Constitutional Law Commons^™

Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault

Faculty Scholarship

The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters …

Fire, Metaphor, And Constitutional Myth-Making, Robert L. Tsai

Faculty Scholarship

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

You Can't Ask (Or Say) That: The First Amendment And Civil Rights Restrictions On Decisionmaker Speech, Helen L. Norton

Faculty Scholarship

Many antidiscrimination statutes limit speech by employers, landlords, lenders, and other decisionmakers in one or both of two ways: (1) by prohibiting queries soliciting information about an applicant's disability, sexual orientation, marital status, or other protected characteristic; and (2) by proscribing discriminatory advertisements or other expressions of discriminatory preference for applicants based on race, sex, age, sexual orientation, or other protected characteristics.

This Article explores how we might think about these laws for First Amendment purposes. Part I outlines the range of civil rights restrictions on decisionmaker speech, while Part II identifies the antidiscrimination and privacy concerns that drive their …

Say Cheese: The Constitutionality Of State-Mandated Airtime On Public Broadcasting Stations In Wisconsin, Andrew D. Cotlar

Federal Communications Law Journal

Last year, the State of Wisconsin passed legislation which would require statechartered public broadcasting television networks to carry political advertising for candidates free of charge. In this article, Andrew Cotlar raises many concerns about the wisdom of such legislation and the impact this trend may have on public broadcasters throughout the nation. The author begins by analyzing the current position of the law on political access requirements, at both federal and state levels, and then argues that the public television stations should continue to be free to exercise substantial editorial discretion. The Article proceeds to critique the Wisconsin statute as …

The "Horizontal Effect" Of Constitutional Rights, Stephen Gardbaum

Michigan Law Review

Among the most fundamental issues in constitutional law is the scope of application of individual rights provisions and, in particular, their reach into the private sphere. This issue is also currently one of the most important and hotly debated in comparative constitutional law, where it is known under the rubric of "vertical" and "horizontal effect." These alternatives refer to whether constitutional rights regulate only the conduct of governmental actors in their dealings with private individuals (vertical) or also relations between private individuals (horizontal). In recent years, the horizontal position has been adopted to varying degrees, and after systematic scholarly and …

Eldred's Aftermath: Tradition, The Copyright Clause, And The Constitutionalization Of Fair Use, Stephen M. Mcjohn

Michigan Telecommunications & Technology Law Review

Eldred v. Ashcroft offered the Supreme Court broad issues about the scope of Congress's constitutional power to legislate in the area of intellectual property. In 1998, Congress added twenty years to the term of all copyrights, both existing and future copyrights. But for this term extension, works created during the 1920s and 1930s would be entering the public domain. Now such works will remain under copyright until 2018 and beyond. Eldred v. Ashcroft rejected two challenges to the constitutionality of the copyright extension. The first challenge contended that Congress had exceeded its power to grant copyrights for "limited Times" in …

Republican Party Of Minnesota V. White: The Lifting Of Judicial Speech Restraint, David B. Bogard

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—True Threat Doctrine And Public School Speech—An Expensive View Of A School's Authority To Discipline Allegedly Threatening Student Speech Arising Off Campus. Doe V. Pulaski County Special School District, 306 F.3d 616 (8th Cir. 2002)., William Bird

University of Arkansas at Little Rock Law Review

No abstract provided.

First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji

Michigan Law Review

The tension between equality and discretion lies at the heart of some of the most vexing questions of constitutional law. The considerable discretion that many official decisionmakers wield raises the spectre that violations of equality norms will sometimes escape detection. This is true in a variety of settings, whether discretion lies over speakers' access to public fora, implementation of the death penalty, or the recounting of votes. Is the First Amendment violated, for example, when a city ordinance gives local officials broad discretion to determine the conditions under which political demonstrations may take place? Is equal protection denied where the …

The Role Of The Federal Communications Commission On The Path From The Vast Wasteland To The Fertile Plain, Kathleen Q. Abernathy

Federal Communications Law Journal

No abstract provided.

