Law Commons^™

Liberal, Conservative, And Political: The Supreme Court's Impact On The American Family In The Uber-Partisan Era, Marsha B. Freeman

Faculty Scholarship

No abstract provided.

Conspiracy As Contract, Laurent Sacharoff

Sturm College of Law: Faculty Scholarship

This article considers the central concept of criminal conspiracy — the agreement. It shows how both courts and scholars have almost entirely failed to define it. Even more surprisingly, neither discusses how “agreement” in criminal conspiracy compares with the agreement in contract law. Instead, courts have diluted the agreement requirement by substituting “mutual understanding” or “slight connection,” leading to uncertainty, unfairness, and a profusion of conspiracy convictions for mere presence or association.

This article argues courts should define agreement, and do so as an exchange of promises between the conspirators to commit a crime. An exchange of promises meets the …

Soundings And Silences, Laurence H. Tribe

Michigan Law Review Online

My work over the years has included both studying existing constitutions, particularly that of the United States, and assisting others with the drafting of new constitutions—from the Marshall Islands to the Czech Republic to South Africa. Among the things I noticed was that those undertakings, although distinct, were related—and related most significantly in the way that formative decisions about what to say and what not to say in a new constitution have bearing on later decisions about how to interpret what a constitution says or fails to say. My decision to pay special attention to the various roles of silence …

Keynote Address: Censorship In The Guise Of Authorship: Harmonizing Copyright And The First Amendment, M. Margaret Mckeown

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Expanding The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying, Philip Lee

Journal Articles

Cyberbullying has received increasing societal attention in the aftermath of the tragic suicides of some of its youngest and most vulnerable victims — 15-year-old Phoebe Prince from Massachusetts, 13-year-old Ryan Halligan from Vermont, 12-year-old Sarah Lynn Butler from Arkansas, 15-year-old Grace McComas from Maryland, and 12-year-old Rebecca Ann Sedwick from Florida.

In this Article, I hope to provide states and their schools better guidance on how to effectively regulate cyberbullying that originates off campus. Specifically, I aim to make four unique contributions to the conversation.

First and foremost, I argue that cyberbullying is so harmful in and of itself that …

Dismantling Of Dissent: Militarization And The Right To Peaceably Assemble, Emmanuel Hiram Arnaud

Faculty Scholarship

This Note argues that the ritualized use of extreme police force on peacefully assembled groups is a violation of the Assembly Clause as it was originally intended to function. Part I gives a general account of the Assembly Clause, its creation, and its original intention to safeguard minority views. Part II recounts part of the history behind the militarization of police forces. Part III suggests a balancing test the courts should use when evaluating violations of the freedom to peaceably assemble in order to conform to the original meaning of the First Amendment.

The Inapplicability Of First Amendment Protections To Bds Movement Boycotts, Marc A. Greendorfer

Cardozo Law Review de•novo

This paper has been derived from, and is an expansion of, certain arguments the author made in an earlier legal study of the BDS Movement under United States law entitled, “The BDS Movement: That Which We Call a Foreign Boycott, by Any Other Name, Is Still Illegal,” and is meant to rebut recent misleading assertions that the First Amendment protects participation by United States persons in foreign boycotts of Israel.

The Road To Adopting And Implementing Systemic Disclosure Changes In The Dallas County District Attorney’S Office, Susan Hawk, Patricia J. Cummings

Cardozo Law Review de•novo

Discovery and Brady are currently two of the most discussed and debated topics in our criminal justice system. Americans have become more and more aware of the number of individuals convicted and incarcerated for crimes they did not commit. In 2007, in a very bold and innovative move, the Dallas County District Attorney’s Office created the Conviction Integrity Unit (CIU) to reexamine questionable convictions to determine if a particular defendant was in fact guilty.

