Law Commons^™

Copyright And The First Amendment: Comrades, Combatants Or Uneasy Allies?, Joseph P. Bauer

Joseph P. Bauer

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform and perform that work for a extended period of time. The First Amendment, on the other hand, proclaims that Congress “shall make no law ... abridging the freedom of speech or of the press,” thus at least nominally indicating that limitations on …

Shopping In The Marketplace Of Ideas: Why Fashion Valley Mall Means Target And Trader Joe's Are The New Town Squares, Jon Golinger

Golden Gate University Law Review

This Note explains that in Fashion Valley Mall, for the first time since the California high court decided Pruneyard nearly thirty years earlier, the court directly affirmed the notion that the California Constitution's liberty clause protects the right to free-speech activities on private property, such as a large shopping mall, that has taken on the characteristics of a traditional downtown business district. This Note further asserts that the majority's opinion in Fashion Valley Mall requires a different approach from that taken by the state appellate courts in deciding whether "stand-alone stores" such as Target and Trader Joe's also qualify as …

Symbolic Speech And Equal Protection At The Las Vegas Fremont Street Experience: Aclu Of Nevada V. City Of Las Vegas, Christopher Donewald

Golden Gate University Law Review

In ACLU of Nevada v. City of Las Vegas, the Ninth Circuit held that a local "solicitation" ordinance enacted by the City of Las Vegas violated the plaintiffs' rights to expressive speech under the First Amendment. Additionally, the Ninth Circuit held that a "tabling" ordinance, which provided a labor-related exception, violated the plaintiffs' right to equal protection guaranteed by the Fourteenth Amendment. The court also decided an issue of flrst impression: whether the practice of erecting tables in a public forum for the purpose of disseminating information constitutes expressive activity and is therefore deserving of First Amendment protection. The Ninth …

Protecting Nominative Fair Use, Parody, And Other Speech-Interests By Reforming The Inconsistent Exemptions From Trademark Liability, Samuel M. Duncan

University of Michigan Journal of Law Reform

Federal trademark law exempts certain communicative uses of a trademark from liability so that the public can freely use a trademark to comment on the markowner or to describe its products. These exemptions for "speech-interests" are badly flawed because their scope is inconsistent between infringement and dilution law, and because the cost and difficulty of claiming their protection varies significantly from court to court. Many speech-interests remain vulnerable to the chilling threat of litigation even though they are "protected" by current law. This Note proposes a simple statutory reform that will remedy this inconsistency by creating an express safe harbor …

Citizens United: How The New Campaign Finance Jurisprudence Has Been Shaped By Previous Dissents, David Axelman

University of Miami Law Review

No abstract provided.

Sticks And Stones May Break Your Bones ... But Words May Break The Bank: Monetary Damages For 'True Threats' And The Future Of Free Speech After Planned Parenthood Of The Columbia/Willamette V. American Coalition Of Life Activists, Randall D. Nicholson

Golden Gate University Law Review

This Note is divided into five parts. Part I introduces the plaintiffs and defendants in Planned Parenthood and provides a detailed description of the content of the posters as well as the other evidence used to find the defendants liable for threatening speech. Part II presents a brief description of the details of, and impetus for, the enactment of the Freedom of Access to Clinic Entrances Act ("FACE"), as the act provides the basis for liability. To highlight that the majority's position in Planned Parenthood did not comport with current First Amendment jurisprudence, Part III analyzes the major decisions handed …

First Amendment - Alameda Books V. City Of Los Angeles, Katia Lazzara

Golden Gate University Law Review

The First Amendment to the United States Constitution protects freedom of speech. Courts categorize government restrictions of speech as either content based or content neutral. Content-based regulations restrict speech because of the specific idea or message conveyed. Because content-based regulations greatly restrain a person's right to free speech, they must serve a compelling government interest and be narrowly tailored to accomplish that interest. Content-neutral regulations, on the other hand, regulate conduct that indirectly impacts speech. In order to pass muster, content-neutral regulations must advance a significant state interest unrelated to the suppression of speech and not substantially burden more speech …

Constitutional Law - Colacurcio V. City Of Kent, Zachary J. Dalton

Golden Gate University Law Review

In Colacurcio v. City of Kent, the United States Court of Appeals for the Ninth Circuit held that the City of Kent's Ordinance 3221, which required nude dancers to perform at least ten feet from patrons, did not violate the First Amendment of the United States Constitution. The court found that, as a matter of law, the Kent ordinance was content-neutral and the ten-foot distance requirement was narrowly tailored and left open ample alternative avenues for communication of protected expression.

A Pig In The Parlor: An Examination Of Legislation Directed At Obscenity And Indecency On The Internet, Andrew Spett

Golden Gate University Law Review

The Internet, or ARPAnet, was originally developed by the U.S. Defense Department to support military research. As academics were invited to use the system, word of the system's research utility quickly spread. As the popularity of the computer increased, public consumer demand for access to the Internet increased. Consequently, the Internet quickly became a household word, no longer confined to government or academic circles. Currently, the Internet accommodates million users, and the numbers increase daily. In light of the expanse and growing importance of the Internet, this Comment will discuss the history and application of obscenity laws. This Comment will …

Standing Committee On Discipline V. Yagman: The Ninth Circuit Provides Substantial First Amendment Protection For Attorney Criticism Of The Judiciary, Jeffrey A. White

Golden Gate University Law Review

In Standing Committee on Discipline of the United States District Court for the Central District of California v. Yagman, the Ninth Circuit Court of Appeals held that an attorney who publicly criticized a federal judge did not commit sanctionable conduct. In determining whether the attorney, Stephen Yagman, had violated a local rule of professional conduct for lawyers, the court applied a "reasonable attorney" standard, rather than a subjective malice standard. The court held that Yagman's statements, in light of this higher standard, did not violate the rule's prohibition against impugning the integrity of the court. The Ninth Circuit also held …

Protecting Children From Music Lyrics: Sound Recordings And "Harmful To Minors" Statutes, Jim Mccormick

Golden Gate University Law Review

The tactic of including sound recordings in "harmful to minors" statutes is perhaps the most promising solution to the resilient problem of explicit music lyrics. Although the Washington law was found unconstitutional, many states have successfully included sound recordings in their own "harmful to minors" statutes. To appreciate this development, a legal and factual background must be discussed. Part II of this Comment summarizes the development of obscenity standards for minors in U.S. First Amendment law. Part III discusses some historic clashes between obscenity law and music. The Washington "Erotic Lyrics" Amendment and its constitutional problems are the subject of …

Burdick V. Takushi: Hawaii's Ban On Write-In Voting Is Constitutional, Elizabeth E. Deighton

Golden Gate University Law Review

In Burdick v. Takushi, the Supreme Court held that Hawaii's ban on write-in voting, when taken as part of the State's comprehensive election scheme, does not violate an individual's constitutional rights to freedom of expression or freedom of association as they pertain to voting rights. This Note gives an overview of the case law as it pertains to voting rights and its relationship to the First Amendment, and analyzes the Supreme Court's application of that law to the specific facts in Burdick.

R. V. Butler: Recognizing The Expressive Value And The Harm In Pornography, Justine Juson, Brenda Lillington

Golden Gate University Law Review

The recent Canadian Supreme Court decision of R. v. Butler recognizes and addresses the harmful anti-social attitudes and behaviors towards women which are perpetuated by misogynistic, violent pornography. Meanwhile, American courts continue to grapple with their traditional obscenity standard. This comment presents an overview of the American approach to regulating and categorizing pornography, and explores the obstacles this approach creates for addressing the issues of harm to women. The pivotal elements of the Butler court's analysis will be discussed in light of American decisions. The authors propose that a Butler analysis offers a more honest and balanced approach to the …

International Society For Krishna Consciousness, Inc. V. Lee: The Public Forum Doctrine Falls To A Government Intent Standard, Stephen K. Schutte

Golden Gate University Law Review

Since its inception, the public forum doctrine has maintained a byzantine existence. The Supreme Court has struggled to define the extent to which the First Amendment protects expressive activities in public places. Prior to developing a public forum doctrine, the Court used various means to limit government restrictions of expressive uses of public property. Since 1972, however, the Court has increasingly relied on categorical approaches to determine when members of the general public can use government-controlled property for communicative purposes.

"Whatever Happened To Mary Beth Tinker" And Other Sagas In The Academic "Marketplace Of Ideas", Thomas C. Fischer

Golden Gate University Law Review

Over twenty years have passed since the Tinker case was decided. In that time, well over 40 major "education law" cases have been decided by the U.S. Supreme Court; exclusive of those dealing with public school integration and public assistance to parochial schools. Cases of the last two types add significantly to that number. In the forty years prior to Tinker, the Supreme Court decided roughly ten "education law" cases. The gradual erosion of the sweeping guarantees implied by the Tinker decision was neither consistent nor uninterrupted. Generally speaking, however, students and teachers have lost rights over the past twenty …

Constitutional Law - Zal V. Steppe: Ninth Circuit Approval Of An In Limine Ban Of Specific Words, Kathleen K. Mcginn

Golden Gate University Law Review

No abstract provided.

Constitutional Law - United States V. Richey: Disclosure Of Tax Information By Former Irs Agent Not Protected By The First Amendment, Christine C. Pagano

Golden Gate University Law Review

No abstract provided.