Civil Liberties And The Terrorism Prevention Paradigm: The Guilt By Association Critique, Robert M. Chesney

Michigan Law Review

Faysal Galab is a twenty-seven-year-old American citizen of Yemeni descent who was born and raised in Buffalo, New York. He is married, has three children, and used to run a gas station in the Buffalo suburb of Lackawanna. Perhaps you have heard of him; he will be spending some or all of the next ten years in federal prison because in spring of 2001 he and six other Lackawanna residents traveled to Afghanistan and trained with Al Qaeda.

The Campain-Finance Crucible: Is Laissez Fair?, Jamin B. Raskin

Michigan Law Review

The 2001 passage of the Bipartisan Campaign Reform Act ("BCRA"), popularly known as "McCain-Feingold," set the stage for a momentous constitutional conflict in the United States Supreme Court in the 2003-04 Term. Among other things, the new legislation bans "soft money" contributions to the national political parties by corporations, labor unions, and individuals; prohibits state parties that are authorized to accept such contributions to spend the proceeds on activities related to federal elections; forbids federal candidates to participate in raising soft money; doubles the amount of "hard money" an individual can contribute in a federal election from $1,000 to $2,000 …

Discussing The First Amendment, Christina E. Wells

Michigan Law Review

Since the First Amendment's inception, Americans have agreed that free expression is foundational to our democratic way of life. Though we agree on this much, we have rarely agreed on much else regarding the appropriate parameters of free expression. Is the First Amendment absolute or does it allow some regulation of speech? Should the First Amendment protect offensive speech, pornography, flag-burning? Why do we protect speech - to promote the search for truth, to promote self-governance, or to protect individual autonomy?2 History is rife with disagreements regarding these issues to which there are no definitive answers. Certainly, the text of …

The Serpentine Wall Of Separation, John Witte Jr.

Michigan Law Review

The task of separating the secular from the religious in education is one of magnitude, intricacy, and delicacy, Justice Jackson wrote, concurring in McCollum v. Board of Education, the Supreme Court's first religion in public schools case. "To lay down a sweeping constitutional doctrine" of absolute separation of church and state "is to decree a uniform . . . unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes." If we persist in this experiment, Justice Jackson warned his brethren, "we are …

Disease And Cure?, L. A. Powe Jr.

Michigan Law Review

Sunstein uses Franklin's remark to make two related points. First, citizens bear the burden of maintaining the American republic as a healthy, vibrant place; being a citizen is decidedly different from being a consumer. The former has duties, the latter wants (pp. 113-23). Second, and this is the gist of the slender book, the republic is jeopardized by the possibilities of the Internet. Sunstein assumes the correctness of MIT technology specialist Nicholas Negroponte's conclusion that in the not-too-distant future we will be able to create a "Daily Me" on the Internet that will provide the personalized information (including news) that …

The Heroes Of The First Amendment, Frederick Schauer

Michigan Law Review

In 1950, Felix Frankfurter famously observed that "[i)t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." The circumstances of Justice Frankfurter's observation were hardly atypical, for his opinion arose in a Fourth Amendment case involving a man plainly guilty of the crime with which he had been charged - fraudulently altering postage stamps in order to make relatively ordinary ones especially valuable for collectors. Indeed, Fourth Amendment cases typically present the phenomenon that Frankfurter pithily identified, for most of the people injured by an …

Constitutional Law—First Amendment And Freedom Of Speech—"It's Ok—She's A Pixel, Not A Pixie": The First Amendment Protects Virtual Child Pornography. Ashcroft V. Free Speech Coalition, 535 U.S. 234 (2002)., Gary D. Marts Jr.

University of Arkansas at Little Rock Law Review

No abstract provided.

Regulating Political Parties Under A "Public Rights" First Amendment, Gregory P. Magarian

William & Mary Law Review

No abstract provided.

