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Articles 1 - 30 of 38
Full-Text Articles in Law
Public Corruption Concerns And Counter-Majoritarian Democracy Definition In Citizens United V. Federal Election Commission, Daaron Kimmel
Public Corruption Concerns And Counter-Majoritarian Democracy Definition In Citizens United V. Federal Election Commission, Daaron Kimmel
Chicago-Kent Law Review
In determining the shape of the free speech rights and anti-corruption concerns that courts must balance in campaign finance cases, judges are influenced by their own underlying understandings of what an ideal democracy should look like. For judges to decide whether the government is appropriately regulating the political process, the rules that allow all citizens to interact with and shape their democracy, judges must first decide what that democracy ought to look like. This affords judges a great deal of discretion in campaign finance cases. Citizens United v. Federal Election Commission is a particularly bold judicial attempt to reshape the …
A Submission To The Senate Legal And Constitutional Committee On The Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (Cth), Matthew Rimmer
A Submission To The Senate Legal And Constitutional Committee On The Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (Cth), Matthew Rimmer
Matthew Rimmer
As an intellectual property expert, I am of the view that the much threatened litigation by the Tobacco Industry against the proposed plain packaging for tobacco products is somewhat vexatious.Both the Tobacco Plain Packaging Bill 2011 (Cth) and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (Cth) are clearly within the Commonwealth's legislative power and capacity; and represent an effective means of implementing some of Australia's obligations under the WHO Framework Convention on Tobacco Control.At the outset, it is worth recalling that internal documents from British American Tobacco emphasized that 'current conventions & treaties afford little protection' for tobacco …
First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz
First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Purpose And Effects: Viewpoint-Discriminatory Closure Of A Designated Public Forum, Kerry L. Monroe
Purpose And Effects: Viewpoint-Discriminatory Closure Of A Designated Public Forum, Kerry L. Monroe
University of Michigan Journal of Law Reform
In early 2010, amidst a series of racially charged incidents on campus, the student government president at the University of California at San Diego revoked funding to all student media organizations in response to controversial speech on the student-run television station. It is well established that once the government has opened a forum, including a "metaphysical" forum constituted by government funding for private speech, it may not discriminate based on the viewpoints expressed within that forum. However, it has not been clearly established whether the government may close such a forum for a viewpoint-discriminatory purpose. This Note argues that courts …
Emphasizing Substance: Making The Case For A Shift In Political Speech Jurisprudence, Anastasia N. Niedrich
Emphasizing Substance: Making The Case For A Shift In Political Speech Jurisprudence, Anastasia N. Niedrich
University of Michigan Journal of Law Reform
Political speech is vital to a functioning democracy and is highly protected. That much is hardly disputed. What courts, legal scholars, and those seeking to convey a political message do dispute is how political speech should be identified and protected, and who should decide what constitutes political speech. This Note looks at the history of political speech doctrine and critiques two intent-based approaches that have been proposed by First Amendment scholars to define political speech. This Note proposes a solution to many problems inherent in defining, identifying, and protecting political speech within intent-based frameworks, arguing that focusing on intent creates …
Myspace, Yourspace, But Not Theirspace: The Constitutionality Of Banning Sex Offenders From Social Networking Sites, Jasmine S. Wynton
Myspace, Yourspace, But Not Theirspace: The Constitutionality Of Banning Sex Offenders From Social Networking Sites, Jasmine S. Wynton
Duke Law Journal
In recent years there has been intense public pressure to enact increasingly restrictive and intrusive sex offender laws. The regulation of sex offenders has now moved online, where a growing amount of protected expression and activity occurs. The latest trend in sex offender policy has been the passage of state laws prohibiting sex offenders from visiting social networking sites, such as Myspace or Facebook. The use of these websites implicates the First Amendment right of expressive association. Broad social-networking-site bans threaten the First Amendment expressive association rights of sex offenders, who do not lose all of their constitutional rights by …
Transmitting, Editing, And Communicating: Determining What “The Freedom Of Speech” Encompasses, Stuart Minor Benjamin
Transmitting, Editing, And Communicating: Determining What “The Freedom Of Speech” Encompasses, Stuart Minor Benjamin
Duke Law Journal
How much can one say with confidence about what constitutes "the freedom of speech" that Congress shall not abridge? In this Article, I address that question in the context of the transmission of speech specifically, the regulation of Internet access known as net neutrality. This question has implications both for the future of economic regulation, as more and more activity involves the transmission of bits, and for First Amendment interpretation. As for the latter, the question is what a lawyer or judge can conclude without having to choose among competing conceptions of speech. How far can a basic legal toolkit …
Hate Speech On Campus And The First Amendment: Can They Be Reconciled?, Thomas Schweitzer
Hate Speech On Campus And The First Amendment: Can They Be Reconciled?, Thomas Schweitzer
Thomas A. Schweitzer
No abstract provided.
