Constitutional Law Commons^™

How The Overturn Of The Child Pornography Prevention Act Under Ashcroft V. Free Speech Coalition Contributes To The Protection Of Children, Emily D. Goldberg

Cardozo Journal of Equal Rights & Social Justice

The note examines the Supreme Court's decision in Ashcroft v. Free Speech Coalition, which struck down portions of the Child Pornography Prevention Act (CPPA) as unconstitutional under the First Amendment. The Court ruled that the CPPA's ban on virtual child pornography was overbroad, as it prohibited lawful speech that could have artistic, literary, or scientific value. The decision highlights the tension between protecting children from exploitation and safeguarding free speech, ultimately emphasizing the importance of allowing narratives that confront and address difficult issues like child sexual abuse.

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

Publications

Federal, state, and local civil rights laws regulate private decisionmaking about whom an employer may hire or fire, to whom a landlord may rent an apartment, or to whom a creditor may extend credit. In prohibiting discriminatory conduct, however, these laws also limit the speech of those making these decisions. In this Article, Professor Norton explores how we might think about these civil rights laws in the context of the First Amendment, and their place within the Supreme Court's commercial speech jurisprudence. She concludes that the speech restricted by these laws may be characterized as falling outside the protection of …

Jon Newman’S Theory Of Disparagement And The First Amendment In The Administrative State, Edward L. Rubin

NYLS Law Review

No abstract provided.

The "Blaine" Debate: Must States Fund Religious Schools?, Laura S. Underkuffler

Cornell Law Faculty Publications

In Zelman v. Simmons-Harris, the United States Supreme Court held-by a vote of 5 to 4-that the funding of religious schools with taxpayer money through voucher programs does not violate the Establishment Clause of the United States Constitution. Emboldened by this success, voucher proponents now attack state constitutional provisions (often called "Blaine Amendments") that prohibit taxpayer funding of religious schools. These state provisions, which may stand in the way of religious-school voucher programs, are attacked as violative of the federal Constitution, rooted in anti-religious bias, or otherwise illegal or unwise.

It is my view that efforts to force states …

Liberalism And The Establishment Clause, Steven H. Shiffrin

Cornell Law Faculty Publications

Every political theory tolerates some things and not others. Every political theory promotes a particular kind of person even if it denies it is doing so. But the best liberalism does not confine itself to promoting a Rawlsian-tolerant citizen. Liberalism, like conservatism, has greater ambitions in the socialization of the young. The best liberalism, a neo-Millian liberalism, promotes a creative, independent, autonomous, engaged citizen and human being who works with others to make for a better society and speaks out against unjust customs, habits, institutions, traditions, hierarchies, and authorities.

Although government may promote a particular conception of the good life, …

The Right To Receive Information, Susan Nevelow Mart

Publications

Ms. Mart examines the legal evolution of the right to receive information, particularly focusing on its application to libraries, beginning with the Supreme Court holding in Board of Education v. Pico, and followed by cases that have considered the meaning of Pico in a variety of library-related contexts.

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Publications

No abstract provided.

Clarifying The Content-Based/Content Neutral And Content/Viewpoint Determinations, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

No abstract provided.

“Exceedingly Vexed And Difficult”: Games And The First Amendment, Michael T. Morley

Scholarly Publications

No abstract provided.

Copyright And Time: A Proposal, Joseph P. Liu

Michigan Law Review

This Article makes a very specific and concrete proposal: it argues that courts should adjust the scope of copyright protection to account for the passage of time by expressly considering time as a factor in fair use analysis. More specifically, this Article argues that the older a copyrighted work is, the greater the scope of fair use should be - that is, the greater the ability of others to re-use, critique, transform, and adapt the copyrighted work without permission of the copyright owner. Conversely, the newer the work, the narrower the scope of fair use. Or, even more concretely, this …

