Law Commons^™

The Costs Of Dissent: Protest And Civil Liabilities, Timothy Zick

Faculty Publications

This Article examines the civil costs and liabilities that apply to individuals who organize, participate in, and support protest activities. Costs ranging from permit fees to punitive damages significantly affect First Amendment speech, assembly, and petition rights. A variety of common law and statutory civil claims also apply to protest activities. Plaintiffs have recently filed a number of new civil actions negatively affecting protest, including "negligent protest," "aiding and abetting defamation," "riot boosting," "conspiracy to protest," and "tortious petitioning." The labels are suggestive of the threats these suits pose to First Amendment rights. All of these costs and liabilities add …

Candidate Privacy, Rebecca Green

Faculty Publications

In the United States, we have long accepted that candidates for public office who have voluntarily stepped into the public eye sacrifice claims to privacy. This refrain is rooted deep within the American enterprise, emanating from the Framers' concept of the informed citizen as a bedrock of democracy. Voters must have full information about candidates to make their choices at the ballot box. Even as privacy rights for ordinary citizens have expanded, privacy theorists and courts continue to exempt candidates from privacy protections. This Article suggests that two disruptions warrant revisiting the privacy interests of candidates. The first is a …

First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern

Faculty Publications

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …

Free Speech Idealism, Timothy Zick

Faculty Publications

No abstract provided.

Rights Dynamism, Timothy Zick

Faculty Publications

No abstract provided.

First Amendment Cosmopolitanism, Skepticism, And Democracy, Timothy Zick

Faculty Publications

This is a response to Professor Ronald J. Krotoszynski, Jr.’s review of my book, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties (Cambridge University Press, 2014). The response explains the basic principles of First Amendment cosmopolitanism and highlights the importance of the First Amendment’s transborder dimension. It also responds to skeptical and critical reactions to some of the book’s arguments. Finally, the response elaborates on First Amendment cosmopolitanism’s relationship to democratic values.

Rights Speech, Timothy Zick

Faculty Publications

Freedom of expression has a complex and dynamic relationship with a number of other constitutional rights, including abortion, the right to bear arms, equal protection, the franchise, and religious liberty. This Article discusses one aspect of that relationship. It critically analyzes the regulation of "rights speech" - communications about or concerning the recognition, scope, or exercise of constitutional rights. As illustrative examples, the Article focuses on regulation of speech about abortion and the Second Amendment right to bear arms. Governments frequently manage, structure, and limit how individuals discuss constitutional rights. For example, laws and regulations compel physicians to convey information …

The Supreme Court's Theory Of Private Law, Nathan B. Oman, Jason M. Solomon

Faculty Publications

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.

Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has …

Falsely Shouting Fire In A Global Theater: Emerging Complexities Of Transborder Expression, Timothy Zick

Faculty Publications

We have entered an era in which potentially harmful expression can be distributed around the world in an instant. In the emerging global theater, speakers and audiences are connected through new and proliferating media; communicative space and time are compressed to an extraordinary degree; domestic expression can implicate national security and foreign affairs concerns; and a new model of global information dissemination is developing in which speakers are sometimes located beyond the jurisdiction of nations that may be harmed by their communications and disclosures.

This Article examines the First Amendment complexities associated with the dissemination of potentially harmful information in …

The Law Of Reputation And The Interest Of The Audience, Laura A. Heymann

Faculty Publications

Although an individual has control over many of the statements, acts, and other biographical data points that are used to construct her reputation, she does not ultimately have control over the result of that reputational assessment, the pronouncement of which is a task reserved to others. Reputation is fundamentally a social concept; it does not exist until a community collectively forms a judgment about an individual or firm that has the potential to guide the community’s future interactions. Despite reputation’s relational nature, discussions of the law’s interest in reputation tend to focus on one of two parties: the individual or …

The First Amendment In Trans-Border Perspective: Toward A More Cosmopolitan Orientation, Timothy Zick

Faculty Publications

This Article examines the First Amendment’s critical trans-border dimension—its application to speech, association, press, and religious activities that cross or occur beyond territorial borders. Judicial and scholarly analysis of this aspect of the First Amendment has been limited, at least as compared to consideration of more domestic or purely local concerns. This Article identifies two basic orientations with respect to the First Amendment—the provincial and the cosmopolitan. The provincial orientation, which is the traditional account, generally views the First Amendment rather narrowly—i.e., as a collection of local liberties or a set of limitations on domestic governance. First Amendment provincialism does …

Religion In The Workplace: A Report On The Layers Of Relevant Law In The United States, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Public's Domain In Trademark Law: A First Amendment Theory Of The Consumer, Laura A. Heymann

Faculty Publications

No abstract provided.

