Law Commons^™

Drone Federalism: Civilian Drones And The Things They Carry, Margot E. Kaminski

Publications

Civilian drones are scheduled to be permitted in the national airspace as early as 2015. Many think Congress should establish the necessary nationwide regulations to govern both law enforcement and civilian drone use. That thinking, however, is wrong. This Essay suggests drone federalism instead: a state-based approach to privacy regulation that governs drone use by civilians, drawing on states’ experience regulating other forms of civilian-on-civilian surveillance. This approach will allow necessary experimentation in how to best balance privacy concerns against First Amendment rights in the imminent era of drone-use democratization. This Essay closes by providing some guidance to states as …

To Drink The Cup Of Fury: Funeral Picketing, Public Discourse And The First Amendment, Steven J. Heyman

All Faculty Scholarship

In Snyder v. Phelps, the Supreme Court held that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a position that has become increasingly prevalent in First Amendment jurisprudence – the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. In this Article, I argue that this view is deeply problematic for two reasons: it unduly sacrifices the value of individual personality and it tends to undermine the sphere of public discourse itself by negating the practical and …

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Lidsky

Faculty Publications

Public colleges and universities increasingly are using Facebook, Second Life, YouTube, Twitter, and other social media communications tools. Yet public colleges and universities are government actors, and their creation and maintenance of social media sites or forums create difficult constitutional and administrative challenges. Our separate experiences, both theoretical and practical, have convinced us of the value of providing guidance for public higher education institutions wishing to engage with their constituents-including prospective, current, and former students and many others-through social media.

Together, we seek to guide public university officials through the complex body of law governing their social media use and …

Religion, Government, And Law In The Contemporary United States, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I discuss the relationship between religion and government in the contemporary United States, addressing the period from the 1940s to the present. In so doing, I explore questions of religious liberty, including the protection of religious “free exercise” as well as the constitutional prohibition on the establishment of religion, a prohibition that sometimes - but not always - has been construed to require a “wall of separation” between church and state. I focus especially on the Supreme Court’s evolving interpretations of the First Amendment during this period, which, I suggest, were influenced by broader religious, cultural, and …

The Implications Of Snyder V. Phelps, Meghan White

Honors College

Snyder v. Phelps, a recent U.S. Supreme Court Case, appears to have had a vast but infrequently discussed impact on First Amendment law. In particular, the case changed the way Intentional Infliction of Emotional Distress claims are decided. Snyder v. Phelps shifted the manner in which speech is analyzed away from the method of analysis present in Hustler Magazine, Inc. v. Falwell. Rather than focusing mainly on what the status is of the target of speech, Snyder requires one first, and possibly only, look to the dominant thrust of the speech. If the dominant thrust of speech is on a …

Knox V. Service Employees International Union: Balancing The First Amendment With Fairness Under Union-Shop Agreements, Donata Marcantonio

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

Wikileaks And The Institutional Framework For National Security Disclosures, Patricia L. Bellia

Journal Articles

WikiLeaks’ successive disclosures of classified U.S. documents throughout 2010 and 2011 invite comparison to publishers’ decisions forty years ago to release portions of the Pentagon Papers, the classified analytic history of U.S. policy in Vietnam. The analogy is a powerful weapon for WikiLeaks’ defenders. The Supreme Court’s decision in the Pentagon Papers case signaled that the task of weighing whether to publicly disclose leaked national security information would fall to publishers, not the executive or the courts, at least in the absence of an exceedingly grave threat of harm.

The lessons of the Pentagon Papers case for WikiLeaks, however, are …

Indecent Exposure: Fcc V. Fox And The End Of An Era, David Houska

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

All Those Like You: Identity Aggression And Student Speech, Ari Ezra Waldman

Articles & Chapters

Online and face-to-face harassment in schools requires a coordinated response from the school, parents, students, and government. In this Article, I address a particular subset of online and face-to-face harassment, or identity-based harassment. Identity-based aggressors highlight a quality intrinsic to someone’s personhood and demean it, deprive it of value, and use it as a weapon. They attack women, racial minorities, religious minorities, and other traditionally victimized groups. And, as such, they attack not only their particular victims but also their victims’ communities. Identity-based aggressors com- mit a constitutional evil not only because their behavior interferes with victims’ access to education, …

