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Articles 1 - 12 of 12
Full-Text Articles in Law
Speech As Speech: “Professional Speech” And Missouri’S Informed Consent For Abortion Statute, Michael J. Essma
Speech As Speech: “Professional Speech” And Missouri’S Informed Consent For Abortion Statute, Michael J. Essma
Missouri Law Review
Does life begin at conception? Do women need to see a sonogram to make an informed decision about whether they want an abortion? Some state legislatures believe so. Laws mandating politically driven doctor-patient dialogue affect one of the hallmarks of the physician-patient relationship: a patient’s trust in the physician’s expertise. The common law and statutory requirement that a patient provide informed consent for a medical procedure facilitates the development of trust between patient and physician by allowing the patient to understand the procedure and discuss her options with her physician. However, provisions of abortion-specific informed consent statutes that require physicians …
Free Speech Hypocrisy: Campus Free Speech Conflicts And The Sub-Legal First Amendment, Christina E. Wells
Free Speech Hypocrisy: Campus Free Speech Conflicts And The Sub-Legal First Amendment, Christina E. Wells
Faculty Publications
This Article is modest in scope. It seeks primarily to illuminate the role of free speech conflicts, especially those involving contentious speech, within the Court's jurisprudence, and to illustrate how arguments characterizing the protestors' speech as censorship misperceive the important role such conflicts play. Using both the Court's doctrinal framework and conflict resolution literature, this article attempts to bring deeper understanding to the purposes for the Court's approach, the context underlying the current conflicts, and the flaws underlying the argument that the protestors' actions are censorial. Part I briefly reviews three illustrative free speech conflicts at the University of Missouri, …
Social Networking And Freedom Of Speech: Not Like Old Times , Zachary Shklar
Social Networking And Freedom Of Speech: Not Like Old Times , Zachary Shklar
Missouri Law Review
In Bland v. Roberts, the United States District Court for the Eastern District of Virginia was presented with the issue of whether “liking” a page on Facebook is speech protectable by the First Amendment. This Note argues that the court’s holding, that “liking” something on Facebook is not worthy of First Amendment protection, is a disturbing result that endangers one of our most fundamental rights guaranteed by the Constitution. In Part II, this Note analyzes the facts and holding of Bland v. Roberts. Next, in Part III, this Note describes in detail how Facebook operates and explains the legal background …
How Not To Criminalize Cyberbullying, Lyrissa Lidsky, Andrea Pinzon Garcia
How Not To Criminalize Cyberbullying, Lyrissa Lidsky, Andrea Pinzon Garcia
Missouri Law Review
This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …
Contextualizing Disclosure's Effects: Wikileaks, Balancing And The First Amendment, Christina E. Wells
Contextualizing Disclosure's Effects: Wikileaks, Balancing And The First Amendment, Christina E. Wells
Faculty Publications
This essay responds to Professor Fenster’s article in the Iowa Law Review, Disclosure’s Effects: WikiLeaks and Transparency, assessing the effects of the recent WikiLeaks disclosures. The essay agrees with many of Professor Fenster’s conclusions regarding the promise and peril of those disclosures, especially his concern regarding the problematic balancing approaches used to assess the likely impact when confidential information is revealed. It specifically elaborates on courts’ current application of the Espionage Act, a criminal law likely to be applied to the WikiLeaks disclosures, and the implications of that deferential application for WikiLeaks, Julian Assange and journalists in general.
Incendiary Speech And Social Media, Lyrissa Lidsky
Incendiary Speech And Social Media, Lyrissa Lidsky
Faculty Publications
Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …
Plurality Of Political Opinion And The Concentration Of Media In The United States, William B. Fisch
Plurality Of Political Opinion And The Concentration Of Media In The United States, William B. Fisch
Faculty Publications
This paper reviews regulatory efforts of the U.S. federal govern- ment to promote viewpoint diversity in broadcast media (radio, television, cable, and satellite) in the face of increasing concentration of ownership of such media, and the impact on such efforts of the free- doms of speech and press embodied in the First Amendment to the federal constitution. With respect to this issue, the regulatory work has been done overwhelmingly by the Federal Communications Commis- sion, operating under an act of Congress which has been amended from time to time to push the FCC in particular directions. The anti- trust laws …
Laying To Rest The Ecclesiastical Presumption Of Falsity: Why The Missouri Approved Instructions Should Include Falsity As An Element Of Defamation, J. Andrew Hirth
Laying To Rest The Ecclesiastical Presumption Of Falsity: Why The Missouri Approved Instructions Should Include Falsity As An Element Of Defamation, J. Andrew Hirth
Missouri Law Review
This Note explores the origens of the plaintiff's presumption of falsity and argues that, after Nazeri v. Missouri Valley College, the burden of proving falsity must be borne by the plaintiff in every case.
Discussing The First Amendment , Christina E. Wells
Discussing The First Amendment , Christina E. Wells
Faculty Publications
Despite its many good qualities, Eternally Vigilant nevertheless suffers from a flaw common to First Amendment scholarship--a tendency to give short shrift to study of the social, psychological, historical, and political factors that influence the Court's decision making and, thus, free speech doctrine. Discussion including these influences would facilitate an even greater understanding of free speech doctrine and the principles that underlie it.
Antidiscrimination Laws And The First Amendment, David E. Bernstein
Antidiscrimination Laws And The First Amendment, David E. Bernstein
Missouri Law Review
Part I of this Article discusses the development of Supreme Court doctrine regarding First Amendment challenges to the enforcement of antidiscrimination laws. Part II discusses attempted justifications by courts and academics for applying the toothless compelling interest test in conflicts between the First Amendment and antidiscrimination laws. Rationales have ranged from Congress’ purported intent to eradicate discrimination by passing Title VII of the 1964 Civil Rights Act to the anti-caste attributes of the Reconstructions Amendments. All of these arguments fail. Also examined is the threat reliance on the compelling interest test posed to the rights of speech, expressive association, and …
Bringing Structure To The Law Of Injunctions Against Expression, Christina E. Wells
Bringing Structure To The Law Of Injunctions Against Expression, Christina E. Wells
Faculty Publications
Part I of this Article reviews the Court's cases regarding injunctions against speech, focusing first on the increasing elevation of rhetoric (as opposed to analysis) in the Court's prior restraint decisions. Part I also reviews the Court's other decisions involving injunctions and demonstrates that they too contain little, if any, analysis concerning the appropriateness of injunctive relief against expression. Part II examines Madsen's interaction with the Court's previous decisions and discusses how Madsen furthers the incoherence of the Court's previous cases. Part III explains that content discrimination principles, although superficially attractive, are inappropriate with injunctive relief because the content-based/content-neutral distinction's …
Promises Of Confidentiality: Do Reporters Really Have To Keep Their Word, Harold B. Oakley
Promises Of Confidentiality: Do Reporters Really Have To Keep Their Word, Harold B. Oakley
Missouri Law Review
In an industry in which information is the ultimate commodity, a new dilemma that confronts the media world is whether the First Amendment protects news gatherers from sources who try to enforce promises of confidentiality. The debate raised in Cohen v. Cowles Media Co. pits the First Amendment freedoms of the press and speech against concepts of contracts and torts that are deeply rooted in our legal heritage. At least two reasons make promises of confidentiality important to the newsgathering profession. First, breaking a promise of confidentiality that has induced a source to provide information is dishonorable. Second, sources may …