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Full-Text Articles in Law
Censorship By Proxy: The First Amendment, Internet Intermediaries, And The Problem Of The Weakest Link, Seth F. Kreimer
Censorship By Proxy: The First Amendment, Internet Intermediaries, And The Problem Of The Weakest Link, Seth F. Kreimer
All Faculty Scholarship
The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private actors …
Limited Powers In The Looking-Glass: Otiose Textualism, And An Empirical Analysis Of Other Approaches, When Activitists In Private Shopping Centers Claim State Constitutional Liberties, Richard J. Peltz-Steele
Limited Powers In The Looking-Glass: Otiose Textualism, And An Empirical Analysis Of Other Approaches, When Activitists In Private Shopping Centers Claim State Constitutional Liberties, Richard J. Peltz-Steele
Faculty Publications
This article examines closely a narrow range of highly factually analogous cases, in which state constitutional rights are asserted despite a clear lack of entitlement to assert any federal constitutional claim. Specifically, the cases selected are those in which private persons assert a right to conduct expressive activity, including electoral activity, in private shopping centers during hours when the properties are held open to the general public. These cases may be referred to colloquially as “the mall cases.” Selected here are only those which were decided after the federal question became clear. The Article first inquires into the role of …
Exploring The Myths About The Ninth Circuit, Stephen Wermiel
Exploring The Myths About The Ninth Circuit, Stephen Wermiel
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Introduction: Religion, Division, And The Constitution, Richard W. Garnett
Introduction: Religion, Division, And The Constitution, Richard W. Garnett
Journal Articles
Thirty-five years ago, in his landmark Lemon v. Kurtzman opinion, Chief Justice Warren Burger declared that state actions could "excessive[ly]"—and, therefore, unconstitutionally—"entangle" government and religion, not only by requiring or allowing intrusive monitoring by officials of religious institutions and activities, but also through their "divisive political potential." He worried that government actions burdened with this "potential" pose a "threat to the normal political process and "divert attention from the myriad issues and problems that confront every level of government." And, he insisted that "political division along religious lines was one of the principal evils against which the First Amendment was …
Religion, Division, And The First Amendment, Richard W. Garnett
Religion, Division, And The First Amendment, Richard W. Garnett
Journal Articles
Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that …
Out Of Thin Air: Using First Amendment Public Forum Analysis To Redeem American Broadcasting Regulation, Anthony E. Varona
Out Of Thin Air: Using First Amendment Public Forum Analysis To Redeem American Broadcasting Regulation, Anthony E. Varona
Articles in Law Reviews & Other Academic Journals
American television and radio broadcasters are uniquely privileged among Federal Communications Commission (FCC) licensees. Exalted as public trustees by the 1934 Communications Act, broadcasters pay virtually nothing for the use of their channels of public radiofrequency spectrum, unlike many other FCC licensees who have paid billions of dollars for similar digital spectrum. Congress envisioned a social contract of sorts between broadcast licensees and the communities they served. In exchange for their free licenses, broadcast stations were charged with providing a platform for a free marketplace of ideas that would cultivate a democratically engaged and enlightened citizenry through the broadcasting of …
Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun
Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun
Publications
No abstract provided.
The Law Of Yards, James C. Smith
The Law Of Yards, James C. Smith
Scholarly Works
Property law regimes have a significant impact on the ability of individuals to engage in freedom of expression. Some property rules advance freedom of expression, and other rules retard freedom of expression. This Article examines the inhibiting effects on expression of public land use regulations. The focus is on two types of aesthetic regulations: (1) landscape regulations, including weed ordinances, that regulate yards; and (2) architectural regulations that regulate the exterior appearance of houses. Such regulations sometimes go too far in curtailing a homeowner's freedom of expression. Property owners' expressive conduct should be recognized as “symbolic speech” under the First …
Intelligent Design And The First Amendment: A Response, Jay D. Wexler
Intelligent Design And The First Amendment: A Response, Jay D. Wexler
Faculty Scholarship
In September 2005, a federal district judge in Pennsylvania began presiding over the nation's first trial regarding the constitutionality of introducing the concept of "intelligent design" (ID), a purportedly scientific alternative to the theory of evolution, into the public schools. My previous work has argued that teaching ID in the public schools would raise serious constitutional problems. In a series of writings, including a full length book and several articles, Baylor University professor Francis Beckwith has argued that public schools may constitutionally teach ID. In doing so, Beckwith has critiqued a number of arguments I have previously advanced in my …
Market Triumphalism, Electoral Pathologies, And The Abiding Wisdom Of First Amendment Access Rights, Gregory P. Magarian
Market Triumphalism, Electoral Pathologies, And The Abiding Wisdom Of First Amendment Access Rights, Gregory P. Magarian
Scholarship@WashULaw
Forty years ago, Professor Jerome Barron made the classic case that the First Amendment requires not merely protection of speech against government interference but provision of access to the means of mass communication. The Supreme Court in the ensuing decades has largely rejected Barron's approach. In this article, Professor Magarian defends Barron's case for access rights against the two theoretical critiques that have underwritten its doctrinal rejection. The libertarian critique attacks the normative underpinnings of access rights, maintaining that the First Amendment insulates market-driven distributions of expressive opportunities. Professor Magarian demonstrates that politically progressive and conservative libertarian critics of access …
Book Review. The Supreme Court And Religion In American Life, Daniel O. Conkle
Book Review. The Supreme Court And Religion In American Life, Daniel O. Conkle
Articles by Maurer Faculty
No abstract provided.
Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene
Beyond Lawrence: Metaprivacy And Punishment, Jamal Greene
Faculty Scholarship
Lawrence v. Texas remains, after three years of precedential life, an opinion in search of a principle. It is both libertarian – Randy Barnett has called it the constitutionalization of John Stuart Mill's On Liberty – and communitarian – William Eskridge has described it as the gay rights movement's Brown v. Board of Education. It is simultaneously broad, in its evocation of our deepest spiritual commitments, and narrow, in its self-conscious attempts to avoid condemning laws against same-sex marriage, prostitution, and bestiality. This Article reconciles these competing claims on Lawrence's jurisprudential legacy. In Part I, it defends the …