First Amendment Commons^™

Terrorism And The Bill Of Rights, Rodney A. Smolla

Law Faculty Publications

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 J oumal 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. …

From Hit Man To Encylcopedia Of Jihad: How To Distinguish Freedom Of Speech From Terrorist Training, Rodney A. Smolla

Law Faculty Publications

Late last summer, Professor F. Jay Dougherty invited me to participate in "Tune In, Turn On, Cop Out? The Media and Social Responsibility," the Fourth Annual Entertainment Law Symposium sponsored by Loyola Law School of Los Angeles. I learned that one of the issues to be examined was media liability for violent audience behavior, exploring from both social science and legal perspectives the alleged link between violent speech and violent conduct. Little did I or Professor Dougherty or anyone connected to the conference then know that within weeks a catastrophic terrorist attack on the United States-an attack largely spurred by …

Separating Church And State: Roger Williams And Religious Liberty, Kurt T. Lash

Law Faculty Publications

Roger Williams was a religious bigot. He never met a church pure enough for his brand of Puritanism, and he never found a congregation worthy enough to have him as its pastor. After alienating every potential ally and provoking every critic, Williams was forced to flee to the wilds of Narragansett Bay in present-day Rhode Island. There, he preached to his remaining congregation- his family- and supported laws prohibiting men from wearing long hair.

In Timothy Hall's illuminating book, the reader is confronted with a flesh and blood Roger Williams who is rather different from the modern myth. Although Williams …

Jury Trials And First Amendment Values In "Cyber World", John E. Nowak

University of Richmond Law Review

In the past half-century, I suspect, enough trees to constitute a small forest have been turned into paper simply for discussion of free speech and fair trial issues. I doubt that there is little new to say about how legislatures or courts should be dealing with the subject at the moment. The Supreme Court has been able to work out a series of positions that are at least "good enough for govermnent work" concerning subjects such as attorney speech regulations, closure of trials, courthouse picketing, and protective orders related to the discovery process.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Privacy And Celebrity: An Essay On The Nationalization Of Intimacy, Robert F. Nagel

University of Richmond Law Review

I start from the rather obvious proposition that in recent years the American public has placed a high value on the right of privacy. This general commitment to privacy was what kept Robert Bork, despite his qualifications, off the Supreme Court, and more recently it was what kept William Clinton, despite his behavior, in the White House. Bork's nomination was a threat to the constitutional right to use contraceptives and to choose abortion, while the impeachment charges against Clinton were a threat to the moral distinction between public political life and private sexual behavior. The power that the idea of …

Qualified Intimacy, Celebrity, And The Case For A Newsgathering Privilege, Rodney A. Smolla

University of Richmond Law Review

In this symposium issue Robert Nagel, Diane Zimmerman, Robert O'Neil, and Erwin Chemerinsky explore the intersection of privacy and freedom of the press. In his fascinating inquiry into privacy and celebrity in modern American life, Robert Nagel demonstrates the connection between the American public's strong commitment to privacy and its simultaneous passion for robust protection of freedom of speech. Among his most important insights is the exposure of "pseudo-intimacy" as a principal currency of contemporary celebrity status. Diane Zimmerman, Robert O'Neil, and Erwin Chemerinsky all investigate the legal principles that ought to surround aggressive and surreptitious newsgathering techniques, each in …

The Constitutionality Of Mandatory Public School Community Service Programs, Rodney A. Smolla

Law Faculty Publications

Proposals for public service programs have long had currency in America, and may be gaining a certain millennium momentum in current public debate. While proposals for national public service programs of varying ambition and scope continue to be debated, at the local level a growing number of U.S. public school districts are implementing community service programs for high school students. Community service programs generally require students to complete a specified number of hours of service as a condition for graduation. In a typical program, a student may be required to complete forty to sixty hours of community service with organizations …

Foreword, L. Katherine Murray

University of Richmond Law Review

The University ofRichmond Law Review is pleased to present the seventh annual Allen ChairSymposium issue. Through the generous support of the friends and family of George E. Allen, the annual symposium series provides a forum for discussion of legal issues of national and international significance. This issue ofthe Law Review is the literary complement to the symposium presentations.

I Spy: The Newsgatherer Under Cover, Diane Leenheer Zimmerman

University of Richmond Law Review

Hysteria about the press, like the flu, breaks out periodically, and when it does, few of us are better off for having lived through the experience. We are currently on what I sincerely hope will prove to be the receding edge of the latest epidemic ofpublic outrage about the press, and, as usual, the frenzied state has not brought out the best in either the media or its critics.