Avoiding Slim Reasoning And Shady Results: A Proposal For Indecency And Obscenity Regulation In Radio And Broadcast Television, Jacob T. Rigney

Federal Communications Law Journal

This Note explores the relevant law regarding the issue of indecency and obscenity in broadcast, with particular focus on a 2001 Policy Statement released by the FCC. The Author examines the major problems with the regulatory scheme as it now exists, and offers an alternative. The Author concludes by arguing that leaving the subjective decisions regarding indecency to market forces, leaving parents to determine what should or should not be indecent, and leaving the FCC free to pursue obscenity with greater zeal is the most appropriate course of action for the future.

Attacking Brandenburg With History: Does The Long-Term Harm Of Biased Speech Justify A Criminal Statute Suppressing It?, Anuj C. Desai

Federal Communications Law Journal

Book Review: Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements, Alexander Tsesis, New York: New York University Press, 2002, 246 pages.

A review of Alexander Tsesis's Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements, New York University Press, 2002. At one level, Alexander Tsesis's thesis is simply one in a long line of arguments about the need to regulate racist speech. Yet on another level, it is fundamentally different from much American literature on "hate speech" because Tsesis draws on a broad historical swath, and because he contends that the United States …

Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll

Michigan Law Review

In February 1996, the New York State Department of Transportation fired Joseph Kilcullen from his position as a snowplow driver in the Department's Highway Maintenance training program. Alleging that the state discharged him because of his epilepsy and learning disability, Kilcullen sued his former employer under the Americans with Disabilities Act ("ADA"), which abrogated states' sovereign immunity and permitted private suits for damages against states in a federal court. Kilcullen asserted only that he was not treated the same as similarly situated non-disabled employees; his claim did not implicate the ADA's requirement that employers provide "reasonable accommodation" to disabled employees. …

Behind The Words: Interpreting The Hobbs Act Requirement Of "Obtaining Of Property From Another", 36 J. Marshall L. Rev. 295 (2003), Kristal S. Stippich

UIC Law Review

No abstract provided.

The First Amendment In The Seventh Circuit: 2002, 36 J. Marshall L. Rev. 807 (2003), Donald L. Beschle

UIC Law Review

No abstract provided.

Sticks And Stones: The First Amendment And Campus Speech Codes, 37 J. Marshall L. Rev. 205 (2003), Lee Ann Rabe

UIC Law Review

No abstract provided.

Religious Expression, Government Funds, And The First Amendment, Suart J. Lark

West Virginia Law Review

No abstract provided.

Racial Identity, Electoral Structures, And The First Amendment Right Of Association, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

Civil Rights And Civil Liberties: Whose “Rule Of Law”?, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Quo Vadis: The Continuing Metamorphosis Of The Establishment Clause Toward Realistic Substantive Neutrality, Paul E. Salamanca

Law Faculty Scholarly Articles

For years, the rhetoric of substantive neutrality has dominated interpretation of the Establishment Clause. Under this approach, courts and commentators purport to ask whether a public policy under scrutiny is likely to affect religious choices in an unacceptable way. In fact, so broadly has this approach been taken that both separationists and accommodationists resort to it freely, although with radically differing perceptions as to when policy becomes unacceptable. Arguably, however, adherents to this approach have paid insufficient attention to religious behavior per se. Had they paid sufficient attention to this phenomenon, they would have been forced to acknowledge that little …

The Law Of Obscenity - Or Absurdity, H. Franklin Robbins Jr., Steven G. Mason

St. Thomas Law Review

At any rate, if the First Amendment only protects expression that the majority believes will promote the right values, it does not protect very much. Sexually explicit materials arouse intense, deep-seated feelings, and from a moral point of view, the desire to stop their dissemination is understandable. But the censoring of morally bad ideas is glaringly incompatible with the most basic principles of First Amendment law. Nonetheless, for nearly two hundred years the censorship of morally offensive materials has been a part of our legal history, notwithstanding the absolute terms of the First Amendment.

Should Klansmen Be Lawyers? Racism As An Ethical Barrier To The Legal Profession, Carla Pratt

Faculty Articles

No abstract provided.