Law Commons^™

The Ohio Constitution, Jefferson's Danbury Letter And Religion And Education, David W. Scott Dr.

David W Scott Dr.

Summary of article entitled “The Ohio Constitution of 1803, Jefferson’s Danbury Letter and Religion in Education” Never done before, this article brings together existing scholarship on the Ohio constitution of 1803, President Jefferson’s 1802 letter to the Danbury Baptists, and the education provision of the Northwest Ordinance. In so doing, it provides support for the conclusion that the section on religion of the Ohio constitution of 1803 represented a consensus in the early days of the Republic in regard to church and state. This Constitution was developed and supported by Jeffersonians at both the state and national level. It includes …

The First Amendment, Public School Students, And The Need For Clear Limits On School Officials' Authority Over Off-Campus Student Speech, Rory A. Weeks

Georgia Law Review

When, if ever, can school officials punish a student's off-
campus speech? The Supreme Court's student-speech
jurisprudence does not provide a clear answer. But this
much is clear: School officials do not possess absolute
authority over students' on-campus speech. Public school
students do not shed their First Amendment rights at the
schoolhouse gate. And yet during school or school-related
activities, public school students do not have coequal First
Amendment rights with adults in other contexts. During
school or school-related activities, school officials may
proscribe otherwise-permitted speech in order to fulfill the
school's basic educational mission, which includes
instructingstudents in civility. …

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.

Regulating From Typewriters In An Internet Age: The Development & Regulation Of Mass Media Usage In Presidential Campaigns, Anthony J. King

Anthony J. King

The American election process has become a misleading process of campaign promises and self-promotion, thus diluting its primary and most fundamental purpose. This discrepancy can be traced to three primary groups; (1) the candidates, who supplied the motive; (2) the mass media, who supplied the means; and (3) the electorate, who so far have allowed it to happen. Seeking to remedy the situation lawmakers have turned to regulations of the media in attempt to assure fairness and nurture the marketplace of ideas. These numerous attempts at fairness have been met with a mixed reception and mixed results leading to questions …

Shareholder Rights: Citizens United And Delaware Corporate Governance Law, Paul S. Miller

Paul S. Miller

This paper asks whether there might be alternative grounds for limiting corporate political expenditures. This alternative ground argument has two components. First, the conflict in corporate campaign finance cases should be seen as a conflict between two equally important first amendment rights: the right to receive information and the right to associated only with political positions one agrees with. Second, the corporate governance scheme advanced Citizens United as the alternative to state protection of shareholder association rights would undercut long standing Delaware Corporate Law. Under Citizens United, the outside forces that are viewed as the biggest threat to shareholder wealth …

The State Response To Hazelwood V. Kuhlmeier, Tyler J. Buller

Tyler J. Buller

Student journalism was dealt a significant blow in 1988, when Hazelwood v. Kuhlmeier gave school officials a license to censor any student speech inconsistent with a school’s “pedagogical concerns.” Scholars and advocates have long argued that Hazelwood has allowed widespread censorship of stories criticizing school officials and articles concerning controversial topics like sex, drinking, and drug-use. In the aftermath of Hazelwood, nine states have adopted so-called “anti-Hazelwood” statutes and regulations that place additional protections between student journalists and school officials. These anti-Hazelwood measures have a mixed track record and are rarely litigated. Until now, there has been virtually no data …

Private Rights And Public Wrongs: Fair Use As A Remedy For Private Censorship, Stephen J. Mcintyre

Stephen J McIntyre

Copyright law seeks to promote the public welfare by incentivizing the creation and publication of art, literature, and other original works of authorship. The law bestows exclusive economic rights in expression, which allow copyright holders to exploit the commercial value of their creations in the marketplace. This affords a high degree of control over when and how others use copyright-protected works. These rights, however, are not absolute. The 'fair use' doctrine has traditionally permitted unauthorized and uncompensated uses of copyrighted material for socially beneficial purposes. Under current jurisprudence, the fair use analysis is dominated by concerns about market harm. The …

Clinton, Campaigns, And Corporate Expenditures: The Supreme Court's Recent Decision In Citizen's United And Its Impact On Corporate Political Influence, Glen M. Vogel

Glen M Vogel

The public’s ability to discuss and debate the character and fitness of presidential candidates is at the core of the First Amendment’s prohibition that “Congress shall make no law… abridging the Freedom of Speech.” Despite the existence of this fundamental right, articulated so eloquently in our founding document, in November of 2002, Congress made political speech a felony for one class of speakers – corporations and unions. Under the McCain-Feingold Campaign Finance Reform Law, corporations and unions were prohibited from spending their own funds in support of or against a candidate for political office. Violators of this ban faced up …

Government Movants For Anti-Slapp? Seriously? Seeking Needed Changes For Applying The California Anti-Slapp Law And The Government Speech Doctrine, Kevin R. Kemper

Kevin R Kemper

California courts have allowed governmental entities and employees to be movants under the anti-SLAPP law at California Civil Code of Procedure § 425.16. That means that those governmental entities and employees have been able to claim that government actions are protected acts of speech or petition under the First Amendment to the U.S. Constitution. The basic problem is that the First Amendment protects citizen speech and petition of citizens but not actions by government officials. This has been long established and recently affirmed in holdings by the U.S. Supreme Court. In June 2011, the Court in Nevada Commission on Ethics …

Secularization By Incorporation: Corporate Identity And The Religious Corporation, Bruce B. Jackson

Bruce B Jackson

First Amendment Religion Clause doctrine applicable to a religious organization’s internal property dispute offers civil courts an option. Provided the controversy does not involve religious doctrine, a civil court may either defer to a religious organization’s governing body, or, resolve the matter itself by applying neutral principles of law. Application of the doctrine requires a civil court to treat religious corporations with a hierarchical form of government differently from those with a congregational form of government. For religious corporations that are hierarchically organized and governed, a normative Religion Clause analysis requires a civil court to defer to the decision of …

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 …

Layshock Ex Rel. Layshock V. Hermitage School District, Matthew Beatus

NYLS Law Review

No abstract provided.

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, …

To Catch A Lawsuit: Constitutional Principles At Work In The Investigative-Journalism Genre, Michael F. Dearington

Vanderbilt Journal of Entertainment & Technology Law

This Note examines two causes of action, civil rights violations under 42 U.S.C. § 1983 and II ED claims, in the context of lawsuits against investigative journalists. Examining two recent cases in particular, Tiwari v. NBC Universal, Inc. and Conradt v. NBC Universal, Inc., which arise out of NBC's conduct in its primetime series To Catch a Predator, this Note concludes that legal standards governing conduct by investigative journalists are currently unclear. Investigative journalists are not adequately on notice as to when they might be liable under § 1983 for violating a subject's civil rights. And district courts have failed …

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.

Municipal Liability And Liability Of Supervisors: Litigation Significance Of Recent Trends And Developments, Karen Blum, Celeste Koeleveld, Joel B. Rudin, Martin A. Schwartz

Touro Law Review

"The purpose of this presentation is to examine two recent Supreme Court decisions, Connick v. Thompson and Ashcroft v. Iqbal with an eye to their impact on how lower federal courts will assess such claims in the wake of new constraints imposed by these cases. The focus of the discussion will be on developments in single-incident liability cases after Connick and supervisory liability claims after Iqbal."