Choice Programs And Market-Based Separationism, Paul E. Salamanca

Law Faculty Scholarly Articles

The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious or …

Constitutional Issues In Information Privacy, Fred H. Cate, Robert Litan

Michigan Telecommunications & Technology Law Review

The U.S. Constitution has been largely ignored in the recent flurry of privacy laws and regulations designed to protect personal information from incursion by the private sector despite the fact that many of these enactments and efforts to enforce them significantly implicate the First Amendment. Questions about the role of the Constitution have assumed new importance in the aftermath of the September 11, 2001 terrorist attacks on the World Trade Center and the Pentagon. Recent efforts to identify and apprehend terrorists and to protect against future attacks threaten to weaken constitutional protections against government intrusions into personal privacy. However, these …

To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne

Faculty Publications

No abstract provided.

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

The First Amendment And The Socialization Of Children: Compulsory Public Education And Vouchers, Steven H. Shiffrin

Cornell Law Faculty Publications

Criticism of American public schools has been a cottage industry since the Nineteenth Century. In recent years the criticism has gone to the roots. Critics charge that to leave children imprisoned in the public school monopoly is to risk the standardization of our children; it is to socialize them in the preferred views of the State. They argue that it would be better to adopt a system of vouchers or private scholarships to support a multiplicity of private schools. A multiplicity of such schools, it is said, would enhance parental choice, would foster competition, and would promote a diversity of …

School Vouchers And The Constitution - Permissible, Impermissible, Or Required?, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.

The Metes And Bounds Of State Sovereign Immunity, Scott Dodson

Faculty Publications

What are the constitutional parameters of state sovereign immunity? The Court has made clear that certain provisions of Article I contain no authority for overriding state sovereign immunity, while at least one other provision, the Fourteenth Amendment, permits Congress to abrogate the states’ sovereign immunity. How is this constitutional line drawn? It is temporally bound? In other words, are only certain Amendments enacted after the Eleventh Amendment free from absolute subservience to state sovereign immunity? Or, does it divide the original Constitution and its Amendments, meaning that state sovereign immunity permeates the original Constitution but does not infiltrate certain Amendments, …

Terrorism And The Bill Of Rights, Rodney A. Smolla

William & Mary Bill of Rights Journal

This year is the Tenth Anniversary of the William & Mary Bill of Rights Journal, and the Journal is very fortunate and honored to have Professor Rodney Smolla publish an article in this year's volume. Professor Smolla played an integral role in the founding and organizing of not only the Journal, but also the Institute of Bill of Rights Law at William & Mary Law School. The Journal extends its most appreciative thanks to Professor Smolla for all his help.

In this Article, Professor Smolla examines the right to free speech in the context of Black v. Commonwealth, a case …

Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman

William & Mary Bill of Rights Journal

Modern First Amendment jurisprudence almost exclusively prohibits laws restricting freedom of speech based on the content of the speech. In this Article, Professor Steven Heyman takes exception to the content neutrality doctrine, arguing that its strict application both minimizes other interests competing with speech and fails to elevate the premises on which the First Amendment stands.

Antebellum Perspectives On Free Speech, Mark A. Graber

William & Mary Bill of Rights Journal

In his book, Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History, Professor Michael Kent Curtis documents the political struggles over free speech rights that took place between the ratification of the Bill of Rights in 1791 and the adoption of the Fourteenth Amendment in 1868. Professor Curtis looks to these early free speech fights to help define the contours of contemporary speech rights. In this review, Professor Mark A. Graber discusses Professor Curtis's contribution to constitutional history, and the implications of The People's Darling Privilege for constitutional theorists

Speech, Press, And Democracy, Paul Finkelman

William & Mary Bill of Rights Journal

Professor Michael Kent Curtis's latest book, Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History, chronicles the efforts of ordinary Americans to protect their right to freedom of expression from 1791-1865. Professor Paul Finkelman reviews this book, focusing primarily on Curtis's discussions of suppression of speech prior to and during the Civil War period and additionally providing some thoughts concerning the appropriateness of revoking free speech rights during times of war.

