Constitutional Law Commons^™

On The Brink: The First Amendment In The Rehnquist Court, 1990-91 Term, Joel M. Gora

Touro Law Review

No abstract provided.

Civil Actions For Emotional Distress And R.A.V. V. City Of St. Paul, Michael K. Steenson

Faculty Scholarship

The law of emotional distress is characterized by judicial reluctance to create and expand remedies for emotional injuries. The issue here is whether the Court's decision in R.A.V. v. City of St. Paul will impose further limitations on the right to recover civil damages for the intentional infliction of emotional injury, particular emotional injuries resulting from hate speech. This symposium first examines the applicability of the tort to redress claims based on abusive epithets based on the victim's race, gender, or sexual orientation. The symposium then argues that using this tort in cases involving hate speech should not create constitutional …

Giving Women The Benefit Of Equality: A Response To Wirenius, Tracy Higgins

Fordham Urban Law Journal

This essay offers a feminist response to Mr. Wirenius’s provocative critique of Professor MacKinnon. Whether supporting or opposing pornography regulation, feminist legal scholars tend to approach the issue from neither of the traditional positions – First Amendment absolutist or moral censor. Rather, a feminist approach to pornography is informed by an understanding of the profound harm that pornography can and does inflict upon women. Consequently, even for feminists who many oppose pornographic regulation, the choice is not an obvious one, as it seems to be for Mr. Wirenius, between the good of civil libertarianism and the evil of totalitarianism. An …

A Matter Of "Governing' Importance": Providing Business Defamation And Product Disparagement Defendants Full First Amendment Protection, Lisa Magee Arent

Indiana Law Journal

No abstract provided.

When First Amendment Values And Competition Policy Collide: Resolving The Dilemma Of Mixed-Motive Boycotts, Kay P. Kindred

Scholarly Works

In a representative democracy, government must protect the rights of its citizens to express ideas, to voice grievances, and to seek to influence government. The first Amendment safeguards these fundamental political rights from government intrusion. In a free market economy, government must protect trade and commerce from activities and influences that lead to increased concentrations of economic power or that otherwise tend to restrain competition. The antitrust laws, specifically the Sherman Act, seek to safeguard the competitive process from restrictive trade practices. Conflict arises when efforts to influence government threaten to undermine competition.

Nowhere is the clash between First Amendment …

Free Speech And School Governance In The Wake Of Hazelwood, Rosemary C. Salomone

Faculty Publications

(Excerpt)

The Supreme Court's 1988 decision in Hazelwood School District v. KuhImeier upholding public school officials' authority to censor material in a high school student newspaper sent immediate shock waves throughout the educational and legal communities. The Court's sweeping language in Hazelwood moved far beyond the narrow issue of school newspaper censorship. It even moved beyond the question of appropriate or acceptable speech in public secondary schools. It was clear that Hazelwood could have far-reaching consequences for student rights, school governance, and the scope of official authority to make curricular decisions that reflect the values of the local community.

Some …

The Concept Of Offensiveness In Establishment And Free Exercise Jurisprudence, William P. Marshall

Indiana Law Journal

No abstract provided.

The Sacred Flag And The First Amendment, Sheldon H. Nahmod

Indiana Law Journal

No abstract provided.

Content Discrimination And The First Amendment, Susan H. Williams

Articles by Maurer Faculty

No abstract provided.

From Widmar To Mergens: The Winding Road Of First Amendment Analysis, Rosemary C. Salomone

Faculty Publications

(Excerpt)

In 1981, the Supreme Court decided Widmar v. Vincent, holding that a state university that created a "limited open forum" by opening its facilities to student organizations must grant equal access to religiously affiliated groups. The university's failure to do so constituted content-based discrimination that violated the First Amendment to the United States Constitution. The Court rejected the university's argument that its policy to disallow religious meetings on campus was implemented to avoid contravening establishment clause principles. The Court's opinion was inconclusive as to whether the Widmar rationale would apply to secondary schools.

During the same period, Congress …

God Talk By Professors Within The Classrooms Of Public Institutions Of Higher Education: What Is Constitutionally Permissible?, Sarah Howard Jenkins, Byron R. Johnson, Otto Jennings Helweg

Law Faculty Scholarship

No abstract provided.

