Law Commons^™

The Case For Defamatory Opinion, Adam Lamparello

Adam Lamparello

The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite another to …

The Case For Defamatory Opinion, Adam Lamparello

Adam Lamparello

The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite another to …

The Internet Is The New Public Forum: Why Riley V. California Supports Net Neutrality, Adam Lamparello

Adam Lamparello

Technology has ushered civil liberties into the virtual world, and the law must adapt by providing legal protections to individuals who speak, assemble, and associate in that world. The original purposes of the First Amendment, which from time immemorial have protected civil liberties and preserved the free, open, and robust exchange of information, support net neutrality. After all, laws or practices that violate cherished freedoms in the physical world also violate those freedoms in the virtual world. The battle over net neutrality is “is absolutely the First Amendment issue of our time,” just as warrantless searches of cell phones were …

The Free Exercise Clause: Fealty To God Or Caesar, John O. Hayward

John O. Hayward

This essay furnishes a modest definition of “religion,” briefly reviews the historical background of the Free Exercise Clause, examines several significant U.S. Supreme Court decisions, including the controversial Hobby Lobby case, that have defined, expanded and limited this clause, and finally, argues that the Court in interpreting the Free Exercise clause should be mindful of the writings of seventeenth century political philosopher John Locke (1632-1704), who maintained that the state should allow all religions to pursue their own goals as long as they don’t produce civil harms. Lastly, the article concludes with a caveat that a country whose citizens have …

Corporations And Religious Freedom: Hobby Lobby Stores - A Missed Opportunity To Reconcile A Flawed Law With A Flawed Health Care System, Matthew A. Melone

Matthew A. Melone

On June 30, 2014, the Supreme Court held, in Burwell v. Hobby Lobby Stores, Inc., that the requirement imposed on employer group health insurance plans to provide coverage for certain contraceptives unduly burdened the free exercise rights of three closely-held corporations in violation of the Religious Freedom Restoration Act of 1993 ( RFRA ). The contraception mandate was imposed by regulations implementing the Patient Protection and Affordable Care Act, itself a very controversial piece of legislation a part of which was upheld recently by the Court in a perhaps a case more controversial than Hobby Lobby Stores. RFRA was enacted …

The Replicator And The First Amendment, Kyle Langvardt

Kyle Langvardt

As 3D printing technology improves, the theoretical endpoint comes into view: a machine that, like the “replicators” of Star Trek, can produce anything the user asks for out of thin air from a digital blueprint. Real-life technology may never reach that endpoint, but our progress toward it has accelerated sharply over the past few years—sharply enough, indeed, for legal scholars to weigh in on the phenomenon’s disruptive potential in areas ranging from intellectual property to gun rights. This paper is concerned with the First Amendment status of the digital blueprints. As of August 2014, it is the first law review …

Narrow Tailoring, Compelling Interests, And Free Exercise: On Aca, Rfra And Predictability, Mark Strasser

Mark Strasser

The holding in Burwell v. Hobby Lobby Stores, Incorporated was narrow in scope—closely held, for-profit corporations must be afforded an exemption from providing insurance coverage for a few types of contraception if the corporation has religious objections to providing that coverage. In addition, the exemption requirement was based on a construction of federal statute rather than on the Constitution’s free exercise guarantees. Both the narrowness of the holding and the Court’s express disavowal that it was offering a constitutional analysis might make the opinion appear relatively inconsequential. However, because the opinion changes the focus and standards of federal law and …

What Impact The Supreme Court’S Recent Hobby Lobby Decision Might Have For Lgbt Civil Rights?, Vincent Samar

Vincent J. Samar

Abstract

What Impact the Supreme Court’s Recent Hobby Lobby

Decision Might Have for LGBT Civil Rights?

