First Amendment Commons^™

Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan

Washington Law Review

The torts of negligent hiring, supervision, and retention place a duty on employers to prevent their employees from using the places, things, or tasks entrusted to them to harm foreseeable victims. The negligent employment torts create an independent duty under which plaintiffs may pursue an action when suits brought under a vicarious liability or breach of fiduciary duty theory would fail. For victims of sexual misconduct by religious leaders, negligent supervision claims against religious organizations are a crucial means of remedying serious and lasting injuries. Washington state law recognizes negligent supervision, and Washington courts have applied it to religious organizations, …

Staying Neutral: How Washington State Courts Should Approach Negligent Supervision Claims Against Religious Organizations, Kelly H. Sheridan

Washington Law Review

The torts of negligent hiring, supervision, and retention place a duty on employers to prevent their employees from using the places, things, or tasks entrusted to them to harm foreseeable victims. The negligent employment torts create an independent duty under which plaintiffs may pursue an action when suits brought under a vicarious liability or breach of fiduciary duty theory would fail. For victims of sexual misconduct by religious leaders, negligent supervision claims against religious organizations are a crucial means of remedying serious and lasting injuries. Washington state law recognizes negligent supervision, and Washington courts have applied it to religious organizations, …

Media Subpoenas: Impact, Perception, And Legal Protection In The Changing World Of American Journalism, Ronnell Andersen Jones

Washington Law Review

Forty years ago, at a time when the media were experiencing enormous professional change and a surge of subpoena activity, First Amendment scholar Vincent Blasi investigated the perceptions of members of the press and the impact of subpoenas within American newsrooms in a study that quickly came to be regarded as a watershed in media law. That empirical information is now a full generation old, and American journalism faces a new critical moment. The traditional press once again finds itself facing a surge of subpoenas and once again finds itself at a time of intense change—albeit on a different trajectory—as …

Four-Factor Disaster: Courts Should Abandon The Circuit Test For Distinguishing Government Speech From Private Speech, Lilia Lim

Washington Law Review

A recent addition to First Amendment jurisprudence, the government-speech doctrine was developed by the Supreme Court to insulate government speech from certain First Amendment challenges. Broadly, the doctrine rests on the notion that when the government speaks for itself, it may say what it wishes. Recently, government entities facing claims of viewpoint discrimination against speech have asserted a government-speech defense, claiming that their viewpoint-based actions were justifiable because they were not regulating private speech but speaking for themselves. Several federal courts deciding these cases have applied a circuit-developed, four-factor test to determine whether the speech at issue was private speech …

Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang

Washington Law Review

The First Amendment to the United States Constitution guarantees the right to free speech. The guarantee is not absolute, however, and the U.S. Supreme Court has said that the First Amendment does not fully protect student speech in public schools. In Bethel School District v. Fraser, the Court held that schools could regulate "plainly offensive" speech. Circuit courts have interpreted and applied Fraser in an inconsistent manner, disagreeing as to what constitutes plainly offensive speech. The resulting case law is confusing and fails to provide lower courts with a clear analytical framework for evaluating First Amendment challenges to regulations …

Plainly Offensive Babel: An Analytical Framework For Regulating Plainly Offensive Speech In Public Schools, Jerry C. Chiang

Washington Law Review

The First Amendment to the United States Constitution guarantees the right to free speech. The guarantee is not absolute, however, and the U.S. Supreme Court has said that the First Amendment does not fully protect student speech in public schools. In Bethel School District v. Fraser, the Court held that schools could regulate "plainly offensive" speech. Circuit courts have interpreted and applied Fraser in an inconsistent manner, disagreeing as to what constitutes plainly offensive speech. The resulting case law is confusing and fails to provide lower courts with a clear analytical framework for evaluating First Amendment challenges to regulations …

Nineteenth-Century Free Exercise Jurisprudence And The Challenge Of Polygamy: The Relevance Of Nineteenth-Century Cases And Commentaries For Contemporary Debates About Free Exercise Exemptions, Clark B. Lombardi

Articles

Does the Free Exercise Clause of the U.S. Constitution require judges to exempt religious objectors from the application of nondiscriminatory and otherwise applicable laws? Over the last twenty years, judges and academics have debated fiercely whether the Clause should be interpreted to provide religiously observant citizens with a right to “free exercise exemptions.” The debate has led indirectly to a new interest in nineteenth-century views on free exercise jurisprudence. In this Article, I will examine the scholarship on nineteenth-century free exercise jurisprudence to date and ask what it adds to our understanding of the Clause and the question of exemptions.