The Marginality Of Citizens United, Michael C. Dorf
The Marginality Of Citizens United, Michael C. Dorf
Cornell Law Faculty Publications
No abstract provided.
The Canadian Criminal Jury, Regina Schuller, Neil Vidmar
The Canadian Criminal Jury, Regina Schuller, Neil Vidmar
Chicago-Kent Law Review
The Canadian criminal jury system has some unique characteristics. In contrast to American law, that gives precedent to free speech over fair trial, and English law, that favors fair trial over free speech, Canadian law occupies a middle ground balancing these competing values. Jury selection procedure in most trials is similar to that of England: jurors are assumed to be "impartial between the Queen and the accused" and are selected without voir dire. However, in cases involving exceptional pretrial publicity or involving accused persons from racial or ethnic minority groups, jurors are vetted by a "challenge for cause" process in …
Regulating The Marketplaces Of Political And Economic Ideas, Christopher S. Ford
Regulating The Marketplaces Of Political And Economic Ideas, Christopher S. Ford
Christopher S Ford
Ever since Justice Holmes’ famous dissent in Abrams v. United States, First Amendment jurisprudence has labored under the metaphor of a ‘marketplace of ideas.’ The government must abstain from regulating this market, courts and commentators have argued, to best ensure healthy and free competition among ideas. The Supreme Court has frequently relied on this metaphor when evaluating claims under the First Amendment, and did so prominently when deciding the recent case of Citizens United v. F.E.C. Yet the sweeping majority opinion by Justice Kennedy and strident dissent by Justice Stevens advance two fundamentally different ideas of how the marketplace of …
Attorney Advice And The First Amendment, Renee Newman Knake
Attorney Advice And The First Amendment, Renee Newman Knake
Washington and Lee Law Review
An attorney’s advice for navigating and, when necessary, challenging the law is essential to American democracy. Yet the constitutional protection afforded to this category of speech is not clear; indeed, some question whether it should be protected at all. While legal ethics scholars have addressed attorney speech in other circumstances, none has focused exclusively on the First Amendment protection for attorney advice, particularly in light of the Supreme Court’s recent attention to the matter. Nor have constitutional law scholars given this issue the attention it deserves, though they acknowledge that it presents an important and unresolved question within First Amendment …
“There Is Something Unique … About The Government Funding Of The Arts For First Amendment Purposes”: An Institutional Approach To Granting Government Entities Free Speech Rights, Leslie Cooper Mahaffey
“There Is Something Unique … About The Government Funding Of The Arts For First Amendment Purposes”: An Institutional Approach To Granting Government Entities Free Speech Rights, Leslie Cooper Mahaffey
Duke Law Journal
The common understanding of the First Amendment is that its purpose is primarily libertarian, serving to protect private citizens' expression from government censorship. In the modern era, however, the government's pervasive presence-especially in the role of funder of private activity-has blurred the lines between governmental and private speech. Further, the relatively new, increasingly influential government speech doctrine-which dictates that the government will not be subjected to First Amendment scrutiny when it is engaging in communication-has been the Supreme Court's guidepost of late when the Court has been confronted with a case involving expression with both private and public elements. The …
Justice Samuel A. Alito's Lonely War Against Abhorrent, Low-Value, Clay Calvert
Justice Samuel A. Alito's Lonely War Against Abhorrent, Low-Value, Clay Calvert
Hofstra Law Review
No abstract provided.
The Marginality Of Citizens United, Michael C. Dorf
The Marginality Of Citizens United, Michael C. Dorf
Cornell Journal of Law and Public Policy
No abstract provided.
