First Amendment Commons^™

Commercial Slogans: The First Amendment Should Shield Their Use In Campaign Speech, Raena L. Smith

William & Mary Bill of Rights Journal

Commercial slogans and trademarks are increasingly finding their way into every aspect of the American vernacular, including speech by political officials and candidates. A previous published Note in the Journal of Law and Politics has argued that such speech should be restricted as it infringes upon the copyright or trademark holder's rights established both under federal and state law. This Note takes the opposing view, arguing that, even if campaign speech falls under the purview of federal or state statutes, the First Amendment prevents the application of laws to restrict campaign speech.

The Unusual Suspects: Journalists As Thieves, William E. Lee

William & Mary Bill of Rights Journal

The publication of confidential information by the press stands in stark contrast to the press' dedication to protecting the confidentiality of sources. While the Supreme Court has taken the position that the press may publish confidential information acquired through "routine" newsgathering methods, the contours of the phrase "routine " newsgathering methods are poorly defined In this Article, Professor Lee describes the link between the manner in which information is obtained and the First Amendment's protection of the publication of the information. He concludes that the proper analysis would separate the interests affected by publication from the interests affected by illegal …

Cable Internet Unbundling: Local Leadership In The Deployment High Speed Access, Marcus Maher

Federal Communications Law Journal

With the pending merger of TCI and AT&T and their promise of "one-stop" television, Internet, and telephone service, the cable Internet issues move to the forefront. The desire of traditional Internet Service Providers to gain access to new high-speed technologies for Internet access led to requests for unbundling or open access to cable systems. Despite the heated debate on the need for unbundling that has occurred at the federal level, local authorities have taken the lead in requiring open access to cable for competing ISPs. General anticompetitive concerns with cable Internet dominated by the cable company could be alleviated in …

The Constitutionality Of The Driver’S Privacy Protection Act: A Fork In The Information Access Road, Angela R. Karras

Federal Communications Law Journal

The Driver's Privacy Protection Act, instituted in 1997, regulates the disclosure of personal information in motor vehicle records. New controversy surrounds it today as the U.S. Supreme Court evaluates the arguments presented in November 1999 regarding its constitutionality. A split among circuit courts, coupled with the tremendous growth in technology and subsequent new in-roads for information access, draw increased attention toward the Act. The concern for information access in light of the Act, however, reaches beyond the courts' elucidated concerns about dual sovereignty and the public's right to privacy. This Note argues that there is a forgotten argument: the Act's …

Intermediate Questions Of Religious Exemptions - A Research Agenda With Test Suites, Eugene Volokh

Cardozo Law Review

No abstract provided.

Zoning Speech On The Internet: A Legal And Technical Model, Lawrence Lessig, Paul Resnick

Michigan Law Review

Speech, it is said, divides into three sorts - (1) speech that everyone has a right to (political speech, speech about public affairs); (2) speech that no one has a right to (obscene speech, child porn); and (3) speech that some have a right to but others do not (in the United States, Ginsberg speech, or speech that is "harmful to minors," to which adults have a right but kids do not). Speech-protective regimes, on this view, are those where category (1) speech predominates; speech-repressive regimes are those where categories (2) and (3) prevail. This divide has meaning for speech …

Constitutional Law—First Amendment Rights Of Direct Democracy Participants Versus The State's Interest In Regulating The Election Process. Buckley V. American Constitutional Law Foundation, Inc., 119 S. Ct. 636 (1999)., Jennifer Modersohn

University of Arkansas at Little Rock Law Review

No abstract provided.

Religion And Democracy, Steven H. Shiffrin

Cornell Law Faculty Publications

Should citizens armed with religious reasons for public policy outcomes present those reasons in the public forum or otherwise rely on them in making decisions? Those questions have produced a flurry of scholarship, both within and outside of the law. Moreover, as Kent Greenawalt's work richly demonstrates, these related questions raise many more questions still. Do the answers to those questions differ, for example, if the citizen is a judge, a legislator, a columnist, a religious leader, or a "mere" voter? Are some religious reasons acceptable for presentation in a public forum, but not others?

If one holds a constricted …

National Endowment For The Arts V. Finley: First Amendment Free Speech No Longer Guaranteed For The Arts, Andrea Mccoy

Mercer Law Review

In National Endowment for the Arts v. Finley, the United States Supreme Court confronted the decency and respect criteria of the 1990 Amendment ("Amendment") to the National Foundation on the Arts and Humanities Act of 1965. At issue was whether the Amendment violated the First and Fifth Amendments of the United States Constitution by impermissibly discriminating based on viewpoint and being void for vagueness. The Supreme Court upheld the Amendment as facially valid.

