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Trending @ Rwu Law: Mikela Almeida's Post: Esther Clark Competition Held In R. I. Supreme Court, Mikela Almeida Nov 2015

Trending @ Rwu Law: Mikela Almeida's Post: Esther Clark Competition Held In R. I. Supreme Court, Mikela Almeida

Law School Blogs

No abstract provided.


The Worms And The Octopus: Religious Freedom, Pluralism, And Conservatism, Richard Garnett Nov 2015

The Worms And The Octopus: Religious Freedom, Pluralism, And Conservatism, Richard Garnett

Richard W Garnett

formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and …


A Benign Prior Restraint Rule For Public School Classroom Speech, Scott R. Bauries Nov 2015

A Benign Prior Restraint Rule For Public School Classroom Speech, Scott R. Bauries

Law Faculty Scholarly Articles

This Article is a contribution to a symposium on schools and free speech. It advances the claim that the First Amendment doctrines that apply to the classroom should adopt a benign prior restraint rule. In the case of teacher classroom speech, the Garcetti rule should apply where the government’s action in interfering with the speech constitutes a prior restraint—the First Amendment should not reach such interference. In cases where a teacher first speaks and then is later punished for that speech, however, basic notions of due process and the dangers of arbitrary governmental decision making are far more pressing, and …


First Amendment; Freedom Of Speech; Broadcasting; Obscenity; Fcc V. Pacifica Foundation, James E. Moliterno Sep 2015

First Amendment; Freedom Of Speech; Broadcasting; Obscenity; Fcc V. Pacifica Foundation, James E. Moliterno

James E. Moliterno

“ ‘I was thinking about the curse words and the swear words, the cuss L words and the words you can't say . . .the words you couldn't say on the public, ah, airwaves... the ones that will curve your spine [and] grow hair on your hands ....’ While this is the satiric opinion of George Carlin, the Federal Communications Commission (FCC) and a bare majority of the United States Supreme Court have embraced it as their genuine opinion.' They have decided to protect the public from the fate of hearing Carlin's social criticism regarding seven ‘dirty’ words.”


Constitutional Law - Flag Desecration Statutes - Freedom Of Expression; Parker V. Morgan, Bruce C. Heslop Aug 2015

Constitutional Law - Flag Desecration Statutes - Freedom Of Expression; Parker V. Morgan, Bruce C. Heslop

Akron Law Review

Viewed in its broad perspective, Parker v. Morgan has further clarified and circumscribed the constitutional limits of the state's power to protect the American flag from public acts of desecration. In this respect it may be considered to provide further insight into the constitutional questions involved in this relatively untouched area of the law. However, until authoritative consideration has been given to the nature and source of those protective powers which are reserved to a state, Parker v. Morgan cannot be regarded to have drawn the ultimate lines of demarcation for the constitutional validity of flag desecration statutes. A meaningful …


Obscenity - New First Amendment Standards; Miller V. California, Stacy E. Wolfe Aug 2015

Obscenity - New First Amendment Standards; Miller V. California, Stacy E. Wolfe

Akron Law Review

It has been over fifteen years since the Supreme Court embarked on its precarious course of determining the Constitutional boundaries for control of obscenity by the state and federal governments. The Court's first attempt to define the meaning of obscenity and ultimately determine the Constitutional protection afforded this expression was in Roth v. United States. What has followed can only be characterized as a series of irreconcilable conflicts and discrepancies that have left the law in this area in total confusion. Recently, the Court in Miller v. California has again attempted to provide "concrete guidelines to isolate 'hard core' pornography …


Obscenity - Liquor Regulations; California V. Larue, Richard Bernstein Aug 2015

Obscenity - Liquor Regulations; California V. Larue, Richard Bernstein

Akron Law Review

The state has the power to regulate the distribution of liquor and enforce health and safety regulations, but the state may not broadly stifle First Amendment freedoms when doing so. "The breath of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose." s The Court has consistently held that only a compelling state interest in the regulation of a subject within the state's constitutional power to regulate can justify limiting First Amendment freedoms.


