Law Commons^™

Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson

Katharine Jackson

This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.

Promoting Inclusion Through Exclusion: Higher Education's Assault On The First Amendment, Adam Lamparello

Adam Lamparello

To obtain a meaningful educational experience and achieve the benefits of a diverse student body, students should confront beliefs they find abhorrent and discuss topics that bring discomfort. As it stands now, universities are transforming classrooms and campuses into sanctuaries for the over-sensitive and shelters for the easily-offended. In so doing, higher education is embracing a new, and bizarre, form of homogeneity that subtly coerces faculty members and students into restricting, not expressing, their views, and creating a climate that favors less, not more, expressive conduct. This approach undermines First Amendment values and further divorces higher education from the real …

A Fourth Amendment Framework For The Fee Exercise Clause, Adam Lamparello

Adam Lamparello

This article proposes a paradigm for resolving disputes under the free exercise clause that is analogous to the framework used by the court under the fourth amendment when balancing privacy rights against investigatory powers of law enforcement. In its Fourth Amendment jurisprudence, the Court provides varying degrees of protection to privacy – and imposes different evidentiary requirements on law enforcement – depending on the context in which privacy is affected, the intrusiveness of a particular search, and the asserted governmental interests. For example, privacy receives the strongest protections in areas such as the home, thus requiring law enforcement to have …

Can A One Star Review Get You Sued? The Right To Anonymous Speech On The Internet And The Future Of Internet “Unmasking” Statutes, Jesse D. Lively

Jesse D Lively

This Comment argues that the Supreme Court of Virginia should first reverse the Virginia Court of Appeal’s decision when it hears the Yelp case later this year. Secondly, the court hold that the Virginia statute for identifying persons communicating anonymously over the Internet violates the First Amendment's required showing of merit on both law and facts before a subpoena duces tecum to identify an anonymous speaker can be enforced. Lastly, it should adopt a new “unveiling standard” similar to the standards used in either Dendrite or Cahill. Part II examines the jurisprudential history of identifying anonymous Internet speakers in defamation …

Bad Math: How Non-Union Employees Are Unconstitutionally Compelled To Subsidize Political Speech, Shirley V. Svorny, Melanie S. Williams

Melanie S. Williams

Employees’ right to organize and be represented by unions is in tension with the right of other employees not to join organizations as a condition of employment. Current law permits unions to assess agency fees from represented non-members, reflecting the cost of representational activities (for example, contract negotiation). Unions may not, however, assess non-members for the cost of political activities, since this would infringe on the constitutional rights of such employees by requiring them to subsidize political speech. The method of calculating agency fees, however, has been almost uniformly mishandled, resulting in overcharging non-union members. In this paper, we examine …

The Case For Defamatory Opinion, Adam Lamparello

Adam Lamparello

The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite another to …

The Case For Defamatory Opinion, Adam Lamparello

Adam Lamparello

The law should not allow revenge porn in the name of the First Amendment, just as it should not allow private citizens to purchase AK-47’s in the name of the Second Amendment. Citizens can abuse fundamental rights just as governments can infringe them. At some point, courts have to acknowledge that the First Amendment was not intended to give people a fundamental right to trash an individual’s reputation while seeking cover under the self-serving blanket of opinion and taste. It is one thing to stroll into a courthouse with a shirt that says Fuck the Draft, but quite another to …

The Internet Is The New Public Forum: Why Riley V. California Supports Net Neutrality, Adam Lamparello

Adam Lamparello

Technology has ushered civil liberties into the virtual world, and the law must adapt by providing legal protections to individuals who speak, assemble, and associate in that world. The original purposes of the First Amendment, which from time immemorial have protected civil liberties and preserved the free, open, and robust exchange of information, support net neutrality. After all, laws or practices that violate cherished freedoms in the physical world also violate those freedoms in the virtual world. The battle over net neutrality is “is absolutely the First Amendment issue of our time,” just as warrantless searches of cell phones were …

"God Hates Fags" Isn't The Same As "Fuck The Draft": Introducing The Non-Sexual Obscenity Doctrine, Adam Lamparello

Adam Lamparello

No abstract provided.

Balancing The Scales: Adhuc Sub Judice Li Est Or Trial By Media, Casey J. Cooper

Casey J Cooper

The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …

Citizens Disunited: Mccutcheon V. Federal Election Commission, Adam Lamparello

Adam Lamparello

We have a separate but unequal Constitution. The wealthy are democracy’s darlings, the middle class are its stepchildren, and the poor are its orphans. And the Constitution’s written and unwritten rights are alive for the wealthy, merely evolving for the middle class, and dead for the poor.