Our Imperial First Amendment, Paul D. Carrington

University of Richmond Law Review

I come to the First Amendment not as a member of the cogno- scenti, but as an observer of the secondary effects on judicial institutions of some interpretations of the Amendment made over the last thirty-five years or so. I deplore those specific effects and I will be direct in saying so. But in considering them, I have been struck by the extent of the federal courts' progress in subordinating to their own governance a wide range of other issues of great concern to citizens, all in the name of the First Amendment, a text intended to foster democratic institutions.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

What Passes For Policy And Proof In First Amendment Litigation?, Rodney A. Smolla

University of Richmond Law Review

In this Allen Chair Symposium issue of the University of Richmond Law Review, three outstanding scholars have written provocative pieces on the First Amendment. Professor John Nowak engages in an exercise of constitutional futurism, "'remembering the future" to propose a number of relatively radical alterations of First Amendment doctrine to achieve what he argues should be the appropriate balance between freedom of speech and fair trials in "cyber world." Professor Paul Carrington, arguing that a communitarian right of citizens to self-government is the principal that ought to animate our politics and law, has launched a broadside indictment against contemporary First …

You Can't Always Get What You Want: Government's Good Intentions V. The First Amendment's Prescribed Freedoms In Protecting Children From Sexually-Explicit Material On The Internet, Abbigale E. Bricker

Richmond Journal of Law & Technology

Once a small and diverse community of a handful of government computers, the Internet has expanded to an estimated 157 million users worldwide. According to current studies, the fastest growing user populations on the Internet are thirteen to eighteen year-olds and five to twelve year-olds. In addition, the latest "research . . . predicts that the number of children online [will increase] by 155% between 1998 and 2002."

Protect The Press: A First Amendment Standard For Safeguarding Aggressive Newsgathering, Erwin Chemerinsky

University of Richmond Law Review

Few occu.pations or professions rank lower than reporters in public esteem. In July 1999, Justice Stephen Breyer participated as a panelist at the Ninth Circuit Judicial Conference and was challenged by Associated Press reporter Linda Deutsch about the absence of cameras in the Supreme Court. Justice Breyer explained that the Court did not want to risk its relatively high level of public esteem by placing itself on television. Justice Breyer noted the lack of respect for the media and said that the Court did not want to see its esteem ratings lowered to that of the press.

Ride-Alongs, Paparazzi, And Other Media Threats To Privacy, Robert M. O'Neil

University of Richmond Law Review

When the Supreme Court first addressed the status of "ride- alongs" in late May of this year, the role of the news media could have been treated in any of several ways. The law enforcement officers, who were sued for invasion of privacy because they invited reporters to accompany them while serving an arrest warrant in a private home, offered several extenuations. The presence of journalists, they argued, would provide direct information to the general public about important news events. Moreover, reporters who took part in the arrest could, in a sense, keep the police honest, or at least make …

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, …

Click Here: Web Links, Trademarks And The First Amendment, Christopher E. Gatewood

Richmond Journal of Law & Technology

The World Wide Web has experienced rapid growth during the 1990s, with millions of publishers adding diverse opinions, objectives and page content. The main programming feature that has kept this network of networks from becoming a twisted thicket of web-sites is the hyperlink. These links guide users across the Web by creating connections from page to page and site to site, allowing a reader to follow tangential paths to whatever it is the Web has to offer her. Links provide connections within a site and are also used constantly to travel from one publisher's site to another. Because the linking …

Free Speech In The College Community, Robert M. O'Neil, Rodney A. Small

Richmond Journal of Law & Technology

Robert O'Neil has written the book he was destined to write: Free Speech in the College Community. The former President of the University of Virginia and the University of Wisconsin, O'Neil is a distinguished lawyer and First Amendment scholar who has long been active in disputes involving student speech and academic freedom. He has parlayed those credentials into a book that is both creative and accessible. For both lawyers and non lawyers interested in campus speech issues, there is no better text available.

A Brave New World Of Free Speech: Should Interactive Computer Service Providers Be Held Liable For The Information They Disseminate?, Sarah Becket Boehm

Richmond Journal of Law & Technology

Millions of people worldwide use online services to communicate via e-mail; to post and read messages on bulletin boards; to receive news, financial information and updated sports scores; and to gather information. Nearly anyone with access to the Internet can post information without having the facts verified or the content edited, so it is extremely likely that if they post defamatory material, it can find its way around the world in a matter of minutes. Due to the anonymous nature of the Internet, the author of the defamatory material may never be discovered. Assuming the author cannot be traced, the …

The Collapse And Fall Of Floating Buffer Zones: The Court Clarifies Analysis For Reviewing Speech-Restrictive Injunctions In Schenk V. Pro-Choice Network, Amy E. Miller

University of Richmond Law Review

The freedom of speech, although a predominant First Amendment principle, does not create an absolute right and remains subject to limitations for appropriate reasons, such as when the exercise of free speech encroaches upon the rights of others. Particularly sensitive situations arise when courts impose restrictions upon anti-abortion protestors in an attempt to protect the rights of patients and providers at abortion clinics. Indeed, despite a woman's long established right to obtain an abortion, emotionally charged demonstrations and recurrent anti-choice violence persist outside abortion clinics around the nation. Given that such practices induce stress and other health risks to women …

Will Tabloid Journalism Ruin The First Amendment For The Rest Of Us?, Rodney A. Smolla

Law Faculty Publications

Imagine that we set out to classify news organizations as falling into one of two Platonic "idealized forms," the "serious" journalists on the one hand, and the "tabloid" journalists on the other. In the pursuit of this happy exercise we might attempt to list the attributes that we tend to associate with each of these idealized forms. ...

