Law Commons^™

Aristotle's Internet: Free Speech Values Online, Ari E. Waldman

Ari E Waldman

While the Internet has changed dramatically since the early 1990s, the legal regime governing online speech and liability is still steeped in an early myth of the Internet user, completely hidden from others, in total control of his online experience, and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility and radical individuation online, allowing hate and harassment to run wild. I argue that the myth of the online anonym is not only false as a matter of technology, but also inaccurate – it does …

Traditional Contours In Ip: Before And After Golan And Prometheus, Elizabeth Townsend Gard

Elizabeth Townsend Gard

The U.S. Supreme Court will hear two intellectual property cases this term: Golan v. Holder, asking whether foreign works can have their copyrights restored without violating traditional contours of copyright law, and Mayo v. Prometheus, asking whether a patent on medical diagnostic test violates the traditional boundaries of patentable subject matter. Interestingly, both petitioners have asserted First Amendment arguments, which harkens back to Ginsburg’s statement in Eldred v. Ashcoft that so long as traditional contours of copyright law were not violated, no First Amendment analysis was necessary. Just what are traditional contours of copyright law? And does traditional contours apply …

"A Necessary Cost Of Freedom"? The Incoherence Of Sorrell V. Ims, Tamara R. Piety

Tamara R. Piety

On June 23, 2011 the Supreme Court announced its decision in a closely watched case, Sorrell v. IMS, striking down Vermont’s law prohibiting pharmacies from selling physicians’ prescription records without their permission for use in marketing brand name drugs. The Court’s majority struck down Vermont’s statute as unconstitutional on the grounds that the law was not “content neutral” because it singled out marketing for disparate treatment. It in effect applied a strict scrutiny test to a category of speech that has technically if not in practice been subject to intermediate scrutiny. This ruling effectively does away with the commercial speech …

Floyd Abrams And The Virtues Of Nuanced Absolutism, Ronald K.L. Collins

Ronald K.L. Collins Univ. of Washington, Law School

Law is not only what lawmakers create and judges interpret, it is also what lawyers do with it. In this Article the author identifies, explains, and analyzes key tenets of the legal thought of America’s most noted contemporary First Amendment lawyer, Floyd Abrams. This is done primarily through the lens of Mr. Abrams’s views on the clear and present danger test and related doctrines. Drawing on appellate briefs, oral arguments, legislative testimony, published and unpublished works along with responses to queries posed by the author to Mr. Abrams, the Article describes this seasoned lawyer’s take on the jurisprudence of the …

Resolving Election Error, Justin Levitt

Justin Levitt

The ghosts of the 2000 presidential election will return in 2012. Photo-finish, and error-laden, elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet despite widespread agreement on the likelihood of another national meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle, reflecting the underlying values of the electoral process. It argues that the resolution of an …

Resolving Election Error, Justin Levitt

Justin Levitt

The ghosts of the 2000 presidential election will return in 2012. Photo-finish, and error-laden, elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet despite widespread agreement on the likelihood of another national meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle, reflecting the underlying values of the electoral process. It argues that the resolution of an …

Resolving Election Error, Justin Levitt

Justin Levitt

The ghosts of the 2000 presidential election will return in 2012. Photo-finish, and error-laden, elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet despite widespread agreement on the likelihood of another national meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle, reflecting the underlying values of the electoral process. It argues that the resolution of an …

Speaking Truth To Firepower: How The First Amendment Destabilizes The Second, Gregory P. Magarian

Gregory P. Magarian

When the Supreme Court in District of Columbia v. Heller declared that the Second Amendment protects an individual right to keep and bear arms, it set atop the federal judicial agenda the critical task of elaborating the new right’s scope, limits, and content. Following Heller, commentators routinely draw upon the First Amendment’s protections for expressive freedom to support their proposals for Second Amendment doctrine. In this article, Professor Magarian advocates a very different role for the First Amendment in explicating the Second, and he contends that our best understanding of First Amendment theory and doctrine severely diminishes the Second Amendment’s …

Government Disapproval Of Religion, Jay Wexler

Jay Wexler

The Supreme Court’s “Endorsement Test” for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention. In addition to government “endorsement” of religion, however, the test also prohibits the government from sending a message of “disapproval” of religion. The disapproval side of the Endorsement Test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion. In the last few years, however, due to a …