Sex, Lies And Videotape: The Pornographer As Censor, Marianne Wesson

Publications

The legal branch of the women's movement, although of one mind on some subjects, is divided on the proper approach to pornography. Some feminists oppose the imposition of any legal burdens on pornography because they fear that feminist speech will be caught in the general suppression, and others believe that any such burdens must violate the first amendment. Professor Wesson suggests that pornography should be defined to include only those materials that equate sexual pleasure with the infliction of violence or pain, and imply approval of conduct that generates the actor's arousal or satisfaction through this infliction. So defined, pornography …

To Stimulate, Provoke, Or Incite? Hate Speech And The First Amendment, Kenneth Lasson

All Faculty Scholarship

If protecting freedom of speech is one of mankind's noblest pursuits, then restricting it is the most difficult. Yet limit we must: even the purest civil libertarian will concede that false shouts of fire cannot be countenanced nor broadcasts of wartime troop movements; even those who object to obscenity laws recognize the need for enabling redress of libel; and even those who would protect the right to be insulting do not defend inflammatory words spit out nose-to-nose. Now a spate of "speech codes" on college campuses has once again brought the first amendment to the fore, part of a simmering …

Passive Communication In Public Fora: The Case For First Amendment Protection Of Newsracks, Sandra L. Cobden

Cardozo Law Review

No abstract provided.

Speaking And Writing Against Hate, Martha Minow

Cardozo Law Review

No abstract provided.

Constitutional Protection Of Freedom Of Expression In The United States As It Affects Defamation Law, Oscar S. Gray

Faculty Scholarship

No abstract provided.

Barnette And Johnson: A Tale Of Two Opinions, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

Among other things, the final two years of the 1980s could well be remembered as a period of patriotic symbols, especially in the area of American constitutional law. During the summer of 1988, debate in the presidential campaign turned to the Pledge of Allegiance to the flag. George Bush criticized Michael Dukakis for vetoing a Massachusetts bill that would have required public school teachers to lead their students in reciting the Pledge of Allegiance. Dukakis defended his action by citing an advisory opinion he had requested from the Supreme Court of Massachusetts which concluded that the bill violated the first …

The Case Against A Right To Religion-Based Exemptions, Ellis M. West

Political Science Faculty Publications

When, if ever, does the free exercise clause of the first amendment give an individual or organization the right to disobey with impunity a valid law of the state? This question is being discussed with increasing frequency and intensity because of the growing number of persons and groups who are going to the courts and claiming such a right on the grounds that the application of certain laws to them would burden their free exercise of religion. Almost all the individuals and some of the groups who claim such a right do so because the laws to which they object …

Curran Versus Catholic University Of America, Gerard V. Bradley

Journal Articles

From the Introduction

America's most celebrated recent episode of ecclesiastical « dissent » reached its legal conclusion in Curran v. Catholic University of America. Fr. Curran says he will not pursue appellate review. Consequently, Judge Weisberg's ruling in favor of CUA, plus Fr. Curran's refusal to teach anything but Catholic theology, mean that the « dissenter » will pursue his academic career elsewhere. But, while conclusive, the ruling is hardly the « landmark decision » one Catholic editor termed it.

How could a theological and ecclesiological controversy of such magnitude be emptied of its sacred content? How could Judge …

Art, Obscenity And The First Amendment, Judith Bresler

Articles & Chapters

Symposium on Law and the Visual Arts: Art, the First Amendment and the NEA Controversy

The First Amendment And The Flag, Bruce Berner

Law Faculty Publications

No abstract provided.

Law And Disorder, Robert W. Gordon

Indiana Law Journal

No abstract provided.

Shacking Up With The First Amendment: Symbolic Expression And The Public University, Laura L. Goodman

Indiana Law Journal

No abstract provided.

The Obscenity Exception: Abusing The First Amendment, Simon Roberts

Cardozo Law Review

No abstract provided.

Labor, Management, And The First Amendment: Whose Rights Are These, Anyway?, Richard Michael Fischl

Cardozo Law Review

No abstract provided.

The Beggar's Free Speech, Anthony J. Rose

Indiana Law Journal

No abstract provided.

Constitutional Law: Guinn V. Collinsville Church Of Christ: Balancing An Individual's Right To Tort Compensation And The First Amendment's Religion Clauses, David K. Ratcliff

Oklahoma Law Review

No abstract provided.

Commentary, The Selling Of Jury Deliberations, Robert F. Nagel

Publications

No abstract provided.

Free Speech And Freedom From Speech: Hustler Magazine V. Falwell, The New York Times Actual Malice Standard And Intentional Infliction Of Emotional Distress, Boyd C. Farnham

Indiana Law Journal

No abstract provided.

Exorcizing Everson, Gerard V. Bradley

Journal Articles

Daniel Dreisbach: Real Threat and Mere Shadow: Religious Liberty and the First Amendment. Crossway Books. 351 pp. $15.00 (paper).

No aspect of constitutional law sports a bigger profile these days than that concerning religion, or "Church and state." Academics debate it prodigiously, lawyers litigate it furiously, and judges issue opinions on the subject with clockwork regularity. But this commotion is hardly esoteric. Pat Robertson's candidacy stirred everyone's emotions precisely because each of us has a strong sense of just how religious politics should be. George Bush clumsily attested to this popular sensitivity. What sustained bomber pilot Bush …