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Articles 1 - 30 of 44

Full-Text Articles in Law

Deed Of Mistrust?: The Use Of Land Transfers To Evade The Establishment Clause, David C. Peet Oct 2009

Deed Of Mistrust?: The Use Of Land Transfers To Evade The Establishment Clause, David C. Peet

American University Law Review

No abstract provided.


Free Speech And National Security, Geoffrey R. Stone Jul 2009

Free Speech And National Security, Geoffrey R. Stone

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.


Feminist Theory And Freedom Of Speech, Free Speech Theory, Susan H. Williams Jul 2009

Feminist Theory And Freedom Of Speech, Free Speech Theory, Susan H. Williams

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.


Foreword: Freedom Of Expression: "Precious Right" In Europe, "Sacred Right" In The United States?, Elisabeth Zoller Jul 2009

Foreword: Freedom Of Expression: "Precious Right" In Europe, "Sacred Right" In The United States?, Elisabeth Zoller

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.


The United States Supreme Court And The Freedom Of Expression, Elisabeth Zoller Jul 2009

The United States Supreme Court And The Freedom Of Expression, Elisabeth Zoller

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.


The Categorical Approach To Protecting Speech In American Constitutional Law, Daniel A. Farber Jul 2009

The Categorical Approach To Protecting Speech In American Constitutional Law, Daniel A. Farber

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.


Restraining The Heartless: Racist Speech And Minority Rights, Jeannine Bell Jul 2009

Restraining The Heartless: Racist Speech And Minority Rights, Jeannine Bell

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.


The First Amendment And Commercial Speech, C. Edwin Baker Jul 2009

The First Amendment And Commercial Speech, C. Edwin Baker

Indiana Law Journal

Symposium: An Ocean Apart? Freedom of Expression in Europe and the United States. This Article was originally written in French and delivered as a conference paper at a symposium held by the Center for American Law of the University of Paris II (Panthèon-Assas) on January 18-19, 2008.


Hillary: The Movie, Corporate Free Speech Or Campaign Finance Corruption?, Aaron Harmon Mar 2009

Hillary: The Movie, Corporate Free Speech Or Campaign Finance Corruption?, Aaron Harmon

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


Generally Applicable Laws And The First Amendment, David S. Bogen Mar 2009

Generally Applicable Laws And The First Amendment, David S. Bogen

David S. Bogen

No abstract provided.


Beyond Content Neutrality: Understanding Content-Based Promotion Of Democratic Speech, Marvin Ammori Mar 2009

Beyond Content Neutrality: Understanding Content-Based Promotion Of Democratic Speech, Marvin Ammori

Federal Communications Law Journal

Scholars and judges generally assume that the cornerstone of free speech doctrine is the distinction between content-based and content-neutral laws. Despite its wide acceptance, the distinction lacks any precedential or normative basis, unless it also accounts for another equally important distinction. The scholars' conventional view of content-analysis overlooks the difference between the government banning a book or recommending it. Content-based laws that suppress specific content, like banning a television show, should be problematic, but content-based laws that promote specific content, such as promoting educational and political shows, should not be.

Precedent and the First Amendment's underlying normative concerns both require …


The Dueling First Amendments: Government As Funder And The Establishment Clause, Carol Nackenoff Feb 2009

The Dueling First Amendments: Government As Funder And The Establishment Clause, Carol Nackenoff

Schmooze 'tickets'

No abstract provided.


If An Amendment Were Adopted Declaing The United States A Christian Nation, Would It Be Constitutional? Well ... Let's Look At Turkey, Gary J. Jacobsohn Feb 2009

If An Amendment Were Adopted Declaing The United States A Christian Nation, Would It Be Constitutional? Well ... Let's Look At Turkey, Gary J. Jacobsohn

Schmooze 'tickets'

No abstract provided.


Religion And Constitutionalism: Indigenous Societies, David S. Bogen Feb 2009

Religion And Constitutionalism: Indigenous Societies, David S. Bogen

Schmooze 'tickets'

No abstract provided.


