in the United States (U.S.) are using a series of tactics to target and stifle climate protesters. Although the move to stifle climate protesters is often framed as a government effort, this Article argues it is critical to draw out the role of the fossil fuel industry in initiating, amplifying, and supporting such tactics.

This Article highlights the role the fossil fuel industry has played in supporting the targeting and restricting of climate protesters …

Fulton V. City Of Philadelphia, And The Rights Of Faith-Based Adoption And Foster Care Agencies, William G. Mcgrath

The Arkansas Journal of Social Change and Public Service

No abstract provided.

Strategic Lawsuits Against Public Participation In The Age Of Online Speech: The Relevance Of Anti-Slapp And Anti-Cyberslapp Legislation, Lauren Merk

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Preserving Fabled Amateurism: The Benefits Of The Ncaa’S Adoption Of The Olympic Amateurism Model, John Kealey

Journal of Law and Policy

After a century of denying student-athletes from receiving compensation outside the cost of attendance for their athletic contributions to their respective universities, the NCAA finally announced it would change its amateurism rule. The change came in response to multiple class action lawsuits and, more recently, legislation from many states, namely California and New York, which would have mandated that universities do not interfere with student-athletes desire to commercially exploit their own names, image, and likenesses. However, these statutes are potentially flawed in that each could exacerbate or perpetuate the anti-trust and first amendment issues inherent to the current amateurism rule. …

Content, Context, What's Next? A Garcetti-Pickering Analysis For Public Employees In Court, Austin Longnecker

West Virginia Law Review

No abstract provided.

The Regulation Of Commercial Speech: Can Alternative Meat Companies Have Their Beef And Speak It Too?, Eryn Terry

Vanderbilt Journal of Entertainment & Technology Law

Would you eat a hamburger that was made in a petri dish? Consumers may have this option soon as laboratory-grown meat begins to hit supermarket shelves. Laboratory-grown meat is made from animal stem cells that eventually transform into primitive fibers and tissue within the confines of a petri dish. Although a lot remains unknown about laboratory-grown meat, consumers can think of it as meat production without the farm. How might consumers react to meat labels indicating that their products were made in a petri dish? Laboratory-grown meat companies have yet to find out, as some states have passed laws that …

Buckeyes Against The Boycott: Why Ohio's Law Opposing Bds Is Protected Under The First Amendment, Hannah Kraus

Cleveland State Law Review

In 2016, Ohio became the fourteenth state to enact legislation denouncing the Boycott, Divestment, and Sanctions movement against Israel. Codified as § 9.76 of the Ohio Revised Code, this legislation prohibits any state agency from contracting with a company that boycotts Israel during the contractual period. While the constitutionality of § 9.76 has not been challenged, anti-BDS statutes passed by other state legislatures have faced First Amendment challenges. This Note argues that § 9.76 of the Ohio Revised Code complies with the First Amendment under the government speech doctrine. In 1991, the Supreme Court applied the government speech doctrine in …

A History Of United States Cannabis Law, David V. Patton

Journal of Law and Health

Perhaps the best way to understand early-Twenty-First Century state and federal cannabis law in the United States is to examine the relevant history. Justice Oliver Wendell Holmes, Jr.’s statement is apropos: "[A] page of history is worth a volume of logic." This article begins by discussing the early history of cannabis and its uses. Next, the article examines the first state and federal marijuana laws. After a brief comparison of alcohol prohibition to cannabis prohibition, this article addresses cannabis laws from the 1920s to the early 1950s. Then, the article takes up the reorganization of the federal drug regulatory bureaucracy …

The Historical Origins Of Judicial Religious Exemptions, Stephanie H. Barclay

Notre Dame Law Review

The Supreme Court has recently expressed a renewed interest in the question of when the Free Exercise Clause requires exemptions from generally applicable laws. While scholars have vigorously debated what the historical evidence has to say about this question, the conventional wisdom holds that judicially created exemptions would have been a new or extraordinary means of protecting religious exercise—a sea change in the American approach to judicial review when compared to the English common law.

