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Articles 1 - 14 of 14
Full-Text Articles in Law
More Restrictive Alternatives, Michael Coenen
Precedent And Speech, Randy J. Kozel
Precedent And Speech, Randy J. Kozel
Journal Articles
The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.
The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …
When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas
When Privacy Almost Won: Time, Inc. V. Hill (1967), Samantha Barbas
Journal Articles
Drawing on previously unexplored and unpublished archival papers of Richard Nixon, the plaintiffs’ lawyer in the case, and the justices of the Warren Court, this article tells the story of the seminal First Amendment case Time, Inc. v. Hill (1967). In Hill, the Supreme Court for the first time addressed the conflict between the right to privacy and freedom of the press. The Court constitutionalized tort liability for invasion of privacy, acknowledging that it raised First Amendment issues and must be governed by constitutional standards. Hill substantially diminished privacy rights; today it is difficult if not impossible to recover against …
Second Thoughts About The First Amendment, Randy J. Kozel
Second Thoughts About The First Amendment, Randy J. Kozel
Journal Articles
The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech. Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article …
Of Speech And Sanctions: Toward A Penalty-Sensitive Approach To The First Amendment, Michael Coenen
Of Speech And Sanctions: Toward A Penalty-Sensitive Approach To The First Amendment, Michael Coenen
Journal Articles
Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise …
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel
Journal Articles
More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …
The Sidis Case And The Origins Of Modern Privacy Law, Samantha Barbas
The Sidis Case And The Origins Of Modern Privacy Law, Samantha Barbas
Journal Articles
The American press, it’s been said, is freer to invade personal privacy than perhaps any other in the world. The tort law of privacy, as a shield against unwanted media exposure of private life, is very weak. The usual reason given for the weakness of U.S. privacy law as a bar on the publication of private information is the strong tradition of First Amendment freedom. But “freedom of the press” alone cannot explain why liberty to publish has been interpreted as a right to print truly intimate matters or to thrust people into the spotlight against their will. Especially in …
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
Journal Articles
This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how …
The Death Of The Public Disclosure Tort: A Historical Perspective, Samantha Barbas
The Death Of The Public Disclosure Tort: A Historical Perspective, Samantha Barbas
Journal Articles
In 1890, Samuel Warren and Louis Brandeis, in their famous Harvard Law Review article The Right to Privacy, called for a new legal right that would allow the victims of truthful but embarrassing press publicity to recover damages for emotional harm. Currently, in most states, it constitutes a tort if the disclosure of “matter concerning the private life of another” would be highly offensive to a reasonable person and the matter is not “of legitimate concern to the public,” or newsworthy. However, because courts generally consider virtually everything that appears in the news media to be newsworthy, the public disclosure …
The Myth Of Copyright's Fair Use Doctrine As A Protector Of Free Speech, Lee Ann Lockridge
The Myth Of Copyright's Fair Use Doctrine As A Protector Of Free Speech, Lee Ann Lockridge
Journal Articles
This article debunks the myth that the fair use doctrine exists to protect the freedom of speech within copyright. Using the history of fair use in the courts and in Congress, as well as recent case law, the Article demonstrates that.fair use is not, and never has been, intended or designed to restrain copyright in the face of the First Amendment. The conflict between copyright and free speech could be lessened by reforming the balance of interests within fair use to eliminate the focus on commercial use and to expand the understanding of the broader public-benefit purpose underlying the Supreme …
Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett
Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett
Journal Articles
What role do religious communities, groups, and associations play - and, what role should they play - in our thinking and conversations about religious freedom and church-state relations? These and related questions - that is, questions about the rights and responsibilities of religious institutions - are timely, difficult, and important. And yet, they are often neglected.
It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if …
Right To Write - Free Expression Rights Of Pennsylvania's Creative Students After Columbine, Barbara Brunner
Right To Write - Free Expression Rights Of Pennsylvania's Creative Students After Columbine, Barbara Brunner
Journal Articles
This comment analyzes the current state of students' free speech rights in the context of creative writing assignments and examines potential First Amendment applications to the Pennsylvania System of School Assessment (PSSA), a statewide, mandatory, standards-based exam administered to Pennsylvania public school students. The PSSA, which currently contains a writing assessment for students in sixth, ninth, and eleventh grades requiring students to write essays in response to prompts, is scored anonymously by private entities under contract with the Pennsylvania Department of Education. Those private subcontractors have "red-flagging" procedures in place to identify essays containing imagery or themes that indicate imminent …
Banning Broadcasting – A Transatlantic Perspective, Geoffrey Bennett, Russel L. Weaver
Banning Broadcasting – A Transatlantic Perspective, Geoffrey Bennett, Russel L. Weaver
Journal Articles
The British Government's decision to prohibit radio and television networks from airing interviews or statements by members of certain Northern Ireland organizations, or by allies and sympathizers of such organizations (the Broadcasting Ban or Ban) is analyzed in context. From an analysis of the Ban, some conclusions are drawn about the nature of judicial review.
Law And Aesthetics: A Critique And A Reformulation Of The Dilemmas, John Costonis
Law And Aesthetics: A Critique And A Reformulation Of The Dilemmas, John Costonis
Journal Articles
No abstract provided.