Hostile Educational Environments, Ari Ezra Waldman

Articles & Chapters

This Article is one in a series about bullying and cyberbullying in schools. I argue that the proper analysis for a First Amendment challenge to school discipline for off-campus misuse of the Internet to harm or harass a member of the school community based on the victim’s identity depends on the nature of the offending behavior. For students who are punished for a single incident – what I will call cyberattacking – a Tinker analysis makes sense. But, given that Tinker’s “substantial disruption” standard originated in the context of student protests and that targeted identity-based harassment can create substantial disruptions …

Corporations Are Not People: An Analysis Of Citizens United V. Federal Election Commission, Melissa Gaughan

Summer Research

In 2010, the Supreme Court answered this question in Citizens United v. FEC, which granted corporations First Amendment political speech rights and struck down limitations on independent expenditures by for-profit corporations. My research focused on the uses of legal theories of corporate personhood within the Citizens United decision. I found that the Court’s Citizens United decision used logic from several theories of corporate personhood to avoid acknowledging that there are different types of corporations, each with unique claims to political speech rights. The use of multiple theories of corporate personhood led the Court to conflate the two major types of …

"They Saw A Protest": Cognitive Illiberalism And The Speech-Conduct Distinction, Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans, Jeffrey J. Rachlinski

All Faculty Scholarship

“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

All Faculty Scholarship

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

The Speech Act's Unfortunate Parochialism: Of Libel Tourism And Legitimate Pluralism (Invited Symposium Contribution), Mark D. Rosen

All Faculty Scholarship

No abstract provided.

The Making Of Modern Libel Law: A Glimpse Behind The Scenes, Stephen Wermiel, Lee Levine

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Time For The Supreme Court To Address Off-Campus, Online Student Speech, David L. Hudson Jr.

Law Faculty Scholarship

An essay discussing the need for public school students and officials to know the limits of officials' authority over off-campus, online speech.

Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski

Publications

As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot …

Talking Chalk: Defacing The First Amendment In The Public Forum, Marie Failinger

Faculty Scholarship

This article examines the surprising outcomes of cases challenging arrests of protesters for chalking sidewalks in public forums, and argues that courts have been careless in analyzing these blanket prohibitions under the time, place and manner doctrine.

The Secondary-Effects Doctrine: Stripping Away First Amendment Freedoms, David L. Hudson Jr.

Law Faculty Scholarship

An essay on the secondary-effects doctrine and its threat to First Amendment.freedoms.

Privacy And The Right Of Free Expression, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Nobody likes to be talked about but everybody likes to talk. Trying to stop the dissemination of private information is, however, an impingement on free expression and the freedom to observe. A freestanding “right of privacy” that violates these interests is constitutionally permissible only if it can be justified using one of the standard bases for allowing restrictions on First Amendment rights. The three most likely possibilities are that the law in question: (1) can pass strict scrutiny, (2) fall within a recognized “categorical” exception, or (3) places only an “incidental” burden on First Amendment interests. Of these three, only …

On The Abuse And Limits Of Lawyer Discipline, Vincent R. Johnson

Faculty Articles

Despite being routinely underfunded, lawyer disciplinary processes must operate in ways that merit the confidence of both society at large and the American legal profession. This means that those who participate in lawyer grievance adjudication must be vigilant against systemic abuse (whether deliberate or unintentional) and mindful of factors that limit institutional competence. This Essay argues that, in many instances, disciplinary authorities should abstain from deciding grievances that would require them to rule on unresolved scientific questions, particularly if controversial matters are involved. The Essay further urges that grievance rulings must be consistent with American constitutional principles which favor robust …

Government Speech In Transition, Helen Norton

Publications

This symposium essay explores the legacy of the Supreme Court’s decision in Johanns v. Livestock Mktg. Ass’n. There the Court offered its clearest articulation to date of its emerging government speech doctrine. After characterizing contested expression as the government’s, the Court then held such government speech to be exempt from free speech clause scrutiny. In so doing, the Court solved at least one substantial problem, but created others that remain unresolved today. On one hand, Johanns marked the Court’s long overdue recognition of the ubiquity and importance of government speech, appropriately exempting the government’s own expressive choices from free …

