Law Commons^™

Kirsch V. Wisconsin Department Of Corrections: Will The Supreme Court Say "Hands Off" Again?, Owen J. Rarric

Akron Law Review

This Note examines the struggle of prison inmates to gain access to religious materials; materials that have been forbidden by prison officials. Part II of the Note will examine the historical development of inmates’ constitutional rights. It will also analyze the Supreme Court’s standard for reviewing prison regulations involving inmates’ constitutional rights. Moreover, the Note discusses Congress’ attempt to set the standard of review. The Note then examines the significance of the Kirsch decision. Finally, the Note analyzes the fourth factor of the Turner Standard used in Kirsch and explores the possible effect of a new legislative act on prisoners’ …

Rolling John Bingham In His Grave: The Rehnquist Court Makes Sport With The 14th Amendment, Stephen E. Gottlieb

Akron Law Review

The Warren Court organized the concept of strict scrutiny in Shelton v. Tucker. Where the defendant was obligated to treat people without regard to membership in a suspect class and failed to do that, the Court would hold them liable for their behavior unless it was done for a compelling public reason and there was no less damaging alternative.

The concept of strict scrutiny had nothing to do with intentions. The issue for the Warren Court was whether one party had injured another because of a forbidden reason. That concept of causation was understood broadly. The Court was not looking …

Lorillard Tobacco Co. V. Reilly: The Supreme Court Sends First Amendment Guarantees Up In Smoke By Applying The Commercial Speech Doctrine To Content-Based Regulations, Kerri L. Keller

Akron Law Review

This note examines why the Supreme Court’s application of the commercial speech doctrine to purely “content-based” regulations erodes First Amendment guarantees. Section II provides a brief history of the First Amendment and discusses the different levels of judicial scrutiny applied in First Amendment cases. Section III provides the statement of facts, the procedural history, and the United States Supreme Court’s decision in Lorillard. Finally, Part IV examines the decision in Lorillard and discusses why the Court should have applied strict scrutiny to the regulations at issue. It further discusses how the Court’s refusal to apply strict scrutiny to content-based commercial …

Ashcroft V. Free Speech Coalition: Can We Roast The Pig Without Burning Down The House In Regulating "Virtual" Child Pornography?, Ryan P. Kennedy

Akron Law Review

This Note will explore the struggle in the area of child pornography between the state’s legitimate interest in the protection of children and the First Amendment’s guarantee of free speech. Part II provides a brief history of the free speech doctrine as related to the area of child pornography prevention. Part III discusses the circuit split, as well as the facts, procedural history, and the holding of the Supreme Court. Finally, Part IV will examine the effect of the Court’s interpretation of the statute as unconstitutional, explain why the decision was correct, and look at Congress’ recent efforts at new …

United States V. American Library Association: The Choice Between Cash And Constitutional Rights, Barbara A. Sanchez

Akron Law Review

This Note discusses the possibility that the Court, in its eagerness to protect children, twisted established First Amendment doctrines to uphold CIPA and declined to address other legal issues that weaken CIPA’s constitutionality. Part II provides a historical background of previous legislation attempting to protect children accessing the Internet, explains what CIPA is and compares it to previous legislation, and also discusses current filtering technology and its limitations. Part III provides a statement of the facts, including the procedural history of the case. Part IV analyzes the Court’s confusing and inconsistent application of firmly established rules dealing with Congress’ spending …

Newdow Calls For A New Day In Establishment Clause Jurisprudence: Justice Thomas's "Actual Legal Coercion" Standard Provides The Necessary Renovation, James A. Campbell

Akron Law Review

This Comment examines the concurring opinions of Justice O’Connor and Justice Thomas in Newdow and explores whether either approach is able to solve the problems inherent in the Court’s current analysis. Section II discusses the meaning of the Establishment Clause and explores its historical background. Section III outlines current Establishment Clause analysis and its inherent hostility toward religion. Section IV introduces O’Connor’s ceremonial deism approach and Thomas’s “actual legal coercion” test, as outlined in Newdow. Section V discusses the inability of O’Connor’s approach to solve the inherent deficiencies in the Court’s current analysis, whereas, Section VI argues that Thomas’s actual …

Professor Nimmer Meets Professor Schauer (And Others): An Analysis Of "Definitional Balancing" As A Methodology For Determining The "Visible Boundaries Of The First Amendment", Norman T. Deutsch

Akron Law Review

This article examines definitional balancing as a methodology for determining the “visible boundaries of the First Amendment.” More specifically, it focuses on the Court’s use of definitional balancing, as a technique for drawing definitional lines within categories of speech, to distinguish between speech that is included within the First Amendment, and speech that is excluded so that it may be proscribed based on its content. Part II describes definitional balancing in Professor Nimmer’s terms. Part III discusses the Court’s application of definitional balancing and the issues raised by commentators.

An Analysis Of The Legality Of Television Cameras Broadcasting Juror Deliberations In A Criminal Case, Daniel H. Erskine Esq.

Akron Law Review

This work sets out the constitutional, statutory, and common law applicable to television’s intrusion into the jury room. The first section addresses federal constitutional considerations focusing on Article III Section 2, the Sixth Amendment, and the First Amendment. The second section analyzes certain federal rules and particular statutes applicable to televising federal judicial proceedings, as well as the rationale behind their enactment. Finally, the third section discusses comparative approaches addressing television’s intrusion into the courtroom, particularly focusing on recent jurisprudence from the European Court of Human Rights and the Scottish Court of Session.

Remedies, Neutral Rules And Free Speech, David F. Partlett, Russell L. Weaver

Akron Law Review

In general, plaintiffs’ ability to obtain substantial damages against media defendants is directly proportional to their ability to obtain so called “publication damages.”...In future cases, the courts may be forced to deal more straightforwardly with the First Amendment issues. In Sanders, the court avoided those issues because they were not raised. As a result, the court left open the possibility that, even in an intrusion case a media defendant might be allowed to show that the invasion of privacy was “justified by the legitimate motive of gathering the news.”...Moreover, the very existence of the litigation undoubtedly has a negative impact …

Thomas Jefferson And The Establishment Clause, Mark J. Chadsey

Akron Law Review

The purpose of this paper is to ask whether the historical record actually supports either of these assumptions. A note about my mode of analysis is necessary at this juncture. When inquiring about Jefferson’s influence on the Establishment Clause, it is important to focus on the entire process by which it was adopted rather than its mere introduction by Madison in the House of Representatives. Its adoption, after all, required the assent of two-thirds of both chambers of Congress, three-fourths of the state legislatures, and the support of a majority of the American public. Without the requisite support of all …

From Armbands To Douchbags: How Doninger V. Niehoff Shows The Supreme Court Needs To Address Student Speech In The Cyber Age, Allison E. Hayes

Akron Law Review

Part II of this Note discusses the background of First Amendment student speech cases as decided by the Supreme Court as well as a unique classification of lower court holdings. Part III focuses on Doninger v. Niehoff in detail, including the underlying facts, competing arguments, procedural history, and the District of Connecticut’s and Second Circuit’s rationale. Part IV analyzes why this case was wrongly decided and argues that the Supreme Court needs to offer more guidance to lower courts so they may apply a more consistent standard in student speech cases. Further, it suggests a framework courts should adopt in …

The Unconstitutionality Of Ohio's House Bill 125: The Heartbeat Bill, Jessica L. Knopp

Akron Law Review

This Comment analyzes the constitutionality of Ohio’s controversial H.B. 125 under the Fourteenth and First Amendments to the United States Constitution in the context of current United States Supreme Court precedent. Part II outlines Ohio’s current abortion laws, describes Ohio’s role in creating anti-abortion legislation and case law, provides a context of other abortion bills occurring nationwide, and explains H.B. 125. Part III analyzes how H.B. 125 is unconstitutional under the Fourteenth Amendment in its current form, analyzes its constitutionality if the bill was modified to be a consent-only bill, and analyzes its unconstitutionality under the Establishment Clause of the …

Recognizing An Academic Freedom Exception To The Garcetti Limitation On The First Amendment Right To Free Speech, Carol N. Tran

Akron Law Review

In order to uphold the integrity of the First Amendment, it is essential that the Supreme Court establish a clear academic freedom exception to First Amendment jurisprudence. This Comment proposes that an academic freedom exception should exist based upon the history of academic freedom. The Comment will also discuss the limits and bounds for such an exception. Part II will begin by looking at the history of First Amendment law surrounding free speech in the workplace. Part III will then examine different circuit approaches to the Garcetti limitation to the First Amendment right to freedom of speech in the academic …