Law Commons^™

Dispelling The Misconceptions Raised By The Davis Dissent, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This article argues that the Supreme Court’s majority opinion in Davis v. Monroe County Board of Education did not do enough to explicitly assuage the dissenters’ concerns and aims to do so itself. Davis permitted liability for school districts that purposely ignore instances of student-on-student sexual harassment that deprived a student of the opportunity for education. The three issues raised by the dissent were federalism, whether the conduct at issue is sexual harassment, and First Amendment concerns about the aggressor’s speech being protected. In response, I argue that the majority opinion does not violate federalism principles, the harassment qualifies as …

Open Access And The First Amendment: A Critique Of Comcast Cablevision Of Broward County, Inc. V. Broward County, David Wolitz

Georgetown Law Faculty Publications and Other Works

To what extent does the Free Speech Clause of the First Amendment bar the adoption of “open access” regulations? Open access (or “net neutrality”) refers to a policy that would require broadband Internet providers, such as cable and phone companies, to allow competitive Internet Service Providers (ISPs) onto their broadband lines at nondiscriminatory rates. A federal district court in Florida recently held Broward County’s open access ordinance unconstitutional on the grounds that it would force speech – in the form of Internet content – on to the local cable company. If the district court’s analysis is correct, then open access …

The Free Exercise Clause: How Redundant, And Why?, Daniel O. Conkle

Articles by Maurer Faculty

This article responds to Professor Mark Tushnet's article, "The Redundant Free Exercise Clause?" Although its analysis and specific conclusions are distinctive, the article reaches a general conclusion similar to Tushnet's - namely, that the contemporary Free Exercise Clause is largely redundant, in that it provides little protection that is not afforded independently by other First Amendment doctrines. The article first contends that the core principle of the contemporary Free Exercise Clause, the nondiscrimination requirement of Employment Division v. Smith, might be subsumed, perhaps entirely, within the free speech principle that disfavors content discrimination. To that extent, the Free Exercise Clause …

Faith In Justice: Fiduciaries, Malpractice & Sexual Abuse By Clergy, Zanita E. Fenton

Articles

No abstract provided.

First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz

Scholarly Works

No abstract provided.

The Supreme Court Rules In Favor Of Religious Club’S Right To Meet On Public School Premises: Is This “Good News” For First Amendment Rights?, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael L. Wells

Georgia Law Review

Constitutional rights have little value in the absence of effective remedies for their violation, includingsuitsfor damages to redress past constitutional wrongs and for injunctive relief to prevent continuing and future violations. Recognizing this, the Supreme Court has, especially over the past forty years, constructed an elaborate body of remedial doctrine. The Court has often acted on the premise that the remedial law should be more or less the same across the whole range of constitutional rights. The problem with this approach is that, from a remedial perspective, there are differences among the real world contexts in which constitutional violations occur. …

Defining “Church” In American Law, Michael S. Ariens

Faculty Articles

Balancing the autonomy of religious organizations against regulatory laws remains both a difficult and hotly contested issue. It is helpful to survey labor, property, tax, and education laws to illustrate the tensions between religion and government in American law.

Labor law cases show the autonomy of religious organizations concerning governmental regulations through the National Labor Relations Act and Title VII. In regard to church property, the government has an interest in regulating how religious organizations buy and sell land, run day care centers and food kitchens, raise and borrow money, commit torts, and enter into contracts. Section 501(c)(3) of the …

The Peculiar Case Of State V. Terry Lynn Nichols: Are Television Cameras Really Banned From Oklahoma Criminal Proceedings?, Robert D. Nelon

Vanderbilt Journal of Entertainment & Technology Law

The truck bomb ripped into A.P. Murrah Federal Building on April 19, 1995, at 9:02 a.m. One hundred sixty-eight men, women, and children died. None knew Timothy McVeigh or Terry Lynn Nichols, nor did McVeigh and Nichols know them. In fact, Nichols was not even in Oklahoma City when the bombing occurred. He is now--occupying a special cell in the Oklahoma County Jail, awaiting trial on state charges of murder, conspiracy to commit murder, and aiding in placing a bomb near a public building.

