Law Commons^™

The Presumption Of Constitutionality And The Demise Of Economic Liberties, James Huffman

Dickinson Law Review (2017-Present)

For over two centuries the United States Supreme Court has embraced a presumption of constitutionality that places the burden of proof on those challenging the constitutionality of governmental actions. Usually, the presumption is stated as a given, but when explained it is most often said to be founded in republicanism and due respect for the co-equal branches of government. Thus, the presumption constitutes a deference to the constitutional interpretations of the elected branches of government. This majoritarian view of the Constitution’s foundational principle is counter to the dominant view of the Constitution’s founders. They designed a government constituted of numerous …

The Paradox Of The Paradox Of Democracy, Raymond H. Brescia

Dickinson Law Review (2017-Present)

In The Paradox of Democracy: Free Speech, Open Media, and Perilous Persuasion, authors Zac Gershberg and Sean Illing argue that democracies contain the capacity for their own destruction because they promote open communication but such communication can be manipulated by authoritarian forces. They argue further that with contemporary communications technologies the descent into fascism is even more likely. The authors argue that in order to confront these threats, democratic nations must increase media literacy within the citizenry and strengthen local journalism. Given the grave nature of the threats the authors have exposed, these solutions do not appear up to …

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Theses

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

Disappearing Act: Are Free Speech Rights Decreasing?, Michael Conklin

St. Mary's Law Journal

Abstract forthcoming.

Fixed Stars: Famous First Amendment Phrases And Their Indelible Impact, David L. Hudson Jr., Jacob David Glenn

Law Faculty Scholarship

Some passages in First Amendment law have taken on a life and legend of their own, entering our cultural lexicon for their particular power, precision or passion. Some phrases are just so beautifully written that they cannot escape notice. Others aptly capture the essence of a key concept in a memorable way. Still others seemingly have grown in importance simply by the frequency for which they are cited in later court decisions. This article analyzes ten phrases from U.S. Supreme Court First Amendment decisions that qualify as some of the most enduring passages in First Amendment jurisprudence.

The Content-Discrimination Principle And The Impact Of Reed V. Town Of Gilbert, David L. Hudson Jr.

Law Faculty Scholarship

The content-discrimination principle remains the chief analytical tool used in First Amendment jurisprudence. Under this doctrine, laws are categorized as content-based or content-neutral. Content-based laws are subject to strict scrutiny and content-neutral ones are subject to intermediate scrutiny.

The U.S. Supreme Court ratcheted up the content-discrimination principle in Reed v. Town of Gilbert. Previously, lower courts were divided on whether a law was content-based if the underlying purpose was not to engage in censorship or content-discrimination. In Reed, however, the Court declared that the law’s purpose is not the central inquiry. It concluded that if a law draws facial distinctions …

Private Interests, Public Law, And Reconfigured Inequality In Modern Payment Card Networks, Stephen Wilks

Dickinson Law Review (2017-Present)

This Article examines two phenomena contributing to the racial stratification of consumers in credit card markets. The first phenomenon pertains to the longstanding conflict between card issuers and merchants over payment processing cost allocation. If successful, First Amendment challenges to existing statutory surcharge bans will allow merchants to impose an additional fee when consumers use credit cards as a form of payment. The Article relies on the interplay between socioeconomic class and behavioral theory to suggest subsistence borrowers would be more likely to pay surcharge fees than wealthier consumers. This arrangement disfavors the poor to support a hierarchy of borrowers, …

Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley

Dickinson Law Review (2017-Present)

In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course.

Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and …

Thirty Years Of Hazelwood And Its Spread To Colleges And University Campuses, David L. Hudson Jr.

Law Faculty Scholarship

This Article first examines K-12 student speech law before Hazelwood School District v. Kuhlmeier and then discusses the Hazelwood decision. Next, the article focuses on the spread of Hazelwood and its deferential standard to the college and university level. This section examines cases from five different areas where the standard has been utilized with increasing frequency. Finally, the Article offers a few concluding thoughts on the Hazelwood standard and why it should be limited, if not interred.

Essay: Justice Thurgood Marshall, Great Defender Of First Amendment Free-Speech Rights For The Powerless, David L. Hudson Jr.

Law Faculty Scholarship

This essay explains that Justice Thurgood Marshall’s passionate defense of freedom of expression can be seen most clearly in his defense of free-speech rights even when the government acts not as sovereign, but as warden, employer, or educator. In other words, Marshall’s commitment to free-speech is shown most forcefully by how he consistently protected the free-expression rights of inmates, public employees, and public school students.

Memorandum, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen

Research Data

This legal Memorandum on the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and written by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The Memorandum is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).

4 p.

"The legislative history primarily identifies two issues that SB08-200 was designed to resolve: (1) the need for dignity and access to justice for LGBT people and …

Master File, Masterpiece Cakeshop, Ltd. V. Colo. Civil Rights Comm., __ U.S. __ (2017): Legislative History Of Sb08-200, Matt Simonsen

Research Data

This Master File of the legislative history of a 2008 amendment to the Colorado Anti-Discrimination Act (CADA) was researched and compiled by Matt Simonsen, J.D. Candidate 2019, University of Colorado Law School, and submitted to law professors Craig Konnoth and Melissa Hart. The SB08-200 Master File is cited in Brief of Amici Curiae Colorado Organizations and Individuals in Support of Respondents, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __U.S.__ (2018) (No. 16-111).

449 p.

