Constitutional Law Commons^™

Pole Dancing: The New Pilates?, Timothy Zick

Popular Media

No abstract provided.

Eclecticism, Nelson Tebbe

Cornell Law Faculty Publications

This short piece comments on Kent Greenawalt's new book, Religion and the Constitution: Establishment and Fairness. It argues that although Greenawalt's eclectic approach carries certain obvious costs, his theory cannot be evaluated without comparing its advantages and disadvantages to those of its competitors. It concludes by giving some sense of what that comparative calculus might look like.

Performing Art: National Endowment For The Arts V. Finley, Randall P. Bezanson

Federal Communications Law Journal

In this modified version of a chapter in his forthcoming book, ART AND FREEDOM OF SPEECH (Univ. of Illinois Press, 2008-09), Professor Bezanson begins to probe the nature of art and its relation to the first amendment free speech guarantee. The essay uses the Finley v. NEA case, and specifically its discussion of Finley's performance art, to critique the Supreme Court's very approach to the Finley case, and to view the issues from the perspective of art, artistic freedom, and the Supreme Court's role in fashioning constitutional protection for art as art, and not simply as cognitive speech.

Antitrust Language Barriers: First Amendment Constraints On Defining An Antitrust Market By A Broadcast's Language, And Its Implications For Audiences, Competition, And Democracy, Catherine J.K. Sandoval

Federal Communications Law Journal

This Article explores whether the language of a broadcaster's program appropriately defines an antitrust market, consistent with First Amendment and antitrust principles. In its evaluation of the 2008 private equity buyout of Clear Channel Communications, the Department of Justice ("DOJ") defined the antitrust market by the language of the broadcast, as it had done for the 2003 merger of Univision and Hispanic Broadcasting Corporation. This Article uses social science research on Spanish and English-language radio and television to evaluate that decision. It argues that the distinct content and messages that characterize Spanish and English-language programming show that market definition is …

The Terrorist Is A Star!: Regulating Media Coverage Of Publicity-Seeking Crimes, Michelle Ward Ghetti

Federal Communications Law Journal

Publicity-seeking crimes, including terrorism, almost by definition depend on the media for their effectiveness. Twenty-five years ago, when the bulk of this article was written, critics both within and outside the news industry had begun to voice an awareness, if not a concern, for the ease with which such criminals obtained publicity on both a national and international platform and it looked as if something might be done within the media establishments to thwart this manipulation of the press. Today, it is possible to look back and see that, in fact, nothing has been done and, so, individuals such as …

Excluding Religion, Nelson Tebbe

Cornell Law Faculty Publications

This Article considers whether government may single out religious actors and entities for exclusion from its support programs. The problem of selective exclusion has recently sparked interest in lower courts and in informal discussions among scholars, but the literature has not kept pace. Excluding Religion argues that government generally ought to be able to select religious actors and entities for omission from support without offending the Constitution. At the same time, the Article carefully circumscribes that power by delineating several limits. It concludes by drawing out some implications for the question of whether and how a constitutional democracy ought to …

Against Freedom Of Commercial Expression, Tamara R. Piety

Cardozo Law Review

No abstract provided.

Confronting The Limits Of The First Amendment: A Proactive Approach For Media Defendants Facing Liability Abroad, Michelle A. Wyant

San Diego International Law Journal

This Article confronts the limits this issue imposes on the First Amendment in four parts. Part I described the potential for conflicting defamation laws and forum shopping to undermine the American media's speech protections in the context of the Internet and global publications and outlines the Article's overall method of analysis. Part II first orients these conflicting defamation laws with respect to their development from the common law. It then frames them in terms of the underlying structural and policy differences that have produced their substantive divergence. This frame provides the analytical perspective through which this Article examines the varying …

Digitus Impudicus: The Middle Finger And The Law, Ira Robbins

Scholarly Articles in Law Reviews & Journals

The middle finger is one of the most commonly used insulting gestures in the United States. The finger, which is used to convey a wide range of emotions, is visible on streets and highways, in schools, shopping malls, and sporting events, in courts and execution chambers, in advertisements and on magazine covers, and even on the hallowed floor of the United States Senate. Despite its ubiquity, however, as a number of recent cases demonstrate, those who use the middle finger in public run the risk of being stopped, arrested, prosecuted, fined, and even incarcerated under disorderly conduct or breach of …

The Cross At College: Accomodation And Acknowledgment Of Religion At Public Universities, Ira C. Lupu, Robert W. Tuttle

William & Mary Bill of Rights Journal

No abstract provided.

