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University of Michigan Law School

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Articles 241 - 270 of 422

Full-Text Articles in First Amendment

Introduction, Lillian R. Bevier Jan 1988

Introduction, Lillian R. Bevier

University of Michigan Journal of Law Reform

The Articles in this Symposium vividly demonstrate that the reason that the pornography debate is no longer at the forefront of national consciousness is surely not that the phenomenon itself has disappeared. Nor is it that we have achieved anything approaching consensus, for we cannot seem to agree even about what pornography is, much less about its harms or benefits. Nor is it even that we have suddenly discovered and begun to deploy, from tools long available in our legal arsenal, enforcement strategies promising cures less harmful than the disease. Quite the . contrary. As the editors of this journal …

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The Right To Speak, The Right To Hear, And The Right Not To Hear: The Technological Resolution To The Cable/Pornography Debate, Michael I. Meyerson Jan 1988

The Right To Speak, The Right To Hear, And The Right Not To Hear: The Technological Resolution To The Cable/Pornography Debate, Michael I. Meyerson

University of Michigan Journal of Law Reform

This Article concludes that the power of government to regulate cable pornography is limited to that which is legally obscene. Part I reviews Supreme Court cases delineating the relationship between the rights of privacy in the home and of freedom of speech. Part II demonstrates that the technology of cable television provides the solution to the pornography dilemma. Cable television preserves both privacy and speech interests because individual subscribers can be given the physical means to block out programming they find personally offensive without affecting the ability of others to receive that programming. Where such accommodation of interests is permissible, …

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Symbols, Perceptions, And Doctrinal Illusions: Establishment Neutrality And The "No Endorsement" Test, Steven D. Smith Nov 1987

Symbols, Perceptions, And Doctrinal Illusions: Establishment Neutrality And The "No Endorsement" Test, Steven D. Smith

Michigan Law Review

Section I of this article briefly describes the emergence and development of the "no endorsement" test. Section II then seeks to show that the test is deficient as doctrine, and thus incapable of providing the clarity and coherence that current doctrine so sorely lacks. Section III considers various likely theoretical justifications for the "no endorsement" proposal, including the justification advanced by Justice O'Connor, and concludes that these justifications, like the test itself, are seriously flawed. This conclusion provokes a question: If the "no endorsement" test is doctrinally deficient and without theoretical justification, why has it elicited such widespread enthusiasm? Section …

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Cable Television Rights Of Way: Technology Expands The Concept Of Public Forum, Lawrence E. Spong Jun 1987

Cable Television Rights Of Way: Technology Expands The Concept Of Public Forum, Lawrence E. Spong

University of Michigan Journal of Law Reform

This Note argues that the public forum analysis is the proper standard for evaluating a cable television company's claim of access to public rights of way. Part I discusses the constitutional basis for this standard. Part II examines the ideological justifications for the public forum doctrine and argues that public rights of way are public forums for cable television purposes. In addition, it explains the application of the public forum doctrine to cable access questions and the doctrine's advantages over other standards.

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Restricting Adult Access To Material Obscene As To Juveniles, Ann H. Coulter Jun 1987

Restricting Adult Access To Material Obscene As To Juveniles, Ann H. Coulter

Michigan Law Review

This Note considers whether state regulations that restrict juvenile access to material that is obscene as to minors unconstitutionally encroach upon the first amendment rights of adults. Part I briefly describes the Court's opinion in Ginsberg. Part II introduces the "O'Brien analysis" and discusses the aspects of juvenile access restrictions that tend to make O'Brien scrutiny applicable. In this context the frequently relaxed judicial review of governmental restrictions on sexually related material will be discussed. Having concluded that the O'Brien analysis is applicable to access restrictions, Part III applies the test and ultimately concludes that juvenile access restrictions survive …

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Law. Liberalism And Free Speech, M. Sean Laane May 1987

Law. Liberalism And Free Speech, M. Sean Laane

Michigan Law Review

A Review of Law, Liberalism and Free Speech by D.F.B. Tucker

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Freedom Of Speech, Melissa H. Maxman May 1987

Freedom Of Speech, Melissa H. Maxman

Michigan Law Review

A Review of Freedom of Speech by Eric Barendt

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Tolerance Theory And The First Amendment, James L. Oakes May 1987

Tolerance Theory And The First Amendment, James L. Oakes

Michigan Law Review

A Review of The Tolerant Society: Free Speech and Extremist Speech in America by Lee C. Bollinger

