First Amendment Commons^™

Possession Of Child Pornography: Should You Be Convicted When The Computer Cache Does The Saving For You?, Giannina Marin

Florida Law Review

This Note examines the concept of electronic possession in the field of child pornography, with the aim of reconciling the basic intuition behind possession with the reality of electronic data. Part II briefly discusses the case and statutory history that placed child pornography outside the bounds of the First Amendment and led to constitutionally valid prohibitions on the possession of child pornography. Part III sets forth the various ways in which individuals can access electronic child pornography, with a focus on the user’s level of interaction. Part IV discusses factors that the courts have considered in defining what constitutes possession …

Student Speech Rights In The Digital Age, Mary-Rose Papandrea

Florida Law Review

For several decades courts have struggled to determine when, if ever, public schools should have the power to restrict student expression that does not occur on school grounds during school hours. In the last several years, courts have struggled with this same question in a new context—the digital media. The dramatic increase in the number of student speech cases involving the Internet, mobile phones, and video cameras begs for a closer examination of the scope of school officials’ authority to censor the expression of minors as well as the scope of juvenile speech rights generally. This Article takes a close …

False Statements V. Free Debate: Is The First Amendment A License To Lie In Elections?, Simon A. Rodell

Florida Law Review

No abstract provided.

Returning To Hazelwood'S Core: A New Approach To Restrictions On School-Sponsored Speech, Emily Gold Waldman

Florida Law Review

This Article begins by discussing the Hazelwood decision in depth. It then discusses the various contexts in which courts have applied Hazelwood and the circuit split that has developed over how broadly Hazelwood should reach. Next, it describes the circuit split over whether Hazelwood permits viewpoint-based speech restrictions, highlighting the different speech contexts in which the circuits have reached divergent conclusions. The Article then argues that the overextension of Hazelwood links the two splits. This Part also discusses why Hazelwood is uniquely suited to the student speech context and why other doctrines—namely, the Pickering–Connick framework for teachers’ classroom …

Ban On Nude Dancing Strips Away First Amendment Rights To Protect "Order And Morality" In Barnes V. Glen Theatre, Inc., Shannon Mclin Carlyle

Pepperdine Law Review

No abstract provided.

The Policy Against Federal Funding For Abortions Extends Into The Realm Of Free Speech After Rust V. Sullivan, Loye M. Barton

Pepperdine Law Review

No abstract provided.

California's Constitutional Right To Privacy, J. Clark Kelso

Pepperdine Law Review

No abstract provided.

The Private Club Exemption From Civil Rights Legislation - Sanctioned Discrimination Or Justified Protection Of Right To Associate, Margaret E. Koppen

Pepperdine Law Review

No abstract provided.

Government's Denigration Of Religion: Is God The Victim Of Discrimination In Our Public Schools?, Michael R. O'Neill

Pepperdine Law Review

No abstract provided.

Lee V. Weisman: Unanswered Prayers, Marilyn Perrin

Pepperdine Law Review

No abstract provided.

State Action And The Supreme Court's Emerging Consensus On The Line Between Establishment And Private Religious Expression, Michael W. Mcconnell

Pepperdine Law Review

No abstract provided.

Sex, Money, And Groups: Free Speech And Association Decisions In The October 1999 Term, Kathleen M. Sullivan

Pepperdine Law Review

No abstract provided.

Disentangling Symmetries: Speech, Association, Parenthood, Laurence H. Tribe

Pepperdine Law Review

No abstract provided.

Substance And Method In The Year 2000, Akhil Reed Amar

Pepperdine Law Review

No abstract provided.

Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck

Faculty Publications

While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private. CLS v. Martinez involved Hastings College of Law. Hastings' regulation of extracurricular organizations was unusual in requiring that any student can join an organization. This all-comers rule had a discriminatory impact on organizations with exclusionary memberships, such as the Christian Legal Society (CLS) which required subscribing to a statement of faith and conduct. The Court acknowledged the discriminatory effect, but said that the Free Speech Clause protects speech …

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky

UF Law Faculty Publications

Like most of us, public colleges and universities increasingly are communicating via Facebook, Second Life, YouTube, Twitter and other social media. Unlike most of us, public colleges and universities are government actors, and their social media communications present complex administrative and First Amendment challenges. The authors of this article — one the dean of a major public university law school responsible for directing its social media strategies, the other a scholar of social media and the First Amendment — have combined their expertise to help public university officials address these challenges. To that end, this article first examines current and …

Violence Is Never The Answer, Or Is It? Constitutionality Of California's Violent Video Game Regulation, Laura Black

The Journal of Business, Entrepreneurship & the Law

In 2011, the United States Supreme Court ruled that the California law proscribing the sale of violent video games to minors violated the First Amendment and was, therefore, unconstitutional. Because this is the first video game case to be heard by the Supreme Court, the decision marked a significant milestone for the video game and entertainment industries. The beginning of this note will review the history leading up to the passage of the law as well as examine previous attempts by other states to regulate the distribution of violent video games to minors. Most importantly, this note will explore the …

The October 2008 Term: First Amendment And Then Some, Burt Neuborne

Touro Law Review

Liberals must acknowledge a dirty little secret about American constitutional law; a secret that the Warren Court made apparent, though it had existed from the day John Marshall asserted the power of judicial review in a Constitution that says nothing about it. The secret is that there is no serious theory explaining or justifying what courts actually do when they strike down a statute as unconstitutional.