Incendiary Speech And Social Media, Lyrissa Lidsky
Incendiary Speech And Social Media, Lyrissa Lidsky
Faculty Publications
Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …
Tango Or More - From California's Lesson 9 To The Constitutionality Of A Gay-Friendly Curriculum In Public Elementary Schools, Amy Lai
Michigan Journal of Gender & Law
In August 2009, a group of parents in California filed a lawsuit, Balde v. Alameda Unified School District, in the Superior Court of California, County of Alameda. They alleged that the Alameda Unified School District refused them the right to excuse their children from a new curriculum, Lesson 9, that would teach public elementary school children about gay, lesbian, bisexual and transgender (GLBT) families. The proposed curriculum included short sessions about GLBT people, incorporated into more general lessons about family and health, once a year from kindergarten through fifth grade. Kindergarteners would learn the harms of teasing, while fifth graders …
Money Talks But It Isn't Speech, Deborah Hellman
Money Talks But It Isn't Speech, Deborah Hellman
Faculty Scholarship
This Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the grounds that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these …
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
Journal Articles
This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how …
First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal
First Amendment Investigations And The Inescapable Pragmatism Of The Common Law Of Free Speech, Lawrence Rosenthal
Indiana Law Journal
No abstract provided.
How To Create International Law: The Case Of Internet Freedom In China, Katherine Tsai
How To Create International Law: The Case Of Internet Freedom In China, Katherine Tsai
Duke Journal of Comparative & International Law
No abstract provided.
The Overhyped Path From Tinker To Morse: How The Student Speech Cases Show The Limits Of Supreme Court Decisions--For The Law And For The Litigants, Scott A. Moss
Publications
Each of the Supreme Court's high school student speech cases reflected the social angst of its era. In 1965's Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam War. In 1983, amidst parental and political upset about youth exposure to sexuality in the media, Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier allowed the censorship of an innuendo-filled student government speech and a school newspaper article on teen pregnancy and parental divorce. In 2007, Morse v. Frederick paralleled the rise of reality television …
Shouting "Fire!" In A Theater And Vilifying Corn Dealers, Vincent A. Blasi
Shouting "Fire!" In A Theater And Vilifying Corn Dealers, Vincent A. Blasi
Faculty Scholarship
Five years ago, Fred Schauer published an article with the intriguing title: "Do Cases Make Bad Law?" Playing off Holmes' observation that "[g]reat cases like hard cases make bad law," Schauer explored the possibility, as he put it, that "it is not just great cases and hard cases that make bad law, but simply the deciding of cases that makes bad law.” His concern, confirmed and deepened by his characteristically balanced inquiry, was that general principles forged in the resolution of specific legal disputes can suffer by virtue of that provenance. Because such principles by definition are meant to carry …
Nearly Toothless: Why The Speech Act Is Mostly Bark, With Little Bite, Elizabeth J. Elias
Nearly Toothless: Why The Speech Act Is Mostly Bark, With Little Bite, Elizabeth J. Elias
Hofstra Law Review
No abstract provided.
Invested In Politics: Gun Jumping, Corporate Political Speech, And Citizens United, Alexander F.L. Sand
Invested In Politics: Gun Jumping, Corporate Political Speech, And Citizens United, Alexander F.L. Sand
Hofstra Law Review
No abstract provided.
Free Speech And Autonomy: Thinkers, Storytellers, And A Systemic Approach To Speech, Susan H. Williams
Free Speech And Autonomy: Thinkers, Storytellers, And A Systemic Approach To Speech, Susan H. Williams
Articles by Maurer Faculty
No abstract provided.
Democracy, Freedom Of Speech, And Feminist Theory: A Response To Post And Weinstein, Susan H. Williams
Democracy, Freedom Of Speech, And Feminist Theory: A Response To Post And Weinstein, Susan H. Williams
Articles by Maurer Faculty
No abstract provided.
The End Of Indecency - The Second Circuit Invalidates The Fcc's Indecency Policy In Fox Televisions Stations, Inc. V. Fcc, John V. O'Grady
The End Of Indecency - The Second Circuit Invalidates The Fcc's Indecency Policy In Fox Televisions Stations, Inc. V. Fcc, John V. O'Grady
Jeffrey S. Moorad Sports Law Journal
No abstract provided.
Unwilling Avatars: Idealism And Discrimination In Cyberspace, Mary Anne Franks
Unwilling Avatars: Idealism And Discrimination In Cyberspace, Mary Anne Franks
Articles
No abstract provided.
Crisis In The Legal Profession: Don’T Mourn, Organize!, Michael E. Tigar
Crisis In The Legal Profession: Don’T Mourn, Organize!, Michael E. Tigar
Faculty Scholarship
No abstract provided.