Law Commons^™

The Emerging First Amendment Law Of Managerial Prerogative, Lawrence Rosenthal

Lawrence Rosenthal

In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney’s office, were unprotected by the First Amendment because “his expressions were made pursuant to his duties. . . .” The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.

This article rejects the scholarly consensus …

Performing Art: National Endowment For The Arts V. Finley, Randall P. Bezanson

Federal Communications Law Journal

In this modified version of a chapter in his forthcoming book, ART AND FREEDOM OF SPEECH (Univ. of Illinois Press, 2008-09), Professor Bezanson begins to probe the nature of art and its relation to the first amendment free speech guarantee. The essay uses the Finley v. NEA case, and specifically its discussion of Finley's performance art, to critique the Supreme Court's very approach to the Finley case, and to view the issues from the perspective of art, artistic freedom, and the Supreme Court's role in fashioning constitutional protection for art as art, and not simply as cognitive speech.

The Terrorist Is A Star!: Regulating Media Coverage Of Publicity-Seeking Crimes, Michelle Ward Ghetti

Federal Communications Law Journal

Publicity-seeking crimes, including terrorism, almost by definition depend on the media for their effectiveness. Twenty-five years ago, when the bulk of this article was written, critics both within and outside the news industry had begun to voice an awareness, if not a concern, for the ease with which such criminals obtained publicity on both a national and international platform and it looked as if something might be done within the media establishments to thwart this manipulation of the press. Today, it is possible to look back and see that, in fact, nothing has been done and, so, individuals such as …

Antitrust Language Barriers: First Amendment Constraints On Defining An Antitrust Market By A Broadcast's Language, And Its Implications For Audiences, Competition, And Democracy, Catherine J.K. Sandoval

Federal Communications Law Journal

This Article explores whether the language of a broadcaster's program appropriately defines an antitrust market, consistent with First Amendment and antitrust principles. In its evaluation of the 2008 private equity buyout of Clear Channel Communications, the Department of Justice ("DOJ") defined the antitrust market by the language of the broadcast, as it had done for the 2003 merger of Univision and Hispanic Broadcasting Corporation. This Article uses social science research on Spanish and English-language radio and television to evaluate that decision. It argues that the distinct content and messages that characterize Spanish and English-language programming show that market definition is …

The First Amendment And The Legal Profession: Is Silence Golden?, Jan L. Jacobowitz Ms.

Jan L Jacobowitz

No abstract provided.

The First Amendment And The Legal Profession: Is Silence Golden?, Jan L. Jacobowitz Ms.

Jan L Jacobowitz

No abstract provided.

Confronting The Limits Of The First Amendment: A Proactive Approach For Media Defendants Facing Liability Abroad, Michelle A. Wyant

San Diego International Law Journal

This Article confronts the limits this issue imposes on the First Amendment in four parts. Part I described the potential for conflicting defamation laws and forum shopping to undermine the American media's speech protections in the context of the Internet and global publications and outlines the Article's overall method of analysis. Part II first orients these conflicting defamation laws with respect to their development from the common law. It then frames them in terms of the underlying structural and policy differences that have produced their substantive divergence. This frame provides the analytical perspective through which this Article examines the varying …

Digitus Impudicus: The Middle Finger And The Law, Ira Robbins

Articles in Law Reviews & Other Academic Journals

The middle finger is one of the most commonly used insulting gestures in the United States. The finger, which is used to convey a wide range of emotions, is visible on streets and highways, in schools, shopping malls, and sporting events, in courts and execution chambers, in advertisements and on magazine covers, and even on the hallowed floor of the United States Senate. Despite its ubiquity, however, as a number of recent cases demonstrate, those who use the middle finger in public run the risk of being stopped, arrested, prosecuted, fined, and even incarcerated under disorderly conduct or breach of …

Constitutional Law—First Amendment & Freedom Of Speech—Students May Be Regarded As Closed-Circuit Recipients Of The State's Anti Drug Message: The Supreme Court Creates A New Exception To The Tinker Student Speech Standard. Morse V. Frederick, 127 S. Ct. 2618 (2007), Megan D. Hargraves

University of Arkansas at Little Rock Law Review

This note argues that the Supreme Court's decision in Morse significantly weakens students' free speech rights. Although the Court stated that students "do not shed their constitutional rights at the school house gates," its decisions, in effect, weakens Tinker's important holding that students are entitled to First Amendment protection. The note asserts that the Court's opinion broadens schools' authority to regulate student speech in ways that are contrary to fundamental First Amendment values and explicitly allows schools to engage in highly suspect viewpoint discrimination.