The Warren years were enormously important in moving the country forward. I do not know what we would have done without the wisdom and courage of the Court. But when you start looking for …

Religion, Government, And Law In The Contemporary United States, Daniel O. Conkle

Articles by Maurer Faculty

In this Essay, I discuss the relationship between religion and government in the contemporary United States, addressing the period from the 1940s to the present. In so doing, I explore questions of religious liberty, including the protection of religious “free exercise” as well as the constitutional prohibition on the establishment of religion, a prohibition that sometimes - but not always - has been construed to require a “wall of separation” between church and state. I focus especially on the Supreme Court’s evolving interpretations of the First Amendment during this period, which, I suggest, were influenced by broader religious, cultural, and …

The First Amendment, Gaming Advertisements, And Congressional Inconsistency: The Future Of The Commercial Speech Doctrine After Greater New Orleans Broadcasting Ass'n V. United States, Nicholas P. Consula

Pepperdine Law Review

No abstract provided.

Condoms: The New Medium Of Expression Protected By The First Amendment- People V. Andujar, Leodyne Calixte

Touro Law Review

No abstract provided.

Ambiguity In The Realm Of Defamation: Rhetorical Hyperbole Or Provable Falsity? - Gorilla Coffee, Inc. V. New York Times Co., Tiffany Frigenti

Touro Law Review

No abstract provided.

The First Amendment’S Freedom Of Harassment - People V. Pierre-Louis, Lina R. Carbuccia

Touro Law Review

No abstract provided.

Common Law Constitutionalism, The Constitutional Common Law, And The Validity Of The Individual Mandate, Abigail R. Moncrieff

Law Faculty Articles and Essays

The paper proceeds as follows. Part I describes the constitutional common law and its interactions with common-law constitutionalism. Part II uses the fight over the constitutionality of the Patient Protection and Affordable Care Act (ACA) and its so-called "individual mandate" as a case study to flesh out the core differences between common-law constitutionalism and constitutional common law. Part III argues that a viable justification for a living constitution needs to embrace and defend the courts' essentially political nature, confronting head-on the (skyscraper) originalists' sense that courts should never do politics.

Constitutional Law—First Amendment And Freedom Of Speech—The Constitutionality Of Arkansas’S Prohibition On Political Robocalls, Caleb J. Norris

University of Arkansas at Little Rock Law Review

The note first discusses the pros and cons of robocalls, concluding that certain restrictions on robocalls are desirable. Next, the note examines current constitutional case law governing the issue. Thereafter, the note illustrates how Arkansas's regulation on political robocalls would fail a First Amendment challenge as currently written. Accordingly, the note proposes a revision to the robocall statute that would most likely allow it to pass constitutional review.

The note concludes that the burdens resulting from robocalls are placed upon robocall recipients, opposing political campaigns (especially those that determine not to use them under current law), and unrelated third parties. …

First Amendment Protection For Union Appeals To Consumers, Michael C. Harper

Faculty Scholarship

This article explains why decisions of the National Labor Relations Board under President Obama holding non-picketing secondary appeals to consumers not to be illegal under the National Labor Relations Act were necessary under a 1988 decision of the Supreme Court, Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council. The article also explains why both the Supreme Court decision and the Board’s recent decisions were compelled by the first amendment and could not be based on the language of § 8(b)(4)(ii)(B) of the National Labor Relations Act as interpreted by the Court in other cases. The …

The Future Of The Establishment Clause In Context: A Response To Ledewitz, Christopher C. Lund

Chicago-Kent Law Review

No abstract provided.

Higher Law Secularism: Religious Symbols, Contested Secularisms, And The Limits Of The Establishment Clause, Zachary R. Calo

Chicago-Kent Law Review

There are two dominant traditions of understanding the secular, both with long genealogical resonance in western thought: Christian secularity and secularism. The former links the secular to a theological narrative, while the latter defines the secular as standing over and against religion. Constitutional debate has commonly framed the issue of religious symbols as demanding resolution in favor of one of these traditions. Rather than offering a way to overcome the divide and the culture war it generates, the Court's jurisprudence has instead concretized the binary. Only by cultivating a new understanding of the secular in law might there emerge an …

The Constitutional Politics Of The Establishment Clause, Richard Albert

Chicago-Kent Law Review

In these reflections presented at a Symposium hosted by Duquesne University School of Law on "The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?" I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court's recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts—national interdiction, congressional disability, and …

Toward A Meaning-Full Establishment Clause Neutrality, Bruce Ledewitz

Chicago-Kent Law Review

Some form of government neutrality toward religion, in contrast to a more pro-religion stance or a turn toward nonjusticiability, is the only interpretation of the Establishment Clause that can potentially lead to a national consensus concerning the proper role of religion in American public life. But to achieve that goal, neutrality theory must acknowledge and engage the need for the expressions of deep meaning on public occasions and in the public square generally. Current neutrality doctrine promotes a silent and empty public square. This article proposes an interpretation of neutrality that would allow a symbol-rich, meaning-full public square without violating …