Law Commons^™

Protecting Public Employee Trial Testimony, Joseph Deloney

Chicago-Kent Law Review

In a number of jurisdictions around the United States, police officers and other public employees that regularly testify as part of their ordinary job duties can be placed in compromising positions. Because these types of employees regularly testify as part of their ordinary job duties, such testimony is considered “employee speech” and therefore unprotected by the First Amendment. Consequently, governmental employers can take adverse employment actions against an employee based on his or her truthful trial testimony without violating the employee’s First Amendment rights. Drawing from the Supreme Court’s 2014 decision in Lane v. Franks and other circuit court cases, …

Because I Said So: An Examination Of Parental Naming Rights, Ashley N. Moscarello

Chicago-Kent Law Review

Naming a child is often one of the most exciting parts of having a baby. Some parents, of course, choose to be more creative and unique, which leads to some very interesting names like Toilet Queen, Acne Fountain, Crimson Tide Redd, Messiah, Candy Stohr, and Violence. Although some of these names are quite absurd, should the government be able to tell parents that they have crossed the line?

When parents agree about the name they want to give their child, should the state or courts be able to intervene in that decision if the state has problems with the name? …

A Quantum Congress, Jorge R. Roig

Chicago-Kent Law Review

This article tries to address the problem of a corrupt and broken electoral system that has been captured by special interests through big money spending in political campaigns, while at the same time preserving the spirit of the Free Speech Clause of our Constitution. In doing so, this article first reviews and summarizes the different alternatives proposed as potential fixes for the campaign finance problem. It then explains why none of the proposed alternatives can accomplish the dual goals set out above. Finally, the article briefly sketches a proposal for a fundamental reworking of our representative democracy by substituting legislative …

Installations Of Jewish Law In Public Urban Space: An American Eruv Controversy, Charlotte Elisheva Fonrobert

Chicago-Kent Law Review

This article analyzes the ongoing controversy over the installation of an eruv in Westhampton Beach. The author first provides an analytical description of the case with reference to other recent eruv controversies. Similar to arguments advanced in earlier eruv controversies, lawyers in the Westhampton case have taken recourse to the First Amendment, with proponents of the eruv relying on the free exercise clause, and opponents relying on the establishment clause. The article then proceeds to discuss the implications of this controversy for the larger issues of religion in the public sphere, as one of the critical issues emerging in all …

Banning The Hijab In Prisons: Violations Of Incarcerated Muslim Women's Right To Free Exercise Of Religion, Ali Ammoura

Chicago-Kent Law Review

Muslim American women who wear the hijab, or Islamic headscarf, face religious discrimination in nearly every aspect of their public life. They even face it during arrest or incarceration. Law enforcement officials often force Muslim women to remove their hijab while in custody, which both degrades and humiliates them in the process. But prison policies that prohibit incarcerated Muslim women from wearing the hijab violate their right to free exercise of religion. Penal institutions should not prevent incarcerated Muslim women from wearing a hijab without compelling reasons, especially when such policies often arise out of religious discrimination. Courts must …

Beyond The Schoolhouse Gate: Should Schools Have The Authority To Punish Online Student Speech?, Brittany L. Kaspar

Chicago-Kent Law Review

This note analyzes the current circuit split over whether schools should have the authority to punish students for speech made on the Internet. Part I discusses the First Amendment generally and the four Supreme Court cases that have refined its application with respect to on-campus student speech. Part II presents the ensuing circuit split over the constitutionality of disciplining students for online, off-campus speech. Specifically, this section will explain both of the existing perspectives and why neither of the two is ideal. Part III attempts to devise a solution to the current divide by advocating a compromise position. In particular, …

Dueling Values: The Clash Of Cyber Suicide Speech And The First Amendment, Thea E. Potanos