The note first examines some of the fundamental First Amendment values at stake in student speech …

Toward A Rfra That Works, Nicholas Nugent

Vanderbilt Law Review

The history of the Supreme Court's First Amendment jurisprudence regarding the proper standard of protection for the free exercise of religion is complicated. In determining how the First Amendment speaks to situations in which generally applicable health, welfare, and safety laws incidentally or accidentally burden certain individuals' religious practices, the Court has vacillated between different standards and different extremes, overruling itself several times. Early on, the Court held that, provided the government did not interfere deliberately with religion for religious reasons, an inadvertent interference with religious practice raised no Free xercise Clause problem,' "no matter how trivial the state's nonreligious …

Digitus Impudicus: The Middle Finger And The Law, Ira P. Robbins

Ira P. Robbins

Hate Speech, C. Edwin Baker

All Faculty Scholarship

This paper describes the rationale that a full protection theory of free speech, a theory based on respect for individual autonomy, would give for protecting hate speech. The paper then notes that such a rationale will be unpersuasive to many (including this author) if the harms associated with a failure to outlaw hate speech are as great as often suggested – most dramatically, if the failure to prohibit makes a substantial contribution to the occurrence of serious racial/ethnic violence or genocide. The article then attempts to outline what empirical evidence would be needed to support this conclusion and gives reasons …

The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric Easton

All Faculty Scholarship

Today, media corporations and their professional and trade associations, along with organizations like Reporters Committee for Freedom of the Press and the American Civil Liberties Union, carefully monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. It was not always so. Litigation by an institutional press to avoid or create doctrinal precedent under the First Amendment really began with the appointment of Col. Robert R. McCormick to head the ANPA's Committee on Freedom of the Press in the spring of 1928 and his involvement in Near v. Minnesota beginning that fall. Because of McCormick's …

Reassessing Turner And Litigating The Must-Carry Law Beyond A Facial Challenge, R. Matthew Warner

Federal Communications Law Journal

In recent decades, the must-carry rules have had a troubled constitutional history. After two sets of rules were struck down by the D.C. Circuit for violating the First Amendment rights of both cable programmers and operators, Congress revised the must-carry rules in the 1992 Cable Act. In 1997, the Supreme Court, in a 5-4 decision, determined that the congressional must-carry law was facially constitutional. However, does the Turner II decision preclude further First Amendment challenges to the must-carry law? This Note argues that the answer is no and that the time is drawing near for new challenges.

Shibboleths And Ceballos: Eroding Constitutional Rights Through Pseudocommunication, Susan Stuart

Law Faculty Publications

Recently, the Supreme Court rendered an inexplicable First Amendment decision that has far-reaching effects on the way government is held accountable to the public. In Garcetti v. Ceballos, the Court determined that a government employer can retaliate against an employee for doing his job correctly, notwithstanding the Constitution, so long as the employer targets speech that was part of the employee’s official duties. Inasmuch as government employees are often responsible for reporting government misconduct and other matters of public concern, this opinion essentially leaves the public unprotected from the unbridled discretion of government supervisors. The possible motivations for this …

Citizen Teacher: Damned If You Do, Damned If You Don't, Susan P. Stuart

Law Faculty Publications

The recent Supreme Court case of Garcetti v. Ceballos is becoming one of the most-used cases in its mere two-year history. It denies to public employees the protection of the First Amendment when speaking in their official duties. In reviewing the cases both leading up to and then relying oh Garcetti, one is struck by the inherent conflict that nowpermeates some school board-employee relationships. Whereas preceding cases attempted to reach a balance between the school board and its employees' speech rights, bad management practices now seem to trump the First Amendment. Such practices have school boards discharging teachers and …

Academic Freedom And The Post-Garcetti Blues, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

Silence At The Schoolhouse Gate: The Diminishing First Amendment Rights Of Public School Employees, Neal H. Hutchens

Kentucky Law Journal

No abstract provided.

Grounding Cyberspeech: Public Schools' Authority To Discipline Students For Internet Activity, Sarah O. Cronan

Kentucky Law Journal

No abstract provided.

Where's The Harm?: Free Speech And The Regulation Of Lies, Lyrissa Lidsky

Faculty Publications

The United States Supreme Court has interpreted the First Amendment to accord a measure of protection to outright lies. This essay seeks to explain why. Using Holocaust denial as an example of verifiably false speech, this essay poses the question of whether such speech poses a more serious danger than First Amendment jurisprudence traditionally has acknowledged. This essay also probes the unintended consequences of governmental attempts to impose criminal punishment on lies.