From Paparazzi To Hidden Cameras: The Aggressive Side Of A Free And Responsible Press, Rodney A. Smolla

Law Faculty Publications

This article examines the complex of cultural effects and possible legal responses in the wake of the Princess of Wales' death. To say that the paparazzi were complicit in her death is to forget that, in spite of their frequently invasive means of obtaining news, these were also the kind of journalists who were complicit in the public celebration of her life. Had the Hutchins Commission this tragedy to include in its deliberations about press responsibility, it likely would have stated its indignation and suggested Diana's death as more evidence that journalists be regulated. But this article argues that aggressive …

The Status Of Constitutional Religious Liberty At The End Of The Millennium, Kurt T. Lash

Law Faculty Publications

I have the privilege of introducing the 1998 Bums Lecture Symposium- Religious Liberty in the Next Millennium: Should We Amend the Religion Clauses of the United States Constitution? My role in this Symposium is to acquaint you with the religion clauses of the Constitution- where they came from- where they've been- and where they seem to be today. Our Symposium contributors, Professors Kent Greenawalt and Robert George will discuss just where they think the religion clauses should go in the future.

The Communications Decency Act: Aborting The First Amendment?, Sheryl L. Herndon L. Herndon

Richmond Journal of Law & Technology

On February 8, 1996, President Clinton signed the Telecommunications Act of 1996 into law and explained that the legislation would "stimulate investment, promote competition, [and] provide open access for all citizens to the Information Superhighway." However, contrary to the goal of "opening wide the door to the Information Age," provisions of the Act violate the Constitution's First Amendment guarantee of freedom of speech by imposing far-reaching new federal criminal liabilities on Americans who exercise their free speech rights on the Internet. In particular, a little-noticed provision of the Act, which expands an 1873 law banning abortion-related speech by criminalizing Internet …

Free Speech & The Internet: The Inevitable Move Toward Government Regulation, James J. Black

Richmond Journal of Law & Technology

The explosive growth in the number of people communicating from computers around the world via the Internet ("Net") has led to the proliferation of another type of speech, namely, scholarly articles on virtually every aspect of the Net and its many influences on life in America. One topic that has received a great deal of attention is the extent to which laws applicable within the geographical territory of the United States may be applied to the freewheeling world of Cyberspace, which knows virtually no geographical limitations. Many commentators in the United States have followed one of two streams of argument: …

Property And The First Amendment, Mark Cordes

University of Richmond Law Review

The last decade has seen an increased recognition of property rights in Supreme Court analysis. This is most evident in the area of takings law, where the Court has on at least four occasions expanded property rights relative to government regulation. Perhaps even more significant than the results themselves has been the Court's tone in these decisions, where it has emphasized that property rights are to be taken seriously and are not a "poor relation" to other constitutional safeguards. This has led some commentators to suggest that recognition of property rights is becoming a primary agenda item of the Court.

Civilizing Religion, Kurt T. Lash

Law Faculty Publications

Is it appropriate to restrict abortion at any stage in pregnancy on the ground that human life is sacred? Should the public square be open to biblical arguments against homosexuality? Or, to frame the issue in a more scholarly fashion: What role may religious arguments play, if any, either in public debate about what political choices to make or as the private basis of a political choice? In his recent book, Religion in Politics: Constitutional and Moral Perspectives, Michael Perry addresses these questions as a matter of constitutional law and political morality. Perry has been down this road before, most …

Federal Broadband Law, John Thorne, Michael K. Kellog, Peter W. Huber, Jeffrey A. Wolfson

Richmond Journal of Law & Technology

The authors of this book have brought together a vast and varied array of experience. Mr. Thorne is the Vice President & Associate General Counsel for Bell Atlantic; Mr. Huber is a Senior Fellow at the Manhattan Institute for Policy Research; and Mr. Kellogg is a Partner at Kellogg, Huber, Hansen & Todd. A reader will find the occasional use of technical jargon, such as "domsats" (domestic satellites), "coax" (coaxial cable), and "syndex" rules (syndicated exclusivity rules to protect syndicated, non-network programming) to be somewhat confusing. "Telcos" and "cablecos" are telephone and cable companies, respectively. Overall, however, technical jargon is …

"Dancing In The Courthouse": The First Amendment Right Of Access Opens A New Round, Eugene Cerruti

University of Richmond Law Review

Shortly after World War II, concern mounted over the government's ability and tendency to institutionalize secrecy in government. The initial concern was with the anti-communist sleuthing of various legislative bodies which dramatized the power of secretly held information to control the public agenda of both domestic and foreign policy debate. From this emerged the call for a more "open" government and the political claim that the electorate had a "right to know"' the information acquired and relied upon by government officials. For the press in particular, "access" increasingly became the watchword, the icon, of the new era. The mounting pressure …