The Emotion Of Disgust, Demand Augmentation, And Wasteful Consumption, Nathan H. Ostrander

Nathan H. Ostrander

Conventional economic theory assumes that producers supply goods and services in a responsive, reactive way to innate, genuine, and unmanipulated consumer demand. Evidence increasingly suggests, however, that demand is constructed based on the elements present in any given situation, and that the situation is subject to corporate influence. One method by which corporations construct demand is by using the emotion of disgust to create an apparent problem in an advertisement. Corporations reference the emotion of disgust not only because it is incredibly powerful, but also because advertisements are able to quickly alleviate the disgusting problem and thereby increase consumer receptivity …

Informing Consent: Voter Ignorance, Political Parties, And Election Law, Christopher Elmendorf, David Schleicher

Christopher S. Elmendorf

This paper examines what law can do to enable an electorate comprised of mostly ignorant voters to obtain meaningful representation and to hold elected officials accountable for the government’s performance. Drawing on a half century of research by political scientists, we argue that political parties are both the key to good elections and a common cause of electoral dysfunction. Party labels can help rational, low-information voters by providing them with credible, low-cost, and easily understood signals of candidates’ ideology and policy preferences. But in federal systems, any number of forces may result in party cues that are poorly calibrated to …

The Ncaa State Actor Controversy: Much Ado About Nothing, Josephine Potuto

Josephine R Potuto

THE NCAA AS STATE ACTOR: MUCH ADO ABOUT NOTHING ABSTRACT Josephine (Jo) R. Potuto The fourteenth amendment affords procedural due process, equal protection, and substantive bill of rights protections. It applies to state actors, not private ones. The NCAA is an association of colleges and universities that regulates intercollegiate athletics. It is a private actor. On occasion the Supreme Court has treated private actors as state actors for purposes of the fourteenth amendment. The NCAA is not one of them. There is ongoing discussion whether the NCAA should be treated as a state actor. One side focuses on the NCAA’s …

Conspiracy Law's Threat To Free Speech, Steven R. Morrison

Steven R Morrison

Conspiracy law has been the consistent subject of controversy, but most commentators do not consider its negative effect on freedom of speech. When they do, their concerns focus only on the use of speech as the crime’s actus reus. The use of speech as evidence to prove this actus reus is as important and raises conceptually related issues, so current scholarship tells only half of the story. This Article addresses the use of speech as the actus reus of conspiracy and evidence thereof. It sets forth what I call the All-Purpose Speech Model. I argue that this Model accurately describes …

Aristotle's Internet: Free Speech Values Online, Ari E. Waldman

Ari E Waldman

While the Internet has changed dramatically since the early 1990s, the legal regime governing online speech and liability is still steeped in an early myth of the Internet user, completely hidden from othes, in total control of his online experience, and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility and radical individuation online, allowing hate and harassment to run wild. I argue that the myth of the online anonym is not only false as a matter of technology, but also inaccurate – it does …

Conspiracy Law's Threat To Free Speech, Steven R. Morrison

Steven R Morrison

Conspiracy law has been the consistent subject of controversy, but most commentators do not consider its negative effect on freedom of speech. When they do, their concerns focus only on the use of speech as the crime’s actus reus. The use of speech as evidence to prove this actus reus is as important and raises conceptually related issues, so current scholarship tells only half of the story. This Article addresses the use of speech as the actus reus of conspiracy and evidence thereof. It sets forth what I call the All-Purpose Speech Model. I argue that this Model accurately describes …

Establishment Clause Incorporation: A Logical, Textual, And Historical Defense, Frederick Mark Gedicks

Frederick Mark Gedicks

Incorporation of the Establishment Clause against the states is logically and textually impossible—so say most academics, many lower-court judges, and a Supreme Court justice. They maintain that because the Clause was originally understood as a mere structural protection of state power, it cannot coherently restrain state power or protect a personal due process liberty. Anti-incorporationists also seem to think that the purported incoherence and textual inconsistency of Establishment Clause incorporation excuse serious engagement of Reconstruction history, since they mostly ignore it except for the Blaine Amendment defeated as the Reconstruction era ended. If anti-incorporation critics are right, the entire body …