Solomon's Choice: The Spending Clause And First Amendment Rights In Forum For Academic & Institutional Rights V. Rumsfeld, Emily R. Hutchinson

Washington Law Review

The Solomon Amendment denies federal funding to institutions of higher education that interfere with military recruiting on campus. In Forum for Academic & Institutional Rights v. Rumsfeld, the United States Court of Appeals for the Third Circuit examined the constitutionality of the Solomon Amendment using traditional First Amendment analysis. The court applied strict scrutiny and held that it was reasonably likely that the Solomon Amendment impermissibly infringed the First Amendment rights of an association of law schools and law faculty. This Note argues that the Solomon Amendment is a valid exercise of Congress's constitutionally-mandated duties to spend for the …

Defining The Relevant Forum: The United States Postal Service Constitutes A Single Forum For Communication, Melissa C. Manke

Washington Law Review

The United States Postal Service fulfills a vital public function by enabling people to communicate in an effective and efficient way. The United States Supreme Court has firmly established the use of the mails as a free speech right guaranteed by the First Amendment. Courts apply a three-part forum analysis when analyzing First Amendment challenges to restrictions on the use of the mail system. This analysis requires courts to define the forum to which the plaintiff seeks access, to determine if that forum is public or nonpublic, and to apply the level of scrutiny proper to the type of forum …

Scylla Or Charybdis: Navigating The Jurisprudence Of Visual Clutter, Ryan Calo

Articles

State and local governments seeking to address the proliferation of billboards and other outdoor advertising must negotiate two obstacles of First Amendment law. The first is the Supreme Court’s 1981 decision in Metromedia, Inc. v. City of San Diego. Following Metromedia, regulators can neither select among noncommercial messages nor privilege commercial messages over noncommercial ones. For years, regulators navigated around Metromedia by drawing a distinction between commercial and noncommercial speech. Then came the Supreme Court’s decision in City of Cincinnati v. Discovery Network, holding that regulators had to account for why they were privileging noncommercial over commercial …

The Freedom To Speak And The Freedom To Listen: The Admissibility Of The Criminal Defendant's Taste In Entertainment, Helen A. Anderson

Articles

In Part I of this Article, I will establish that the First Amendment protects both consumers and producers of expression, although the scope of consumer protection has not been greatly elaborated. Part II discusses attempts to hold the entertainment industry liable for crimes by third persons, as well as legislative efforts to restrict or ban certain kinds of entertainment or art deemed to cause violence. For the most part, these efforts against producers have failed.

Part III then shows how a criminal defendant's viewing, listening, or reading habits may be used as evidence against that defendant, and that the constitutional …

Only The News That's Fit To Print: The Effect Of Hazelwood On The First Amendment Viewpoint-Neutrality Requirement In Public School-Sponsored Forums, Janna J. Annest

Washington Law Review

In Hazelwood School District v. Kuhimeier, the U.S. Supreme Court held that public school administrators can restrict expression in school-sponsored forums in a manner reasonably related to legitimate pedagogical concerns. Regulating First Amendment rights in any public forum usually requires that no point of view be suppressed in favor of its counterpoint, but the Hazelwood Court omitted the viewpoint-neutrality requirement from its holding. While the Sixth, Ninth and Eleventh Circuits continue to require viewpoint-neutral regulation of school-sponsored speech, the First and Third Circuits interpret Hazelwood as abrogating the viewpoint-neutrality requirement in school-sponsored forums. This Comment argues in favor of …

Lavine V. Blaine School District: Fear Silences Student Speech In The Ninth Circuit, Shannon M. Mcminimee

Washington Law Review

In LaVine v. Blaine School District, the Ninth Circuit allowed a school to expel a student for writing a poem about a school shooting. The court held that the school did not violate the student's First Amendment rights because the school could reasonably forecast that the student would cause a substantial disruption or material interference with school activities. This Note argues that the LaVine court incorrectly applied the established standards for evaluating the constitutionality of a school's decision to expel a student. The LaVine court also unwisely extended the Tinker doctrine to a new area of student speech. In …

The First Amendment Versus The World Trade Organization: Emergency Powers And The Battle In Seattle, Aaron Perrine

Washington Law Review

The 1999 World Trade Organization (WTO) ministerial meeting in Seattle was the target of highly organized, widely supported protest demonstrations. In response to the protests, city officials declared a state of emergency, ordering nighttime curfews and a daytime "no-protest zone" in downtown Seattle. They reasoned that the zone was necessary to protect the rights of WTO delegates and to restore public order. This Comment argues that mass nonviolent protests deserve more First Amendment protection than was afforded to demonstrators in Seattle. Even when violence occurs and public order is threatened, governments must narrowly tailor emergency orders to avoid trampling on …

