Law Commons^™

Protecting Public Health Amidst Data Theft, Sludge, And Dark Patterns: Overcoming The Constitutional Barriers To Health Information Regulations, Jon M. Garon

Akron Law Review

Public health has grown to over $4.1 trillion in spending in the past year, yet for millions of people, their health care is ineffective and sometimes harmful. New technologies have improved health access and treatment, but they can expose an individual’s personal health information to theft and misuse. There is little or no regulation for the reuse of data once it has been lawfully collected for general purposes. Any observer can create a detailed personal diary of an individual or a population by building from a mosaic of inferential data—such as lawfully obtained zip code information, non-regulated health care application …

You Have The Duty To Remain Silent: How Workplace Gag Rules Frustrate Police Accountability, Frank D. Lomonte, Jessica Terkovich

Akron Law Review

This Article traces the First Amendment caselaw that, for more than half a century, has sided with speakers facially challenging overbroad workplace policies that forbid sharing information with the press and public. The Article then reports on the results of a nationwide survey of police and sheriff’s department policies by the Brechner Center for Freedom of Information, concluding that well over half of the nation’s biggest law enforcement agencies have rules on the books that resemble—or are identical to—those struck down as unconstitutional when challenged, at times in defiance of binding circuit-level precedent. The Article examines why these legally dubious …

Signed Opinions, Concurrences, Dissents, And Vote Counts In The U.S. Supreme Court: Boon Or Bane? (A Response To Professors Penrose And Sherry), Joan Steinman

Akron Law Review

Some commentators recently have argued for changes in how United States Supreme Court Justices communicate with everyone except perhaps other Justices of the Supreme Court and the Justices' assistants. Specifically, some commentators have urged that signed opinions and separate opinions, such as concurrences and dissents, stop being published in the official reports. One commentator also has advocated non‑publication of the vote count in Supreme Court decisions. Another has demanded unanimity, as required by due process.

In this piece, I offer my thoughts in response to these proposals.

I argue several reasons to doubt that a prohibition on publication of concurring …

Unmasking The Teen Cyberbully: A First Amendment-Compliant Approach To Protecting Child Victims Of Anonymous, School-Related Internet Harassment, Benjamin A. Holden

Akron Law Review

In proposing a new rule under the First Amendment to adjudicate anonymous Cyberbullying cases, this Article first reviews and summarizes the First Amendment precedents governing regulation of speech by minors and student speech in the school environment. Second, it reviews and discusses the prevalence of minors’ online harassment or Cyberbullying, including pre-litigation disputes reported in the press. Third, it reviews and summarizes the First Amendment precedents governing the “unmasking” of anonymous speakers. Finally, the Cyberbully Unmasking Test is proposed and applied.

The Free Exercise Of Religion, Arthur J. Goldberg

Akron Law Review

Freedom of speech and of the press, guaranteed by the First Amendment, is today regarded to be our most preferred freedom. Justice Cardozo once said this freedom is the matrix, the indispensable condition of nearly every other freedom.

But, to the Founding Fathers, freedom of religion was regarded to be preeminent among fundamental rights. And for good reasons. The immediate forebearers of the Framers of the Constitution, emigrated primarily because they were denied the right freely to exercise their respective religious beliefs not sanctioned by the established Church of England. The Colonists were religious dissenters. They adamantly insisted upon their …

Falwell V. Flynt: Lampooning Or Liability; The Realization Of A Three-Pronged Tort Approach For Establishing Media Liability For Fictional Defamation, Christopher C. Patterson

Akron Law Review

This article will discuss the appellate court's interpretation and application of the three tort theories of liability. It will also analyze the potential floodgate effect this case may have on future defamation actions against the media for publishing fictional publications, including political cartoons.

A Line Drawn By Unsteady Hands: Section 170, Charitable Contributions, And Return Benefits In Hernandez V. C.I.R., David M. Phipps

Akron Law Review

This Note analyzes the majority decision and dissenting opinion in Hernandez, which have far-reaching implications for charitable organizations, taxpayers, and the government. Traditional tax deductions for charitable organizations may be in danger and these organizations may suffer economic difficulty?

Bad News: Privacy Ruling To Increase Press Litigation, The Florida Star V. B.J.F., Mary Ellen Hockwalt

Akron Law Review

This note analyzes the history and precedent upon which the Court relied in reaching Florida Star's "harsh outcome." Next, the note discusses how the Court, by refusing to extend its holding beyond the facts of the case and give broad Constitutional protection to publications of truth, failed to provide lower courts with any guidance in deciding future invasion of privacy actions. Finally, the note examines the Court's balancing test: weighing the privacy interests of a crime victim against the newspaper's freedom to print truthful information.