Vincent J. Samar

The U.S. Supreme Court’s recent decision in the Hobby Lobby case has created shockwaves of concern among civil rights groups questioning whether for-profit corporations can assert a religious exemption from civil rights legislation under a 1993 federal law, the Religious Freedom Restoration Act. The matter is of particular concern in the LGBT community given the possible impact it could have on services traditionally offered to those getting married as more and more states legalize same-sex marriage. Though the Court’s conservative majority …

College Student Speech - What You Can't Say Can't Say Off-Campus On Your Computer And Why, Brett J. Geschke

Brett J Geschke

Student Speech – What you Can’t Say Off-Campus on Your Computer and Why

Brett J. Geschke | Spring 2014

Organization of the Article

Introductory Argument and Thesis ● 1

Overview of the First Amendment – School Speech ● 6

First Amendment School Speech Analysis in the Digital Age ● 16

Recent Federal Cases Applying Tinker and Finding Punishment Constitutional ● 20

Recent Federal Cases Applying Tinker and Finding Punishment Unconstitutional ● 29

An Alternative Framework: A Recent State Supreme Court Case On This Issue ● 37

The Difference Between High School and College Student Speech ● 41

Analyzing On-Point Law …

Nigger Manifesto: Ideological And Intellectual Discrimination Inside The Academy, Ellis Washington

Ellis Washington

Draft – 22 March 2014

Nigger Manifesto

Ideological Racism inside the American Academy

By Ellis Washington, J.D.

Abstract

I was born for War. For over 30 years I have worked indefatigably, I have labored assiduously to build a relevant resume; a unique curriculum vitae as an iconoclastic law scholar zealous for natural law, natural rights, and the original intent of the constitutional Framers—a Black conservative intellectual born in the ghettos of Detroit, abandoned by his father at 18 months, who came of age during the Detroit Race Riots of 1967… an American original. My task, to expressly transcend the ubiquitous …

Exotic Dancing: Taxable Trash Or Exempt Art, John O. Hayward

John O. Hayward

Exotic dancers usually embroil themselves in censorship battles with local authorities. But recently they have drawn the attention of tax authorities who have tussled with the owners of so-called “gentlemen’s clubs” over whether the exotic dancing performed in their establishments are subject to taxation. This paper examines two recent cases where state authorities choose to tax exotic dancing while at the same time exempting what some jurists regard as comparable choreographic performances. In the opinion of these commentators, the tax authorities exhibited a bias against low-brow artistic expression, thus engaging in impermissible content discrimination. It advances the proposition that judges …

Citizens Disunited: Mccutcheon V. Federal Election Commission, Adam Lamparello

Adam Lamparello

We have a separate but unequal Constitution. The wealthy are democracy’s darlings, the middle class are its stepchildren, and the poor are its orphans. And the Constitution’s written and unwritten rights are alive for the wealthy, merely evolving for the middle class, and dead for the poor.

One thing, however, should not be disputed: wealthy individuals are entitled to fully enjoy the Constitution’s textual guarantees. Indeed, the notion that Congress—through aggregate limits on individual contributions—may limit the number of candidates to which they can contribute is troubling. But there is a reason. Everyone else—including the poor and middle class—are entitled …

State “Subsidies” And Unnecessary Public Funding: The Texas Legislature’S Successful Restriction Of Constitutional Rights In Department Of Texas V. Texas Lottery Commission, Tyler A. Dever Ms.

Tyler A Dever Ms.

This Note argues that the Act’s political advocacy restrictions are unconstitutional as applied to the Plaintiffs in Texas Lottery. This Note discusses government subsidies, occupational licenses, and the doctrine of unconstitutional conditions. It then analyzes the charitable organizations’ First Amendment rights in light of the challenged Act. Although this Note argues against the majority’s upholding of the Act, it will also present flaws in the plaintiffs’ argument for injunction and explain why the court may have ruled in favor of the state.

Bare Necessities: The Argument For A “Revenge Porn” Exception In Section 230 Immunity, Allison L. Tungate

Allison L Tungate

No abstract provided.

God And Guns: The Free Exercise Of Religion Problems Of Regulating Guns In Churches And Other Houses Of Worship, John M. A. Dipippa

John M. A. DiPippa

The article demonstrates that the cases raising religious liberty challenges to state regulation of weapons in houses of worship reveal the persistent problems plaguing religious liberty cases. First, these cases illustrate the difficulties non-mainstream religious claims face. Courts may not understand the religious nature of the claim or they may devalue claims that do not seem “normal” or “reasonable.” This is compounded how few religious liberty claimants, especially non-mainstream religions, win their cases. Second, the cases are part of the larger debate about how easy it should be to get judicially imposed religious exemptions from general and neutral laws. Uncritically …