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"In Stark Contravention Of Its Purpose": Federal Communications Commission Enforcement And Repeal Of The Fairness Doctrine, Michael J. Bolton Apr 1987

"In Stark Contravention Of Its Purpose": Federal Communications Commission Enforcement And Repeal Of The Fairness Doctrine, Michael J. Bolton

University of Michigan Journal of Law Reform

This Note analyzes current FCC policy to determine whether the agency violated its statutory purpose and acted unlawfully by restricting and later repealing the fairness doctrine. Because the Commission's attack on the doctrine has been based, in part, on conclusions drawn from the doctrine's history, Part I examines prior FCC enforcement of the fairness doctrine. Part II views the Commission's contemporary enforcement and repeal of the doctrine. Finally, Part III assesses Commission action in light of its legislative mandate and administrative law standards of judicial review to conclude that the FCC both violated its administrative responsibilities by deemphasizing enforcement of …

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American Indian Sacred Religious Sites And Government Development: A Conventional Analysis In An Unconventional Setting, Mark S. Cohen Feb 1987

American Indian Sacred Religious Sites And Government Development: A Conventional Analysis In An Unconventional Setting, Mark S. Cohen

Michigan Law Review

For centuries, American Indians have regarded specific lands as essential to their livelihood, government, culture, and religion. Congress and the courts have at times recognized the important relationship between tribes and their lands. Recognition has not always coincided with protection; during the nineteenth century and part of the twentieth century a series of governmental actions resulted in the tribes surrendering title and possession to many of their ancestral lands. Recently, however, American Indians have become increasingly active litigants in a variety of contexts. In one set of cases, Indians challenged government development projects on public lands, contending that because the …

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Expanding The Scarcity Rationale: The Constitutionality Of Public Access Requirements In Cable Franchise Agreements, Debora L. Osgood Oct 1986

Expanding The Scarcity Rationale: The Constitutionality Of Public Access Requirements In Cable Franchise Agreements, Debora L. Osgood

University of Michigan Journal of Law Reform

This Note argues that public access requirements should be upheld because they are constitutional and because they further the goals of the first amendment. As background for the debate over public access, Part I provides a brief description of cable television's history and regulation and discusses the case law concerning public access requirements. Part II examines the nature of the first amendment interests at stake in public access requirements. Before resolving the question of which interests should be protected, Part III argues that an expanded scarcity rationale should be used to justify cable regulation under the first amendment. Part IV …

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Free Speech And Corporate Freedom: A Comment On First National Bank Of Boston V. Bellotti, Carl E. Schneider Sep 1986

Free Speech And Corporate Freedom: A Comment On First National Bank Of Boston V. Bellotti, Carl E. Schneider

Articles

The corporation was born in chains but is everywhere free. That freedom was recently affirmed by the United States Supreme Court in First National Bank of Boston v. Bellotti. In Bellotti, the Court overturned a Massachusetts criminal statute forbidding banks and business corporations to make expenditures intended to influence referenda concerning issues not "materially affecting" the corporation's "property, business, or assets." In doing so, the Court confirmed its discovery that commercial speech is not unprotected by the first amendment and announced a novel doctrine that corporate speech is not unprotected by the first amendment. Although several years have …

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Intentional Infliction Of Emotional Distress By Spiritual Counselors: Can Outrageous Conduct Be "Free Exercise"?, Lee W. Brooks May 1986

Intentional Infliction Of Emotional Distress By Spiritual Counselors: Can Outrageous Conduct Be "Free Exercise"?, Lee W. Brooks

Michigan Law Review

Part I explains the extent to which courts are competent to decide the threshold question of whether particular conduct is religious. Part II describes the balancing test put forward by the Supreme Court for evaluating free exercise claims, and derives criteria relevant to spiritual counseling from cases involving such claims. Part III summarizes the pertinent criteria and reviews the ways they may be employed to systematize the treatment of spiritual counseling cases.

