Law Commons^™

When First Amendment Principles And Local Zoning Regulations Collide, Steven I. Brody

Northern Illinois University Law Review

This article examines the conflict between municipal restrictions on adult uses and the fundamental right to freedom of speech. Mr. Brody reviews the Supreme Court tests for resolving the conflict and concludes that most zoning regulations affecting adult uses will be examined under the O'Brien/Heffron tests: (1) the ordinance must provide a sufficient factual basis to support a finding of substantial or important governmental interest; (2) the ordinance's definitions of adult uses and restrictions must be narrowly tailored to affect only those businesses which the ordinance intends to regulate; and (3) the ordinance must provide reasonable alternative channels of communication …

Liberal Visions Of The Freedom Of The Press, Michael Gerhardt

Vanderbilt Law Review

Liberals have long regarded the First Amendment's freedom of the press guarantee as their special plaything.' For most of this century, liberals have dominated the scholarship and the doctrinal debate on the freedom of the press. They have often urged the federal courts to establish the press as "a fourth institution outside the Government as an additional check on the three official branches." Liberal judges have ensured virtual autonomy for the print media through the cumulative effect of their rulings to immunize the press from damages for the publication of falsehoods about public figures unless the publication was done knowingly, …

United States V. Morison: A Threat To The First Amendment Right To Publish National Security Information, David H. Topol

South Carolina Law Review

No abstract provided.

The War On Poverty: A Civilian Perspective, Edgar S. Cahn, Jean C. Cahn

University of the District of Columbia Law Review

This article does two things: it articulates a vision and it lays out a specific blueprint. The core of the vision regards legal representation as "a form of enfranchisement, as an attempt to institutionalize the functions of dissent and criticism, and as a means of revitalizing the democratic process." This explains why the article triggered a movement that was perceived as going beyond the orthodox delivery of legal aid. While others legislate or purport to breath life into the democratic process, lawyers, in their unique role as advocates, discharge a constitutionally protected role. And in light of the retaliation to …

Simon & Schuster, Inc. V. Members Of The New York State Crime Victims Board: The Demise Of New York’S Son Of Sam Law And The Decision That Could Have Been, Ralph W. Johnson, Iii

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Freedom Of Speech And The Press

Touro Law Review

No abstract provided.

On The Brink: The First Amendment In The Rehnquist Court, 1990-91 Term, Joel M. Gora

Touro Law Review

No abstract provided.

Practical Reason: The Commercial Speech Paradigm, Edward J. Eberle

Law Faculty Scholarship

First Amendment jurisprudence incorporates a continual struggle to balance coflicting interests. Free speech values must be weighed against communitarian interests in a rational manner. The article examines the foundationalist approach to this task, and finds it incapable of providing a unified First Amendment theory. Through examination of the treatment of commercial speech, the article arrives at a more coherent approach through the application of practical reasoning. The proposed methodology allows for principled analysis and decisions which yield an internally consistent body of law.

South Carolina Whistleblower Protection: The Good, The Bad, And The Ugly, Craig Berman

South Carolina Law Review

No abstract provided.

When First Amendment Values And Competition Policy Collide: Resolving The Dilemma Of Mixed-Motive Boycotts, Kay P. Kindred

Scholarly Works

In a representative democracy, government must protect the rights of its citizens to express ideas, to voice grievances, and to seek to influence government. The first Amendment safeguards these fundamental political rights from government intrusion. In a free market economy, government must protect trade and commerce from activities and influences that lead to increased concentrations of economic power or that otherwise tend to restrain competition. The antitrust laws, specifically the Sherman Act, seek to safeguard the competitive process from restrictive trade practices. Conflict arises when efforts to influence government threaten to undermine competition.

Nowhere is the clash between First Amendment …

The Thomas Hearings: Watching Ourselves, Robert F. Nagel

Publications

No abstract provided.

Protecting Religious Liberty: Judicial And Legislative Responsibilities, Gerard V. Bradley

Journal Articles

Is the First Amendment hostile to religion? Answering that question requires at least the usual professorial ration of caveats. I assure you that I will directly answer the question. I submit, though, that the caveats constitute a more important, deeper response, a response which questions the question itself. Were I more radical in my intellectual sympathies, I would propose to deconstruct the question.

Limits Of First Amendment Rights, Troy Salisbury

Brigham Young University Prelaw Review

Under the First Amendment of the Constitution such rights as the freedom of speech and assembly and other basic rights are set forth. People often feel that unpopular groups such as flag-burners or skinheads should have their First Amendment rights limited. Often individuals find it hard to tolerate the radical opinions of these groups. Nevertheless, their rights can only be restricted if, in the course of their actions, they directly infringe upon the rights of others. This point can be better illustrated by discussing a hypothetical situation in which a group's rights would have to be limited.