This Article, however, questions that assumption and looks at this question from a broader perspective. When one views judicial decisions through the lens of equitable …

Reflections On The Church/State Puzzle, Kermit V. Lipez

Maine Law Review

No abstract provided.

Free Speech, Rational Deliberation, And Some Truths About Lies, Alan K. Chen

William & Mary Law Review

Could “fake news” have First Amendment value? This claim would seem to be almost frivolous given the potential for fake news to undermine two core functions of the freedom of speech—promoting democracy and facilitating the search for “truth,” as well as the corollary that to be valuable, speech must promote rational deliberation. Some would therefore claim that fake news should be classified as “no value” speech falling outside of the First Amendment’s reach. This Article argues somewhat counterintuitively that fake news has value because speech doctrine should not be focused exclusively on the promotion of rational deliberation, but should also …

The Functional Approach To The Ministerial Exception: Applying The Exception To Employees Who Minister, Maria Ruwe

University of Cincinnati Law Review

No abstract provided.

Speaking Of Direct Democracy, Judicial Review Of State Ballot Initiative Laws Under The First Amendment, Trane J. Robinson

University of Cincinnati Law Review

No abstract provided.

Freedom Of Speech As A Right To Know, Tao Huang

University of Cincinnati Law Review

No abstract provided.

Preservation Requests And The Fourth Amendment, Armin Tadayon

Seattle University Law Review

Every day, Facebook, Twitter, Google, Amazon, ridesharing companies, and numerous other service providers copy users’ account information upon receiving a preservation request from the government. These requests are authorized under a relatively obscure subsection of the Stored Communications Act (SCA). The SCA is the federal statute that governs the disclosure of communications stored by third party service providers. Section 2703(f) of this statute authorizes the use of “f” or “preservation” letters, which enable the government to request that a service provider “take all necessary steps to preserve records and other evidence in its possession” while investigators seek valid legal process. …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Government Tweets, Government Speech: The First Amendment Implications Of Government Trolling, Douglas B. Mckechnie

Seattle University Law Review

President Trump has been accused of using @realDonaldTrump to troll his critics. While the President’s tweets are often attributed to his personal views, they raise important Constitutional questions. This article posits that @realDonaldTrump tweets are government speech and, where they troll government critics, they violate the Free Speech Clause. I begin the article with an exploration of President Trump’s use of @realDonaldTrump from his time as a private citizen to President. The article then chronicles the development of the government speech doctrine and the Supreme Court’s factors that differentiate private speech from government speech. I argue that, based on the …

Targeting The Texas Citizen Participation Act: The 2019 Texas Legislature's Amendments To A Most Consequential Law, Amy Bresnen, Lisa Kaufman, Steve Bresnen

St. Mary's Law Journal

Few Texas laws enacted in recent decades have had a greater impact on civil litigation or been more litigated than the Texas Citizen’s Participation Act (“TCPA”) passed in 2011. Despite its stated purpose of protecting First Amendment rights, as written, the TCPA’s seemingly limitless application confounded judges and litigants alike, causing the 86th Legislature in 2019 to pass sweeping changes to that law. The Article describes the original statute’s problematic nature, the caselaw interpreting it, and the recent changes’ legislative history and substance. The authors highlight contributions of key legislators and stakeholders. The Article’s extensive treatment of changes to key …

On Fosta And The Failures Of Punitive Speech Restrictions, Emily Morgan

Northwestern University Law Review

The Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) has provoked criticism from free-speech advocates, people involved in the commercial sex trade, everyday internet users, and scholars who deem the Act dangerous and ineffective. This Note helps to explain how such a controversial law came to be. Indeed, FOSTA is part of a legacy of failed attempts at reforming laws to comport with feminist goals—in this case, ending online sex trafficking and providing relief for sex-trafficking survivors, a group that consists largely of women and other marginalized people. But FOSTA, like its predecessors, fails to provide real …

The Fourth Amendment At Home, Thomas P. Crocker

Indiana Law Journal

A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due …

"Water Is Life!" (And Speech!): Death, Dissent, And Democracy In The Borderlands, Jason A. Cade

Indiana Law Journal

Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy "dissent," including blacklists, …

