Law Commons^™

Deed Of Mistrust?: The Use Of Land Transfers To Evade The Establishment Clause, David C. Peet

American University Law Review

No abstract provided.

Dobbey V. Illinois Department Of Corrections: A Small Piece Of A Growing Policy Puzzle, Ashley M. Belich

Seventh Circuit Review

The First Amendment right to petition is deeply intertwined with the other liberties offered by the Bill of Rights. However, the right to petition is still rarely analyzed in the legal world. This already difficult topic has become even more muddled in the prison system. Although the Prison Litigation Reform Act sought both to help prisoners and reduce the abundance of inmate lawsuits, inmate grievance processes actually suffocate the right to petition in prisons, sometimes going so far as to create a culture that offers barely any First Amendment protection. The Seventh Circuit's decision in Dobbey v. Illinois Dept. of …

Prisoners And Public Employees: Bridges To A New Future In Prisoners' Free Speech Retaliation Claims, Matthew D. Rose

Seventh Circuit Review

In Bridges v. Gilbert, the Seventh Circuit considered the question of whether prisoners' free speech, like the free speech of public employees, must involve a matter of public concern to receive First Amendment protection against governmental retaliation. Instead of holding that a prisoner's speech must involve a matter of public concern, the Seventh Circuit drew on the Supreme Court's unexamined and indeterminate test in Pell v. Procunier to hold that prisoners retained those free speech rights not inconsistent with their status as a prisoner or the legitimate penological objectives of the corrections system. This Comment traces the evolution of …

Speech Regulation: Why An Injunction Should Be Permissible Under Workplace Discrimination But Is Problematic Under Defamation, Sarah Shyr

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Feminist Theory And Freedom Of Speech, Free Speech Theory, Susan H. Williams

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Free Speech And National Security, Geoffrey R. Stone

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

The Categorical Approach To Protecting Speech In American Constitutional Law, Daniel A. Farber

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

The United States Supreme Court And The Freedom Of Expression, Elisabeth Zoller

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

The First Amendment And Commercial Speech, C. Edwin Baker

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Foreword: Freedom Of Expression: "Precious Right" In Europe, "Sacred Right" In The United States?, Elisabeth Zoller

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Restraining The Heartless: Racist Speech And Minority Rights, Jeannine Bell

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.

Beyond Content Neutrality: Understanding Content-Based Promotion Of Democratic Speech, Marvin Ammori

Federal Communications Law Journal

Scholars and judges generally assume that the cornerstone of free speech doctrine is the distinction between content-based and content-neutral laws. Despite its wide acceptance, the distinction lacks any precedential or normative basis, unless it also accounts for another equally important distinction. The scholars' conventional view of content-analysis overlooks the difference between the government banning a book or recommending it. Content-based laws that suppress specific content, like banning a television show, should be problematic, but content-based laws that promote specific content, such as promoting educational and political shows, should not be.

Precedent and the First Amendment's underlying normative concerns both require …

Symposium: The Civil Rights Roots Of Tinker's Disruption Tests, Kristi L. Bowman

American University Law Review

This past spring marked the fortieth anniversary of Tinker v. Des Moines Independent Community School District, the landmark student speech case in which the Supreme Court held that three students were protected by the First Amendment when they wore black armbands in their Des Moines, Iowa public schools to protest the Vietnam War. Looking at Supreme Court precedent alone, it would seem as though the Tinker tests were created out of whole cloth: the substantial or material disruption, reasonable anticipation of such disruption, and rights of others tests did not have much of a basis in earlier Supreme Court decisions. …

Symposium: Tinker's Midlife Crisis: Tattered And Transgressed But Still Standing, Clay Calvert

American University Law Review

This article examines the erosion of the strength of the Supreme Court’s 1969 opinion in Tinker v. Des Moines Independent Community School District. Indicators of decline range from Justice Thomas’ stunning call in Morse v. Frederick for overruling Tinker to recent lower-court opinions using Tinker to censor off-campus expression posted on the Internet. The article explores possible reasons for the decline and abuse of Tinker and it makes suggestions for its reinvigoration. Part I highlights and analyzes other indicators of the erosion, decline, and abuse of Tinker. Part II then explores some possible reasons and explanations for the midlife crisis …

Symposium: Foot In The Door - The Unwitting Move Towards A New Student Welfare Standard In Student Speech After Morse V. Frederick, Francisco M. Negron, Jr.