Balancing Freedom Of Speech, David S. Bogen Feb 2009

Balancing Freedom Of Speech, David S. Bogen

David S. Bogen

No abstract provided.


The Supreme Court's Interpretation Of The Guarantee Of Freedom Of Speech, David S. Bogen Feb 2009

The Supreme Court's Interpretation Of The Guarantee Of Freedom Of Speech, David S. Bogen

David S. Bogen

No abstract provided.


First Amendment Ancillary Doctrines, David S. Bogen Feb 2009

First Amendment Ancillary Doctrines, David S. Bogen

David S. Bogen

No abstract provided.


Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray Jan 2009

Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray

Faculty Scholarship

This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.


Foreword: Our Paradoxical Religion Clauses, Mark A. Graber Jan 2009

Foreword: Our Paradoxical Religion Clauses, Mark A. Graber

Faculty Scholarship

No abstract provided.


Symposium: Shrinking Tinker: Students Are Persons Under Our Constitution - Except When They Aren't , Frank D. Lomonte Jan 2009

Symposium: Shrinking Tinker: Students Are Persons Under Our Constitution - Except When They Aren't , Frank D. Lomonte

American University Law Review

The central proposition of this Article is that the school/student relationship is a distinctive one, and that student speakers on school property stand in a fundamentally different posture than do pamphleteers on the public sidewalk. This unique relationship has been recognized by the courts, but only selectively, where the uniqueness works to the disadvantage of the speaker. It is time that courts acknowledge that, because students are “captive” in school for the best hours of their day, and because students have a legally enforceable right to be on school grounds for purposes that expressly include the exchange of ideas, student …


Culture, Religion, And Indigenous People, David S. Bogen, Leslie F. Goldstein Jan 2009

Culture, Religion, And Indigenous People, David S. Bogen, Leslie F. Goldstein

David S. Bogen

The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture, but the Supreme Court largely dissolved these constitutional differences when confronted with issues posed by the religious practices of Native Americans. With some indigenous Americans, the lines between culture, religion, and even government blur – challenging the Supreme Court’s assumptions about the Constitution. The uniqueness of the claims of Native Americans pushed …


Compelled Speech Under The Commercial Speech Doctrine: The Case Of Menu Label Laws, Jennifer L. Pomeranz Jan 2009

Compelled Speech Under The Commercial Speech Doctrine: The Case Of Menu Label Laws, Jennifer L. Pomeranz

Journal of Health Care Law and Policy

No abstract provided.


Symposium: Foot In The Door - The Unwitting Move Towards A New Student Welfare Standard In Student Speech After Morse V. Frederick, Francisco M. Negron, Jr. Jan 2009

Symposium: Foot In The Door - The Unwitting Move Towards A New Student Welfare Standard In Student Speech After Morse V. Frederick, Francisco M. Negron, Jr.

American University Law Review

This article discusses an emerging legal trend that may expand schools’ abilities to protect their students. It focuses on Morse v. Frederick, a 2007 decision popularly known as the “Bong Hits 4 Jesus” case in which the court held that a school principal may restrict student speech that can be reasonably viewed as promoting illegal drug use. Negron argues that when read together, the majority opinion and Justice Alito and Justice Kennedy’s concurring opinion, permit schools to regulate student expression that may threaten student welfare. Justices Alito and Kennedy sought to limit the majority’s holding to speech involving illegal drug …


Symposium: No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision , Jamin B. Raskin Jan 2009

Symposium: No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision , Jamin B. Raskin

American University Law Review

The Supreme Court's decision in Tinker v. Des Moines Independent Community School District forty years ago did for the ideal of expressive freedom in America's public schools what Brown v. Board of Education did for the ideal of racial equality. It made a core value of the Bill of Rights spring to life for young people facing authoritarian treatment at the hands of adult officials running their school systems. By privileging the right of students to engage in passionate political communication over the school's interest in maintaining discipline or the community’s interest in maintaining pro-war consensus, the Tinker decision was …