Freedom Of Religion, Avihay Dorfman

Avihay Dorfman

Why it is that the principle of freedom of religion, rather than a more general principle such as liberty or liberty of conscience, figures so prominently in our lived experience and, in particular, in the constitutional commitment to the free exercise of religion? The Paper argues, negatively, that the most prominent answers offered thus far fall short; and positively, that the principle of freedom of religion arises out of a thicker understanding of the much neglected relationship between religious liberty and democracy. Indeed, a proper account of the legitimacy of the democratic process, I argue, dissolves the mystery surrounding freedom …

Constitutional Law And Values—Version ’08 (Not Necessarily An Upgrade), Nadine Strossen

NYLS Law Review

No abstract provided.

Where's The Harm?: Free Speech And The Regulation Of Lies, Lyrissa Barnett Lidsky

UF Law Faculty Publications

False factual information has no First Amendment value, and yet the United States Supreme Court has accorded lies a measure of First Amendment protection. The First Amendment imposes something in the nature of a presumption against government interference in public discourse. This presumption is rooted in suspicion of the State's ability to distinguish facts from falsehoods as well as its motives for doing so. However, the presumption against regulation of false speech is not absolute. It can be overcome when verifiably false speech poses a direct threat of harm to individual interests. Unlike other countries, the United States has never …

Opinionated Software, Meiring De Villiers

Vanderbilt Journal of Entertainment & Technology Law

Information security is an important and urgent priority in the computer systems of corporations, governments, and private users. Malevolent software, such as computer viruses and worms, constantly threatens the confidentiality, integrity, and availability of digital information. Virus detection software announces the presence of a virus in a program by issuing a virus alert. A virus alert presents two conflicting legal issues. A virus alert, as a statement on an issue of great public concern, merits protection under the First Amendment. The reputational interest of a plaintiff disparaged by a virus alert, on the other hand, merits protection under the law …

Government Workers And Government Speech, Helen Norton

Publications

This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …

Do Churches Matter? Towards An Institutional Understanding Of The Religion Clauses, Richard W. Garnett

Journal Articles

In recent years, several prominent scholars have called attention to the importance and role of First Amendment institutions and there is a growing body of work informed by an appreciation for what Professor Balkin calls the infrastructure of free expression. The freedom of expression, he suggests, requires more than mere absence of government censorship or prohibition to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it]. The intuition animating this scholarship, then, is that the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of, certain …

Student Speech: The Enduring Greatness Of Tinker, Jamin B. Raskin

Articles in Law Reviews & Other Academic Journals

The Supreme Court's decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), did for the ideal of freedom in America's public schools what Brown v. Board of Education, 347 U.S. 483 (1954), did for the ideal of equality. It made a core value of the Bill of Rights spring to life for young people facing unjust policies and authoritarian treatment at the hands of adult officials in local school systems. In his remarkable opinion for the majority, Justice Abe Fortas upheld thirteen-year-old Mary Beth Tinker's First Amendment right to wear a black antiwar armband to …

Creating Masculine Identities: Bullying And Harassment "Because Of Sex", Ann C. Mcginley

University of Colorado Law Review

This Article deals with group harassment of women and men in the workplace under Title VII of the 1964 Civil Rights Act. In Oncale v. Sundowner Offshore Services, the Supreme Court held that Title VII forbids harassment by members of the same sex, but it also emphasized that Title VII is implicated only if the harassment occurs "because of sex." Oncale's "because of sex" requirement has spawned considerable confusion in same-sex and different sex harassment cases. This Article focuses on four fact patterns that confuse courts, scholars, and employment lawyers. In the first scenario, men harass women in traditionally male …

Whither The Pickering Rights Of Federal Employees?, Paul M. Secunda

University of Colorado Law Review

As a result of the Supreme Court's 1983 decision in Bush v. Lucas, federal employees are not permitted to bring Bivens constitutional tort claims directly to federal court to vindicate their First Amendment rights to free speech under Pickering v. Board of Education. Instead, the Bush Court found that Congress had established an effective, alternative statutory scheme for vindication of such claims under the Civil Service Reform Act of 1978. This places federal employees in a less favorable predicament than their state and local employee counterparts who are able to directly proceed to court on their First Amendment retaliation claims …

Symbolic Speech: A Message From Mind To Mind, James M. Mcgoldrick Jr.

Oklahoma Law Review

No abstract provided.