Law Commons^™

Changing Counterspeech, G.S. Hans

Cleveland State Law Review

A cornerstone of First Amendment doctrine is that counterspeech — speech that responds to speech, including disfavored, unpopular, or offensive speech — is preferable to government censorship or speech regulation. The counterspeech doctrine is often invoked to justify overturning or limiting legislation, regulation, or other government action. Counterspeech forms part of the rationale for the "marketplace of ideas" that the First Amendment is arguably designed to promote. Yet critics assert that counterspeech is hardly an effective remedy for the harms caused by "hate speech" and other offensive words that are expressed in American society, given the realities of how speech …

Brief Of Amicus Curiae Professors Elizabeth A. Clark, Robert F. Cochran, Jr., Carl H. Esbeck, David F. Forte, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, And David A., Skeel, Supporting Petitioners, David Forte, Elizabeth A. Clark, Robert F. Cochran Jr., Carl H. Esbeck, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, David A. Skeel

Law Faculty Briefs and Court Documents

The case concerns the "church autonomy doctrine" based on the Free Exercise Clause of the First Amendment, which declares that courts may not inquire into matters of church government or into disputes of faith and doctrine. Will McRaney was fired from a leadership position in the Southern Baptist Convention because of a conflict over policies relating to the expansion of the Baptist faith. He sued the Southern Baptist Convention in tort.

The district court dismissed the suit on the grounds of the church autonomy doctrine. The Fifth Circuit reversed the district court's dismissal as "premature," asserting that there were possible …

Corporations "Pac" A Punch: Corporate Involvement's Influence In Elections And A Proposal For Public Campaign Financing In Ohio, Taylor Hagen

Cleveland State Law Review

In 2010, the United States Supreme Court in a 5-4 decision ruled that limiting corporate spending in elections violates the First Amendment right to free speech. With this decision, the Supreme Court overturned election spending restrictions that dated back more than a century. Before Citizens United v. FEC was decided, the Court had previously held that these restrictions were permissible because there is a governmental interest in preventing election and campaign corruption. Now, corporations may expend unlimited funds for outside election spending, to super PACs, and may even establish their own PACs. Increased corporate involvement in elections has deteriorated American …

Buckeyes Against The Boycott: Why Ohio's Law Opposing Bds Is Protected Under The First Amendment, Hannah Kraus

Cleveland State Law Review

In 2016, Ohio became the fourteenth state to enact legislation denouncing the Boycott, Divestment, and Sanctions movement against Israel. Codified as § 9.76 of the Ohio Revised Code, this legislation prohibits any state agency from contracting with a company that boycotts Israel during the contractual period. While the constitutionality of § 9.76 has not been challenged, anti-BDS statutes passed by other state legislatures have faced First Amendment challenges. This Note argues that § 9.76 of the Ohio Revised Code complies with the First Amendment under the government speech doctrine. In 1991, the Supreme Court applied the government speech doctrine in …

The Nfl Player, The Schoolchild, And The Entertainer: When The Term "Free Speech" Is Too Freely Spoken, Exactly "Who's On First?", Christian Ketter

Cleveland State Law Review

As America’s media and politicians continue to debate the free speech rights of NFL players, schoolchildren, and entertainers, the dialogue has confused many Americans as to what exactly the First Amendment protects. Chief Justice John G. Roberts ultimately assumes the role of an umpire in many of these issues, guiding the United States Supreme Court to incrementally “call balls and strikes.” In recent years, the Court has umpired employment rights and state action cases, and Roberts’s calls will likely further distance the Court that decided Morse v. Frederick from the one that decided Tinker v. Des Moines. Amid a …

Masterpiece Cakeshop'S Homiletics, Marc Spindelman

Cleveland State Law Review

Viewed closely and comprehensively, Masterpiece Cakeshop, far from simply being the narrow, shallow, and modest decision many have taken it to be, is a rich, multi-faceted decision that cleaves and binds the parties to the case, carefully managing conflictual crisis. Through a ruling for a faithful custom-wedding-cake baker against a state whose legal processes are held to have been marred by anti-religious bias, the Court unfolds a cross-cutting array of constitutional wins and losses for cultural conservatives and traditional moralists, on the one hand, and for lesbians and gay men and their supporters committed to civil and equal rights, …

“Fire Away”: I Have No Right To Not Be Insulted, David Barnhizer

David Barnhizer

In theory, universities are the institutions that are responsible for advancing our freedom of thought and discourse through the work of independent scholars and the teaching of each generation of students. But for several decades, universities and other educational institutions have increasingly set up rules aimed at protecting individuals and groups from criticism that those newly empowered individuals and groups consider insensitive, offensive, harassing, intolerant and disrespectful, or critical of their core belief systems. Even though it has been claimed that disadvantaged interest groups have a right to use one-sided tactics of intolerance against those they consider to be responsible …