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Religion And The Burger Court, Rex E. Lee Apr 1986

Religion And The Burger Court, Rex E. Lee

Michigan Law Review

A Review of Religion, State and the Burger Court by Leo Pfeffer

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Levy Vs. Levy, David A. Anderson Apr 1986

Levy Vs. Levy, David A. Anderson

Michigan Law Review

A Review of Emergence of a Free Press by Leonard W. Levy

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Interpretations Of The First Amendment, Abner S. Greene Apr 1986

Interpretations Of The First Amendment, Abner S. Greene

Michigan Law Review

A Review of Interpretations of the First Amendment by

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Religious Convictions And Lawmaking, Kent Greenawalt Dec 1985

Religious Convictions And Lawmaking, Kent Greenawalt

Michigan Law Review

In Part I, I introduce the subject of liberal democracy, rationality, and religion. I explain briefly why this subject merits our attention. I then indicate variant positions about it and my own summary conclusions. I develop a partial model of our liberal democracy from which the issue can be addressed in context. I next consider two kinds of concrete social issues, consenting sexual acts among adults and the protection of animals and the natural environment. During this treatment I indicate more fully how religious convictions affect judgments about desirable laws, and I analyze the claim that good citizens should not …

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Administrative Regulation Of The High School Press, Michigan Law Review Dec 1984

Administrative Regulation Of The High School Press, Michigan Law Review

Michigan Law Review

This Note examines the constitutional limits on administrative regulation of publications by and for public high school students. Part I discusses the widely divergent standards adopted by different circuits. Part II describes the hard line the Supreme Court has taken against restraints on free expression in the adult context and the different circumstances that justify limiting freedom of expression in high schools. Part III discusses the timing of administrative regulation of student speech. This Part argues that prior restraint is constitutionally acceptable and, in fact, preferable to subsequent punishment so long as its use is governed by proper criteria. Part …

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Backing Off Bivens And The Ramifications Of This Retreat For The Vindication Of First Amendment Rights, Joan Steinman Nov 1984

Backing Off Bivens And The Ramifications Of This Retreat For The Vindication Of First Amendment Rights, Joan Steinman

Michigan Law Review

In Part I of this Article, Chappell and Bush are analyzed against the backdrop of the preceding Bivens cases. The analysis explains how these cases presented situations that were similar to one another but unlike any the Supreme Court previously had faced in Bivens cases. It demonstrates how the Court departed from the line of analysis that its previous Bivens cases had established, in a way that makes it more difficult for at least some plaintiffs seeking vindication of their constitutional rights to succeed in having a money damage remedy implied directly under the Constitution. The Article then argues that …

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Freedom Of Association After Roberts V. United States Jaycees, Douglas O. Linder Aug 1984

Freedom Of Association After Roberts V. United States Jaycees, Douglas O. Linder

Michigan Law Review

The decision of the U.S. Supreme Court in Roberts v. United States Jaycees, upholding a Minnesota ruling which requires the Minnesota Jaycees to admit women as full members, ended one controversy but marked only the beginning of a far larger one. It was predicted by many that U.S. Jaycees would answer the question of whether private associations with restrictive membership policies were vulnerable to state anti-discrimination laws or were constitutionally protected. It did not. Instead, while rejecting the Jaycees' constitutional claims, the Court established a comprehensive framework for analyzing future claims of associational freedom that contains a number of …

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The Press And The Public Interest: An Essay On The Relationship Between Social Behavior And The Language Of First Amendment Theory, Lee C. Bollinger May 1984

The Press And The Public Interest: An Essay On The Relationship Between Social Behavior And The Language Of First Amendment Theory, Lee C. Bollinger

Michigan Law Review

I would like to explore in this essay one aspect of the contemporary American debate over the theory of freedom of speech and press. The subject I want to address is this: whether the principle of freedom of speech and press should be viewed as protecting some personal or individual interest in speaking and writing or whether it should be seen as fostering a collective or public interest. Sometimes this issue is stated as being whether the first amendment protects a "right to speak" or a "right to hear," though in general the problem seems to be whether we should …

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In Search Of A Free Speech Principle, Mark G. Yudof Feb 1984

In Search Of A Free Speech Principle, Mark G. Yudof

Michigan Law Review

A Review of Free Speech: A Philosophical Enquiry by Frederick Schauer

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Secondary Consumer Picketing, Statutory Interpretation And The First Amendment, Michigan Law Review Aug 1983

Secondary Consumer Picketing, Statutory Interpretation And The First Amendment, Michigan Law Review

Michigan Law Review

This Note examines both the statutory and constitutional implications of Safeco and Tree Fruits. It suggests that the confusion surrounding existing Board and court interpretations of section 8(b)(4)(ii)(B) stems from the Supreme Court's failure to assess realistically the impact that consumer picketing has on secondary businesses, as well as the Court's refusal to examine the objectives of unions that resort to secondary picketing.