Weapons Of Mass Distortion: Applying The Principles Of The Fcc’S News Distortion Doctrine To Undisclosed Financial Conflicts Of Interest In Corporate News Media’S Military Coverage, Charles L. Bonani

Washington and Lee Journal of Civil Rights and Social Justice

This Note offers a new conception of news distortion in mass media. It explores the intentions behind the FCC’s News Distortion Doctrine and analyzes its primarily dormant status throughout its existence. This Note then examines televised media coverage of U.S. military actions and identifies undisclosed financial conflicts of interests throughout this coverage. In examining these undisclosed conflicts and the reasons behind them, this Note explains why they constitute news distortion under the FCC’s definition, and why the principles behind the Doctrine are implicated. This Note then proposes the FCC promulgate a disclosure rule to remedy the undisclosed financial conflicts of …

Reclaiming Access To Truth In Reproductive Healthcare After National Institute Of Family & Life Advocates V. Becerra, Diane Kee

Michigan Law Review

Crisis Pregnancy Centers (CPCs) are antiabortion organizations that seek to “intercept” people with unintended pregnancies to convince them to forego abortion. It is well documented that CPCs intentionally present themselves as medical professionals even when they lack licensure, while also providing medically inaccurate information on abortion. To combat the blatant deception committed by CPCs, California passed the Reproductive FACT Act in 2015. The Act required CPCs to post notices that disclosed their licensure status and informed potential clients that the state provided subsidized abortion and contraceptives. Soon after, CPCs brought First Amendment challenges to these disclosure requirements, claiming that the …

Foreseeably Uncertain: The (In)Ability Of School Officials To Reasonably Foresee Substantial Disruption To The School Environment, Maggie Geren

Arkansas Law Review

“Ms. Sarah Phelps is the worst teacher I’ve ever met.” While the name of this Facebook page is perhaps a bit harsh, most would hardly view it as grounds for school suspension. The very heart of the First Amendment, and indeed the notion for which our Framers drafted it, is the right of citizens to “think, speak, write and worship as they wish, not as the Government commands.” Without this fundamental freedom—one that has persevered despite countless efforts to narrow its reach—the American people would live in constant fear of backlash and suppression for merely voicing their opinions.

Freedom Of Expression Within The Schoolhouse Gate, Justin Driver

Arkansas Law Review

In the late 1960s, the Supreme Court began contemplating how the First Amendment’s commitment to “the freedom of speech” should protect the right of students to introduce their own ideas into the schoolhouse. This constitutional question extended well beyond the matter addressed in West Virginia State Board of Education v. Barnette, because that opinion—momentous though it was—held simply that students could refuse to recite the Pledge of Allegiance. But Barnette did not establish that students possessed an affirmative right to advance their own opinions, on topics of their own selection, much less in the face of school officials’ objections. The …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

It’S Whose Party? Accurately Defining Political Parties In First Amendment Cases, Makade Claypool

BYU Law Review

No abstract provided.

Visions Of The Republic Symposium: School Funding Under The Neutrality Principle: Notes On A Post-Espinoza Future, Aaron Saiger

Fordham Law Review Online

Based on current conditions, and for a variety of reasons, the best guess—and it is only a guess—is that common schooling might be forced to give way before a rigorously read First Amendment duty of the state to avoid preferring irreligion over religion. This need not signal the end of the Progressive educational vision, however. It will be possible for those committed to the values inherent in common schooling to regroup, reconsidering some of their positions in order to advance their core commitments.

Invasion Of The Content-Neutrality Rule, William D. Araiza

BYU Law Review

No abstract provided.

Pandora's Cake, Mark R. Killenbeck

Arkansas Law Review

Most of us are familiar with the spectre of Pandora's Box, the "present which seems valuable, but which in reality is a curse."' Robert Graves described Pandora as "the most beautiful [woman] ever created.",2 She was sent by Zeus as a gift to Epimetheus, who initially "respectfully" declined to marry her.3 But chastened by the fate of his brother Prometheus, he changed his mind and wed a women who was "as foolish, mischievous, and idle as she was beautiful.",4 She opened a jar that she and her husband had been "warned. .. to keep closed in which"5 Prometheus had "imprison[ed …