Law Commons^™

The Government’S Lies And The Constitution, Helen L. Norton

Indiana Law Journal

The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political accountability for its misconduct; to inflict economic and reputational harm; or to enable the exercise of its powers to imprison, to deploy lethal force, and to commit precious national resources. On the other hand, the government’s lies can sometimes be helpful: consider lies told to thwart a military adversary or to identify wrongdoing through undercover police work. The substantial harms threatened by some government lies invite a search for ways to punish and prevent them. At the same time, …

Citizens United: Correct, Modest, And Overdue, Allison R. Hayward

ConLawNOW

In this article, Professor Allison Hayward seeks to refute the criticisms leveled at the outcome in Citizens United. Professor Hayward maintains that the “long-standing precedent” overturned by the majority was not firmly rooted, having only been around for a mere 20 years. She further argues that Citizens United is a proper application of First Amendment doctrine. Lastly, Professor Hayward argues that corporations play an important role in our society, most especially those non-profit entities which so often are associated with political advocacy.

The Supreme Court And Religious Liberty, Joseph D. Kearney

Marquette Law Review

None

Telescoping And Collectivizing Religious Free Exercise Rights, Henry L. Chambers Jr

Maryland Law Review

No abstract provided.

Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media, Meg Penrose

Meg Penrose

This paper takes a closer look at the First Amendment rights of college athletes to access social media while simultaneously participating in intercollegiate athletics. The question posed is quite simple: can a coach or athletic department at a public university legally restrict a student-athlete's use of social media? If so, does the First Amendment provide any restraints on the type or length of restrictions that can be imposed? Thus far, neither question has been presented to a court for resolution. However, the answers are vital, as college coaches and athletic directors seek to regulate their athletes in a constitutional manner.

The Worms And The Octopus: Religious Freedom, Pluralism, And Conservatism, Richard Garnett

Richard W Garnett

formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and …

7 Things You Need To Know About: Constitutional Law, Corey A. Ciocchetti

Corey A Ciocchetti

These slides cover the 7 most important things you need to know about Constitutional Law - especially as it relates to business. Topics covered include the Supremacy Clause & preemption, Commercial Speech & the First Amendment, the Commerce Clause, the Bill of Rights and Constitutional History.

High Value Lies, Ugly Truths, And The First Amendment, Alan K. Chen, Justin Marceau

Vanderbilt Law Review

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies-such as perjury and fraud-are simply not covered by the Constitution's free speech clause.' But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. Until very recently, however, it has been taken for granted in Supreme Court doctrine and academic writing that any constitutional protection for lies is purely prophylactic-it provides protection to the truth-speaker by also incidentally protecting the liar. What remains unresolved is whether other rationales might also justify First Amendment protection for …

Captive Audience Meetings And Forced Listening: Lessons For Canada From The American Experience, Sara Slinn

Sara Slinn

Widespread adoption of mandatory representation votes and express protection of employer speech invite employer anti-union campaigns during union organizing, including employer-held captive audience meetings. Therefore, the problem of whether and how to restrict employers’ captive audience communications during union organizing is of renewed relevance in Canada. Captive meetings are a long-standing feature of American labour relations. This article considers how treatment of captive meetings evolved in the U.S., including the notion of employee choice, the “marketplace of ideas” view of expression dominating the American debate, and the central role of the contest between constitutional and statutory rights. It also considers …

Content-Based Copyright Denial, Ned Snow

Indiana Law Journal

No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of …

Injury-In-Fact In Chilling Effect Challenges To Public University Speech Codes, Jennifer L. Bruneau

Catholic University Law Review

Campus speech codes began to spring up on university campuses during the 1980s and continue to operate today. The codes regulate various forms of arguably offensive speech, including speech regarding race, gender, sexual orientation, ideology, views, and political affiliation. Numerous litigants have challenged the chilling effect these policies have on student and faculty speech, but in cases where the challenged code has not yet been enforced, some courts find that the plaintiff has not met the “injury-in-fact” requirement for Article III standing. The Supreme Court has not ruled on standing requirements in speech code challenges and lower courts are divided. …

Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis

Dara Purvis

As license plates emblazoned with the message “Choose Life” have proliferated in twenty-four states, so too have lawsuits challenging such specialty license plates. The holdings of such cases have run the gamut, resulting in a three-way circuit split among the Fourth, Fifth, and Sixth Circuits. Analysis of the controversy up to this point has not considered an illuminating analogy: advertising space owned and operated by the government. Examining the parallels between advertising space and specialty license plates informs doctrinal analysis of the dispute, demonstrating that state legislatures may not use the current practice of individually establishing specialty license plates through …

A Comparative Analysis Of The Recent Issues Regarding The Freedom Of The Press And Freedom Of Expression In Turkey: Supremacy Of The Turkish Constitution Or Criminal Law?, Ilyas Golcuklu

ILYAS GOLCUKLU

Recent developments in Turkey have created legal criticism and constitutional questions about the scope and implementation of the freedom of expression and the press. Most recently, the secularist Cumhuriyet (“Republic”) newspaper, after the infamous and deadly attack on the French satirical newspaper Charlie Hebdo, decided to publish cartoons from the latest edition of the Charlie Hebdo to protest this violent terrorist attack. The Istanbul Chief Public Prosecutor’s Office launched an investigation into the Cumhuriyet daily for reprinting a selection of cartoons from the latest issue of Charlie Hebdo that is said to insult Muslims. As soon as the January 14 …

A Constitutinal Analysis Of The Ncaa’S New Autonomous Governance Model And Its Effects On Student Athletes, Non-Athletes, And Professors – Is The Termination Of Uab’S Football Program Just The Beginning Of Things To Come?, Tyler N. Wilson

Tyler N Wilson

No abstract provided.

Is It Unconstitutional To Prohibit Faith-Based Schools From Becoming Charter Schools?, Stephen D. Sugarman

Stephen D Sugarman

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for …

After Citizens United: Extending The Liberal Revolution To The Multinational Corporation, Daniel J.H. Greenwood

Daniel J.H. Greenwood

This Article proposes several routes to reverse Citizens United, the Supreme Court case holding that corporate campaign spending is “speech” protected by the First Amendment.

The core problem of Citizens United is that corporations are illegitimate participants in our politics. Corporate law requires corporate officers to pursue the corporate interest. They are thus disqualified from considering the central political questions of a democratic capitalist country: defining the rules of the market (which define corporate interests) and balancing profit against other, more important, values.

The high road to fixing Citizens United is a constitutional amendment to extend the fundamental insights …

Replay That Tune: Defending Bakke On Stare Decisis Grounds, Charles Adside Iii

Charles adside III

No abstract provided.

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau

Sonya G Bonneau

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and …

“To Promote The General Welfare” Addressing Political Corruption In America, Bruce M. Owen

Bruce Owen

Systemic (but lawful) political corruption reduces well-being and equity in America. Madisonian democracy is no longer capable of containing such corruption. Proposals currently on the table to stem corruption are unlikely to be effective and tend to undermine basic rights. This essay describes a new approach—regulating the output of corrupted legislative and administrative processes, rather than the inputs. Providing for substantive ex post review of direct and delegated legislation would be far more protective of the “general welfare” of the People than other reforms, while no more or less difficult to implement. Supporting an umpire proposal may be a dominant …

Congressional Due Process, Andrew M. Wright

Andrew M Wright

This article identifies significant deficiencies in Congress’s investigative practices. Consequences of congressional scrutiny can be profound, yet the second Congress calls, almost none of the safeguards of the American legal system are present. I argue such practices demonstrate institutional indifference to constitutional due process norms. The article highlights differences between congressional and judicial proceedings with respect to the safeguards of witnesses and targets. The purpose of congressional inquiry fundamentally differs from adjudication, and therefore does not call for the full complement of procedural rights afforded in judicial proceedings. Congress seeks facts and expertise to inform legislative judgments that will have …

The Doctrinal Toll Of "Information As Speech", Kyle Langvardt

Kyle Langvardt

The courts over the past two decades have reached a near-consensus that computer code, along with virtually every flow of data on the Internet, is “speech” for First Amendment purposes. Today, newer information technologies such as 3D printing, synthetic biology, and digital currencies promise to remake whole other spheres of non-expressive economic activity in the Internet's image. The rush to claim First Amendment protections for these non-expressive but code-dependent technologies has already begun with a lawsuit claiming First Amendment privileges for the Internet distribution of 3D-printable guns. Many similar suits will surely follow, all pursuing the common dream of a …

Regulating The Speech Of Judges And Lawyers: The First Amendment And The Soul Of The Profession, Rodney A. Smolla

Rod Smolla

The legal profession has historically asserted moral and legal authority to substantially control the speech of judges and lawyers. This impulse to control the speech of judges and lawyers is driven by many of the profession’s most strongly held interests and values. These include such interests as ensuring the fair administration of justice, the promotion of respect for the rule of law, the preservation of public confidence in the legal system, the preservation of the appearance of judicial impartiality, the maintenance of professionalism, and the safeguarding of the dignity of the profession. Some of these interests are palpable and may …

Emotional Distress And The First Amendment: An Analysis Of Hustler V. Falwell, Rodney A. Smolla

Rod Smolla

No abstract provided.

Taking Libel Reform Seriously, Rodney A. Smolla

Rod Smolla

Not available.

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.

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 …

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 …