Law Commons^™

Free Speech And The Right To Offend: Old Wars, New Battles, Different Media, Clay Calvert, Robert D. Richards

Georgia State University Law Review

No abstract provided.

Ministerial Exception And Title Vii Claims: Case Law Grid Analysis, Janet S. Belcove-Shalin

Nevada Law Journal

No abstract provided.

The First Amendment And The New Civil Liability, Rodney A. Smolla

Scholarly Articles

Not available.

Deciding When Hate Is A Crime: The First Amendment, Police Detectives, And The Identification Of Hate Crime, Jeannine Bell

Articles by Maurer Faculty

This Article adds to the debate a story of how hate crime law is enforced, based on the experiences of the police detectives who are required to enforce hate crime law. Part I of this Article provides a brief description of hate crime laws and argues that the police play an important role in the determination of how hate crime law is enforced and ultimately, whether defendants’ First Amendment rights will be respected. Part II describes critics’ concerns about defendants’ First Amendment rights and the narrow constitutional line that enforcers of hate crime law must walk between enforcing hate crime …

Brandenburg And The United States War On Incitement Abroad: Defending A Double Standard, Lyrissa Lidsky

Faculty Publications

While it is perfectly legitimate for the United States to attempt to persuade foreign citizens and media not to engage in advocacy of violent acts, the administration's rhetoric suggests that the United States expects foreign governments to take action against speech that would be protected by the First Amendment in the United States. What explains this apparent hypocrisy? Is this simply another example of the United States touting democracy at home while supporting despotism abroad? Or is the Brandenburg incitement standard so socially and culturally contingent that it is not appropriate for export, at least to the Arab Middle East? …

Access And Aggregation: Privacy, Public Records, And The Constitution, Daniel J. Solove

GW Law Faculty Publications & Other Works

In this article, Professor Solove develops a theory to reconcile the tension between transparency and privacy in the context of public records. Federal and state governments maintain public records containing personal information spanning an individual's life from birth to death. The web of state and federal regulation that governs the accessibility of these records generally creates a default rule in open access to information. Solove contends that the ready availability of public records creates a significant problem for privacy because various bits of information when aggregated paint a detailed portrait of a person's life that Solove refers to as a …

Vouchers And Steering, Vincent A. Blasi

Faculty Scholarship

Does the Establishment Clause require that educational voucher programs not be designed in a manner that encourages parents to choose religious schools over secular alternatives? If there is such an "anti-steering" principle implicit in the First Amendment, how should courts elaborate and enforce it?

In this response, I will compare how Professors Lupu and Tuttle and the Court majority in Zelman v. Simmons-Harris, the decision last June upholding the Cleveland voucher plan, answer these important questions. I will evaluate their analyses at three levels: (1) basic Establishment Clause values and priorities; (2) doctrinal standard for identifying impermissible favoritism toward …

Separation And Interpretation, Philip A. Hamburger

Faculty Scholarship

Should the establishment clause be interpreted in terms of "separation between church and state"? If not, how should the establishment clause be interpreted?

At stake, first, is the character of religious freedom in the United States. In particular, will lingering separationist notions continue to affect the interpretation of the First Amendment? Notwithstanding the claims made on behalf of separation, there is reason to fear that it is not the religious freedom guaranteed by the First Amendment. Indeed, it will be seen that the interpretation of the First Amendment in terms of "separation of church and state" has tangibly diminished this …

Terrorism And The Bill Of Rights, Rodney A. Smolla

Law Faculty Publications

This year is the Tenth Anniversary of the William & Mary Bill of Rights Journal, and the Journal is very fortunate and honored to have Professor Rodney Smolla publish an article in this year's volume. Professor Smolla played an integral role in the founding and organizing of not only the Journal, but also the Institute of Bill of Rights Law at William & Mary Law School. The J oumal extends its most appreciative thanks to Professor Smolla for all his help.

In this Article, Professor Smolla examines the right to free speech in the context of Black v. …

Prior Restraint In Wartime, Paul E. Salamanca

Law Faculty Popular Media

In this article for Bench & Bar Magazine (the Kentucky Bar Association's magazine), Professor Paul E. Salamanca discusses the First Amendment during times of war or conflict.