Chicago-Kent Law Review

On March 15, 2011, William Melchert-Dinkel, a Minnesota nurse, was convicted of two counts of assisted suicide, based solely on things he said in emails and online chat rooms. This note examines whether cyber speech encouraging suicide, such as Melchert-Dinkel's, should be protected by the First Amendment. States have compelling interests in preserving life, preventing suicide, and protecting vulnerable persons from abuse, and the majority of them have assisted suicide statutes that could be applied to cyber-suicide speech. However, because cyber- suicide speech does not fit neatly into recognized categories of "low-value" or unprotected speech, punishment may be foreclosed by …

Public Corruption Concerns And Counter-Majoritarian Democracy Definition In Citizens United V. Federal Election Commission, Daaron Kimmel

Chicago-Kent Law Review

In determining the shape of the free speech rights and anti-corruption concerns that courts must balance in campaign finance cases, judges are influenced by their own underlying understandings of what an ideal democracy should look like. For judges to decide whether the government is appropriately regulating the political process, the rules that allow all citizens to interact with and shape their democracy, judges must first decide what that democracy ought to look like. This affords judges a great deal of discretion in campaign finance cases. Citizens United v. Federal Election Commission is a particularly bold judicial attempt to reshape the …

Twittering Away The Right Of Publicity: Personality Rights And Celebrity Impersonation On Social Networking Websites, Andrew M. Jung

Chicago-Kent Law Review

Within the past couple of years, social networking websites have become an immensely popular destination for people from all walks of life. Websites like Facebook and Twitter now count tens of millions of worldwide users, including world leaders and a number of celebrities. Eventually, users realized that social networking websites lent themselves to the quick and easy impersonation of celebrities through the creation of fake social networking accounts, often as a form of parody. One subject of such impersonation was professional baseball manager Tony La Russa, who took the then-unprecedented step of suing his impersonators and Twitter over the incident. …

The Power Of The Parental Trump Card: How And Why Frazier V. Winn Got It Right, Jocelyn Floyd

Chicago-Kent Law Review

When two fundamental rights are in conflict, such that the protection of one requires the infringement of the other, courts must weigh those rights against each other to determine which is ultimately greater. In Frazier v. Winn, the Eleventh Circuit dealt with precisely such an issue: specifically, the rights of parents pitted against those of their children. This note explores the history of both parental rights and student's rights in school to show why the court appropriately affirmed that children's right to free speech is only as expansive as their parents allow, justified by the parents' fundamental right to …

The Speech-Enhancing Effect Of Internet Regulation, Emily Buss

Chicago-Kent Law Review

In this Article, the author suggests that certain speech-reducing regulations will, in fact, be speech-enhancing for children. This is because children are vulnerable to far greater censorship at the hands of their parents than at the hands of Internet regulators. Regulations that inspire parents to relax their grip on their children's access to information are likely to produce significant net speech gains for children. Viewed this way, regulations designed to protect children can be conceived as pitting the speech interests of adults against the speech interests of children. The Article suggests a number of reasons we might value the children's …

When Well-Being Trumps Liberty: Political Theory, Jurisprudence, And Children's Rights, William Galston

Chicago-Kent Law Review

Compared to most adults, children are dependent and vulnerable and therefore require special protection. Efforts to safeguard their well-being often collide with one or more of the liberty guarantees of the First Amendment. Professor Etzioni fears that current jurisprudence has tipped the balance too far towards individual liberty, making it difficult to extend children the legal protection they need. Drawing on a theoretical account of constitutionalism as well as existing case law, the author argues that mainstream jurisprudence is up to the task of balancing the well-being of children against the liberty of adults. The Supreme Court's recent decision in …

On Protecting Children From Speech, Amitai Etzioni

Chicago-Kent Law Review

Are children entitled to the same First Amendment rights as adults? This Article explores the constitutionality of limiting children's access to objectionable materials assuming that both free speech rights and the protection of children are two core values that, like all other social values, must be balanced. When used to assess specific court cases and public policies, the balancing principle is a helpful guide in determining whether voluntary or incentives-based programs are sufficient to remedy the problems at hand or whether government regulation of free speech is necessary. The Article analyzes five court cases involving Internet filters in libraries, the …