One thing, however, should not be disputed: wealthy individuals are entitled to fully enjoy the Constitution’s textual guarantees. Indeed, the notion that Congress—through aggregate limits on individual contributions—may limit the number of candidates to which they can contribute is troubling. But there is a reason. Everyone else—including the poor and middle class—are entitled …

God And Guns: The Free Exercise Of Religion Problems Of Regulating Guns In Churches And Other Houses Of Worship, John M. A. Dipippa

John M. A. DiPippa

The article demonstrates that the cases raising religious liberty challenges to state regulation of weapons in houses of worship reveal the persistent problems plaguing religious liberty cases. First, these cases illustrate the difficulties non-mainstream religious claims face. Courts may not understand the religious nature of the claim or they may devalue claims that do not seem “normal” or “reasonable.” This is compounded how few religious liberty claimants, especially non-mainstream religions, win their cases. Second, the cases are part of the larger debate about how easy it should be to get judicially imposed religious exemptions from general and neutral laws. Uncritically …

When Open Government And Academic Freedom Collide, Jonathan Peters

Jonathan Peters

Uneasy is the balance between open government and academic freedom. Scholars have argued that using public records laws to obtain their emails is a form of harassment and intimidation. Nonprofits and political parties have argued that the public has a right to know that scholars are following university rules and properly using public resources. Against that backdrop, we have explored whether public records laws apply to faculty members and whether an exemption in those laws for academic freedom would be conceptually sound and consistent with other exemptions for communications and work product.

Balancing The Scales: Adhuc Sub Judice Li Est Or "Trial By Media", Casey J. Cooper

Casey J Cooper

The right to freedom of expression and free press is recognized under almost all major human rights instruments and domestic legal systems—common and civil—in the world. However, what do you do when a fundamental right conflicts with another equally fundamental right, like the right to a fair trial? In the United States, the freedom of speech, encompassing the freedom of the press, goes nearly unfettered: the case is not the same for other common law countries. In light of cultural and historic facts, institutional factors, modern realities, and case-law, this Article contends that current American jurisprudence does not take into …

Gay Talk: Protecting Free Speech For Public School Teachers, Stephen J. Elkind, Peter D. Kauffman

Stephen J Elkind

In Garcetti v. Ceballos, the Supreme Court held that public employees are not entitled to free speech when speaking “pursuant to their official duties.” In most situations, this strips teachers of First Amendment protection when they discuss controversial subjects, such as homosexuality, with their students. To ensure their classrooms are tolerant and accepting environments for homosexual and questioning youth, teachers need free speech protection against adverse employment action their schools might take. The Garcetti Court, acknowledging that “expression related to academic scholarship and classroom instruction implicates” unique constitutional concerns, explicitly left open whether its decision applied in the education …

Defamation Litigation Patterns Across The United States, England, And Australia, David Unwin

David Unwin

A good reputation is perhaps an individual’s most valuable asset. Yet it is capable of being destroyed in an instant. Defamation law recognizes and protects this interest by imposing tort liability. However, the freedom of speech is another bedrock legal principle. Imposing strict liability on any false, defamatory remark would unduly chill free speech. Thus, each national legal system must balance these two broad principles and reach a legal outcome which effectively protects an individual’s reputation without unduly burdening the exercise of speech.

This paper will first examine three jurisdictions’ defamation law jurisprudence: the United States, England and Wales, and …

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

Mirror, Mirror On The Wall, Who Are You To Say Who Is Fairest Of Them All?, Ashley R. Brown

Ashley R Brown

No abstract provided.

Unions, Corporations, And The First Amendment: A Response To Professors Fisk And Chemerinsky, Todd E. Pettys

Todd E. Pettys

In this response to Professor Fisk and Chemerinsky’s critique of the Supreme Court’s ruling in Knox v. SEIU Local 1000, I make two arguments. First, I challenge the premise of shareholder-employee equivalency that undergirds key portions of Fisk and Chemerinsky’s analysis. Second, I contest the claim that Knox contributes to incoherence in the Court’s First Amendment jurisprudence. Specifically, I challenge Fisk and Chemerinsky’s argument that Knox is difficult to reconcile with the Court’s leading precedents on the speech rights of government employees, and I raise doubts about their reading of the Court’s compelled-speech cases involving complaints that one’s resources are …

The Naked Private Square, Ronald J. Colombo

Ronald J Colombo

In the latter half of the twentieth century, America witnessed the construction of a “wall of separation” between religion and the public square. What had once been commonplace (such as prayer in public schools, and religious symbols on public property) had suddenly become verboten. This phenomenon is well known and has been well studied.

Less well known (and less well studied) has been the parallel phenomenon of religion’s expulsion from the private square. Employment law, corporate law, and constitutional law have worked to impede the ability of business enterprises to adopt, pursue, and maintain distinctively religious personae. This is undesirable …

Cyberbullying: When Is It"School Speech" And When Is It Beyond The School's Reach?, Susan S. Bendlin

Susan S. Bendlin

Courts should use a totality of the circumstances test to determine whether a student's internet speech is school speech. If so, Tinker and other tests apply. If not, the school should not regulate the internet messages because it may violate the student's first amendment free speech rights.

Freedom Of Association For College Fraternities After Christian Legal Society And Citizens United, Mark D. Bauer

Mark D Bauer

The First Amendment and its associational rights and freedoms are not tested by popular groups or causes. Only controversy can help establish the limits of constitutional rights. Fraternities and sororities (“fraternities”) have certainly been controversial during their 236 years of existence.

Colleges often regulate fraternities more strictly than any other organization. Fraternity members may be barred from wearing their letters or mentioning their affinity during certain times of the year. Recruitment of new members is generally permitted only at certain times and in certain ways. Fraternity members may be required to engage in philanthropy or maintain a specific grade point …

Crushing Animals And Crashing Funerals: The Semiotics Of Free Expression, Harold Anthony Lloyd

Harold Anthony Lloyd

This article addresses judicial choices and semantic errors involved in United States v. Stevens, 130 S.Ct. 1577 (2010) (refusing to read “killing” and “wounding” to include cruelty and thus striking down a federal statute outlawing videos of animal cruelty), and Snyder v. Phelps, 131 S.Ct. 1207 (2011) (finding a First Amendment right to picket military funerals and to verbally attack parents of dead soldiers as part of purportedly-public expression). This article maintains that a better understanding of semiotics (the theory of signs) exposes the flaws in both decisions and bolsters the arguments of the lone dissenter in both cases, Justice …

The 2011-2012 Supreme Court Term: Decisions In Constitutional Law, Wilson Huhn

Wilson R. Huhn

This presentation reviews the principal decisions of the Supreme Court in the field of Constitutional Law during the 2011-2012 Term of Court. The presentation primarily focuses on the Court's decisions involving the Arizona immigration law (SB 1070), the federal Stolen Valor Act, the "ministerial exception" to the anti-discrimination laws, and above all the Patient Protection and Affordable Care Act.

Prophetic Speech, Jeremy G. Mallory

Jeremy G Mallory

Snyder v. Phelps presented the Supreme Court with a shocking set of facts leading to a result that surprised some and confused many. On a more unsettling note, it showed that existing First Amendment doctrine has difficulty addressing prophetic speakers as they are. Prophetic rhetoric is a unique speech category that warrants nuanced consideration due to its sui generis nature. Seven characteristics of prophetic speech undermine assumptions usually taken to hold true in the Court’s free speech jurisprudence. The law as it currently exists can only address prophetic speech as some variant of a known problem, but it is not …

Leaving The Dale To Be More Fair: On Cls And First Amendment Jurisprudence, Mark Strasser

Mark Strasser

In Christian Legal Society of the University of California, Hastings College of Law v. Martinez, the Supreme Court upheld the Hastings College of Law’s requirement that all recognized student groups have an open membership policy. The decision has been criticized for a variety of reasons, e.g., that the Court conflated the First Amendment tests for speech and association. What has not been adequately explored is the degree to which the Court has modified limited purpose public forum analysis in the university context over the past few decades, resulting in a jurisprudence that is virtually unrecognizable in light of the more …

A Collective Right To Public Education, Antonette Barilla

Antonette Barilla

This article explores the role of public education and the present ability of the government to provide quality education in light of recent legal, legislative, and social trends, spotlighting the protection of individual rights in public schools. Rapidly mutating societal norms diminish the clarity of expectations for appropriate decorum, and this phenomenon manifests itself in the classroom as well. The growing number of disciplinary issues in public schools across the United States has given rise to questions of the effectiveness of public education. Can the government support this nation’s devotion and reverence for individual rights while still providing an education …

Conspiracy Law's Threat To Free Speech, Steven R. Morrison

Steven R Morrison

Conspiracy law has been the consistent subject of controversy, but most commentators do not consider its negative effect on freedom of speech. When they do, their concerns focus only on the use of speech as the crime’s actus reus. The use of speech as evidence to prove this actus reus is as important and raises conceptually related issues, so current scholarship tells only half of the story. This Article addresses the use of speech as the actus reus of conspiracy and evidence thereof. It sets forth what I call the All-Purpose Speech Model. I argue that this Model accurately describes …

Conspiracy Law's Threat To Free Speech, Steven R. Morrison

Steven R Morrison

Conspiracy law has been the consistent subject of controversy, but most commentators do not consider its negative effect on freedom of speech. When they do, their concerns focus only on the use of speech as the crime’s actus reus. The use of speech as evidence to prove this actus reus is as important and raises conceptually related issues, so current scholarship tells only half of the story. This Article addresses the use of speech as the actus reus of conspiracy and evidence thereof. It sets forth what I call the All-Purpose Speech Model. I argue that this Model accurately describes …

Conspiracy Law's Threat To Free Speech, Steven R. Morrison

Steven R Morrison

Conspiracy law has been the consistent subject of controversy, but most commentators do not consider its negative effect on freedom of speech. When they do, their concerns focus only on the use of speech as the crime’s actus reus. The use of speech as evidence to prove this actus reus is as important and raises conceptually related issues, so current scholarship tells only half of the story. This Article addresses the use of speech as the actus reus of conspiracy and evidence thereof. It sets forth what I call the All-Purpose Speech Model. I argue that this Model accurately describes …