Nichols' trip to Oklahoma City was circuitous. Initially, separate federal proceedings against McVeigh and Nichols were …

Irreconcilable Congressional Treatment Of Internet Service Providers As Speakers, Raymond Shih Ray Ku

Vanderbilt Journal of Entertainment & Technology Law

This Article argues that under the CDA and OCILLA, Congress adopted facially inconsistent approaches towards ISP liability for expression. Nonetheless, despite the overt differences, it is possible to discern an underlying principle for determining when ISPs should be considered speakers that reconciles this inconsistency. Put simply, the CDA and OCILLA support an approach toward determining when ISPs are speakers that focuses on whether an ISP exercises editorial control over its network. This approach is evidenced by the fact that both statutes recognize that ISPs are able to exercise editorial control over any and all content on their networks, and both …

Framing And Blaming In The Culture Wars: Marketing Murder Or Selling Speech?, Clay Calvert

Vanderbilt Journal of Entertainment & Technology Law

This Article uses the Pahler legal battle as a case study to examine the current culture wars that have placed the Hollywood recording and entertainment industries in the legal crosshairs of both legislative and judicial efforts to redefine popular teen culture. The first section demonstrates how the theories at issue in Pahler mirror the tactics used in the recent war against tobacco industry advertising that also allegedly targeted minors. Next, the Article situates Pahler within the context of Congressional hearings in the fall of 2000 that focused attention on the alleged Hollywood marketing of products featuring violent content to minors. …

Constitutional Law: State Campaign Contribution Limits: Nixon V. Shrink Missouri Government Pac: An Abridgment Of Freedom In The Name Of Democracy, Richard J. Baker

Oklahoma Law Review

No abstract provided.

Panel I: The Conflict Between Commercial Speech And Legislation Governing The Commercialization Of Public Sector Data, Robert Sherman, Paul Schwartz, Deirdre Mulligan, Steven Emmert

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Panel Ii: The Conflict Between Commercial Speech And Legislation Governing The Commercialization Of Private Sector Data, Jennifer Barrett, Evan Hendricks, Solveig Singleton, David Sobel

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Privacy Versus The First Amendment: A Skeptical Approach, Solveig Singleton

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Communications Media And The First Amendment: A Viewpoint-Neutral Fcc Is Not Too Much To Ask For, Helgi Walker

Federal Communications Law Journal

In the "new economy" driven by the telecommunications industry, the FCC is a busy agency. Given the myriad legal issues faced daily by agency decisionmakers and the lack of perfect clarity in major communications legislation, a few legal missteps here and there by the FCC might be expected. In one area, however, the public can and should demand a first-rate agency record: regulation of communications media without regard to the viewpoint expressed via that media, as the First Amendment requires. This Article offers two case studies in which the FCC arguably took viewpoint-discriminatory actions with regard to regulated broadcasters, and …

Purveyors Of Hate On The Internet: Are We Ready For Hate Spam?, Elizabeth Phillips Marsh

Georgia State University Law Review

No abstract provided.

Introduction To Keynote Address, John D. Feerick

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Brief Amici Curiae Of Christian Legal Society And Union Of Orthodox Jewish Congregations Of America In Support Of Petitioners, Richard W. Garnett, Nathan J. Diament, Carl H. Esbeck

Court Briefs

No. 99-2036
The Good News Club v. Milford Central School

On Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit

From the Summary of the Argument

The parties agree that Milford's Community Use Policy creates a limited public forum. See, e.g., Pet. A13 ("We think it clear that the Community Use Policy has created a limited public forum in the Milford school facilities."). And the parties agree that any content restrictions in such fora must be "viewpoint neutral" and constitutionally "reasonable." Pet. A14 & n.8 ("If the Club's use is not a 'religious use' but …

Petition For Writ Of Certiorari, Richard W. Garnett, Michael Stokes Paulsen, David C. Gibbs Jr., David C. Gibbs Iii, Charlotte A. Cover, Barbara J. Weller

Court Briefs

No. 00-131
K.D.M. v. Reedsport School District

On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit

From the Reasons for Granting the Writ

The Ninth Circuit conceded that the regulation at issue below " 'discriminates' against students in religious schools, i.e., treats them differently by denying them state services on the school grounds." KDM, 196 F.2d 1046, 1051 (9th Cir. 1999) (App. B at 11 a). This, then, is a case about admitted discrimination - discrimination against "religious ideas, religious people, [and] religious schools." Board of Educ. of Kiryas Joel v. …

The Application Of Product Liability Principles To Publishers Of Violent Or Sexually Explicit Material, Richard C. Ausness

Law Faculty Scholarly Articles

There have been a number of tragic incidents during the past few years in which mentally unstable teenagers have carried guns into school and shot teachers and fellow students. These schoolyard killings have generated an intense debate about the problem of violence in our society. Some social commentators have attributed teenage violence to the widespread availability of firearms, while others blame parental neglect, lack of discipline in the schools, or the declining influence of religion and morality in contemporary culture. However, another source of concern is the popular media, which stands accused of purveying sex and violence on a massive …

Expressive Commerce In Cyberspace: Public Goods, Network Effects, And Free Speech, Daniel C. Farber

Georgia State University Law Review

No abstract provided.