"Duty-Defining Power" And The First Amendment's Civil Domain, Timothy Zick

Faculty Publications

In Rethinking Free Speech and Civil Liability,1 Daniel Solove and Neil Richards attempt something truly ambitious. The authors seek to map coherent boundaries for the First Amendment’s vast civil domain. Their project merits serious attention. Currently, different rules apply to civil liability for speech depending on whether the liability arises in tort, contract, or property. Solove and Richards claim that these boundaries are unworkable, under-theorized, and in some cases destined to collide. They develop a framework for mapping the First Amendment’s civil domain that is based upon a distinction regarding the type of power the state exercises in various civil …

Clouds, Cameras, And Computers: The First Amendment And Networked Public Places, Timothy Zick

Faculty Publications

It seems to be a common assumption that physical places like parks, sidewalks, and public squares, and "cyber-places" like the Web, constitute separate locations of communication. In reality, however, the intersection and collision of these two spaces is imminent. In some respects it has already occurred. Entire cities and counties are erecting wireless "clouds" that will bring the Internet to vast public spaces. Technologies of surveillance continue to proliferate. What one does and says in public places is increasingly subject to surveillance by means of a combination of hand-held devices and official surveillance tools like closed circuit television cameras (CCTV). …

Speech And Spatial Tactics, Timothy Zick

Faculty Publications

No abstract provided.

To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne

Faculty Publications

No abstract provided.

Peaches, Speech, And Clarence Thomas: Yes, California, There Is A Justice Who Understands The Ramifications Of Controlling Commercial Speech, Jennifer R. Franklin

Faculty Publications

No abstract provided.

Freedom Of Speech And The Flag Anti-Desecration Amendment: Antinomies Of Constitutional Choice, William W. Van Alstyne

Faculty Publications

No abstract provided.

Federal Funds To Religious Groups: Where Are The First Amendment Boundaries?, Neal Devins

Faculty Publications

No abstract provided.

What Is “An Establishment Of Religion?", William W. Van Alstyne

Faculty Publications

No abstract provided.

The Mobius Strip Of The First Amendment: Perspectives On Red Lion, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Hazards To The Press Of Claiming A “Preferred Position”, William W. Van Alstyne

Faculty Publications

No abstract provided.

Cracks In “The New Property”: Adjudicative Due Process In The Administrative State, William W. Van Alstyne

Faculty Publications

No abstract provided.

The Forum Of Conscience: Applying Standards Under The Free Exercise Clause, Paul Marcus

Faculty Publications

The 1973 Supreme Court decision in Wisconsin v. Yoder reenforced and amplified the Court's earlier holding in Sherbert v. Verner that the free exercise clause of the first amendment requires the state to render substantial deference to religiously motivated behavior in the application of its laws and regulatory schemes. In this article, Mr. Marcus traces the evolving standards of free exercise doctrine and observes that the "balancing test" which has resulted from that evolution requires still further refinement to give religious freedom its full constitutional due. The author then illustrates how the new standards of free exercise might be applied …

The Specific Theory Of Academic Freedom And The General Issue Of Civil Liberty, William W. Van Alstyne

Faculty Publications

Academic freedom has been blurred in law and in popular usage. Its clarification should enable the Supreme Court to grant it explicit protection under the Constitution as an identifiable subset of First Amendment freedoms. Its identification with the professional endeavors of faculty members, moreover, should reduce the tendency of institutions to intrude upon the aprofessional personal liberties of the faculty even while adequately protecting the extramural professional pursuits of the faculty and assuring them of equal protection in their interests as private citizens. Adjustments of standards by the American Association of University Professors, more definitely distinguishing the special accountability of …

The Constitutional Rights Of Public Employees: A Comment On The Inappropriate Uses Of An Old Analogy, William W. Van Alstyne

Faculty Publications

Beginning with Justice Douglass's assertion that the State is bound in the same ways when acting as an employer as it is when acting as a governing body, this examination delves deeper to determine how this doctrine actually limits the government when it acts as an employer. This article endorses the theory of examining these limits not in the context of if the government is allowed to enforce them in the public sphere, but if the government may mandate such limits in the private sphere.

The Demise Of The Right-Privilege Distinction In Constitutional Law, William W. Van Alstyne

Faculty Publications

The right-privilege distinction, as it appeared in an early statement by Justice Holmes, has long hampered individuals within the public sector in protecting themselves against arbitrary governmental action. In this article Professor Van Alstyne reviews the uses and misuses to which the "privilege" concept has been put and then examines those doctrines whose flanking attacks have gradually eroded its efficacy. But none of these doctrines comes to grips with Holmes' basic idea of a "privilege" to which substantive due process is inapplicable. Applying Holmes' own jurisprudence, the author argues that the concept of "privilege" is today no longer viable, and …

The First Amendment And The Suppression Of Warmongering Propaganda In The United States: Comments And Footnotes, William W. Van Alstyne

Faculty Publications

In an attempt to determine how the First Amendment may protect speakers’ rights to make inflammatory statements calling for violence against a sovereign, this article breaks down this larger question into three categories based on the speaker: the government, foreigners abroad, or American citizens.

Constitutional Separation Of Church And State: The Quest For A Coherent Position, William W. Van Alstyne

Faculty Publications

No abstract provided.