Of Flags And Menorahs: The Power Of Individual And Governmental Symbolic Speech, Mark F. Kohler

Akron Law Review

The aim of this article will be to explore the nature of symbolic speech, both individual and governmental. Using Johnson and Allegheny County as a backdrop, four themes will emerge from the article. First, both individuals and government speak and speak powerfully through symbols and symbolic conduct. Second, medium-based regulation of individual speech should receive careful judicial scrutiny. Third, unlike individual symbolic expression, governmental symbolic speech is subject to substantial content-based restrictions. Finally, careful distinctions must be drawn between government-initiated symbolic speech and governmental endorsement of individual symbolic speech.

Political Campaign Advertising And The First Amendment: A Structural-Functional Analysis Of Proposed Reform, Rebecca Arbogast

Akron Law Review

The metaphor of the political arena as a marketplace has become all too apt with candidates' increased reliance on 30- and 60-second spot television advertisements produced by consulting firms. This shift in the nature of political discourse as well as the accompanying scramble to raise the money necessary to fund this uniquely expensive form of campaign speech has generated much discontent with the electoral process among politicians and commentators. For instance, the Senate established a sixmember commission to propose reforms regarding media coverage of political campaigns, and the Markle Foundation has funded a study on "the potential role of public …

Kuhlmeier V. Hazelwood School District: The First Amendment Rights Of Public High School Students, Edward S. Muse

Akron Law Review

In Kuhlmeier v. Hazelwood School District, the Supreme Court held that high school students' first amendment rights were not violated when their principal deleted articles from the school newspaper. The Court stated that the school newspaper was not a "public forum" for expression which normally receives full first amendment protection. The Court further held that the school principal did not violate students' first amendment rights when he restricted the printing of articles due to the effect that they could have on other students.

The Supreme Court's decision will undoubtedly curtail students' rights to free speech and press. This casenote …

From Bigelow To Shapero: Steps Along The Way In Attorney Advertising, Horace E. Johns

Akron Law Review

In essence, the rationale for denying attorneys the right to advertise was to protect the public from overly-zealous attorneys who might be inclined to utilize unscrupulous methods to take advantage of unknowing clients.

Five reasons have been offered to support bans on advertising; (1) protection of consumers from misrepresentation concerning both price and the likelihood of successful litigation; (2) commercialization of the legal profession, resulting in neglect of clients; (3) prevention of overcharging and the securing of too many cases by attorneys to cover the costs of advertising; (4) protection of the bar's integrity; and (5) initiation of too many …

Hate Speech, Free Speech And The University, Robert W. Mcgee

Akron Law Review

Students and faculty face possible retribution for expressing unpopular ideas, making statements that may be offensive to someone, or even for asking legitimate questions that deal with race, sex, ethnicity or sexual preference. A "thought police" mentality has infested the university, just as McCarthyism did in the 1950s. This article explores the current state of this mentality and discusses the problems inherent in trying to preserve and protect the right of free speech in the university

Separation Of Powers And The Rule Of Law, George Anhang

Akron Law Review

This Note, building upon dicta in two recent U.S. Supreme Court First Amendment overbreadth doctrine cases - Massachusetts v. Oakes and Osborne v. Ohio - argues that separation of powers can be seen as a delicate incentive structure which although not insuring this certainty and predictability, helps to promote it.

The Note does not attempt to show that this view of separation of powers is the driving force behind all Supreme Court separation of powers opinions. The Note is mainly interested in offering a coherent rationale for separation of powers doctrine. Nevertheless, the Note briefly discusses the two Supreme Court …

The Right To Republish Libel: Neutral Reportage And The Reasonable Reader, David Mccraw

Akron Law Review

This Article argues for a reconsideration and redefinition of the neutral reportage privilege. First, even if we accept Gertz's disapproval of newsworthiness as a criterion for First Amendment protection, a closer look at the neutral reportage privilege reveals that, contrary to what many courts and commentators have said, newsworthiness is not a necessary element of the privilege. Gertz is thus inapplicable. Second, the more serious problems with the neutral reportage privilege arise from its advocates' failure to define what constitutes "neutrality"-- in other words, to define what conduct by the reporter should legitimately give rise to immunity from libel actions.

Justice Brennan's Gender Jurisprudence, Rebecca Korzec

Akron Law Review

However, less attention has been focused on Justice Brennan's dramatic impact on the Supreme Court's gender jurisprudence. More than any other member of the Court, Justice Brennan recognized the complexity and pervasiveness of sex discrimination and its costs to society as a whole. Brennan's opinions recognized that sex differentiation is largely cultural in origin, rather than based on "real" gender differences. As a result, Justice Brennan created a truly independent gender jurisprudence, eventually emerging as the architect of the Supreme Court's contemporary test for evaluating claims of sex-based discrimination.

Understanding the significance of Brennan's contribution requires an appreciation of the …

God Talk By Professors Within The Classrooms Of Public Institutions Of Higher Education: What Is Constitutionally Permissible?, Sarah Howard Jenkins, Byron R. Johnson, Otto Jennings Helwig

Akron Law Review

This essay establishes, first, the professional aspects of disclosure. Second, it defines the equipoise between the State's interest in efficiency and the teacher's interest in exercising his or her First Amendment right of expression of religious opinion on matters of public interest. Third, the essay identifies expressive activities of the teacher within the classroom that should be accorded First Amendment protection pursuant to James v. Board of Education. Fourth, the essay examines whether the professor's disclosure of personal and theological biases in a classroom constitutes state action and concludes that a professor fulfilling his or her assigned tasks within …

Bias Crime Legislation: A Constitutional Rebuttal To Sticks And Stones . . ., Diana M. Torres

Akron Law Review

In a recent article, Susan Gellman of the Ohio bar provides perhaps the clearest and most persuasive arguments against these statutes both on constitutional and policy grounds. 5 This paper is, in many respects, a response to her arguments. It will first briefly discuss the need for bias crime legislation. It will then address the various forms of such statutes and respond to the constitutional objections of vagueness, overbreadth and infringement on free speech as set forth in Gellman's article. The paper will analogize the statutes to civil rights and anti-discrimination legislation and the principles behind sentencing discretion. Finally, the …

Mcintyre V. Ohio Elections Comm'n: "A Whole New Boutique Of Wonderful First Amendment Litigation Opens Its Doors", Mark A. Whitt

Akron Law Review

This Note analyzes the Court's decision in McIntyre. Part II defines the issue presented in the case and provides a general background on disclosure statutes, with particular attention drawn to the Supreme Court's decision in Talley v. California. A brief discussion of various state court decisions post-Talley is also provided. The Statement of the Case in Part III presents the facts, procedural history and holding of the case. Part IV analyzes the Court's holding.

This Note disagrees with the Court's holding for three reasons. First, it argues that the Court misinterpreted the history of anonymous political speech and engaged in …

National Organization For Women V. Scheidler: Rico A Valuable Tool For Controlling Violent Protest, Suzanne Wentzel

Akron Law Review

This Note will examine the recent decision of the United States Supreme Court in National Organization for Women v. Scheidler that allows courts to apply RICO to non-economic enterprises. This Note will first discuss the problems that arise from protest, as well as a brief historical background of the RICO statute. It will further analyze the legal reasoning behind the Supreme Court's decision to apply RICO to anti-abortion protesters, and explore the possible First Amendment implications of such a decision.

Harassing Speech In The Public Schools: The Validity Of Schools' Regulation Of Fighting Words And The Consequences If They Do Not, Adam A. Milani

Akron Law Review

What can - and should - schools do about the harassment which their students are suffering? While the issues of hateful and harassing speech and political correctness on college campuses have received a great deal of attention in both the mass media and legal journals, the very real problem of student-to-student harassment in grammar and high schools has only recently been given attention in either forum. More specifically, there has been little attention paid to the questions of whether (1) the First Amendment permits grammar and high schools to control harassing speech by students, (2) schools violate civil rights statutes …

James V. Ohio State University: Ohio Declares Promotion And Tunure Records Of State-Supported Universities And Colleges Public Records Subject To Discloure, Robert A. Gerberry

Akron Law Review

This Note will examine the national trend employed by different courts in dealing with the issue of access to peer review materials. Section II of this Note delineates the recent case law in university peer review cases. Next, Section III presents the statement of the case and details the impact of an action in mandamus. Finally, Section IV analyzes the Ohio Supreme Court's ruling in light of the University's arguments of academic freedom and the need for confidentiality.

"Under The Influence": Pornography And Alcohol - Some Common Themes, Jerome O'Callaghan

Akron Law Review

This paper examines the regulation of pornography outside the usual framework of First Amendment argument. Though it may seem heretical to some, this article postpones First Amendment discussion in order to promote a novel understanding of pornography regulation. For reasons explained in a later section, I believe First Amendment arguments are not dispositive of this issue. While free speech may be the gravamen of courtroom argument, there nevertheless remain underlying questions concerning the logic of antipornography reform that can be best seen outside the glare of free speech rhetoric.

My focus is the problem of identifying and quantifying the consequential …

Colorado Republican Federal Campaign Committee V. Federal Election Commission: Maintaining What Remains Of The Federal Election Campaign Act Through Constitutional Compromise, Mary Sherris

Akron Law Review

This Note will discuss the Court's reasoning and holding in Colorado Republican. Additionally, this Note will discuss how the Court distinguished independent and coordinated campaign expenditures that were first established in Buckley v. Valeo. Finally, this Note will discuss why the Court did not address whether limitations on coordinated expenditures for political parties are protected by the First Amendment.

Cyberspace: The Final Frontier, For Regulation?, Jay Krasovec

Akron Law Review

This article will discuss the concept of anonymity on the Internet and argue for its protection. Part II provides background information on the Internet and illustrates the prominence the Internet has in today's global society. Part III discusses the concept of anonymity and its importance in our daily communications and how these principles necessarily extend to online communication. Part IV outlines the purported justifications for regulating Internet content, which is followed by Part V discussing current and attempted regulations of the Internet. This article then argues for the full protection of online anonymous speech as mandated by fundamental principles of …

National Endowment Of The Arts V. Finley: A Dispute Over The "Decency And Respect" Provision, Alicia M. Choi

Akron Law Review

There is substantial controversy over whether the government should be involved in art funding. The purpose of this Note is to present and critique arguments both supporting the “decency and respect” provision and those opposing it. Those who support the clause state that although the people do not have a constitutional right to receive funding, the “decency and respect” provision does not violate the people’s First and Fifth Amendments. The provision is only a “consideration”, not a requirement. Opponents of the “decency and respect” provision argue that the First and Fifth Amendments prohibit the government from controlling the content of …

Www.Obscenity.Com: An Analysis Of Obscenity And Indecency Regulation Of The Internet, Kelly M. Doherty

Akron Law Review

This comment explores the constitutionality of federal regulations as applied to Internet content and alternatives to government regulation. Part II provides background on the Internet, First Amendment obscenity and indecency law as applied to communications media, and past and current legislation enacted to regulate Internet content. Part III analyzes the constitutionality of COPA, and discusses why other alternatives are more effective and preferable to government regulation. Part IV concludes that protecting children from harmful Internet content is the responsibility of parents, and therefore, Internet regulation should begin at home.

Buckley V. Valeo, Political Disclosure And The First Amendment, Trevor Potter

Akron Law Review

Put differently, the reality is that disclosure’s constitutional status is unclear. The Supreme Court’s jurisprudential framework is often unpredictable. Even when the Court has been consistent in choosing a formal framework with which to approach disclosure laws, it has been inconsistent and unpredictable in applying that framework. To be sure, this issue takes on particular urgency in light of the importance both sides in the campaign finance debate attach to disclosure of campaign spending (however differently defined), and the existence of the Internet as a vehicle for immediate mass dissemination of information required to be reported. Accordingly, providing an overview …

Buckley V. Valeo: A Landmark Of Political Freedom, Joel M. Gora

Akron Law Review

It is appropriate for an article about the Supreme Court's Buckley opinion to appear in a law review in the Buckeye State. In terms of poll rankings, the Buckeye football team finished last season ranked number two in the polls, which was much better than the Buckley decision, which many academics have put on their list of the ten worst decisions of this century. While the football pollsters were right in ranking the Buckeyes so highly, the academic pundits are dead wrong in rating the Buckley decision so poorly.

A Symposium: The Legal And Polticial Implications Of Buckley V. Valeo (1976), Christopher P. Banks, John C. Green

Akron Law Review

One of the most vexing issues in constitutional jurisprudence concerns the political regulation of money and its democratic implications. The resolution of the constitutional question for democracy involves striking a balance between two competing interests: the protection of political liberty under the First Amendment and the legitimate interest government has in preventing money from having a corrosive or corrupting effect on the political system. With its landmark ruling in Buckley v. Valeo, some say that the Supreme Court successfully reconciled these interests and, in fact, strongly preserved the basic ideal of American freedom. Different commentators, however, maintain that the Supreme …