Free Expression And Education: Between Two Democracies, Stephen M. Feldman

William & Mary Bill of Rights Journal

No abstract provided.

What's Left Of The Twenty-First Amendment?, Jonathan M. Rotter, Joshua S. Stambaugh

Cardozo Public Law, Policy & Ethics Journal

The article examines the evolving jurisprudence of the Twenty-first Amendment and its intersection with the Dormant Commerce Clause, arguing that the Supreme Court has increasingly adopted a balanced approach. This approach prioritizes preventing economic discrimination while respecting state regulatory authority over liquor. The analysis highlights a shift away from a broad interpretation of the Twenty-first Amendment, emphasizing that states must justify discriminatory liquor regulations under a strict scrutiny standard. The Court’s rulings, particularly in Granholm v. Heald, have opened markets to out-of-state producers, promoting a more uniform national liquor market.

Constitutional Law—First Amendment & Freedom Of Speech—Students May Be Regarded As Closed-Circuit Recipients Of The State's Anti Drug Message: The Supreme Court Creates A New Exception To The Tinker Student Speech Standard. Morse V. Frederick, 127 S. Ct. 2618 (2007), Megan D. Hargraves

University of Arkansas at Little Rock Law Review

This note argues that the Supreme Court's decision in Morse significantly weakens students' free speech rights. Although the Court stated that students "do not shed their constitutional rights at the school house gates," its decisions, in effect, weakens Tinker's important holding that students are entitled to First Amendment protection. The note asserts that the Court's opinion broadens schools' authority to regulate student speech in ways that are contrary to fundamental First Amendment values and explicitly allows schools to engage in highly suspect viewpoint discrimination.

The note first examines some of the fundamental First Amendment values at stake in student speech …

Higher Education, Harassment, And First Amendment Opportunism, Kenneth L. Marcus

William & Mary Bill of Rights Journal

No abstract provided.

Intelligent Design In Public University Science Departments: Academic Freedom Or Establishment Of Religion, Frank S. Ravitch

William & Mary Bill of Rights Journal

No abstract provided.

Falsity, Insincerity, And The Freedom Of Expression, Mark Spottswood

William & Mary Bill of Rights Journal

Three decades ago, the Supreme Court announced that false statements of fact are devoid of constitutional value, without providing either a reasoned explanation for that principle or any supporting citations. This assertion has become one of the most frequently repeated dogmas of First Amendment law and theory, endlessly repeated and never challenged. Disturbingly, this idea has provided the theoretic foundation for a regime in which some speakers can be penalized for even honestly believed factual errors. Even worse, this dogma is flat wrong.

False statements often have value in themselves, and we should protect them even in some situations where …

Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford

Michigan Law Review

Embodied in the Universal Declaration of Human Rights is the evocative proposition that "[e]veryone has the right to freedom of opinion and expression." Beneath that abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and what speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of participatory democracy. They …

Sanctionable Conduct: How The Supreme Court Stealthily Opened The Schoolhouse Gate, Sonja R. West

Scholarly Works

The Supreme Court's decision in Morse v. Frederick signaled that public school authority over student expression extends beyond the schoolhouse gate. This authority may extend to any activity in which a student participates that the school has officially sanctioned. The author argues that this decision is unsupported by precedent, and could encourage schools to sanction more events in the future. Because the Court failed to limit or define the power of a school to sanction an activity, the decision could have a chilling effect on even protected student expression. The author commends the Court for taking up this issue after …