The Liberal Theory Of Freedom Of Expression For Children, Colin M. Macleod

Chicago-Kent Law Review

This Article develops a liberal theory of freedom of expression which is sensitive to the interests of children as distinct, vulnerable but developing members of society. I argue that children have, in addition to welfare interests, interests in the development and exercise of basic moral powers. In virtue of such interests, children acquire, well before they become adults, nontrivial rights of free expression. Respecting children's rights to free expression entails limits on the prerogatives of parents and others to determine the sorts of cultural materials children should be permitted access. Nonetheless children's rights are importantly different from those of adults. …

Free Speech And Children's Interests, David Archard

Chicago-Kent Law Review

This Article endorses the conclusion of Etzioni's article that the First Amendment right of free speech should not trump the interests of children. However the picture is more complicated once we recognize that parents have a "basic" right to bring up their children as they see fit that may conflict with the state's duty to protect children in its jurisdiction.

Moreover there is an important difference between protecting children now from harms and safeguarding the interests of the adults they will grow into. Society has an interest in protecting children based upon its fundamental interest in ensuring the conditions of …

Toward A Constitutional Regulation Of Minors' Access To Harmful Internet Speech, Dawn C. Nunziato

Chicago-Kent Law Review

In this Article, Prof. Nunziato scrutinizes Congress's recent efforts to regulate access to sexually-themed Internet speech. The first such effort, embodied in the Communications Decency Act, failed to take into account the Supreme Court's carefully-honed obscenity and obscenity-for-minors jurisprudence. The second, embodied in the Child Online Protection Act, attended carefully to Supreme Court precedent, but failed to account for the geographic variability in definitions of obscene speech. Finally, the recently-enacted Children's Internet Protection Act apparently remedies the constitutional deficiencies identified in these two prior legislative efforts, but runs the risk of being implemented in a manner that fails to protect …

Shielding Children: The European Way, Michael D. Birnhack, Jacob H. Rowbottom

Chicago-Kent Law Review

The Internet crosses physical borders, and carries with it both its promises and its harms to many different countries and societies. These countries thus share the same technology, but they do not necessarily share the same set of values or legal system. This Article compares the legal response in the United States and in Europe to one important issue: the exposure of children to certain materials, which are deemed harmful to them but not harmful to adults.

This US-European comparison, in which the experience in the United Kingdom serves as a leading example, illustrates the traits of various kinds of …

On Protecting Children—From Censorship: A Reply To Amitai Etzioni, Marjorie Heins

Chicago-Kent Law Review

Etzioni's argument for censorship of minors ignores the fundamental problem with Internet filters, misstates the results of media-effects research, and uses emotional terms like "protection" and "harm" to mask moral judgments about what is appropriate for youth.

Given the size and constantly changing character of the Internet, filters necessarily rely on key words and phrases. As a result, thousands of valuable Web pages are mistakenly blocked by filters, even at their narrowest settings. The problem is inherent in the system.

Most media-effects studies do not show a causal link between violent content and violent (or "aggressive") behavior. The studies that …

The Need For A Two (Or More) Tiered First Amendment To Provide For The Protection Of Children, Kevin W. Saunders

Chicago-Kent Law Review

This Article addresses the two sorts of problems raised by Professor Etzioni, while also responding to the earlier articles in this Symposium. With regard to the spillover effect, the author argues that there are ways to limit the effect on adults of restrictions designed to protect children, even on the Internet. Furthermore, some spillover effect is allowed and may leave open the possibility of protecting children from tobacco or alcohol advertisements. The Article also addresses areas in which material has been seen as protected even for children. While agreeing that depictions of violence pose an important problem, the Article also …

Response, Amitai Etzioni

Chicago-Kent Law Review

No abstract provided.