Civil Actions For Emotional Distress And R.A.V. V. City Of St. Paul, Michael K. Steenson

Faculty Scholarship

The law of emotional distress is characterized by judicial reluctance to create and expand remedies for emotional injuries. The issue here is whether the Court's decision in R.A.V. v. City of St. Paul will impose further limitations on the right to recover civil damages for the intentional infliction of emotional injury, particular emotional injuries resulting from hate speech. This symposium first examines the applicability of the tort to redress claims based on abusive epithets based on the victim's race, gender, or sexual orientation. The symposium then argues that using this tort in cases involving hate speech should not create constitutional …

No Harm, No Foul: Pornography (Violent And Otherwise), Victoria M. Mather

Faculty Articles

At the heart of the entire pornography debate is the lack of understanding or agreement of what is regulated. Society does not agree about what pornography means, what is hardcore or softcore, what is obscene, or what is "adult." The disagreement tends to derive from two very different viewpoints—the liberal view, and the feminist view. On the liberal side of the debate, pornography should be protected speech but on the feminist side, society should take into account the feminist perspective and the harmful effects of these graphic depictions.

Applying the Miller-Roth test, liberals believe that pornography is protected speech until …

The Miner's Canary: Tribal Control Of American Indian Education And The First Amendment, John E. Silverman

Fordham Urban Law Journal

One legacy of America's mistreatment of its indigenous peoples has been an educational policy that has run roughshod over Native American Free Exercise rights. Today, American Indian tribes widely seek increased control over the education of their children. This position has received broad congressional and presidential support since the Nixon Administration, but more than twenty years later, Native Americans are still fighting to attain their goals. Federal statistics that rank American Indians as our least educated, most addicted, shortest-lived citizens suggest tremendous room for improvement in Indian education. Despite certain circuit court Free Exercise Clause decisions that unreasonably hold Indian …

Giving Women The Benefit Of Equality: A Response To Wirenius, Tracy Higgins

Fordham Urban Law Journal

This essay offers a feminist response to Mr. Wirenius’s provocative critique of Professor MacKinnon. Whether supporting or opposing pornography regulation, feminist legal scholars tend to approach the issue from neither of the traditional positions – First Amendment absolutist or moral censor. Rather, a feminist approach to pornography is informed by an understanding of the profound harm that pornography can and does inflict upon women. Consequently, even for feminists who many oppose pornographic regulation, the choice is not an obvious one, as it seems to be for Mr. Wirenius, between the good of civil libertarianism and the evil of totalitarianism. An …

Giving The Devil The Benefit Of Law: Pornographers, The Feminist Attack On Free Speech, And The First Amendment, John F. Wirenius

Fordham Urban Law Journal

The battle lines over the censorship of “pornographic” materials have been shifted by a faction of the women’s movement following the publication of Andrea Dworkin’s Pornography: Men Possessing Women. With Dworkin, Catharine A. MacKinnon, a vocal and influential female advocate, co-authored a prototypical ordinance to protect against the degradation of individuals, mainly women, in pornography. To these advocates, pornography causes direct harm to individuals coerced into sexual activity and indirect harm by inculcating society with the chauvinistic norms of the pornographic world. While Wirenius agrees with MacKinnon and Dworkin about the importance of pornography in First Amendment jurisprudence, he disagrees …

Abrams V. United States: Remembering The Authors Of Both Opinions, James F. Fagan Jr.

Touro Law Review

No abstract provided.

Conservative Supreme Court: Its Impact On Traditional Values, Donald E. Wildman, Benjamin W. Bull

University of Richmond Law Review

Most court watchers agree that the changing composition of the Supreme Court will ineluctably favor the interests of traditional values organizations like the American Family Association. The next decade will surely see the Court return to a more balanced approach in line with the preservation of family values. Certainly some will characterize the new Court as more conservative. To the extent that it will emphasize core principles in the Constitution as the bedrock from which it must proceed, it will be conservative. Yet this is simply a return of the Court to its intended function: interpretation and application of law …

Religious Liberty In The Military: The First Amendment Under "Friendly Fire", Kenneth Lasson

All Faculty Scholarship

Though freedom of religion remains one of our most cherished values, it is still among the most controversial of constitutional rights. This is especially true in the context of military service. Even those who purposefully enlist in the armed forces, implicitly giving up certain liberties they freely enjoyed as civilians, would not relinquish their freedom of conscience. Yet the right to practice their religious beliefs, unfettered by arbitrary governmental restrictions, is regularly challenged.

Fortunately, however, most western cultures regard religious liberty as so fundamental that their military establishments routinely develop regulations to accommodate specific religious practices.

This principle was of …

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 …

A Matter Of "Governing' Importance": Providing Business Defamation And Product Disparagement Defendants Full First Amendment Protection, Lisa Magee Arent

Indiana Law Journal

No abstract provided.

The Political Philosophy Of Campaign Finance Reform As Articulated In The Dissents In Austin V. Michigan Chamber Of Commerce., John S. Shockley, David A. Schultz

St. Mary's Law Journal

The 1992 presidential candidacy of Jerry Brown, who called for campaign contribution limits, has reignited the issue of campaign finance reform. Indeed, the United States Supreme Court has recognized the importance of campaign finance reform as a judicial issue. The importance of this issue is marked by the Court’s continued willingness to address the regulation of campaign finance since the 1976 landmark case of Buckley v. Valeo. The case of Austin v. Michigan Chamber of Commerce emphasized the somewhat confused nature of the Supreme Court’s campaign finance reform decisions. The Supreme Court and state legislatures will likely continue to address …