Saving The Press Clause From Ruin: The Customary Origins Of A 'Free Press' As Interface To The Present And Future, Kevin F. O'Neill, Patrick J. Charles

Law Faculty Articles and Essays

Based on a close reading of original sources dating back to America's early colonial period, this article offers a fresh look at the origins of the Press Clause. Then, applying those historical findings, the article critiques recent scholarship in the field and reassesses the Press Clause jurisprudence of the Supreme Court. Finally, the article describes the likely impact of its historical findings if ever employed by the Court in interpreting the Press Clause.

Tweaking Tinker: Redefining An Outdated Standard For The Internet Era, Shannon M. Raley

Cleveland State Law Review

This Note argues that the Tinker standard needs to be reevaluated to encompass Internet-related cases both by eliminating the “on-campus” requirement and by further defining what constitutes a “substantial disruption.” The “on-campus” requirement should be eliminated for the following reasons: 1) lower federal courts already disregard this condition for Internet-related cases; 2) it leads students to abuse their First Amendment rights; and 3) this requirement threatens the safety of teachers, students, and other school personnel. Additionally, Tinker's “substantial disruption” prong would be better understood as a factors test. This ensures that schools utilize the same criteria in determining whether a …

Have You Been Drinking Tonight Ms. Prynne - Ohio's Scarlet Letter For Ovi/Dui Offenders: A Violation Of First Amendment Protection Against Compelled Speech, William Livingston

Cleveland State Law Review

This note examines the history of scarlet letter punishments. These types of sanctions raise many constitutional concerns; this Note will specifically address First Amendment compelled speech. Different standards of constitutional review for First Amendment violations and probation conditions will also be discussed. The note will also explain how Ohio's special license plate violates the First Amendment. Because the license plate is a legislative requirement that infringes upon free speech and eliminates judicial sentencing discretion, the state's interest must pass strict scrutiny. This analysis will confirm that the state's interest is legitimate but not compelling. The special license plate fails to …

The Constitutional Status Of Speech About Oneself, R. George Wright

Cleveland State Law Review

We have accepted above the well-established idea that speech about oneself that is also intended to convey some sort of political idea or to address some matter of public concern can typically be distinguished from speech about oneself with no such further intent. On this basis, we have argued, contrary to recent contentions, that the latter sort of speech-speech that is "merely" about the self, or about one's merely personal or private concerns-should not generally qualify for any sort of elevated free speech protection. Fundamentally, this is because such speech does not systematically promote any of the consensually recognized and …

Abridging Constitutional Rights: Sexting Legislation In Ohio, Weronika Kowalczyk

Cleveland State Law Review

What happens when you combine technology, raging adolescent hormones, and rash decisions? As we have seen these past few years, one outcome is “sexting” the trend of teenagers transmitting sexually suggestive text messages or photographs through cell phones and similar communication devices. In 2009, the media was saturated with stories pertaining to sexting, from discussing the ramifications of engaging in it including cyber bullying, slashed reputations, and serious criminal charges to providing guidelines for what parents and educators could do to control or prevent it. Though sexting includes the transmission of messages as well as photographs, the majority of media …

First Amendment Protection Of Teachers' Instructional Speech: Extending Rust V. Sullivan To Ensure That Teachers Do Not Distort The Government Message, Emily White Kirsch

Cleveland State Law Review

The emergence of political activism in the 2008 presidential election extended throughout the country and even to where partisan politics have no place: the public school classroom. In 2004, the New York City Board of Education enacted a regulation that prohibited teachers from wearing any material supporting political candidates or organizations. During the 2008 election, teachers who wanted to wear partisan political buttons in the classroom while teaching claimed that the regulation violated their First Amendment rights. Although the Southern District of New York ultimately held that the teachers had no First Amendment claim, the court's decision, which involved sorting …

Testimony Before The House Committee On Veterans' Affairs, Subcommittee On Disability Assistance And Memorial Affairs, In Support Of H.R. 5037, The "Respect For America's Fallen Heroes Act,", David Forte