Wanted Posters, Bulletproof Vests, And The First Amendment: Distinguishing True Threats From Coercive Political Advocacy, Leigh Noffsinger

Washington Law Review

In February 1999, an Oregon jury returned a $107 million verdict for doctors who successfully argued that antiabortion activists' propaganda, in the form of posters and a web site, constituted true threats in violation of federal law. The judge rejected the activists' argument that the First Amendment protected their speech and instructed that if a reasonable person would have foreseen that the communication would be interpreted as threatening, the jury must find in favor of the plaintiffs. This Comment argues that the dichotomy of analysis under two leading U.S. Supreme Court cases has led to conflicting standards that provide insufficient …

The Press: Its Sins And Grace, Anthony Lewis

Washington Law Review

Under the First Amendment, as it has come to be understood, the American press has more freedom than the press of any other country. I want to explore the question of what our press does with that great freedom. Does it show a matching responsibility? How well does it perform the role that the framers of the Constitution thought justified the protection they were giving us, the role of holding government accountable to the people? James Madison put it that in the United States "the people, not the government, possess the absolute sovereignty." That was "altogether different" from Britain, he …

Right Of Publicity Tarnishment And The First Amendment, Edgar Sargent

Washington Law Review

This Comment proposes a new cause of action for tarnishment of the right of publicity. The claim would protect the rights holder from uses that create offensive or degrading associations and thus harm the value of the protected persona. To prevent undue constraint upon First Amendment protected speech about public figures, publicity rights protection must be carefully balanced against free speech interests. In most cases, a speaker's right to refer to a public figure will be superior to the publicity rights holder's interest in controlling the manner in which a persona is used. However, publicity rights holders should prevail when …

The Hidden First Amendment Values Of Privacy, Sean M. Scott

Washington Law Review

The private facts tort protects the privacy of individuals by punishing the publication of private information. The First Amendment protects the press when it publishes information in which the public has a legitimate interest. The right to keep information private and the right to publish information sometimes conflict. The First Amendment is often the victor in these conflicts; courts are concerned that the private facts tort threatens First Amendment values. This Article challenges the argument that punishing a media defendant for publishing truthful information will threaten unduly First Amendment values. The Article argues instead that the private facts tort promotes, …

Are Oliver Stone And Tom Clancy Journalists? Determining Who Has Standing To Claim The Journalist's Privilege, Kraig L. Baker

Washington Law Review

Most circuits recognize a qualified privilege that provides a partial First Amendment shield for journalists to protect the confidentiality of their sources and materials. Few courts, however, discuss the scope of the class protected by this privilege. This Comment examines who has traditionally been part of the protected class and explores the trends and concerns of courts in granting standing. This Comment also recommends a framework that courts can use to determine whether to extend the journalist's privilege to new formats of communication and applies this framework to two examples.

A New Paradign For Protection: First Amendment Principles And The Environment, Jennifer D. Jones

Washington Law Review

Currently, environmental plaintiffs pursue protection for the ancient forests of the Pacific Northwest by litigating procedural violations of environmental statutes. This method, however, will not provide the long-term protection these plaintiffs desire. This Comment proposes a new model for protection using the First Amendment of the United States Constitution.

Between The Devil And The Deep Blue Sea: Crime Victims' Dilemma After Simon & Schuster, Inc. V. Members Of The New York Crime Victims Board, 112 S. Ct. 501 (1991), Michele C. Meske

Washington Law Review

In Simon & Schuster, Inc. v. Members of the New York Crime Victims Board, the Supreme Court held that a statute, New York's "Son of Sam" law, that allowed crime victims to reach the proceeds of their victimizers' media reenactments of the criminals' wrongful acts violated the First Amendment. By invalidating the statute, the Supreme Court eliminated the only presently available means to prevent criminals from profiting from their crimes and exploiting their victims. This Comment examines the origins of this problem and proposes that courts use restitutions common law doctrines to prevent criminals who sell their stories from profiting …

Regulating Cable Television Rates: A Phantom First Amendment Problem, Matthew Jolly

Washington Law Review

Public concern over cable television's status as a monopoly has generated a movement to allow local franchising authorities to regulate cable service rates. Because the courts have yet to hear a First Amendment challenge to imposing rate regulation on a member of the media, the constitutionality of cable rate regulation is not settled. This Comment argues that the restriction on speech resulting from rate regulation is outweighed by the substantial government interest in preventing unfair monopoly pricing practices.

