Law Commons^™

Generally Applicable Laws And The First Amendment, David S. Bogen

Faculty Scholarship

No abstract provided.

Constitutional Limits On Regulating Private Militia Groups, Thomas B. Mcaffee

Scholarly Works

Read in a historical context, the Second Amendment provides clear answers to only a few of the questions regarding the appropriate limits of state regulatory power to restrict organizing and training private militia groups. Moreover, a basic analysis of the original materials yields conclusions that may be disappointing to both critics and sympathizers of the private militia movement. Critics may be unhappy with the conclusion that the individual right to bear arms offers important protection to at least some activities of private militia members. Sympathizers may be equally disappointed with the conclusion that activities which include full-scale preparation for a …

Bridging The Analogy Gap: The Internet, The Printing Press And Freedom Of Speech, Jonathan Wallace, Michael Green

Seattle University Law Review

The Supreme Court will bring the highest degree of clarity to the Internet freedom of speech debate if, in ACLU v. Reno, it sets forth the operative metaphor for freedom of speech and applies the metaphor in conjunction with an appropriate analogy for the technology.Part I of this Article discusses judicial decision-making tools with an emphasis on the use of analogy and the importance of applying legal precedents in a manner which is consistent and logical. Part I also discusses the use of metaphor in judicial decisionmaking and illustrates how operative metaphors for free speech have served to provide …

The Panhandler's First Amendment Right: A Critique Of Loper V. New York City Police Department And Related Academic Commentary, Peter Nichols

South Carolina Law Review

No abstract provided.

Keynote Colloquy: Finding Justice In The Internet Dimension, Hon. Alex Kozinski

Seattle University Law Review

The Internet community—just like all other speech communities—ought to be afforded First Amendment protections. I don't see any reason why Internet speech should be treated any less favorably than other kinds of speech. But the vastly overblown claim that the communications medium somehow deserves to be put outside normal legal constraints--because it's so global, or because it's so different—is self-defeating. It substitutes generalities and sentiments for real thinking. The kind of analysis we've seen at this conference—the kind of debate we've had here—is very useful, because we're talking about the specifics of what legal constraints should be allowed. Not whether …

Race, Religion, And Cultural Identity: Reconciling The Jurisprudence Of Race And Religion, Tseming Yang

Indiana Law Journal

No abstract provided.

Snuffing Out The First Amendment: The Fda Regulation Of Tobacco Company Advertising And Sports Sponsorships Under The Federal Food, Drug, And Cosmetic Act, Bradford J. Patrick

Marquette Sports Law Review

No abstract provided.

Land Use And The First Amendment, Alan C. Weinstein

All Maxine Goodman Levin School of Urban Affairs Publications

The past year saw no cessation in cases reporting on the conflicts that arise when local land-use regulation is applied to uses claiming protection under the First Amendment. This report highlights the major developments in this area.

Spending Limits And The Squandering Of Candidates' Time, Vincent A. Blasi

Faculty Scholarship

Today I begin with a narrow agenda, a single idea, but an extravagant ambition. My narrow agenda is that I wish to address only the topic of campaign spending limits, and only the issue of their constitutionality in the face of First Amendment objections. The policy questions regarding whether spending limits are equitable, efficacious, and/or enforceable are deeply difficult and interesting but beyond my ken on this occasion.

My single idea is that spending limits are best justified on the ground that they protect candidates for office from having to devote an inordinate amount of their time to the task …

Reading Holmes Through The Lens Of Schauer: The Abrams Dissent, Vincent A. Blasi

Faculty Scholarship

Even the best scholars rarely persuade. Mostly, they illuminate. They make us more discerning readers and interlocutors.

Here I want to illustrate how Frederick Schauer's work on the law of free speech can help us to read what may be the single most influential judicial opinion ever written on that subject, Justice Holmes's famous dissent in Abrams v. United States. So far as I am aware, Schauer has not produced anything like a line-by-line parsing of the Holmes opinion. I claim nevertheless that a reader familiar with Schauer's ideas is far better prepared on that account to understand what Holmes …

Section 1983 In The Second Circuit, Honorable George C. Pratt

Touro Law Review

No abstract provided.

The First Amendment In The Supreme Court: The Future Lies Ahead, Dean Joel M. Gora

Touro Law Review

No abstract provided.

Constitutional Law: Board Of County Commissioners V. Umbehr And O'Hare Truck Service V. City Of Northlake--The Extension Of First Amendment Protection To Independent Contractors--The Garbage Man Can Now Talk Trash!, Brent C. Eckersley

Oklahoma Law Review

No abstract provided.

The Constitution's Pragmatic Balance Of Power Between Church And State, Marci A. Hamilton

Articles

No abstract provided.

An Analysis Of The Personal Use Principle Under Copyright Law, Hsin-Chih Cheng

LLM Theses and Essays

Personal use is when an individual uses a copyrighted work for private purposes, such as learning or entertainment. Personal use is a right given in the Copyright Clause of the U.S. Constitution, however, an issue arises when the individual wants to make a copy of the copyrighted work. New technologies like photocopying and videotaping make this issue more prominent today. Some copyright owners think that the individual’s copying for private use is harmful to their potential market and they argue for compensation. Does the individual have the right under the personal use principle to reproduce the copyrighted work for private …

Two Wrongs Mock A Right: Overcoming The Cohen Maledicta That Bar First Amendment Protection For Newsgathering, Eric Easton

All Faculty Scholarship

In Cohen v. Cowles Media Co., Justice Byron R. White wrote that the First Amendment offers no protection from the enforcement of "generally applicable laws" against newsgatherers and that First Amendment protection applies only to information that has been "lawfully acquired." This Article shows that these doctrines are not only false, but have already done serious damage to First Amendment interests. It surveys lower court decisions from around the country to demonstrate the doctrines' pernicious influence, then it evaluates alternative solutions to the problem. The article concludes that the most effective, if least likely, solution would be a rule that …

The Secondary Effects Doctrine: 'The Evisceration Of First Amendment Freedoms', David L. Hudson Jr.