Whistleblowing, Public Employees, And The First Amendment, Mark Strasser

Mark Strasser

Recent revelations of extensive public wrongdoing illustrate the need for whistleblower protection so that governmental wrongdoing is more likely to come to light. While there is some statutory protection of whistleblowing as long as certain conditions have been met, a separate issue is the degree to which the Constitution protects whistleblowers under the First Amendment. Ironically, the constitutional protections for whistleblowers have decreased over the past several decades, leaving an impoverished system of protection for discussions of great public interest. This article analyzes the respects in which First Amendment protections for matters of great public import were once fairly robust …

The Onslaught On Academic Freedom, Mark Strasser

Mark Strasser

The United States Supreme Court has long recognized the importance of academic freedom both within and outside of the classroom. However, in a case having nothing to do with the academy, Garcetti v. Ceballos, the Court cast into doubt the validity of an entire line of cases, almost inviting the circuits to rewrite First Amendment doctrine in the entire area. The circuits have responded, creating a jurisprudence that threatens to bring about the negative consequences discussed over the past half-century. This article explores the First Amendment protections of academic freedom, explaining how Garcetti and the courts interpreting it have eviscerated …

The Emotion Of Disgust, Demand Augmentation, And Wasteful Consumption, Nathan H. Ostrander

Nathan H. Ostrander

Conventional economic theory assumes that producers supply goods and services in a responsive, reactive way to innate, genuine, unmanipulated consumer demand. Evidence increasingly suggests, however, that demand is constructed based on the elements present in any given situation, and that the situation is subject to corporate influence. One method by which corporations construct demand is by using the emotion of disgust to create an apparent problem in an advertisement. Corporations reference the emotion of disgust not only because it is incredibly powerful, but also because advertisements are able to quickly alleviate the disgusting problem and thereby increase consumer receptivity to …

Making The Anomalous Even More Anomalous: On Hosanna-Tabor, The Ministerial Exception, And The Constitution, Mark Strasser

Mark Strasser

In Hosanna–Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court held that the First Amendment incorporates the ministerial exception and, further, found that the plaintiff fell within that exception and so could not press her claim. However, courts and commentators hoping for clarification of Religion Clauses jurisprudence more generally or even for a firm constitutional grounding of the ministerial exception may well be disappointed. The Court has raised more questions than it has answered, and has provided such little helpful guidance to the lower courts that Hosanna-Tabor is likely to lead to greater confusion in the …

Informing And Reforming The Marketplace Of Ideas; The Public-Private Model For Data Production And The First Amendment, Shubha Ghosh

Shubha Ghosh

In 2011, the Supreme Court held that the First Amendment applied to the commercialization data in Sorrell v. IMS. While the case at issue dealt with state regulation of pharmacy data, the Court’s holding extends to regulation of data in many contexts from government created databases to search engines and social media sites. This Article contains a critique of the decision, emphasizing that the majority and dissent take polar opposite positions without adequately addressing the normative foundations for data regulation and the institutional arrangements within which such regulation occurs. The critique provides a normative framework for the free flow of …

The Ncaa As State Actor: Much Ado About Nothing, Josephine Potuto

Josephine R Potuto

THE NCAA AS STATE ACTOR: MUCH ADO ABOUT NOTHING ABSTRACT Josephine (Jo) R. Potuto The fourteenth amendment affords procedural due process, equal protection, and substantive bill of rights protections. It applies to state actors, not private ones. The NCAA is an association of colleges and universities that regulates intercollegiate athletics. It is a private actor. On occasion the Supreme Court has treated private actors as state actors for purposes of the fourteenth amendment. The NCAA is not one of them. There is ongoing discussion whether the NCAA should be treated as a state actor. One side focuses on the NCAA’s …

(Dis)Owning Religious Speech, Jessie Hill

Jessie Hill

To claims of a right to equal citizenship, one of the primary responses has long been to assert the right of private property. It is therefore troubling that, in two recent cases involving public displays of religious symbolism, the Supreme Court embraced property law and rhetoric when faced with the claims of minority religious speakers for inclusion and equality. The first, Pleasant Grove City v. Summum, is a free speech case in which the defendant evaded a finding that it was discriminating against the plaintiff’s religious speech by claiming a government speech defense. In the process, it claimed as its …

What Counts As "Speech" In The First Place?: Determining The Scope Of The Free Speech Clause, R. George Wright

Pepperdine Law Review

No abstract provided.