Modern Media And The First Amendment: Rediscovering Freedom Of The Press, Donald E. Lively

Washington Law Review

Freedom of the press, like other constitutional guarantees is not an absolute. Nor does it have the same meaning for all media. For more than a century after the constitution was framed and ratified, the press was coextensive with publishing. Over the course of the twentieth century, electronic media have emerged and extended the contours of the press. At the same time, however, liberty of the press has developed in idiosyncratic terms that have fostered a First Amendment hierarchy. While print media continue to be afforded maximum constitutional security, newer communications methodologies have been more susceptible to official management and …

Confidentially Speaking: Protecting The Press From Liability For Broken Confidentiality Promises—Cohen V. Cowles Media Co., 111 S. Ct. 2513 (1991), Jeffrey A. Richards

Washington Law Review

In Cohen v. Cowles Media Co., the Supreme Court held that the First Amendment does not bar suits against newspapers for breaches of confidentiality promises. By following its cases holding that the press is subject to neutral laws, the Court ignored its precedent mandating that state laws inhibiting publication violate the First Amendment absent a compelling state interest. This Note explores both lines of cases and concludes that application of a state law that inhibits publication is unconstitutional if its utility in effecting a legitimate state interest is outweighed by the public's interest in receiving the information. Therefore, courts should …

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

Washington Law Review

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 …

Antimask Laws: Exploring The Outer Bounds Of Protected Speech Under The First Amendment—State V. Miller, 260 Ga. 669, 398 S.E.2d 547 (1990), Oskar E. Rey

Washington Law Review

In State v. Miller, the Supreme Court of Georgia held that the Georgia Antimask Statute does not violate free speech rights under the first amendment of the United States Constitution. Antimask statutes prohibit, with certain exceptions, the wearing of masks in a public place. The stated purposes of these statutes vary, but it is fairly clear that antimask laws are designed to deter Ku Klux Klan activity. This Note explores the first amendment implications of antimask laws, and concludes that antimask statutes are unconstitutional.

"Libelous" Petitions For Redress Of Grievances -- Bad Historiography Makes Worse Law, Eric Schnapper

Articles

Both the majority and concurring opinions in McDonald v. Smith, 472 U.S. 479 (1985), concluded that there was no historical basis for McDonald's contention that the framers understood the right to petition to include an unqualified right to do so without being subject to suit for libel. This Article argues that the historical analysis in McDonaldis incorrect; indeed, this appears to be one instance in which the relevant historical materials are both voluminous and crystal clear.

Part I evaluates the McDonald Court's discussion of the intent of the framers. Subsequent sections discuss the wide variety of materials that …

Abortion, Protest, And Constitutional Protection—Bering V. Share, 106 Wn. 2d 212, 721 P.2d 918 (1986), Carrie Miller

Washington Law Review

In Bering v. Share, the Washington Supreme Court upheld a broad injunction against the activities of Share, an anti-abortion activist group. The court found that a restriction of Share's free speech rights was necessary to protect children from the harmful effects of Share's language, and to protect the constitutional right to abortion. Consequently, the court restricted Share's use of the words "murder" and "kill," and limited Share's picketing to the side of the medical building. This Note assesses the Bering court's federal constitutional foundation for its restrictions of protected speech, and suggests an alternative basis and reduced scope for the …

Federal Court Interpretation Of The Washington Obscenity Statute—Brockett V. Spokane Arcades, Inc., 105 S. Ct. 2794 (1985), Amy L. Swingen

Washington Law Review

A recent series of federal court decisions regarding an obscenity statute in the State of Washington provides an example of the context in which the state-federal conflict arises and the impact of the use of the various alternatives. In Brockett v. Spokane Arcades, Inc., the federal district court, the Ninth Circuit, and the Supreme Court ignored the efficient procedural solution of certification, and rejected the more time-consuming abstention as well. The question before the court involved the definition of obscenity. By refusing to allow the Washington Supreme Court to interpret the word "lust" for purposes of the state's newly enacted …

The Deceptive 'Right To Know': How Pessimism Rewrote The First Amendment, Gerald J. Baldasty, Roger A. Simpson

Washington Law Review

In the decade of the 1940's, particularly in the years just after World War II, freedom of the press, which had been newly elevated and protected by the Supreme Court in the 1930's, began to suffer the corrosive effects of doubt about the strength of the American political system. Among the devastations of war was the failure of the intellectuals' confidence in the mettle of the American citizenry. By the mid-1960's, one consequence was clear: The first amendment no longer meant that the American press was expected to speak freely; it had begun to mean that much of what the …