Law Faculty Presentations and Testimony

H.R. 5037, entitled the ”Respect for America's Fallen Heroes Act,” seeks to limit ”certain demonstrations” in cemeteries under the control of the National Cemetery Administration or on the property of Arlington National Cemetery. The bill defines what constitutes a demonstration disruptive of the memorial services or funerals being held in or within 500 feet of such cemeteries, but allows an exception for demonstrations on cemetery grounds if ” approved by the cemetery superintendent.” There are thus two constitutional issues to be confronted: (1) Does the ban on ”certain” demonstrations meet the requirements of First Amendment law as laid down in …

Too Much Religious Freedom - Infants Infected With Herpes After Jewish Mohel Applies Oral Suction To Circumcised Penises, Jamie Cole Kerlee

Journal of Law and Health

Does the Constitution absolutely protect the free exercise of oral-genital suction when it threatens the health and safety of human beings, particularly infants? And does the Constitution bar parents from having any remedy for the lifelong physical, emotional, and financial damage that may potentially result from the negligent HSV transmission through metzizah be'peh? This article focuses on the controversial issue of state interference with the Orthodox Jewish practice, a topic recently at the forefront in New York City. Until the government recognizes its duty to provide affirmative regulation of metzitzah be'peh to protect the compelling health interest of infants, thousands …

Misperception And Misapplication Of The First Amendment In The American Pluralistic System: Mergers Between Catholic And Non-Catholic Healthcare Systems, Jason M. Kellhofer

Journal of Law and Health

This note questions the wisdom of those who content that Catholic health providers, to constitutionally qualify for government assistance or be permitted to merge with public entities, must be stripped of that which makes them most effective - their religious identity. The threat to sectarian healthcare has steadily been on the rise as can be seen in actions such as the American Public Health Association's recent approval of a policy statement recommending more government oversight to preclude the dropping of reproductive services when Catholic and Non-Catholic hospitals merge. Section II explores why these mergers occur and why certain services are …

Are Contemporary Community Standards No Longer Contemporary, Roman A. Kostenko

Cleveland State Law Review

This note concurs with the decision reached by the Third Circuit. The federal obscenity law, which incorporated the contemporary community standards test is unconstitutional as applied to expression on the internet because it has chilling effect on the exercise of freedom of speech as guaranteed by the First Amendment to the Constitution of the United States. Because freedom of speech would be restrained by any incorporation of community standards in federal regulation of the internet, the legislature should refrain from adopting a standard that would apply in all internet situations. Rather, with respect to obscenity, the internet should be left …

The Tobacco Industry And The First Amendment - An Analysis Of The 1998 Master Settlement Agreement, Lori Ann Luka

Journal of Law and Health

This Note discusses and assesses the Government's likelihood of passing constitutional scrutiny with the Master Settlement Agreement's restrictions in light of the First Amendment case law. A majority of the restrictions will likely pass constitutional scrutiny because they meet the demanding requirements of Central Hudson and its progeny. The author believes that a few of the restrictions need to be more narrowly tailored in order to pass constitutional scrutiny. Suggestions on how to narrowly tailor the restrictions to comport with Central Hudson are proffered by the author. Section II provides an overview of the history of First Amendment commercial speech …

Lisa Herdahl And Religious Liberty , Nadine Strossen

Cleveland State Law Review

Introduction of the ACLU’s Roger Baldwin Medal of Liberty Award honoree, detailing her specific struggle and outlining the larger national picture her case reflected.

New Criticisms Of The Libel-Proof Plaintiff Doctrine , Wayne M. Serra

Cleveland State Law Review

This paper will explore the libel-proof plaintiff doctrine and examine it in light of traditional standing and jurisdictional principles. Part II of this paper discusses the origin of the libel-proof doctrine and its application. Part III explores the general requirements for diversity actions in the federal district courts, the application of state law to those actions, and the impact of the First Amendment on state libel law. Part IV discusses standing to sue principles and analyzes the libel-proof plaintiff doctrine in light of those principles. Part V discusses some criticisms of the libel-proof plaintiff doctrine. Finally, Part VI concludes that …

Joining A Cult: Religious Choice Or Psychological Aberration, Dena S. Davis

Journal of Law and Health

In this article, I will analyze the different theories about "cult" membership and conversion, specifically focusing upon whether or not conversions to cults ought to be respected by the law in the same way that the law respects conversion to be respected by the law in the same way that the law respects conversion to and membership in, mainstream religions. In section II, I attempt (unsuccessfully) to define a "cult". In section III, I discuss the civil liberties issues surrounding "cults" and the public furor they have engendered. In section IV, I discuss the different and competing theories about why …

Counter-Demonstration As Protected Speech: Finding The Right To Confrontation In Existing First Amendment Law, Kevin F. O'Neill, R. Vasvari