Is It Unconstitutional To Prohibit Faith-Based Schools From Becoming Charter Schools?, Stephen D. Sugarman Aug 2015

Is It Unconstitutional To Prohibit Faith-Based Schools From Becoming Charter Schools?, Stephen D. Sugarman

Stephen D Sugarman

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for …


First Amendment; Freedom Of Speech; Obscenity; Pinkus V. United States, Cary Douglass Caesa Jul 2015

First Amendment; Freedom Of Speech; Obscenity; Pinkus V. United States, Cary Douglass Caesa

Akron Law Review

“In its latest attempt to define a workable standard for obscenity rulings, the United States Supreme Court has held that children may not be included in a court's instruction as to the social group to whom the material would or would not be obscene. However, the Court held that sensitive persons and deviant groups may be included without unduly lowering the threshold of a finding of obscenity. Thus, Pinkus v. United States clarified the "community" whose judgment should define obscenity.”


First Amendment; Freedom Of Speech; Commerical Speech And Advertising; Metpath, Inc. V. Imperato, Sheryl S. Kantz Jul 2015

First Amendment; Freedom Of Speech; Commerical Speech And Advertising; Metpath, Inc. V. Imperato, Sheryl S. Kantz

Akron Law Review

"The decision of Metpath, Inc. v. Imperato is indicative of the growing trend of the judiciary toward affording "commercial speech" the protective shield of the first amendment. As shown by Metpath, where the concern is advertising by a medical clinic, speech with commercial overtones is afforded protection where a public interest in the subject and content of the speech is demonstrated. However, the perimeters of such protection have not been defined by this or previous decisions."


First Amendment; Freedom Of The Press; Access Of News Media To County Jail; Houchins V. Kqed, Inc., Thomas W. Renwand Jul 2015

First Amendment; Freedom Of The Press; Access Of News Media To County Jail; Houchins V. Kqed, Inc., Thomas W. Renwand

Akron Law Review

"Although United States history is replete with struggles over the rights and prerogatives of the press, until recently these disputes rarely made their way to the nation's highest court.' In the last several years the Supreme Court has been confronted with a number of important, complex questions dealing with the role of a free press in a free society.'"


First Amendment; Freedom Of Speech; Broadcasting; Obscenity; Fcc V. Pacifica Foundation, James E. Moliterno Jul 2015

First Amendment; Freedom Of Speech; Broadcasting; Obscenity; Fcc V. Pacifica Foundation, James E. Moliterno

Akron Law Review

“ ‘I was thinking about the curse words and the swear words, the cuss L words and the words you can't say . . .the words you couldn't say on the public, ah, airwaves... the ones that will curve your spine [and] grow hair on your hands ....’ While this is the satiric opinion of George Carlin, the Federal Communications Commission (FCC) and a bare majority of the United States Supreme Court have embraced it as their genuine opinion.' They have decided to protect the public from the fate of hearing Carlin's social criticism regarding seven ‘dirty’ words.”


First Amendment; Freedom Of The Press; Erosion Of New York Times Co. V. Sullivan; Herbert V. Lando, Edward Howlett Jul 2015

First Amendment; Freedom Of The Press; Erosion Of New York Times Co. V. Sullivan; Herbert V. Lando, Edward Howlett

Akron Law Review

In Herbert v. Lando the Supreme Court announced that the first amendment does not require a constitutional privilege foreclosing direct inquiry into the editorial process. While the decision may seem correct in its overturning of the absolute privilege afforded to the editorial process by the Second Circuit, nevertheless, by refusing to grant even a qualified privilege to the editorial process the Court may have upset the delicate balance between an individual's interest in his reputation and society's interest in a free flow of information recognized in New York Times Co. v. Sullivan.


Taking Libel Reform Seriously, Rodney A. Smolla Jul 2015

Taking Libel Reform Seriously, Rodney A. Smolla

Rod Smolla

Not available.