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Soliciting Sophisticates: A Modest Proposal For Attorney Solicitation, Victor P. Filippini Jr. Apr 1983

Soliciting Sophisticates: A Modest Proposal For Attorney Solicitation, Victor P. Filippini Jr.

University of Michigan Journal of Law Reform

This Note advocates an amendment to the ethical standards governing attorneys that will permit the personal solicitation for pecuniary gain of sophisticated prospective clients - that is, those persons having general knowledge of their legal needs and the expertise to assess adequately the information and presentation of an attorney. Part I of this Note shows that lawyer solicitation is a form of commercial speech under recent Supreme Court decisions. It also asserts that, though the traditional reasons for banning lawyer solicitation still have some validity, these reasons do not justify prohibiting the solicitation of sophisticated clients. Part II suggests some …

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Speech And Law In A Free Society, Michigan Law Review Mar 1983

Speech And Law In A Free Society, Michigan Law Review

Michigan Law Review

A Review of Speech and Law in a Free Society by Franklyn S. Haiman

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The First Amendment Reconsidered: New Perspectives On The Meaning Of Freedom Of Speech And Press, Michigan Law Review Mar 1983

The First Amendment Reconsidered: New Perspectives On The Meaning Of Freedom Of Speech And Press, Michigan Law Review

Michigan Law Review

A Review of The First Amendment Reconsidered: New Perspectives on the Meaning of Freedom of Speech and Press edited by Bill F. Chamberlin and Charlene J. Brown

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The Doctrine Of Prior Restraint Since The Pentagon Papers, James L. Oakes Apr 1982

The Doctrine Of Prior Restraint Since The Pentagon Papers, James L. Oakes

University of Michigan Journal of Law Reform

The purpose of this speech is to examine how the doctrine against prior restraint has evolved since the Pentagon Papers case. I intend to demonstrate that while traditional antipathy to prior restraint has for the most part remained strong, several recent cases foreshadow a dangerous expansion of well-established exceptions to the doctrine. To understand fully the significance of these recent cases, I will begin this lecture with a general discussion of the historical origins of the doctrine against prior restraint. I will then proceed with a critical overview of the landmark Pentagon Papers case, more formally called New York Times …

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Protecting The Free Speech Rights Of Insurgent Teachers' Unions: Evaluating The Constitutionality Of Exclusive Access To School Communications Facilities, Stephen E. Woodbury Apr 1982

Protecting The Free Speech Rights Of Insurgent Teachers' Unions: Evaluating The Constitutionality Of Exclusive Access To School Communications Facilities, Stephen E. Woodbury

University of Michigan Journal of Law Reform

Part I examines the traditional and limited public forum doctrines designed to guarantee speakers a right of access to public places, and finds these theories inadequate in the school union setting. Part II explores a recent addition to the free speech/equal protection analysis: the content neutrality doctrine. This doctrine mandates that when a school board allows one union to express its viewpoints, a duty is created to provide equivalent access to all unions, absent a compelling state interest. Part III reviews several justifications for limiting non-EBA access, and finds most of them without merit and none of them adequate to …

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The Skokie Legacy: Reflections On An "Easy Case" And Free Speech Theory, Lee C. Bollinger Mar 1982

The Skokie Legacy: Reflections On An "Easy Case" And Free Speech Theory, Lee C. Bollinger

Michigan Law Review

A Review of Defending My Enemy: American Nazis, the Skokie Case, and the Risks of Freedom by Aryeh Neier

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Teaching The Theories Of Evolution And Scientific Creationism In The Public Schools: The First Amendment Religion Clauses And Permissible Relief, J. Greg Whitehair Jan 1982

Teaching The Theories Of Evolution And Scientific Creationism In The Public Schools: The First Amendment Religion Clauses And Permissible Relief, J. Greg Whitehair

University of Michigan Journal of Law Reform

This Note explores the propriety of teaching the theory of evolution and the scientific creation model in public elementary and secondary schools. Part I discusses the powers of the state and its political subdivisions to set public school policy and curriculum content and the extent to which those powers are circumscribed by the religion clauses of the first amendment. Part I concludes that the religion clauses permit the teaching of evolutionary theory in public schools. Part II examines the variety of judicial and legislative relief potentially available to creationists where the teaching of evolution theory interferes with their religious beliefs …

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