The Idea Of Public Reason Resuscitated, James P. Madigan

William & Mary Bill of Rights Journal

In this Article, James Madigan examines the role of public reason in a democratic government, including what views should play a role in determining public reason. Madigan criticizes John Rawls for including comprehensive views in constitutional debates, and argues that only reasons grounded in political values should be used when debating constitutional issues and fundamental rights.

“Certain Fundamental Truths”: A Dialectic On Negative And Positive Liberty In Hate-Speech Cases, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

The Rhetoric Of Judicial Critique: From Judicial Restraint To The Virtual Bill Of Rights, Michael J. Gerhardt

William & Mary Bill of Rights Journal

Professor Michael Gerhardt traces the rhetoric employed by national leaders and commentators over the past century to describe popular conceptions of the judicial function. In particular, Professor Gerhardt examines the evolution of the terminology used in popular and political rhetoric, revealing their inconsistent application to political ideologies through time. Professor Gerhardt argues that such shifts in usage correspond with transfers of power between the political authorities controlling the central interests at stake in constitutional adjudication. Professor Gerhardt applies the shortcomings of traditional political rhetoric to the issues surrounding technological advancements, concluding that the proper treatment of technology by the Supreme …

Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton

Articles

No abstract provided.

Revenue Bonds And Religious Education: The Constitutionality Of Conduit Financing Involving Pervasively Sectarian Institutions, Trent Collier

Michigan Law Review

The Establishment Clause - and particularly the issue of government funding of religious education - is one of the murkiest areas of Supreme Court jurisprudence. The Supreme Court has acknowledged as much, and the sharp divide in the Court's most recent forays into Establishment Clause territory illustrates the point that the current jurisprudential standards allow for a broad range of interpretation. There is some hope that the Supreme court will provide further clarification of its Establishment Clause standard in the near future. For now, however, it appears that the dominant mode of the Establishment Clause analysis is the examination of …

The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken

William & Mary Bill of Rights Journal

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …

The Constitution And The Other Constitution, Michael Kent Curtis

William & Mary Bill of Rights Journal

In this article, Professor Michael Kent Curtis examines how laws that shape the distribution of wealth intersect with and affect popular sovereignty and free speech and press. He presents this discussion in the context of the effect of the Other Constitution on The Constitution. Professor Curtis begins by taking a close-up look at the current campaign finance system and the concentration of media ownership in a few corporate bodies and argues that both affect the way in which various political issues are presented to the public, if at all. Professor Curtis continues by talking about the origins of our constitutional …

Assessing The Legitimacy Of Governmental Regulation Of Modern Speech Aimed At Social Reform: The Importance Of Hindsight And Causation, Kenneth J. Brown

William & Mary Bill of Rights Journal

When governmental regulation or punishment of speech occurs subsequent to the speech itself, such regulation is conducted with the benefit of hindsight. This is important because hindsight enables us to discern whether the expression in question has caused any legally cognizable harm. When speech is responsible for such a harm, its punishment is justfied by this causal connection. Yet conversely, when we know that speech is consequence-free, its ex post punishment is conceptually indefensible. In the first part of this article, Mr. Brown criticizes the imminent lawless action standard articulated in Brandenburg v. Ohio for failing to embrace fully this …

Compelled Expression And The Public Forum Doctrine, Howard M. Wasserman

Faculty Publications

This Article analyzes the theory underlying the Fist Amendment protection against being compelled by government to utter, present, or fund unwanted expression. The author creates a three-part model for determining when the fire speech rights of an objecting payer have been triggered. Under that model, First Amendment rights are implicated when there has been an actual government compulsion requiring an individual to give money to, or for the express benefit of, a specific private speaker for some use that, in itself, should be understood as expressive. This model strikes a necessary balance between the important theoretical underpinnings of the protection …