Panhandling And The First Amendment: How Spider-Man Is Reducing The Quality Of Life In New York City, Steven J. Ballew

Brooklyn Law Review

Recently, New York and other cities have taken steps to regulate panhandling activity in their communities. These regulations are informed by Broken Windows policing, which emphasizes addressing quality-of-life issues as a strategy for reducing crime. Yet government-imposed limitations on panhandling raise concerns about whether such measures violate panhandlers’ First Amendment rights. This note explores whether it is possible to separate the act of panhandling—defined as approaching a stranger in public and requesting immediate and gratuitous cash payment for oneself—from expression that is protected by the First Amendment. It concludes that, based on a concurrence from Justice Kennedy in International Society …

You(Tube), Me, And Content Id: Paving The Way For Compulsory Synchronization Licensing On User-Generated Content Platforms, Nicholas Thomas Delisa

Brooklyn Law Review

The changing landscape of digital media technology makes it increasingly difficult for owners of copyrighted music to monitor how their works are being exploited across the Internet. This is especially true of user-generated content (UGC) platforms—websites and applications such as Facebook, YouTube, and Snapchat, where content is created or uploaded predominantly by users. These services pose a special problem to copyright owners because, instead of content being uploaded from a single source that is easily sued and has deep pockets, content is uploaded by users. Users are a troublesome group because they are innumerable, sometimes anonymous, and mostly click on …

Parody And The Fair Use Defense: The Best Way To Practice Safe Sex With All Your Favorite Characters, Jessica N. Schneider

Brooklyn Law Review

The copyright fair use test balances the copyright holder’s right to exclude others from using its work against the secondary user’s First Amendment right, yet this test is often too unpredictable and favors misappropriation, even the most commercial kind. The test is weakest when used to determine the legality of sexual parodies. The sexual nature of the parody should receive statutory consideration in the balancing test because vulgar and lewd speech is often deemed “low value” speech, and therefore the secondary user’s First Amendment right is weaker compared to the copyright owner’s right to exclude. Courts already consider the sexual …

The Minefield: Designing And Implementing Human Resource Policies In The Age Of Social Media, Christopher R. Mcmillan

The Graduate Review

Human resource managers have had to navigate a minefield of laws and regulations while continuing to manage the traditional business functions of the employer. Now, human resource departments across the nation are tasked with managing the traditional employee-employer relationship in light of an ever-changing technological and legal landscape. Businesses across the nation have had to adjust to a rise in the use of social-media and have suffered the consequences of instantaneous communication between employees and the media. These same businesses must reconcile the need to protect its goodwill and livelihood, while incorporating the safeguards provided by legislation and regulations in …

On Commercial—And Corporate—Speech, Jonathan Weinberg

Marquette Law Review

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"And To Your Left You'll See...": Licensed Tour Guides, The First Amendment, And The Free Market, Kristin Tracy

University of Baltimore Law Review

If you are a beer-lover visiting Washington, D.C., you might want to check out “DC Brew Tours,” a “beer tour company in the Capital region that offers daily brewery tours to Washington’s best breweries, brewpubs, and bars.” As you would expect, the tour includes samples of beer from a number of local craft breweries, as well as information about how each beer is made. What you might not expect, however, is that, until very recently, DC Brew tour guides were legally obligated to pass a written exam about the history of D.C., a topic which has little to do with …

When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan

Scholarly Works

The legal protection of free speech for immigrants in the United States is surprisingly limited, and it may be under more threat than is commonly understood. Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the Constitutional protections that we normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, a broad claim has been made by the Department of Justice that immigrants who have not been legally admitted to the country have …

Conspiracy As Contract, Laurent Sacharoff

Hofstra Law Faculty Scholarship

This article considers the central concept of criminal conspiracy – the agreement. It shows how both courts and scholars have almost entirely failed to define it. Even more surprisingly, neither discusses how "agreement" in criminal conspiracy compares with the agreement in contract law. Instead, courts have diluted the agreement requirement by substituting "mutual understanding" or "slight connection," leading to uncertainty, unfairness, and a profusion of conspiracy convictions for mere presence or association.

This article argues courts should define agreement, and do so as an exchange of promises between the conspirators to commit a crime. An exchange of promises meets the …

Fissures, Fractures & Doctrinal Drifts: Paying The Price In First Amendment Jurisprudence For A Half Decade Of Avoidance, Minimalism & Partisanship, Clay Calvert, Matthew D. Bunker

UF Law Faculty Publications

This Article comprehensively examines how the U.S. Supreme Court’s adherence to principles of constitutional avoidance and judicial minimalism, along with partisan rifts among the Justices, have detrimentally affected multiple First Amendment doctrines over the past five years. The doctrines analyzed here include true threats, broadcast indecency, offensive expression, government speech, and strict scrutiny, as well as the fundamental dichotomy between content-based and content-neutral regulations.