The Emotion Of Disgust, Demand Augmentation, And Wasteful Consumption, Nathan H. Ostrander

Nathan H. Ostrander

Conventional economic theory assumes that producers supply goods and services in a responsive, reactive way to innate, genuine, unmanipulated consumer demand. Evidence increasingly suggests, however, that demand is constructed based on the elements present in any given situation, and that the situation is subject to corporate influence. One method by which corporations construct demand is by using the emotion of disgust to create an apparent problem in an advertisement. Corporations reference the emotion of disgust not only because it is incredibly powerful, but also because advertisements are able to quickly alleviate the disgusting problem and thereby increase consumer receptivity to …

Standing On Holy Ground: How Rethinking Justiciability Might Bring Peace To The Establishment Clause, John M. Bickers

John M. Bickers

The Establishment Clause is home to both procedural and substantive disorder. Particularly when evaluating religious speech by the government, the Supreme Court has applied a number of distinct tests, with varying degrees of strictness. There has never been an overarching principle for determining which test would appear at which time; commentators, and occasionally the Justices themselves, have suspected that desired results drove the choice of tests. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting …

Hey! Teacher, Leave Them Kids Alone: Exploring The Regulation Of Student Speech Made Outside Of School On Social Network Sites, Shawna M. Mack

Shawna M Mack

This Note explores whether schools can punish students for speech made off school grounds on social networking sites. This topic is extremely timely, and courts in almost all circuits have heard cases on this issue. Some of the cases cited in the paper, the J.S. and Layshock cases, have requested writs of certiorari to the Supreme Court.

The approach I take in the Note is to explore how the Supreme Court would come down on this issue. I look at how they have approached student speech in the past, and at their most current student speech opinion, Morse, to consider …

Bleeeeep! The Regulation Of Indecency, Isolated Nudity And Fleeting Expletives In Broadcast Media - An Uncertain Future For Pacifica V. Fcc, Terri R. Day, Danielle Weatherby

Terri R. Day

This article discusses the controversy over the current FCC indecency enforcement regime, an issue the Supreme Court will hear this term. In 2004, the FCC abandoned a thirty year policy of excluding “fleeting expletives” and isolated images of nudity from its indecency enforcement regime. This change, coupled with a 10-fold increase in the statutory maximum fines and a change in assessing penalties on a per-program to a per-broadcast basis, threatens broadcasters with crushing fines for airing one isolated expletive. Since these changes, the FCC has enhanced its enforcement efforts creating a chilling effect on First Amendment protected speech in broadcast …

Bleeeep! The Regulation Of Indecency, Isolated Nudity, And Fleeting Expletives In Broadcast Media - An Uncertain Future For Pacifica V. Fcc, Terri R. Day, Danielle Weatherby

Terri R. Day

This article discusses the controversy over the current FCC indecency enforcement regime, an issue the Supreme Court will hear this term. In 2004, the FCC abandoned a thirty year policy of excluding “fleeting expletives” and isolated images of nudity from its indecency enforcement regime. This change, coupled with a 10-fold increase in the statutory maximum fines and a change in assessing penalties on a per-program to a per-broadcast basis, threatens broadcasters with crushing fines for airing one isolated expletive. Since these changes, the FCC has enhanced its enforcement efforts creating a chilling effect on First Amendment protected speech in broadcast …

Bleeeeep! The Regulation Of Indecency, Isolated Nudity, And Fleeting Expletives In Broadcast Media - An Uncertain Future For Pacifica V. Fcc, Terri R. Day, Danielle Weatherby

Terri R. Day

This article discusses the controversy over the current FCC indecency enforcement regime, an issue the Supreme Court will hear this term. In 2004, the FCC abandoned a thirty year policy of excluding “fleeting expletives” and isolated images of nudity from its indecency enforcement regime. This change, coupled with a 10-fold increase in the statutory maximum fines and a change in assessing penalties on a per-program to a per-broadcast basis, threatens broadcasters with crushing fines for airing one isolated expletive. Since these changes, the FCC has enhanced its enforcement efforts creating a chilling effect on First Amendment protected speech in broadcast …