The Indecency Of Unsolicited Sexually Explicit Email: A Comment On The Protection Of Free Speech V. The Protection Of Children, Monique Redford

Seattle University Law Review

Because the state of Washington has a compelling interest in protecting the moral and psychological welfare of its children, the current spam law should be amended to also proscribe the transmission of unsolicited sexually explicit commercial email within its borders. This article argues that such an amendment would not violate either the dormant Commerce Clause or the First Amendment. In support of this thesis, section II first addresses the pervasive problem of children-not just adults-receiving sexually explicit material via unsolicited email. Then, sections III through V discuss the implications of the dormant Commerce Clause, the First Amendment, and the policy …

Brandenburg And The United States' War On Incitement Abroad: Defending A Double Standard, Lyrissa Barnett Lidsky

UF Law Faculty Publications

While it is perfectly legitimate for the United States to attempt to persuade foreign citizens and media not to engage in advocacy of violent acts, the administration's rhetoric suggests that the United States expects foreign governments to take action against speech that would be protected by the First Amendment in the United States. What explains this apparent hypocrisy? Is this simply another example of the United States touting democracy at home while supporting despotism abroad? Or is the Brandenburg incitement standard so socially and culturally contingent that it is not appropriate for export, at least to the Arab Middle East? …

Reacting To Ashcroft V. Free Speech Coalition And The Burial Of The Cppa: An Argument To Regulate Digital Child Pornography Because It Incites Imminent Lawless Action, Justin Leach

Vanderbilt Journal of Entertainment & Technology Law

Part I discusses the nature and origin of digital child pornography and how child pornography has traditionally fit into First Amendment analysis. Part II discusses Congress' reaction to digital innovations in child pornography by passing the Child Pornography Prevention Act and, Part II further explains the federal appellate courts' treatment of the CPPA. Part III discusses the history and arguments made for each side in Ashcroft v. Free Speech Coalition. Part IV discusses the legal and constitutional analysis of the Supreme Court in striking down the regulations that banned digital child pornography. Finally, Part V makes an additional constitutional argument, …

Stop The Presses! First Amendment Limitations Of Professional Athletes' Publicity Rights , Erika T. Olander

Marquette Sports Law Review

No abstract provided.

Your Money Or Your Speech: The Children's Internet Protection Act And The Congressional Assault On The First Amendment In Public Libraries, Steven D. Hinckley

Faculty Scholarship

This article examines the inherent conflict between This article examines the inherent conflict between two Congressional approaches to public access to the Internet - the provision of federal funding support to schools and public libraries to ensure broad access to online information regardless of financial means, and federal restrictions on children's use of school and public library computers to access content that the government feels could be harmful to them. It analyzes the efficacy and constitutionality of the Children's Internet Protection Act (CIPA), Congress's attempt to use its powers of the purse to control objectionable online content in the very …

Justice Frank Murphy And American Labor Law, Theodore J. St. Antoine

Articles

Working people and disfavored groups were central concerns of Frank Murphy, the last Michigan Law School graduate to sit on the United States Supreme Court. In the pages of this Review, just over a half century ago, Archibald Cox wrote of him: "It was natural ...th at his judicial work should be most significant in these two fields [labor law and civil rights] and especially in the areas where they coalesce."' In this Essay, after a brief overview of Murphy the man, his days at the University of Michigan, and his career prior to the Court appointment, I shall review …

Telemarketing, Commercial Speech, And Central Hudson: Potential First Amendment Problems For Indiana Code Section 24-4.7 And Other "Do-Not-Call" Legislation, Steven R. Probst

Law Faculty Publications

No abstract provided.

The Decision In United States V. Brown: The Fifth Circuit Interprets Justice Is Blind Literally., Robert M. Anselmo

St. Mary's Law Journal

In United States v. Brown, the Fifth Circuit affirmed the district courts use of anonymous jury orders. The use of anonymous juries, however, is either a necessary protection for jury members or an unfair procedural practice. The Fifth Circuit’s support for anonymous juries included concerns over threats, intimidation, and possible attempts to influence juror members in order to secure a favorable verdict. The promise of a jury of one's peers is a cornerstone of the United States judicial system. Implicit in this guarantee is the assurance of an impartial jury. Nonetheless, a jury that sits in fear may not fulfill …

Constitutional Issues In Information Privacy, Fred H. Cate, Robert E. Litan

Articles by Maurer Faculty

The U.S. Constitution has been largely ignored in the recent flurry of privacy laws and regulations designed to protect personal information from incursion by the private sector, despite the fact that many of these enactments and efforts to enforce them significantly implicate the First Amendment. Questions about the role of the Constitution have assumed new importance in the aftermath of the September 11 terrorist attacks on the World Trade Center and the Pentagon. Efforts to identify and bring to justice the perpetrators and to protect against future terrorist attacks, while threatening to weaken constitutional protections against government intrusions into personal …