The Right To Record Images Of Police In Public Places: Should Intent, Viewpoint, Or Journalistic Status Determine First Amendment Protection?, Clay Calvert

UF Law Faculty Publications

Using the February 2016 federal district court ruling in Fields v. City of Philadelphia as an analytical springboard, this Article examines growing judicial recognition of a qualified First Amendment right to record images of police working in public places. The Article argues that Judge Mark Kearney erred in Fields by requiring that citizens must intend to challenge or criticize police, via either spoken words or expressive conduct, in order for the act of recording to constitute "speech" under the First Amendment. It asserts that a mere intent to observe police-not to challenge or criticize them-suffices. It then also explores how …

Diy Solutions To The Hobby Lobby Problem, Kristin Haule

Loyola of Los Angeles Law Review

No abstract provided.

Speech-Facilitating Conduct, Jud Campbell

Law Faculty Publications

Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law— restrictions on photography and audiovisual recording, limits on campaign contributions, putative newsgathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on …

The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler

Faculty Scholarship

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative "conscience clauses" are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties …

The Amplified Need For Supreme Court Guidance On Student Speech Rights In The Digital Age, William Calve

St. Mary's Law Journal

Abstract forthcoming.

Thugs, Crooks, And Rebellious Negroes: Racist And Racialized Media Coverage Of Michael Brown And The Ferguson Demonstrations, Bryan Adamson

Faculty Articles

The article explores how the media constructs news, and offers extensive history on the adverse narrative media tropes about Black men since colonial newspapers. Through qualitative and quantitative analysis of news narratives and images, this article demonstrates how Ferguson accounts emphasized Brown’s deviance and chaos and disorder. After offering comparative analysis of White criminality and protest news narratives, the article presses upon the social effects of racist and racialized media narratives. The article examines the controversy through First Amendment free speech, hate crimes, and true threat principles as well as FCC regulation of broadcasting, and media ownership. While explicating the …

Multifactoral Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …

Balancing Free Speech, Alexander Tsesis

Faculty Publications & Other Works

This article develops a theory for balancing free speech against other express and implied constitutional, statutory, and doctrinal values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases involving competing rights, judges should examine (1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; (2) whether the restricted expression has been historically or traditionally protected; (3) whether a government policy designed to benefit the general welfare weighs in favor of the regulation; (4) the fit between the disputed speech regulation and the public end; and …

Informed Consent As Compelled Professional Speech: Fictions, Facts, And Open Questions, Nadia N. Sawicki

Faculty Publications & Other Works

No abstract provided.

Gay Rights Versus Religious Freedom, And The Influence Of Obergefell V. Hodges On Distinguishing The Dividing Line, Kathleen Rainey Mcstravick

St. Mary's Law Journal

Obergefell v. Hodges, a United States Supreme Court case, added more fuel to the fire, leaving many to wonder how to voice religious opposition to same-sex marriages, and what are the second order effects for religious opposition in light of the new rule. The Court held the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution guarantees protection against discrimination based on sexual orientation. Obergefell, brings the conflict between freedom of religion and LGBT rights to a new level by questioning how far freedom of religion can be used to refuse anti-discrimination statutes regarding sexual …

Evading The Schoolhouse Gate: Public Schools (K-12) And The Regulation Of Cyberbullying, Philip Lee

Utah Law Review

Cyberbullying has received increasing societal attention in the aftermath of the tragic suicides of some of its youngest and most vulnerable victims. In this Article, I have argued that cyberbullying is so harmful, in and of itself, that it should be afforded diminished First Amendment protections. I have also advocated for a narrow definition of cyberbullying that incorporates the three elements of the prevailing social scientists’ definition of “bullying” as it relates to cyberbullying: (1) intent to harm; (2) repetition; and (3) power imbalance between cyberbully and victim.

Re-Ordering The First Amendment, Melissa Hart

Publications

No abstract provided.

Owning Red: A Theory Of Indian (Cultural) Appropriation, Angela R. Riley, Kristen A. Carpenter

Publications

In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian …