Constitutional Law Commons^™

Hate Speech, Harry Tepker

Other Faculty Publications

No abstract provided.

The Government Speech Doctrine In Walker’S Wake: Early Rifts And Reverberations On Free Speech, Viewpoint Discrimination, And Offensive Expression, Clay Calvert

William & Mary Bill of Rights Journal

This Article examines the immediate effects on free expression of the U.S. Supreme Court’s 2015 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. involving the government speech doctrine. In Walker, a sharply—and largely partisanly—divided Court upheld, in the face of a First Amendment challenge, Texas’s decision denying a private organization’s application for a specialty license plate featuring Confederate battle flag imagery. This Article initially reviews the government speech doctrine and Walker. It then analyzes Walker’s impact on cases that, like it, involve specialty license plate programs. Next, this Article explores lower court efforts stretching …

Newsroom: Donald Trump Vs. Roger Williams 05-09-2017, David Logan

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: David A. Logan's Blog: Donald Trump Vs. Roger Williams 05-08-2017, David A. Logan

Law School Blogs

No abstract provided.

Hate Speech On Social Media, Amos N. Guiora, Elizabeth Park

Utah Law Faculty Scholarship

This essay expounds on Raphael Cohen-Almagor’s recent book, Confronting the Internet’s Dark Side, Moral and Social Responsibility on the Free Highway, and advocates placing narrow limitations on hate speech posted to social media websites. The Internet is a limitless platform for information and data sharing. It is, in addition, however, a low-cost, high-speed dissemination mechanism that facilitates the spreading of hate speech including violent and virtual threats. Indictment and prosecution for social media posts that transgress from opinion to inciteful hate speech are appropriate in limited circumstances. This article uses various real-world examples to explore when limitations on Internet-based hate …

The Commercial Difference, Felix T. Wu

William & Mary Law Review

When it comes to the First Amendment, commerciality does, and should, matter. This Article develops the view that the key distinguishing characteristic of corporate or commercial speech is that the interest at stake is “derivative,” in the sense that we care about the speech interest for reasons other than caring about the rights of the entity directly asserting a claim under the First Amendment. To say that the interest is derivative is not to say that it is unimportant, and one could find corporate and commercial speech interests to be both derivative and strong enough to apply heightened scrutiny to …

Rights Dynamism, Timothy Zick

Faculty Publications

No abstract provided.

Nlrb Jurisdiction Over Religious Schools And The Religion Clause Of The First Amendment, Richard J. Curiale

The Catholic Lawyer

No abstract provided.

Discrimination And Association, Caleb C. Wolanek

Concordia Law Review

In September 2016, the United States Commission on Civil Rights issued a report entitled Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties. In that report, the Commission argued that the law permits—and justice requires—that decision-makers prioritize nondiscrimination over civil liberties like freedom of religion and freedom of association. For example, the report endorsed the view that religious liberty should be limited as much as possible to freedom of belief; conduct “should conform to law.” This is because religion is discriminatory and can be used as a front for discriminatory activities. Nondiscrimination policies, in contrast, “are of preeminent importance.” Religious exemptions …

Reporter's Privilege And The First Amendment, Angela M. Demeo

The Catholic Lawyer

No abstract provided.

The State Response To Hazelwood V. Kuhlmeier, Tyler J. Buller

Maine Law Review

It’s hard to predict what an average member of the public thinks when he or she hears the words “student newspaper.” Opinions vary. This Article goes beyond that public perception and demonstrates that student journalists across the country are doing work that matters. Student reporters uncover corruption, help hold government officials accountable to taxpayers and the public, and bring to light important issues that would otherwise go unreported. They allow students to develop academically, professionally, and socially. And they give a voice to developing citizens who are often disenfranchised from voting, holding elected office, or otherwise participating in politics and …

The Tension Between Equal Protection And Religious Freedom, John M. Greabe

Law Faculty Scholarship

[Excerpt] "The Constitution did not become our basic law at a single point in time. We ratified its first seven articles in 1788 but have since amended it 27 times. Many of these amendments memorialize fundamental shifts in values. Thus, it should come as no surprise to learn that the Constitution is not an internally consistent document."

…

"Other constitutional provisions -- even provisions that were simultaneously enacted -- protect freedoms that can come into conflict with one another. The First Amendment, for example, promises both freedom from governmental endorsement of religion and freedom from governmental interference with religious practice. …

Newsroom: Trump: Full Employment For Lawyers 04-04-2017, David Logan

Life of the Law School (1993- )

No abstract provided.

Rwu First Amendment Blog: David Logan's Blog: Donald Trump And The Full-Employment-For-Lawyers Presidency, David A. Logan

Law School Blogs

No abstract provided.

Intermediate Scrutiny For Corporate Political Contributions, Joseph K. Leahy

Florida State University Law Review

A corporation contributes to a Super PAC that supports a candidate for public office. A shareholder sues, alleging that management breached its duty of loyalty by making the contribution to promote its own political views rather than to serve the corporation’s best interests—i.e., by acting in bad faith. What standard will a Delaware court apply when reviewing management’s decision to cause the corporation to make the contribution?