Law Faculty Scholarship

An analysis of First Amendment Jurisprudence and the Secondary Effects Doctrine.

Civilizing Religion, Kurt T. Lash

Law Faculty Publications

Is it appropriate to restrict abortion at any stage in pregnancy on the ground that human life is sacred? Should the public square be open to biblical arguments against homosexuality? Or, to frame the issue in a more scholarly fashion: What role may religious arguments play, if any, either in public debate about what political choices to make or as the private basis of a political choice? In his recent book, Religion in Politics: Constitutional and Moral Perspectives, Michael Perry addresses these questions as a matter of constitutional law and political morality. Perry has been down this road before, most …

Section 1983 Litigation, Martin A. Schwartz

Touro Law Review

No abstract provided.

Life Without Lemon: The Status Of Establishment Clause Jurisprudence After Rosenberger V. Rector & Visitors Of The University Of Virginia, Julie Madison Angus

Northern Illinois University Law Review

This casenote analyzes Rosenberger v. Rector & Visitors of the University of Virginia and determines that the Court misapplied Establishment Clause precedent and erroneously rejected the three-prong Lemon test. In examining the decision, the note provides a brief historical overview of the development of the numerous tests surrounding the Establishment Clause, focusing primarily on the past fifty years. The note concludes that in failing to mention the Lemon test, Rosenberger merely adds more confusion to the already bewildering area of Establishment Clause jurisprudence.

Restoring Free Exercise Protections By Limiting Them: Preventing A Repeat Of Smith, James M. Donovan

Northern Illinois University Law Review

This article addresses the concerns involved with the recently enacted Religious Freedom Restoration Act and how this sets the stage for a revisiting of Employment Division, Department of Human Resources of Oregon v. Smith. This article suggests that full Free Exercise protections can be extended to most contexts if they are withdrawn from others. The goal is to accomplish a principled approach that does not contravene the spirit of the First Amendment. The proposed limiting principles argue collectively that full protections should be reserved for personal, central beliefs and actions about personal conduct whose accommodation does not raise Establishment issues, …

The Moral Economy Of The Purchase Of Freedom: Ethical Lessons From The Slave Narratives, Lea Vandervelde

Cardozo Law Review

In his contribution to this symposium, Richard Weisberg tells us a subtle story of what he calls "twin hermeneutics." I will use one of these-"the hermeneutic of acceptance"-to launch my own discussion on the subject of ethical dilemmas. By this term, "the hermeneutic of acceptance," Weisberg means the gradual acceptance by French lawyers of the scheme of racial exclusion newly created by Vichy laws. He traces the digression in legal arguments made by French lawyers during the four years of Vichy rule. French lawyers loaned their prestige to these new laws by means which placed their legal arguments on a …

Do You Need A Lawyer? You May Have To Wait 30 Days: The Supreme Court Went Too Far In Florida Bar V. Went For It, Inc. , Daniel L. Zelenko

American University Law Review

No abstract provided.

Communication Breakdown:  Developing An Antitrust Model For Multimedia Mergers And Acquisitions, H. Peter Nesvold

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Rosenberger V. Rector & Visitors Of The University Of Virginia:  The Myth Of The Content Neutral Establishment Clause, Mark Daniel Salzberg

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Panel I:  The Changing Landscape Of Jurisprudence In Light Of The New Communications And Media Alliances, Creighton O'M. Condon, Robert D. Joffe, Nicholas J. Jollymore, John R. Tyler

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Panel Ii:  Censorship Of Cable Television’S Leased And Public Access Channels:  Current Status Of Alliance For Community Media V. Fcc , Stuart W. Gold, Marjorie Heins, James N. Horwood, Robert T. Perry

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Communicative Freedom, Communicative Power, And Jurisgenesis, Klaus Günther

Cardozo Law Review

One of the doubts raised against discourse theory by many critics concerns the place of the individual. Liberals especially fear that the individual gets involved in a system of obligations which is derived from certain pragmatical presuppositions of communication and which forces the individual to participate in discourses whenever he or she pursues his or her own happiness in society. But Jacques Derrida too, who could scarcely be called a "liberal" in the traditional sense, characterizes those presuppositions of communication which entail an obligation for the speaker and the hearer as "violence." For these critics, it must now be a …

"Do Justice!": Variations Of A Thrice-Told Tale, Michael Herz

Articles

Although recent debates would suggest that narrative scholarship is brand new,4 lawyers, judges, and law professors, like all humankind, have always offered stories for illustration or support or to make a point in an indirect, and often more effective, way. Learned Hand's story about telling Justice Holmes to "do justice" is one widely-used example, offered by many writers in addition to Judge Bork and Professor Chayes. Its popularity is easy to understand. The story has a substantive message, pithily expressed, on a basic jurisprudential issue; it involves two members of the pantheon; and it crams a lot of human interest …

Personal Jurisdiction Based On Advertising: The First Amendment And Federal Liberty Issues, Keith H. Beyler

Missouri Law Review

Part I of this Article illustrates the potential impact of treating advertising as a basis for personal jurisdiction by looking at how such treatment might deter interstate advertising by abortion providers. Parts II and III examine whether advertising is a basis for personal jurisdiction under the current requirements and ground rules for personal jurisdiction laid down by the Supreme Court. Parts IV and V examine First Amendment and federalism arguments for treating advertising as an insufficient basis for personal jurisdiction.