Television In The Courtroom: Mightier Than The Pen?, Richard P. Matsch

Michigan Law Review

In his Introduction, author Ronald L. Goldfarb explains that his purpose is to address all the arguments advanced against televised trials, cover the points made by proponents of televised trials, and find a sensible solution to what he believes is the fundamental issue: "How can we best blend new media technologies with our traditional and revered commitment to democracy and justice?" (p. xxiv). He ends the book with this prospective paragraph: "I expect that all the courtrooms of the future - state and federal, trial and appellate - will be equipped with cameras. I suggest that all trials should be …

The Qualities Of Completeness: More? Or Less?, Mark R. Killenbeck

Michigan Law Review

On January 14, 1983, Chief Judge W. Brevard Hand announced what he knew would be widely regarded as a rather startling proposition. Believing that "[t]he first amendment in large part was a guarantee to the states which insured that the states would be able to continue whatever church-state relationship existed in 1791," Judge Hand held that the people of Alabama were perfectly free to "establish[] a religion," in this instance by allowing public school teachers to begin the school day with prayer. The ruling reversed an earlier decision in the same case, which characterized the statutory provision at issue as …

Punishing Hateful Motives: Old Wine In A New Bottle Revives Calls For Prohibition, Carol S. Steiker

Michigan Law Review

Hate crimes are nothing new: crimes in which the victim is selected because of the victim's membership in some distinctive group (be it racial, ethnic, religious, or other) have been with us as long as such groups have coexisted within legal systems. What is relatively new is their recognition and designation as a discrete phenomenon. But as appellations like "sexual harassment" and "community policing" have begun to teach us, words are only the beginning of the life cycle of a new socio-legal concept. What follows are debates about whether the new category is really a coherent one, what activities should …

The Convergence Of The First Amendment And Vatican Ii On Religious Freedom, Robert F. Drinan S.J.

Michigan Law Review

Did the United States radiate the views of James Madison on the free exercise of religion to the world? That, in essence, is the main thrust of this provocative study by John T. Noonan, Jr., Professor Emeritus at the University of California Law School, Berkeley, and a Senior Judge of the U.S. Court of Appeals for the Ninth Circuit. Noonan is, of course, the author of magisterial books on abortion, birth control, legal ethics, and related issues. He writes as a committed Catholic who takes pride in the religion that he learned as a child in his native Brookline, Massachusetts. …

Monuments To The Past In A Leveling Wind, Benjamin Means

Michigan Law Review

Early in the twentieth century, the Emperor Franz Joseph sponsored a monument to Hungary's history - a Millennium Monument containing statues of the country's heroes, as well as statues of the proud sponsor and his family (p. 5). When the communists took over in 1919, the statues of Franz Joseph and the rest of the Hapsburgs were dragged out of the Millennium Monument and replaced with more politically correct statuary (p. 8). Counterrevolutionaries, though, retook the country and reinstated the Hapsburg Statues in the Millennium Monument - until a later regime once again reshuffled the millennial display (pp. 9-10). Professor …

Roger Williams's Gift: Religious Freedom In America, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

A Reply, Marci A. Hamilton

Articles

It is not often that one gets such immediate (and lengthy) written responses to one's work. It is both humbling and a blessing. My five interlocutors have offered me the opportunity to gaze at my own work as it is reflected in five different pools. I like some of what I see, do not recognize some of it, and will refine other aspects in this brief reply. My only regret is that I simply cannot in the space of a reply respond to many of the interesting and worthy points raised.

Aggressive Newsgathering And The First Amendment, Erwin Chemerinsky, Robert Nagel, Robert O'Neil, Diane Zimmerman

University of Richmond Law Review Symposium

The University of Richmond School of Law sponsored the "Aggressive Newsgathering and the First Amendment." The symposium covered such topics as surreptitious newsgathering techniques, the constitutionality of recent proposed legislation regarding paparazzi, and the question of the appropriate dividing line, if any, between public and private life. The symposium featured a mix of scholars, journalist, lawyers, judges, and public figures, who discussed these issues in three sessions. Scholarly papers generated by the symposium were published in 33 U. Rich. L. Rev. 1143 (1999). The authors of those papers also participated in the symposium proceedings and they were:

Professor Erin Chemerinsky, …

Betting On The Net: An Analysis Of The Government’S Role In Addressing Internet Gambling, Stevie A. Kish

Federal Communications Law Journal

The Internet Gambling Prohibition Act represents the U.S. Senate’s response to the development of a new online industry—Internet gambling. While this ban could arguably reduce the dangers associated with Internet gambling, such as fraud and addiction, it can only do so by exacting a substantial cost on principles of federalism. Rather than enacting this federal prohibition, Congress should instead leave the issue of whether Internet gambling should be legalized to the states.