Lies And The Constitution, Helen Norton

Publications

Although the Supreme Court declared almost forty years ago that “there is no constitutional value in false statements of fact,” the Court in United States v Alvarez ruled that the First Amendment protects at least some -- and perhaps many -- intentional lies from government prohibition. In Alvarez, a divided Court struck down the Stolen Valor Act, a federal statute that made it a crime for any person to state falsely that he or she had received a military decoration or medal. In three separate opinions, all of the Justices agreed that the First Amendment permits the government to …

The Monster In The Courtroom, Sonja R. West

Scholarly Works

It is well known that Supreme Court Justices are not fans of cameras — specifically, video cameras. Despite continued pressure from the press, Congress, and the public to allow cameras into oral arguments, the Justices have steadfastly refused.

The policy arguments for allowing cameras in the courtroom focus on cameras as a means to increased transparency of judicial work. Yet these arguments tend to gloss over a significant point about the Court — it is not secretive. The Court allows several avenues of access to its oral arguments including the presence of the public and the press in the audience, …

Foreword: Constitutional Constraints State Health Care & Privacy Regulation After Sorrell V. Ims Health, John M. Greabe

Law Faculty Scholarship

This brief Foreword explains that First Amendment law is fertile ground for analysis under choice of law principles. It then opines that the majority and dissenting opinions in Sorrell v. IMS Health are rooted in different choices of law that would benefit from a more explicit acknowledgment and explanation.

Stolen Valor & The First Amendment: Does Trademark Infringement Law Leave Congress An Opening?, Susan Richey, John M. Greabe

Law Faculty Scholarship

This paper elaborates an argument the authors presented in an amicus brief filed in United States v. Alvarez, the "Stolen Valor" case. The paper contends that Congress could constitutionally protect the Congressional Medal of Honor as a collective membership mark by means of trademark infringement legislation.

The Problem Of Trans-National Libel, Lili Levi

Articles

Forum shopping in trans-national libel cases-"libel tourism"- - has a chilling effect on journalism, academic scholarship, and scientific criticism. The United States and Britain (the most popular venue for such cases) have recently attempted to address the issue legislatively. In 2010, the United States passed the SPEECH Act, which prohibits recognition and enforcement of libel judgments from jurisdictions applying law less speech-protective than the First Amendment. In Britain, consultation has closed and the Parliamentary Joint Committee has issued its report on a broad-ranging libel reform bill proposed by the Government in March 2011. This Article questions the extent to which …

Copyright Law And Pornography, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

Sex-for-hire is usually illegal, unless it is being filmed. Debates about pornography tread uneasily into legal terrain that implicates freedom of expression under the First Amendment, the specter of censorship, and genuine concerns about the function and role of pornography in persistent gender inequality. It is less common for conversations about pornography to include a discussion of copyright law. Yet copyright law is a powerful tool that operates to protect the financial interests of pornographers. Owners of copyrighted pornography frequently threaten public exposure of an alleged infringer’s consumption habits in order to force a financial settlement. Thus copyright law operates …

How The Movies Became Speech, Samantha Barbas

Journal Articles

In its 1915 decision in Mutual Film v. Industrial Commission of Ohio, the Supreme Court held that motion pictures were, as a medium, unprotected by freedom of speech and press because they were mere “entertainment” and “spectacles” with a “capacity for evil.” Mutual legitimated an extensive regime of film censorship that existed until the 1950s. It was not until 1952, in Burstyn v. Wilson, that the Court declared motion pictures to be, like the traditional press, an important medium for the communication of ideas protected by the First Amendment. By the middle of the next decade, film censorship in the …

First Amendment, Fourth Estate, And Hot News: Misappropriation Is Not A Solution To The Journalism Crisis, Joseph A. Tomain

Articles by Maurer Faculty

Journalism is a public good. The Framers understood the importance of a free press in a self-governing society and embedded a structural right for freedom of the press in the First Amendment. There is a journalism crisis. Symptoms of the crisis include layoffs of journalists, diminishing content in newspapers and shuttering of newspapers. The rise of online technologies has exacerbated the crisis, mainly by siphoning advertising revenue away from traditional news organizations to free classified advertisement websites such as Craigslist, search engines and myriad other non-journalistic online endeavors. The internet, however, is not the main cause of the journalism crisis. …