Law Faculty Articles and Essays

Accordingly, this Article is aimed at disentangling lines of precedent that are all too frequently entwined by urging an analysis of public protest cases that distinguishes among the four regulatory players. Thus, this Article devotes separate sections to the regulatory roles of legislators,16 administrators,17 judges,18 and police,19 with an introductory section on the doctrinal bedrock in this field: the public forum doctrine.20

The First Amendment: When The Government Must Make Content-Based Choices, Erwin Chemerinsky

Cleveland State Law Review

Thus, I focus my attention on the problem of the First Amendment when the government must make content-based choices. I want to divide my remarks into four parts. I begin by reviewing the traditional bedrock rule of the First Amendment: The government cannot regulate speech based on its content. Second, I identify a broad range of cases where this rule cannot apply because the government must make content-based choices. Third, I suggest that the usual First Amendment principles are not helpful in analyzing these cases. Finally, I offer some initial thoughts about directions for dealing with this problem.

Free Speech By The Light Of A Burning Cross, Jerome O'Callaghan

Cleveland State Law Review

For scholars of the First Amendment this case is an excellent example of the dilemmas posed by many of the doctrines created by the Court. While Justice Scalia proposes an elaborate and novel understanding of the limits of free speech regulation, Justice White responds with an assertion that Scalia's reasoning is "transparently wrong," and that his opinion is a "radical revision of First Amendment law." According to Justice Stevens, the majority opinion is no more than "an adventure in a doctrinal wonderland." Part II of this paper examines the attacks made by Justices White and Stevens against the majority opinion. …

The Myth Of Ministry Vs. Mortar: A Legal & Policy Analysis Of Landmark Designation Of Religious Institutions, Alan C. Weinstein

Law Faculty Articles and Essays

This Article proposes to examine the conflict between religious institutions and landmark preservation groups at both its empirical and normative levels. Part I of the Article provides an overview of historic preservation. It traces the development of the historic preservation movement, describes the standards and procedures commonly found in preservation ordinances, and discusses briefly the seminal cases in this field. Part II then attempts to answer three questions: (1) how extensive is the conflict between religious institutions and landmark commissions; (2) what has been the response of state and local legislatures to the conflict; and (3) what legal doctrines have …

Report Of The Subcommittee On First Amendment And Land Use, Alan C. Weinstein, Edward H. Ziegler Jr.

Law Faculty Articles and Essays

In recent years, there has been a marked expansion in the types of uses, both commercial and nonprofit, that challenge land-use regulations on First Amendment grounds. This expansion is occurring for two reasons. First, "land use and the first amendment" is a developing area in the law. As is typical of developing areas in the law, litigants are encouraged to bring cases because the law is unsettled and they hope to create significant new rights. Second, a number of societal factors have coalesced to create a greater potential for conflict when government regulates the use of land. In part, this …

Attitudinal And Legal Factors In Professional Advertising, Ruth Bogatyrow Kraft

Journal of Law and Health

This Article is concerned with advertising by professionals, a phenomenon which has taken on greater importance and become more controversial as its impact has grown over the past decade. Part II of this Article discusses the legal precedents which permitted the development of professional advertising in general. In Part III the body of literature concerning professional and consumer attitudes towards promotional behavior is reviewed. Part IV presents and evaluates the initial results of a survey of plastic surgeons. The promotional attitudes of plastic surgeons are an especially interesting subject of study, as advertising by this medical sub-specialty presents in a …

Student Publications, The First Amendment, And State Speech, T. D. Buckley Jr.

Cleveland State Law Review

The lower federal courts and state courts have been applying the first amendment in student press cases arising at public colleges and high schools since 1967. But ordinary first amendment analysis is inadequate in most student press disputes. As a result the courts in some cases have been unable to articulate satisfactorily the bases for good decisions. And in other cases the real issues generated in student press litigations have been ignored. This Article evaluates the cases so far decided, and proposes a new approach to student press disputes which would rationalize what the courts have intuitively done correctly in …

Book Review, Stephen W. Gard

Law Faculty Articles and Essays

The author reviews Justice Hugo Black and the First Amendment, edited by Everette E. Dennis, Donald M. Gillmor and David L. Grey.

The Impact Of Pacifica Foundation On Two Traditions Of Freedom Of Expression, Stephen W. Gard, Jeffrey Endress

Cleveland State Law Review

The United States Supreme Court, in FCC v. Pacifica Foundation, had a magnificent opportunity to either begin the process of defining first amendment limitations on the scope of the authority of the FCC to regulate the content of broadcast expression, explicate a rational ground for the differential status of broadcasting, or perhaps both. The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily …