Law Commons^™

Defending The Public Domain—The First Amendment, The Copyright Power, And The Potential Of Golan V. Gonzales, J. Blake Pinard

Oklahoma Law Review

No abstract provided.

Resolved, Or Is It? The First Amendment And Giving Money To Terrorists, Jeff Breinholt

American University Law Review

No abstract provided.

Free Speech In The War On Terror: Does The Military Commissions Act Violate The First Amendment?, Ryan J. Vogel

Human Rights Brief

No abstract provided.

The Emerging First Amendment Law Of Managerial Prerogative, Lawrence Rosenthal

Fordham Law Review

In Garcetti v. Ceballos, the U.S. Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney's office, were unprotected by the First Amendment because “his expressions were made pursuant to his duties.” The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself. This Article rejects the scholarly consensus on Garcetti. …

Reconciling Morse With Brandenburg, Steven Penaro

Fordham Law Review

This Note examines Morse v. Frederick in connection with the Brandenburg v. Ohio test governing speech that advocates unlawful acts. In Morse, the U.S. Supreme Court devised a new test that gives school officials the power to restrict student speech promoting the use of illegal drugs. However, in Brandenburg, the Supreme Court held that speech must be struck down if the speaker intends to incite imminent lawless action and that speech is likely to produce such action. This Note argues that a relaxed application of the Brandenburg standard would be useful in prohibiting student drug speech within a school setting.

Prediction Markets And The First Amendment, Miriam A. Cherry, Robert L. Rogers

All Faculty Scholarship

The continuing development of prediction markets is important because of their success in foretelling the future in politics, economics, and science. In this article, we identify the expressive elements inherent in prediction markets and explore how legislation such as the Unlawful Internet Gambling Enforcement Act of 2006 might harm such predictive speech. This article is the first to explore First Amendment protections for prediction markets in such depth, and in so doing, we distinguish prediction markets from other regulated areas such as gambling and securities trading. The article's examination of prediction markets also illustrates the limitations of current commercial speech …

The Cross At College: Accommodation And Acknowledgment Of Religion At Public Universities, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In the fall of 2006, President Gene Nichol of the College of William & Mary decided that the college - a public institution - should no longer display a cross on the altar table of the college's Wren Chapel. He ordered the cross moved to a back room, from which it could be returned to the altar table during Christian worship. This decision sparked an outcry from many Christian conservatives, who asserted that President Nichol was undermining the college's historical legacy. After a period of campus furor, a special Committee proposed and the President accepted a compromise - the cross …

Against Legislation: Garcetti V. Ceballos And The Paradox Of Statutory Protection For Public Employees, Ruben J. Garcia

Scholarly Works

In Garcetti v. Ceballos, the Supreme Court denied constitutional protection to a deputy prosecutor named Richard Ceballos. In reaching its decision, the Court pointed to the plethora of statutory protections that were available to government whistleblowers. A closer examination of these statutory alternatives reveals that they will not protect Ceballos. This is the paradox of statutory protection in labor and employment law-more sometimes is less for vulnerable workers.

This Article places the Garcetti case in the historical trajectory of worker protection—from no protection to statutory protection. This Article argues for a move toward constitutional and international protection …

Government As Educator: A New Understanding Of First Amendment Protection Of Academic Freedom And Governance, Judith C. Areen

Georgetown Law Faculty Publications and Other Works

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court held that statements made pursuant to the official duties of public employees are not shielded by the First Amendment from employer discipline, despite a warning from three dissenting justices that the holding could "imperil First Amendment protection of academic freedom in public college and universities." This article responds to the invitation in Garcetti to identify constitutional interests that support academic freedom and that are not fully accounted for by public-employee speech jurisprudence. It also argues that, contrary to common understanding, academic freedom is about more than faculty research and …

Opinionated Software, Meiring De Villiers

Vanderbilt Journal of Entertainment & Technology Law

Information security is an important and urgent priority in the computer systems of corporations, governments, and private users. Malevolent software, such as computer viruses and worms, constantly threatens the confidentiality, integrity, and availability of digital information. Virus detection software announces the presence of a virus in a program by issuing a virus alert. A virus alert presents two conflicting legal issues. A virus alert, as a statement on an issue of great public concern, merits protection under the First Amendment. The reputational interest of a plaintiff disparaged by a virus alert, on the other hand, merits protection under the law …

Creating Masculine Identities: Bullying And Harassment "Because Of Sex", Ann C. Mcginley

University of Colorado Law Review

This Article deals with group harassment of women and men in the workplace under Title VII of the 1964 Civil Rights Act. In Oncale v. Sundowner Offshore Services, the Supreme Court held that Title VII forbids harassment by members of the same sex, but it also emphasized that Title VII is implicated only if the harassment occurs "because of sex." Oncale's "because of sex" requirement has spawned considerable confusion in same-sex and different sex harassment cases. This Article focuses on four fact patterns that confuse courts, scholars, and employment lawyers. In the first scenario, men harass women in traditionally male …

Government Workers And Government Speech, Helen Norton

Publications

This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …

Student Speech: The Enduring Greatness Of Tinker, Jamin B. Raskin

Scholarly Articles in Law Reviews & Journals

The Supreme Court's decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), did for the ideal of freedom in America's public schools what Brown v. Board of Education, 347 U.S. 483 (1954), did for the ideal of equality. It made a core value of the Bill of Rights spring to life for young people facing unjust policies and authoritarian treatment at the hands of adult officials in local school systems. In his remarkable opinion for the majority, Justice Abe Fortas upheld thirteen-year-old Mary Beth Tinker's First Amendment right to wear a black antiwar armband to …

Medium-Specific Regulation Of Attorney Advertising: A Critique, Lyrissa Lidsky, Tera Peterson

Faculty Publications

Florida has been one of the most aggressive states in regulating attorney advertising. The Florida Supreme Court recently adopted new and more stringent rules regulating broadcast advertising by attorneys, and the court appears poised to adopt new and more stringent rules governing Internet advertising by attorneys. As this Article details, the problem is that Florida's new and proposed rules violate both the First Amendment and sound public policy principles. This Article provides guidance to states contemplating further regulation of attorney advertising, and it indirectly critiques current commercial speech doctrine.

Religious Liberty That Almost Wasn't: On The Origin Of The Establishment Clause Of The First Amendment, Gregory C. Downs

University of Arkansas at Little Rock Law Review

The purpose of this article is to briefly examine the origin of the Establishment Clause in the event sometimes referred to as the "Virginia Experience," and to consider the possibility that the significant "leading roles" in the First Amendment's creation were not limited to Jefferson and Madison. Further, Madison's leading role in the actual sponsorship of the First Amendment may not have been entirely voluntary. With the ever-present litigation and controversies revolving around the extent and meaning of the First Amendment's Establishment Clause, the overlooked history of the creation of the First Amendment is both interesting and instructive in the …

The Constitutional Right To Watch Television: Analyzing The Digital Switchover In The Context Of The First Amendment , Eugene Ho

American University Law Review

No abstract provided.

Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon

Scholarship Chronologically

Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …

Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon

Scholarship Chronologically

Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …

Preacher Man V. Porn King: A Legal, Cultural, And Moral Drama Starring Jerry Falwell, Larry Flynt, And The First Amendment, Tory L. Lucas

Faculty Publications and Presentations

Take one part proselytizing, political Southern Baptist televangelist, one part obnoxious, media-seeking pornographer, and one part First Amendment free speech, and you get the colossal legal, cultural, and moral battle embodied in the seminal Supreme Court case of Hustler Magazine v. Falwell. It all started in late 1983 with a controversial and despicable ad parody of a man and his mother that culminated in an aggressive legal battle between litigants on polar opposites of the moral and legal spectrum. Going behind the text of the Supreme Court decision, this article delves into the history behind the unique circumstances that made …

Disclosure Is Speech: Imposing Meaningful First Amendment Constraints On Sec Regulatory Authority, Lloyd L. Drury Iii

South Carolina Law Review

No abstract provided.

Taking Stock Of The First Amendment's Application To Securities Regulation, Antony Page

South Carolina Law Review

No abstract provided.

Speaking Legally And Freely: Lawyers, Web Sites, And The First Amendment, James B. Lake

South Carolina Law Review

No abstract provided.

It's Not The Thought That Counts: A Political Economy Of Obscenity, Karen M. Markin

South Carolina Law Review

No abstract provided.

Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas

Faculty Scholarship

This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

Bosley Medical Institute V. Kremer: The Winds Shift To Protect Cybergripers And A Circuit Split Blows Into Town, Anita Bhushan

Georgia State University Law Review

No abstract provided.

Consumer Gripe Sites, Intellectual Property Law, And The Use Of Cease-And-Desist Letters To Chill Protected Speech On The Internet. , Rachael Braswell

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Displacing Dissent: The Role Of Place In First Amendment Jurisprudence, Thomas P. Crocker

Faculty Publications

From the perspective of free speech theory, both of the central First Amendment values - human autonomy and deliberative democracy - require robust protection for the places and spaces in which speech and public discourse occur. This Article argues that current Supreme Court doctrine does not effectively protect speech from content neutral regulation of place. The problem is that remaining neutral is consistent with policies that would dislocate the very place for the "marketplace of ideas." Moreover, free speech theory focused on autonomy and deliberative democracy has not adequately addressed the role that place plays in furthering these values. Speech …

A Response To Professor Laycock, Marci A. Hamilton

Articles

No abstract provided.

The Judith Miller Case And The Relationship Between Reporter And Source: Competing Visions Of The Media's Role And Function, Daniel Joyce

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.