Constitutional Law, Maureen Mullane

Golden Gate University Law Review

No abstract provided.

Sexual Speech And The State: Putting Pornography In Its Place, Mary C. Dunlap

Golden Gate University Law Review

This article reviews the wider legal, political and psychological consequences of the drive against "pornography". The concern of this article is that the "anti-pornography" campaign has serious and as-yet ill-considered implications for a broader category of communication, here termed "sexual speech".

The Expanded Role Of School Administrators And Governing Boards In First Amendment Student Speech Disputes: Bethel School District No. 403 V. Fraser, Phoebe Graubard

Golden Gate University Law Review

At the close of the 1986 Term the United States Supreme Court issued an opinion which expanded the authority of school administrators and governing boards in the area of first amendment student speech disputes. In Bethel School District No. 403 v. Fraser, the Court held that school authorities could discipline a student for giving a speech during a high school assembly which contained a sexual innuendo. Bethel School District represents a new direction by the Supreme Court in analyzing student speech conflicts. The Court's opinion is a departure from a protective first amendment analysis to one which permits local governing …

Constitutional Law, Maria Mandolini-Astengo

Golden Gate University Law Review

No abstract provided.

New York V. Ferber: Compelling Extension Of First Amendment Infringement, Jon M. Bloodworth Iii

Golden Gate University Law Review

This note seeks both to define the particular forms of expression involving juveniles which, according to the Court, do not warrant constitutional protection, and to question the Court's rationale in setting precedent which narrows the scope of the first amendment.

Citizens United And The Threat To The Regulatory State, Tamara R. Piety

Michigan Law Review First Impressions

Although Citizens United has been roundly criticized for its potential effect on elections and its display of judicial immodesty (or "activism"), the effect of the case which may be both most profound and perhaps most pernicious is its effect on the commercial speech doctrine. This is an aspect of the case which has been largely overlooked. Most people seem to be unaware of any connection between election law and the commercial speech doctrine-except, that is, those who have been working long and hard to accomplish the change it foreshadows. They are keenly aware of its implications.

La Libertad De Expresión En Internet Y Sus Garantías Constitucionales En El Control De Contenidos De Páginas Web, Germán M. Teruel Lozano

Germán M. Teruel Lozano

Master's thesis about freedom of speech in Internet and the constitutional guarantees in the control of websides content.

Robins V. Pruneyard Shopping Center: Federalism And State Protection Of Free Speech, Suzanne Sherbell

Golden Gate University Law Review

No abstract provided.

E-Elections: Time For Japan To Embrace Online Campaigning, Matthew J. Wilson

Matthew J. Wilson

Asia has embraced the Internet and social media. Japan and South Korea rank among the world’s leaders in technological innovation and Internet penetration. China boasts over 420 million Internet users, and other Asian countries have experienced the widespread acceptance of online technologies. With the rapid ascendency of the Internet and social media, however, Asian countries have sometimes struggled with striking the proper balance between individual rights and the legal regulation of online activities. One prime example of such struggle involves the clash between Japan’s election laws and individual political freedoms.

Although Japan generally subscribes to democratic traditions and the principle …

Karen Carpenter V. Westwood One And Tom Leykis: Free Speech, Defamation, And The Intentional Infliction Of Emotional Distress—Does Logic Rescue Decency?, Jack B. Mcgee

Alaska Law Review

No abstract provided.

Money Talks But It Isn't Speech, Deborah Hellman

Deborah Hellman

This Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the grounds that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these …

The Power Of The Parental Trump Card: How And Why Frazier V. Winn Got It Right, Jocelyn Floyd

Chicago-Kent Law Review

When two fundamental rights are in conflict, such that the protection of one requires the infringement of the other, courts must weigh those rights against each other to determine which is ultimately greater. In Frazier v. Winn, the Eleventh Circuit dealt with precisely such an issue: specifically, the rights of parents pitted against those of their children. This note explores the history of both parental rights and student's rights in school to show why the court appropriately affirmed that children's right to free speech is only as expansive as their parents allow, justified by the parents' fundamental right to …

Freedom From Compulsion, Tess Slattery

Chicago-Kent Law Review

A recent Eleventh Circuit case, Frazier ex rel. Frazier v. Winn, upheld as facially constitutional a Florida statute that requires a student to obtain parental permission before abstaining from participation in the Pledge of Allegiance. This note argues that the court reached the wrong conclusion because it failed to properly weigh the students' right to free speech against the parents' right to control the upbringing of their children. This note argues that Justice Breyer's framework for balancing conflicting rights should be adopted for use in this context. By applying Justice Breyer's balancing test, the Florida statute should be found …