Myriad scholars have opined that the court will apply the standard of review for ordinary business decisions: the management-friendly business judgment rule. Unfortunately for our shareholder plaintiff, this rule presumes that management acts …

A First Amendment Deference Approach For Reforming Anti-Bullying Laws, Emily Suski

Faculty Publications

This Article examines the anti-bullying laws and their response to the problem of bullying in light of both the nature of the problem itself, the interventions the laws call for, and the laws’ First Amendment implications. Bullying has many varied, negative consequences, some tragic, and is widespread. Yet, the anti-bullying laws disproportionately focus schools’ responses to bullying on school exclusion, meaning suspending, expelling or otherwise excluding students who bully from school. This is so even though social science literature has found school exclusion ineffective and sometimes counterproductive as a method for addressing bullying. What is more, because much of bullying …

“Illegal” Migration Is Speech, Daniel I. Morales

Indiana Law Journal

Noncitizens must comply with immigration laws just because citizens say so. The citizenry takes for granted its monopoly on immigration control, but the legitimacy of this arrangement has been called into question by cutting-edge political theorists. One prominent theorist argues, for example, that basic democratic principles require that noncitizens living outside the United States have a say in the formation of immigration law since they must obey it. This Article provides a legal response to these political theory developments, assimilating them, along with the facts on the ground, into an account of “illegal” migration as First Amendment speech.

If noncitizens’ …

Voting, Spending, And The Right To Participate, Robert Yablon

Northwestern University Law Review

While the law governing the electoral process has changed dramatically in the past decade, one thing has stayed the same: Courts and commentators continue to view voting in elections and spending on elections through distinct constitutional lenses. On the spending side, First Amendment principles guide judicial analysis, and recent decisions have been strongly deregulatory. On the voting side, courts rely on a makeshift equal protection-oriented framework, and they have tended to be more accepting of regulation. Key voting and spending precedents seldom cite each other. Similarly, election law scholars typically address voting and spending in isolation.

This Article challenges the …

Justice Scalia And Abortion Speech, Timothy Zick

Faculty Publications

No abstract provided.

On The Categorical Approach To Free Speech – And The Protracted Failure To Delimit The True Threats Exception To The First Amendment, Wayne Batchis

Pace Law Review

On June 1, 2015, the Supreme Court decided Elonis v. United States on statutory rather than constitutional grounds. In doing so, it turned away an important opportunity to provide needed clarification of true threats, a category of expression relegated to a lower level of protection by the Court almost a half-century ago. The categorical approach to free speech made its first explicit appearance in Supreme Court case law in 1942. Since that time, the Court has relied heavily on this method of constitutional interpretation, carving out discrete exceptions from the seemingly absolutist mandate of the First Amendment that Congress make …

Conflict In The Courts: Obscenity Control & First Amendment Freedoms, Father Edward J. Berbysse, S.J.

The Catholic Lawyer

No abstract provided.

False Commercial Speech And The First Amendment: Understanding The Implications Of The Equivalency Principle, Martin H. Redish, Kyle Voils

William & Mary Bill of Rights Journal

No abstract provided.

The Status Of The Hearer In Mr. Madison’S Neighborhood, Burt Neuborne

William & Mary Bill of Rights Journal

No abstract provided.

A Reverent Reflection Of The Splendid Scholarship Of Martin Redish—Does Reexamining Commercial Speech Shed Light On The Regrettable Reliance Upon Lie & Insult In Political Campaigns?, Douglas W. Kmiec

William & Mary Bill of Rights Journal

No abstract provided.

Introduction: The Moral Demands Of Commercial Speech, Andrew Koppelman

William & Mary Bill of Rights Journal

No abstract provided.

Are Commercial Speech Cases Ideological? An Empirical Inquiry, Adam M. Samaha, Roy Germano

William & Mary Bill of Rights Journal

The empirical study of judicial behavior continues to grow and mature. The live challenges include specification, such as constructing useful conceptions and measures of ideology, mapping particular domains in which identifiable forces influence decisions, and quantifying the magnitudes of those influences. To make progress on these challenges, we roll out new and expanded datasets that build on the work of Cass Sunstein, Lee Epstein, Gregory Sisk, and others, and we report on the character of constitutional litigation today. Our datasets cover U.S. Court of Appeals decisions in five domains: (1) commercial speech, (2) gun rights, (3) abortion rights, (4) establishment …

Commercial Speech And The Perils Of Parity, Frederick Schauer

William & Mary Bill of Rights Journal

No abstract provided.

The Coverage/Protection Distinction In The Law Of Freedom Of Speech—An Essay On Meta-Doctrine In Constitutional Law, Mark Tushnet

William & Mary Bill of Rights Journal

No abstract provided.

No Regrets (Almost): After Virginia Board Of Pharmacy, Alan B. Morrison

William & Mary Bill of Rights Journal

No abstract provided.

Doe V. University Of Michigan: Free Speech On Campus 25 Years Later, Len Niehoff

University of Miami Law Review

No abstract provided.