Affirmative Action, Reverse Discrimination Bratton V. City Of Detroit, John T. Dellick Jul 2015

Affirmative Action, Reverse Discrimination Bratton V. City Of Detroit, John T. Dellick

Akron Law Review

In Bratton v. City of Detroit, the United States Sixth Circuit Court of Appeals examined charges of reverse discrimination' arising from a voluntary affirmative action plan adopted by the City of Detroit. These reverse discrimination claims were presented as alleged violations of Title VIP and the fourteenth amendment. The Bratton court reviewed the leading Title VII reverse discrimination case, United Steelworkers of America v. Weber, and the leading fourteenth amendment reverse discrimination case, Regents of University of California v. Bakke. From these cases, the court in Bratton extracted the major guidelines of each, comingled them, and developed …


Book Removal In Secondary Schools: A Violation Of The First Amendment? Board Of Education V. Pico, Cherlyn Pherigo Jul 2015

Book Removal In Secondary Schools: A Violation Of The First Amendment? Board Of Education V. Pico, Cherlyn Pherigo

Akron Law Review

In the American democratic system, it is not uncommon for small, publicly-elected bodies to control the workings of societal institutions. These bodies may be federal, state or local in realm and function, and are usually given wide discretion. But who is it that controls the actions of these bodies This question is paramount to the myriad of recent cases involving the removal of books from secondary school libraries. The body involved is the local school board - an elected unit charged with the duty of managing school affairs. In that process of management, however, local school boards are apparently not …


Religious Rights In Historical, Theoretical And International Context: Hobby Lobby As A Jurisprudential Anomaly, S. I. Strong May 2015

Religious Rights In Historical, Theoretical And International Context: Hobby Lobby As A Jurisprudential Anomaly, S. I. Strong

Faculty Publications

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …


Compelled Commercial Speech, Robert Post Apr 2015

Compelled Commercial Speech, Robert Post

West Virginia Law Review

No abstract provided.


Second Thoughts About The First Amendment, Randy J. Kozel Mar 2015

Second Thoughts About The First Amendment, Randy J. Kozel

Randy J Kozel

The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech. Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article …


Symbolic Counter-Speech, Howard M. Wasserman Feb 2015

Symbolic Counter-Speech, Howard M. Wasserman

Howard M Wasserman

No abstract provided.


Doe V. Elmbrook School District And The Importance Of Refocusing Establishment Clause Jurisprudence, Julie M. Karaba Jan 2015

Doe V. Elmbrook School District And The Importance Of Refocusing Establishment Clause Jurisprudence, Julie M. Karaba

Northwestern University Law Review

No abstract provided.


A Few Thoughts On Free Speech Constitutionalism, Helen Norton Jan 2015

A Few Thoughts On Free Speech Constitutionalism, Helen Norton

Publications

No abstract provided.


That We Are Underlings: The Real Problems In Disciplining Political Spending And The First Amendment, Jedediah Purdy Jan 2015

That We Are Underlings: The Real Problems In Disciplining Political Spending And The First Amendment, Jedediah Purdy

Faculty Scholarship

In the area of money in politics, change at the doctrinal level will follow only from change at the political level. The current doctrine is coherent, intelligible, and profoundly misplaced. Shifting it will take a movement.


Student Press Exceptionalism, Sonja R. West Jan 2015

Student Press Exceptionalism, Sonja R. West

Scholarly Works

Constitutional protection for student speakers is an issue that has been hotly contested for almost 50 years. Several commentators have made powerful arguments that theCourt has failed to sufficiently protect the First Amendment rights of all students. But this debate has overlooked an even more troubling reality about the current state ofexpressive protection for student — the especially harmful effect of the Court’s precedents on student journalists. Under the Court’s jurisprudence, schools may regulate with far greater breadth and ease the speech of student journalists than of their non-press classmates. Schools are essentially free to censor the student press even …


Commercial Speech, Commercial Use, And The Intellectual Property Quagmire, Jennifer E. Rothman Jan 2015

Commercial Speech, Commercial Use, And The Intellectual Property Quagmire, Jennifer E. Rothman

All Faculty Scholarship

The commercial speech doctrine in First Amendment jurisprudence has frequently been criticized and is recognized as a highly contested, problematic and shifting landscape. Despite the compelling critique within constitutional law scholarship more broadly, Intellectual Property (“IP”) law has not only embraced the differential treatment of commercial speech, but has done so in ways that disfavor a much broader swath of speech than traditional commercial speech doctrine allows. One of the challenges for courts, litigants, and scholars alike is that the term “commercial” is used to mean multiple things, even within the same body of IP law. In this Article, I …