The Brandeis Gambit: The Making Of America's "First Freedom," 1909-1931, Bradley C. Bobertz

William & Mary Law Review

No abstract provided.

Menacing Speech And The First Amendment: A Functional Approach To Incitement That Threatens, John A. Rothchild

Law Faculty Research Publications

Constitutional rules of protection cannot be based on purely formal distinctions among modes of utterance that are inattentive to the way the communications actually function....

Controversial Speakers On Campus: Liberties, Limitations, And Common-Sense Guidelines, Kenneth Lasson

St. Thomas Law Review

This article reviews the historical context of controversial speakers on campus, examines various liberties and limitations accorded them under the Constitution, and suggests clear and effective standards for dealing with contentious speech in an academic setting.

Shadow Law: Reasonable Unreasonableness, Habeas Theory, And The Nature Of Legal Rules, 2 Buff. Crim. L. Rev. 535 (1999), Alan K. Chen

Sturm College of Law: Faculty Scholarship

The article explores from both doctrinal and theoretical perspectives the interpretation of 28 U.S.C. 2254(d)(1), a section of the Antiterrorism and Effective Death Penalty Act of 1996 that severely curtailed the scope of federal habeas corpus review of state court convictions. The article argues that Congress intended 2254(d)(1) to dramatically change habeas law by codifying an extraordinarily deferential reasonableness standard of review imported from the law of qualified immunity. This interpretation, while controversial, was precisely how five members of the Supreme Court viewed the meaning of the statute in Williams v. Taylor, 529 U.S. 362 (2000), which was decided after …

Nea V. Finley: A Decision In Search Of A Rationale, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

Debate has raged over whether Congress can constitutionally restrict, or at least influence, the ability of the National Endowment for the Arts (“NEA”) to award grants to artists and institutions for the creation or display of art work that a significant segment of the public would consider highly offensive. In the October 1997 Term, the Supreme Court, by an 8-1 margin in NEA v. Finley, upheld section 954(d), a 1991 congressional amendment to the NEA Act that requires the Chairperson of the NEA to ensure that, in establishing regulations and procedures for assessing artistic excellence and artistic merit, “general standards …

State Laws Criminalizing Female Circumcision: A Violation Of The Equal Protection Clause Of The Fourteenth Amendment, 32 J. Marshall L. Rev. 353 (1999), Shea Lita Bond

UIC Law Review

No abstract provided.

Local Government Land Use Restrictions And Selected First Amendment Issues, Barbara Jo Nelson

LLM Theses and Essays

A local government's power to enact zoning regulations falls within the general power to provide for the health, safety, and welfare of its citizenry. This thesis addresses a few selected First Amendment issues as they apply to zoning and land use restrictions in Georgia. Free speech review of zoning ordinances applies to zoning for adult sex businesses, such as adult book stores and cinemas. The First Amendment balancing test that is applicable to adult entertainment ordinances is discussed in Chapter One. The free speech impact of restrictions on signs and billboards is discussed in Chapter Two. Finally, in Chapter Three, …

Antidiscrimination Laws & Artistic Expression, Steven H. Shiffrin, Gregory R. Smith

Cornell Law Faculty Publications

Some Realistic Thinking About Secular Effects, Paul E. Salamanca

Law Faculty Scholarly Articles

Notwithstanding complaints about incoherence in Establishment Clause doctrine, courts by and large administer the Clause responsibly. They do so by mediating between a number of powerful considerations, none of which can ever be entirely disregarded. These considerations include, but are not limited to, separation of church and state, the value of religiosity, the imperative of affording equal treatment to religious and similarly situated nonreligious entities, and the proper role of courts in a democratic political system. This is not to say that courts cannot overstep their bounds and provoke an adverse reaction from other powerful elements within the polity. It …

Regionalism And The Religion Clauses: The Contribution Of Fisher Ames, Marc Arkin

Faculty Scholarship

On August 20, 1789, Massachusetts Federalist Fisher Ames rose to address the House of Representatives in one of his rare contributions to the debate on the Bill of Rights. 1 The day before, sitting as a Committee of the Whole, the House had concluded its brief discussion of the proposed religion amendment to the federal Constitution by agreeing to New Hampshire Representative Samuel Livermore's formula that "Congress shall make no laws touching religion, or infringing the rights of conscience." 2 Now, on the 20th, before the House could formally adopt Livermore's language, Representative Ames proposed a different wording. He moved …

The Establishment Clause And Government Religious Displays: The Court That Stole Christmas, Jennifer H. Greenhalgh

Touro Law Review

No abstract provided.

The Right To Know?: Delimiting Database Protection At The Juncture Of The Commerce Clause, The Intellectual Property Clause And The First Amendment, Malla Pollack

Cardozo Arts & Entertainment Law Journal

No abstract provided.