The Two-Step Evidentiary And Causation Quandary For Medium- Specific Laws Targeting Sexual And Violent Content: First Proving Harm And Injury To Silence Speech, Then Proving Redress And Rehabilitation Through Censorship, Clay Calvert

Federal Communications Law Journal

This Article argues that legislators today that want to suppress First Amendment-protected images of sexual and violent conduct conveyed on a specific medium face a steep two-step evidentiary burden. First, they must prove actual harm caused by the speech in question as it is conveyed on a specific medium--not the aggregate injury from viewing all media generallythat is sufficient to overcome free-speech rights. Second, even if sufficient harm from viewing violent or sexual content on a particular medium is proven by social science research, the government then must prove that its legislative remedy-its censorship of the harmful expression conveyed via …

The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric B. Easton

Federal Communications Law Journal

Media corporations and their professional and trade associations, as well as organizations such as Reporters Committee for Freedom of the Press and the American Civil Liberties Union, regularly monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. But that was not always the case. While media companies have always lobbied and litigated in support of their business interests-antitrust, copyright, postal rates, taxes-litigation by the institutional press to create or avoid doctrinal precedent under the First Amendment began only in the late 1920s. Once the United States Supreme Court recognized the incorporation of the First …

Reassessing Turner And Litigating The Must-Carry Law Beyond A Facial Challenge, R. Matthew Warner

Federal Communications Law Journal

In recent decades, the must-carry rules have had a troubled constitutional history. After two sets of rules were struck down by the D.C. Circuit for violating the First Amendment rights of both cable programmers and operators, Congress revised the must-carry rules in the 1992 Cable Act. In 1997, the Supreme Court, in a 5-4 decision, determined that the congressional must-carry law was facially constitutional. However, does the Turner II decision preclude further First Amendment challenges to the must-carry law? This Note argues that the answer is no and that the time is drawing near for new challenges.

Are Journalists Privileged?: Panel Discussion, Anthony Lewis, Max Frankel, Victor Kovner

Cardozo Law Review

No abstract provided.

Citizen Teacher: Damned If You Do, Damned If You Don't, Susan P. Stuart

Law Faculty Publications

The recent Supreme Court case of Garcetti v. Ceballos is becoming one of the most-used cases in its mere two-year history. It denies to public employees the protection of the First Amendment when speaking in their official duties. In reviewing the cases both leading up to and then relying oh Garcetti, one is struck by the inherent conflict that nowpermeates some school board-employee relationships. Whereas preceding cases attempted to reach a balance between the school board and its employees' speech rights, bad management practices now seem to trump the First Amendment. Such practices have school boards discharging teachers and …

Tough Pill To Swallow: Whether Catholic Institutions Are Obligated Under Title Vii To Cover Their Employees’ Prescription Contraceptives, Craig W. Mandell

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

A Cross To Bear: The Need To Weigh Context In Determining The Constitutionality Of Religious Symbols On Public Land, Catherine Ansello

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Mt. Soledad In The Supreme Court's Crosshairs: Why Legislative Recognition Should Be Considered In Public Displays Of Religion, Adrian R. Conteras

McGeorge Law Review

No abstract provided.

Freedom Of Association, The Communist Party, And The Hollywood Ten: The Forgotten First Amendment Legacy Of Charles Hamilton Houston, Jose Felipe Anderson

McGeorge Law Review

No abstract provided.

An Analysis Of Historical And Legal Sanctuary And A Cohesive Approach To The Current Movement, 42 J. Marshall L. Rev. 135 (2008), Pamela Begaj

UIC Law Review

No abstract provided.

Magic Words And Millionaires: The Supreme Court's Assault On Campaign Funding, 42 J. Marshall L. Rev. 1 (2008), Michael J. Kasper

UIC Law Review

No abstract provided.

Reflections On The Mirror Image Doctrine: Should The Federal Trade Commission Regulate False Advertising For Books Promising Wealth, Weight Loss, And Miraculous Cures?, Keith R. Fentonmiller

West Virginia Law Review

No abstract provided.