A Missed Opportunity To Clarify Students' First Amendment Rights In The Digital Age, Elizabeth Shaver

Akron Law Faculty Publications

In the last decade, the federal circuit courts have grappled with the issue whether, and to what extent, school officials constitutionally may discipline students for their off-campus electronic speech. Before 2015, three federal circuit courts had extended school authority to off-campus electronic speech by applying a vague test that allows school officials to reach far beyond the iconic “schoolhouse gate” referenced in the Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) Two other federal circuits had avoided the issue altogether by deciding the cases before them on other grounds. In 2015, …

Anti-Profanity Laws And The First Amendment, David L. Hudson Jr.

Law Faculty Scholarship

The essay first examines several current state laws that prohibit profanity under certain circumstances. It then details a few recent cases in which individuals were convicted for uttering profanity. The next section explains how profanity can be a part of an unprotected category of speech, such as fighting words, true threats, or harassment. Finally, the essay examines whether such laws and cases comport with First Amendment principles.

First Amendment Right To Receive Information And Ideas Justifies Citizens' Videotaping Of The Police, David L. Hudson Jr.

Law Faculty Scholarship

Several courts have declared that members of the public have a First Amendment-protected right to film or videotape the police. At least one legal commentator has posited that this right falls within three of the five textually-based freedoms of the First Amendment - the Speech, Press, and Petition Clauses. This right to receive information and ideas is a "corollary" of the right to speak that triggers the First Amendment interests of not only speakers, but also audiences. This right to receive information and ideas applies in the context of citizens recording the police. The public has a right to know …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Free Conscience In Decline: The Insignificance Of The Free Exercise Clause And The Role Of The Religious Freedom Restoration Act In The Wake Of Hobby Lobby, John Fahner

Belmont Law Review

Unfortunately, the modern Free Exercise Clause doctrine favors a progressive interpretation concerned more with efficiency and practicality than meaningful protection of conscience. Individual liberty of conscience, once present in the American legal understanding of free exercise, is no longer a concern of the First Amendment. A truly panacean remedy requires an introspective look into the foundations of the Free Exercise Clause and a careful evaluation of the justifications for the jurisprudential departure therefrom. To that end, this note seeks to reinforce the importance and historical understanding of the Free Exercise Clause and highlight the incongruities of the modern doctrine in …

Defamation And The Government Employee: Redefining Who Constitutes A Public Official, Jeffrey Omar Usman

Law Faculty Scholarship

This Article embraces neither the narrow nor broad conceptualization of a public official employed currently by state and lower federal courts but instead suggests revisiting the Rosenblatt formulation and the one clear limitation set forth by Hutchinson that whatever the scope of public officialdom may be “it cannot be thought to include all public employees.” Though not all speech about government employees should be deemed to be related to their official capacity, all government employees should be considered public officials, and speech related to their official conduct should be safeguarded by the actual malice standard. To explain and support this …

Omnipresent Student Speech And The Schoolhouse Gate: Interpreting Tinker In The Digital Age, Watt L. Black Jr.

Watt Lesley Black Jr.

This paper focuses primarily on federal circuit level decisions regarding public school district's ability to discipline students who engage in electronic speech while off-campus and not involved in school activities. Particular attention is paid to the question of whether and how appeals courts have been willing to apply the "material and substantial disruption" standard from the Supreme Court's 1969 Tinker v. Des Moines decision to speech occurring off-campus. The paper, which is targeted toward both legal scholars and school administrators, draws together the common threads from the various circuits and weaves them into a set of guidelines for school administrators …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

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 …

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.

Pearson V. Callahan And Qualified Immunity: Impact On First Amendment Law, David L. Hudson Jr.

Law Faculty Scholarship

An essay on Pearson v. Callahan and its impact on First Amendment Law.

Religion And Sports In The Undergraduate Classroom: A Surefire Way To Spark Student Interest, Adam Epstein

Adam Epstein

The purpose of this pedagogical piece is to present an opportunity to discuss religion in the context of sports as a means of generating classroom discussion and prompting extra-curricular reading on topics pertaining to business law primarily at the undergraduate level. A discussion of religion and sports provides one avenue to pursue exploration of the free exercise and establishment clauses. Examples are provided in the intercollegiate, interscholastic and professional sport contexts. The article also provides a brief primer on the First Amendment generally, outlining some of the classic Supreme Court cases. The article then discusses a series of cases involving …

Constitutional Law And Values—Version ’08 (Not Necessarily An Upgrade), Nadine Strossen

NYLS Law Review

No abstract provided.

Best Brief, 17th Annual National First Amendment Moot Court Competition, Bret Hobson, Lauren Mock

Competition Materials

From First Amendment Center News Release:

NASHVILLE, Tenn. — The team from George Mason University School of Law won the 17th Annual National First Amendment Moot Court Competition today at the First Amendment Center at Vanderbilt University.

Recognized for “best brief” in the competition were Bret Hobson and Lauren Mock of the University of Georgia School of Law; and for “best oralist,” Ryan Faulconer of the University of Virginia School of Law.

The competition this year focused on a hypothetical case involving commercial speech, specifically attorney advertising. Teams of student advocates from 35 law schools argued both sides of complex …

Defining Religion: The Struggle To Define Religion Under The First Amendment And The Contributions And Insights Of Other Disciplines Of Study, Including Theology, Psychology, Sociology, The Arts, And Anthropology, Jeffrey Omar Usman

Law Faculty Scholarship

This article attempts to explore from many vantage points one word within one context — the word “religion” in the First Amendment of the United States Constitution. The article begins with placing our understanding of religion in a historical context. By exploring the history of religious liberty in the colonies and the Founders’ view thereof, an understanding of what the Founders were seeking to protect by safeguarding religious liberty will be gained. Having established this framework, the article then addresses overarching issues that complicate the quest to define religion. Then, the article transitions into an exploration of the development of …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Linda L. Berger

No abstract provided.