American University Law Review

This article discusses an emerging legal trend that may expand schools’ abilities to protect their students. It focuses on Morse v. Frederick, a 2007 decision popularly known as the “Bong Hits 4 Jesus” case in which the court held that a school principal may restrict student speech that can be reasonably viewed as promoting illegal drug use. Negron argues that when read together, the majority opinion and Justice Alito and Justice Kennedy’s concurring opinion, permit schools to regulate student expression that may threaten student welfare. Justices Alito and Kennedy sought to limit the majority’s holding to speech involving illegal drug …

Symposium: Tinker At Forty: Defending The Right Of High School Students To Wear Controversial Religious And Pro-Life Clothing, Jay Alan Sekulow, Erik M. Zimmerman

American University Law Review

This Article argues for broad First Amendment protection for “controversial” religious and pro-life student expression. The vast majority of religious and pro-life clothing is no more likely to create an actual disturbance that substantially disrupts school functions than a peace armband worn during Vietnam, the student expression upheld in the seminal case of Tinker v. Des Moines Independent Community School District. Section I of this Article discusses several Supreme Court student speech cases with an emphasis on their applicability to situations involving high school students who wear “controversial” religious and pro-life clothing. This section argues that Tinker’s substantial disruption test—not …

Symposium: Shrinking Tinker: Students Are Persons Under Our Constitution - Except When They Aren't , Frank D. Lomonte

American University Law Review

The central proposition of this Article is that the school/student relationship is a distinctive one, and that student speakers on school property stand in a fundamentally different posture than do pamphleteers on the public sidewalk. This unique relationship has been recognized by the courts, but only selectively, where the uniqueness works to the disadvantage of the speaker. It is time that courts acknowledge that, because students are “captive” in school for the best hours of their day, and because students have a legally enforceable right to be on school grounds for purposes that expressly include the exchange of ideas, student …

Symposium: Oiling The Schoolhouse Gate: After Forty Years Of Tinkering With Teachers' First Amendment Rights, Time For A New Beginning , Alexander Wohl

American University Law Review

This Article will examine how (and how far) we have fallen from the legal precedent and educational principles behind Tinker, specifically the increasingly remote standards courts have used to chip away (and sometimes sledgehammer) the speech rights of teachers. To this end, the Article will consider some of the unique and fundamental characteristics associated with a profession that has at its core the mission of encouraging speech, raising questions, and teaching the ability to think—in short, “expressive activities.” It will also look at how the increasingly restrictive standards do not reflect fully the challenges posed by the advent of new …

Establishment And Exclusion: Why The Protection Of The First Amendment’S Establishment Clause Should Be Applied To Adults, Daren C. Rich

Saint Louis University Public Law Review

No abstract provided.

Yellow Snow On Sacred Sites: A Failed Application Of The Religious Freedom Restoration Act, Joshua A. Edwards

American Indian Law Review

No abstract provided.

Compelled Speech Under The Commercial Speech Doctrine: The Case Of Menu Label Laws, Jennifer L. Pomeranz

Journal of Health Care Law and Policy

No abstract provided.

In The Matter Of Ottinger V. Non-Party The Journal News, Daniel Haier

NYLS Law Review

No abstract provided.