Brief Of Amici Curiae Center For Education Reform Et. Al., In Support Of Appellants, Nicole Stelle Garnett, Richard W. Garnett, Paul D. Clement

Court Briefs

Nos. 00-3055, 00-3060, 00-3063
Doris Simmons-Harris v. Dr. Susan Tave Zelman

On Appeal from the United States District Court for the Northern District of Ohio Eastern Division

From the Introduction and Summary of Argument

As many scholars have recognized, and as far too many economically disadvantaged parents are painfully aware, many of our urban public schools fail to live up to the promise of Brown. Too many poor children are consigned, and their parents resigned, to unsafe and underperforming schools. But Cleveland's school-choice program empowers hundreds of parents, who likely would not otherwise have the choice, to decide whether …

A Response To Professor Benkler, Marci A. Hamilton

Articles

Professor Hamilton explores the constitutional complexity uncovered by Professor Benkler in his piece, Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information. Specifically, Professor Hamilton highlights that our democratic structure is characterized by representation rather than self-rule. In doing so, she refocuses the role of information in the political process and highlights that different types of information require different levels of access. Professor Hamilton's analysis further illustrates how an imprecise use of terminology may lead to incorrect conclusions regarding information jurisprudence. Through her more refined lens, Professor Hamilton reconsiders …

Recalibrating The Cost Of Harm Advocacy: Getting Beyond Brandenburg, S. Elizabeth Malloy, Ronald Krotoszynski Jr

Faculty Articles and Other Publications

This Article explores the possibility of shifting the cost of antisocial acts to artists, writers, and musicians when individuals decide to act on a creative artist's suggestions or, in some cases, detailed directions. The Article concludes that, at least in some limited circumstances, the First Amendment should not preclude the imposition of civil liability for those who write and distribute speech that both advocates and facilitates harm to others and proposes the creation of a new category of unprotected speech activity called Harm Advocacy.

Religion In The Workplace: Proceedings Of The 2000 Annual Meeting Of The Association Of American Law Schools Section On Law And Religion, William P. Marshall, Roberto L. Corrada, Michael W. Mcconnell, Joanne C. Brant, Robert W. Tuttle, Ira C. Lupu

Sturm College of Law: Faculty Scholarship

The religion clauses of the Constitution do not have to stand against one another. Viewed broadly they both encourage tolerance of religious practice and belief, the Establishment Clause by not allowing one religion to occupy a place above all others and the Free Exercise Clause by allowing all religions to flourish. The Workplace Religious Freedom Act does no violence to either clause in attempting to restore religion to its place among other important concerns of government

Davis V. Monroe County Board Of Education: The Unresolved Questions,, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This article focuses on the recent trend of permitting liability of schools when students are sexually harassed, which the Supreme Court has only recognized for twenty years. I examine the majority and dissenting opinions of the Court’s most recent decision about this topic, Davis v. Monroe County Board of Education and analyze three questions brought to light by Davis and Gebser v. Lago Vista Independent School District. These questions are: (1) what qualifies as “actionable” sexual harassment, (2) who must receive notice, and (3) what satisfies the “deliberate indifference” standard from Davis. The answers to these questions are just …

First Amendment Freedoms And The Encryption Export Battle: Deciphering The Importance Of Bernstein V. United States Department Of Justice, 176 F.3d 1132 (9th Cir. 1999), David Mcclure

Scholarly Works

For many years, a battle has raged over export restrictions on strong encryption products. Encryption ensures confidential and secure communications among individuals, and the Commerce Department and the State Department have long restricted its export because of national security concerns. Industry and privacy groups have fought against the restrictions for various reasons, ranging from the desire to sell encryption software in new markets to preventing government from accessing personal communications between individuals. Daniel Bernstein, a computer science graduate student, challenged these restrictions in 1996, placing himself in the center of this ongoing battle. In 1999, the Ninth Circuit Court of …

"We Do Not Preach, We Teach.": Religion Professors And The First Amendment, Leslie C. Griffin

Scholarly Works

No abstract provided.

Common Ground: Robert Jackson, Antonin Scalia, And A Power Theory Of The First Amendment, Jay S. Bybee

Scholarly Works

There are few cases that contrast more starkly than Justice Robert Jackson's opinion for the Court in West Virginia State Board of Education v. Barnette and Justice Antonin Scalia's majority opinion in Employment Division v. Smith. Although we praise Barnette for its soaring defense of the Free Speech Clause and excoriate Smith for its crabbed reading of the Free Exercise Clause, in fact, Justice Jackson and Justice Scalia are not so far apart. When we read Barnette and Smith in context, we will find that Justice Jackson and Justice Scalia treaded common ground with respect to the First Amendment. …