Symposium: Oiling The Schoolhouse Gate: After Forty Years Of Tinkering With Teachers' First Amendment Rights, Time For A New Beginning , Alexander Wohl Jan 2009

Symposium: Oiling The Schoolhouse Gate: After Forty Years Of Tinkering With Teachers' First Amendment Rights, Time For A New Beginning , Alexander Wohl

American University Law Review

This Article will examine how (and how far) we have fallen from the legal precedent and educational principles behind Tinker, specifically the increasingly remote standards courts have used to chip away (and sometimes sledgehammer) the speech rights of teachers. To this end, the Article will consider some of the unique and fundamental characteristics associated with a profession that has at its core the mission of encouraging speech, raising questions, and teaching the ability to think—in short, “expressive activities.” It will also look at how the increasingly restrictive standards do not reflect fully the challenges posed by the advent of new …


The First Amendment And Commercial Speech, C. Edwin Baker Jan 2009

The First Amendment And Commercial Speech, C. Edwin Baker

All Faculty Scholarship

After a quick summary of constitutional treatment of commercial speech, this essay outlines four reasons why commercial speech should be denied First Amendment protection. Working from the claim that the primary rationale for constitutional protection of speech is the mandate that government respect individual freedom or autonomy, the essay argues: 1) that the individual does not choose, but rather the market dictates the content of commercial speech; 2) that the commercial speech should be attributed to an artificial, instrumentally entity – the business enterprise – rather than the flesh and blood person whose liberty merits protection; 3) market exchanges involve …


Nobody's Fools: The Rational Audience As First Amendment Ideal, Lyrissa Lidsky Jan 2009

Nobody's Fools: The Rational Audience As First Amendment Ideal, Lyrissa Lidsky

Faculty Publications

Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called "core" speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the "marketplace of ideas" …


Empathy And Pragmatism In The Choice Of Constitutional Norms For Religious Land Use Disputes, Elizabeth Reilly Jan 2009

Empathy And Pragmatism In The Choice Of Constitutional Norms For Religious Land Use Disputes, Elizabeth Reilly

Elizabeth Reilly

From the perspective of both religious entities and local governments, religious land use requests are best resolved quickly, locally and cooperatively. The traditional framework for addressing religious land use disputes, which the Religious Land Use and Institutionalized Persons Act (RLUIPA)1 adopted, is ill-suited to those goals. Legally, disputes have long been framed as denials of the free exercise of religion – the broadest of all claims and the one requiring the most intrusive and subjective determinations about a particular religious group and its proposed use (what religion is, what a particular sect requires and how religion qua religion is affected …


Cross Burning A Hate Speech Under The First Amendment To The United States Constitution, Wilson Huhn Jan 2009

Cross Burning A Hate Speech Under The First Amendment To The United States Constitution, Wilson Huhn

Wilson R. Huhn

Under the First Amendment of the Constitution of the United States, ‘hate speech’ is constitutionally protected unless the circumstances of the case indicate that the speaker intended to threaten violence or provoke an immediate act of violence. While a person may be removed from a classroom or fired from employment for engaging in ‘hate speech’, under the First Amendment a person may be charged with a crime only if their statements constitute a threat or provocation of immediate violence. Moreover, even in cases where it is clear that a person is threatening violence or that violence is imminent, the person …


Skirting The Line: Restricting Online Pedophilic Guides Within The Confines Of The First Amendment, Danielle M. Cross Jan 2009

Skirting The Line: Restricting Online Pedophilic Guides Within The Confines Of The First Amendment, Danielle M. Cross

Seattle University Law Review

This Comment argues that parents should not be left to self-help remedies to combat pedophiles in public locations. Part II of this Comment explores the psychological make-up of a pedophile by introducing the diagnostic criteria of pedophilia and by examining lengths to which pedophiles will go to find children. This Part also describes the danger created by websites with seemingly innocuous images and writings, explaining how these websites enable and validate pedophilia. Then, Parts III and IV tackle the issue on two fronts, through state action and federal congressional action, respectively. Part III describes and discusses the SSA, a recent …