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Journal Articles

As this Essay goes to press, the Supreme Court is considering whether Ohio's school-choice program violates the First Amendment to the United States Constitution. In my view, the Ohio program is sound public policy, and it is consistent with the Justices' present understanding of the Establishment Clause. I also believe that the Court will and should permit this experiment, and our conversations about its merits, to continue. The purpose of this Essay, though, is not to predict or evaluate ex ante the Court's decision. Instead, my primary aim is to suggest and then sketch a few broad themes that--once the …

Jefferson And Madison As Icons In Judicial History: A Study Of Religion Clause Jurisprudence, David J. Reiss

Cornell Law Faculty Publications

No abstract provided.

From Hit Man To Encylcopedia Of Jihad: How To Distinguish Freedom Of Speech From Terrorist Training, Rodney A. Smolla

Law Faculty Publications

Late last summer, Professor F. Jay Dougherty invited me to participate in "Tune In, Turn On, Cop Out? The Media and Social Responsibility," the Fourth Annual Entertainment Law Symposium sponsored by Loyola Law School of Los Angeles. I learned that one of the issues to be examined was media liability for violent audience behavior, exploring from both social science and legal perspectives the alleged link between violent speech and violent conduct. Little did I or Professor Dougherty or anyone connected to the conference then know that within weeks a catastrophic terrorist attack on the United States-an attack largely spurred by …

Justice Clarence Thomas: The Emergence Of A Commercial-Speech Protector, David L. Hudson Jr.

Law Faculty Scholarship

An examination of Justice Clarence Thomas' jurisprudence regarding commercial speech.

The Courts’ Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, David L. Hudson Jr., John E. Ferguson Jr.

Law Faculty Scholarship

The majority of courts have cited Bethel v. Fraser in such a way as to give public school officials free reign to censor vulgar, lewd, or plainly offensive student speech. Some courts have gone a step further and prohibited student speech that contains offensive ideas. This article seeks to explain how the Fraser decision curtailed student rights recognized in the Supreme Court's last pure student speech case, Tinker v. Des Moines Independent Community School District.

Fear Of Violence In Our Schools: Is ‘Undifferentiated Fear’ In The Age Of Columbine Leading To A Suppression Of Student Speech?, David L. Hudson Jr.

Law Faculty Scholarship

An essay on the suppression of student speech in the age of mass school shootings.

Constitutional Law: Boy Scouts Of America V. Dale: The Scout Oath And Law Survive Government Intrusion, J. Craig Buchan

Oklahoma Law Review

No abstract provided.

Law And Information Platforms, Philip J. Weiser

Publications

No abstract provided.

Regulating Political Parties Under A Public Rights First Amendment, Gregory P. Magarian

Scholarship@WashULaw

The recently-enacted McCain-Feingold campaign finance law pushes to the fore the questions of whether and to what extent the First Amendment allows government to regulate the electoral activities of political parties. One of the new law's primary components is its attempt to eliminate so-called "soft money"- unlimited donations to national political parties that the Democrats and Republicans have used to circumvent legal limits on campaign contributions? One congressional opponent of the new law called it "the death knell" for political parties' role in elections." Not surprisingly, both major parties have attacked McCain-Feingold. Most Republicans in Congress opposed the legislation, and …

Book Review, Steven D. Smith

Vanderbilt Journal of Transnational Law

Surely none of the following essays addresses or explores these claims and questions in any deliberate way. Nonetheless, in these opening pages, it seems that Ahdar is seeking to re-engage the questions that characterized the Western tradition from which our modern issues in law and religion descend, but which that tradition in its modern form has by now largely suppressed. The implication, it seems, is that in order to address the issues of the interaction of law and religion in an efficacious way, we must not only acknowledge that religion is a social phenomenon--although it is that, as Professor van …

Shoot First, Talk Later: Blowing Holes In Freedom Of Speech, Jacqueline Tresl

Animal Law Review

Ms. Tresl examines the constitutionality of hunter harassment laws. When a five-step doctrinal analysis is applied to hunter harassment statutes, it is clear that the statutes are content-based and subject to the strictest of scrutiny. Because the statutes fail the strict scrutiny test, they therefore violate the American citizenry’s First Amendment right to free expression.