Symposium: No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision , Jamin B. Raskin

American University Law Review

The Supreme Court's decision in Tinker v. Des Moines Independent Community School District forty years ago did for the ideal of expressive freedom in America's public schools what Brown v. Board of Education did for the ideal of racial equality. It made a core value of the Bill of Rights spring to life for young people facing authoritarian treatment at the hands of adult officials running their school systems. By privileging the right of students to engage in passionate political communication over the school's interest in maintaining discipline or the community’s interest in maintaining pro-war consensus, the Tinker decision was …

Combating Incitement To Terrorism On The Internet: Comparative Approaches In The United States And United Kingdom And The Need For An International Solution, Elizabeth M. Renieris

Vanderbilt Journal of Entertainment & Technology Law

In recent years, terrorist use of the Internet has been gaining in popularity, with more than several thousand radical or extremist websites in existence today. Because the Internet transcends physical and geographic boundaries, combating terrorist incitement on the Internet requires cross-border global cooperation. Although the international community has taken steps to combat the problem with United Nations Security Council Resolutions 1373 and 1624, the state parties to these resolutions have been unable to close the significant holes in the current international legal framework, and there is little evidence that terrorist use of the Internet for purposes of incitement is being …

Skirting The Line: Restricting Online Pedophilic Guides Within The Confines Of The First Amendment, Danielle M. Cross

Seattle University Law Review

This Comment argues that parents should not be left to self-help remedies to combat pedophiles in public locations. Part II of this Comment explores the psychological make-up of a pedophile by introducing the diagnostic criteria of pedophilia and by examining lengths to which pedophiles will go to find children. This Part also describes the danger created by websites with seemingly innocuous images and writings, explaining how these websites enable and validate pedophilia. Then, Parts III and IV tackle the issue on two fronts, through state action and federal congressional action, respectively. Part III describes and discusses the SSA, a recent …

Strings Attached: An Analysis Of The Eruv Under The Religion Clauses Of The First Amendment And The Religious Land Use And Institutionalized Persons Act, Alexandra Lang Susman

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Jewish Women Under Siege: The Fight For Survival On The Front Lines Of Love And The Law, Adam H. Koblenz

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Son Of Sam And Dog Of Sam: Regulating Depictions Of Animal Cruelty Through The Use Of Criminal Anti-Profit Statutes, Emma Ricaurte

Animal Law Review

In 1991, Congress enacted 18 U.S.C. § 48, which prohibits the interstate sale and distribution of depictions of animal cruelty, in response to the proliferation of animal “crush videos” on the Internet. In 2008, the Third Circuit, in United States v. Stevens, a case involving dog fighting, held that the law was an unconstitutional restriction on free speech. In April of 2009, the Supreme Court of the United States granted certiorari. Discussions about the regulation of depictions of animal cruelty have largely focused on whether the child pornography or obscenity exceptions to the First Amendment should be extended to include …

The Case For The Third-Party Doctrine, Orin S. Kerr

Michigan Law Review

This Article offers a defense of the Fourth Amendment's third party doctrine, the controversial rule that information loses Fourth Amendment protection when it is knowingly revealed to a third party. Fourth Amendment scholars have repeatedly attacked the rule on the ground that it is unpersuasive on its face and gives the government too much power This Article responds that critics have overlooked the benefits of the rule and have overstated its weaknesses. The third-party doctrine serves two critical functions. First, the doctrine ensures the technological neutrality of the Fourth Amendment. It corrects for the substitution effect of third parties that …

Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz

St. Mary's Law Journal

The Establishment Clause crisis exists due to the Supreme Court’s promise that America would have a secular government—meaning one which was neutral between religion and irreligion, as well as being neutral to all religions. This promise evolved pursuant to the Supreme Court’s interpretation of the Establishment Clause. Nevertheless, the commitment to neutrality was never carried to fulfillment by the Court. The crisis may be illustrated by Congress’ addition of the words “under God” to the Pledge of Allegiance in 1954. This addition seemed to violate the promise of neutrality made by the Supreme Court in Everson v. Board of Education …