The Professor As Whistleblower: The Tangled World Of Constitutional And Statutory Protections, Jennifer Bard

Jennifer Bard

Like Phil Robertson, the patriarch of the Duck Dynasty family, to Edward Snowden, the NSA leaker, many professors at U.S. colleges and universities are surprised to find how little protection they have from the adverse consequences of their speech. The First Amendment is says nothing about either academic freedom or whistleblowing and it has been left to the Supreme Court to develop a doctrine as to when and if a professor’s speech is entitled to Constitutional Protection. This article considers the broad topic of protection for speech by professors other than that directly related to the views they express on …

When Art Becomes Free: On Artistic In-Expression & Personal Convictions, Amir H. Khoury

Amir Khoury

In this paper I argue that just as there are moral rights in copyright law, which secure attribution and integrity, so too, there should be 'inverse' moral rights that can protect artists from being impelled or compelled to create in the first place. This research comes against the backdrop of one of the most contentious issues in the Western world today, that pertaining to same-sex marriage. But the discussion applies to all other fields where creativity finds itself in a battle over personal convictions. In my view, the inverse moral rights construct is the true reflection of the extent of …

Back To The Future: The Constitution Requires Reasonableness And Particularity—Introducing The “Seize But Don’T Search” Doctrine, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.

When do present-day circumstances—the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years …

Homeschooling As A Constitutional Right: A Claim Under A Close Look At Meyer And Pierce And The Lochner-Based Assumptions They Made About State Regulatory Power, David M. Wagner

David N. Wagner

In 2012, a German family of would-be homeschoolers, the Romeikes, fled to the U.S. to escape fines and child removal for this practice, which has been illegal in Germany since 1938. The Sixth Circuit, in denying their asylum request, conspicuously did not slam the door on the possibility that if the Romeikes were U.S. citizens, they might have a right to homeschool. This article takes up that question, and argues that Meyer and Pierce, the classic cases constitutionalizing the right to use private schools, point beyond those holdings towards a right to homeschool; and that the permissible state regulations on …

Cross, Crucifix, Culture: An Approach To The Constitutional Meaning Of Confessional Symbols, Frederick Mark Gedicks, Pasquale Annicchino

Frederick Mark Gedicks

In the United States and Europe the constitutionality of government displays of confessional symbols depends on whether the symbols also have nonconfessional secular meaning (in the U.S.) or whether the confessional meaning is somehow absent (in Europe). Yet both the United States Supreme Court (USSCt) and the European Court of Human Rights (ECtHR) lack a workable approach to determining whether secular meaning is present or confessional meaning absent. The problem is that the government can nearly always articulate a possible secular meaning for the confessional symbols that it uses, or argue that the confessional meaning is passive and ineffective. What …

A "Bare ... Desire To Harm?" Marriage And Catholic Conscience Post - Windsor, Helen M. Alvare

helen m alvare

No abstract provided.

An Imminent Substantial Disruption: Towards A Uniform Standard For Balancing The Rights Of Students To Speak And The Rights Of Administrators To Discipline., Allison G. Kort

Allison G Kort

ABSTRACT An Imminent Substantial Disruption: Toward a Uniform Standard for Balancing the Rights of Students to Speak and the Rights of Administrators to Discipline. By Allison Kort Twenty-five years before the Supreme Court’s landmark school speech decision in Tinker v. Des Moines, 393 U.S. 503, 504 (1969), the Court cautioned against placing too much discretion in the hands of school boards. In Tinker, when students wore black armbands to protest the Vietnam War, the Supreme Court determined that student speech may not be censored when the record demonstrates no facts which would reasonably have led school authorities to forecast a …

Lethal Injection And The Right Of Access: The Intersection Of The Eighth And First Amendments, Timothy F. Brown

Timothy Brown

The Spring and Summer of 2014 have witnessed renewed debate on the constitutionality of the death penalty after a series of high profile legal battles concerning access to lethal injection protocols and subsequent questionable executions. Due to shortages in the drugs traditionally used for the lethal injection, States have changed their lethal injection protocols to shield information from both the prisoners and the public. Citing public safety concerns, the States refuse to release information concerning the procurement of the drugs to the public. Such obstruction hinders the public’s ability to determine the cruelty of the punishment imposed and creates the …