First Amendment Commons^™

A Unifying Theory For The Religion Clauses Of The First Amendment, Thomas R. Mccoy, Gary A. Kurtz

Vanderbilt Law Review

According to Justice Powell, the first amendment religion clauses are the source of "some of the most perplexing questions"that the Supreme Court confronts. In a long and rapidly expanding line of religion clause cases the Court has struggled, with a conspicuous lack of success, to articulate principles of broad applicability. The Court's efforts to date have resulted in a jumble of tests, standards, and theoretical approaches from which predicting the outcome in future cases is very difficult.

The conceptual problems that have frustrated the Court's attempts at doctrinal development center in two broad areas: first,the meaning and effect of the …

Broadcasters' First Amendment Rights: A New Approach?, L. Allyn Dixon, Jr.

Vanderbilt Law Review

The passage of the Public Broadcasting Act of 1967 offered the blueprint for the modern system of public broadcasting and regulation and largely freed noncommercial broadcasting to become a viable alternative to the commercial broadcasting" offered by the three national networks. Since becoming intimately involved in noncommercial broadcasting by providing partial funding, the federal government has imposed regulations on noncommercial broadcasters far more rigid than the restrictions imposed on commercial broadcasters. Recently, however, in a decision that some might regard as heralding greater equality between the first amendment rights of commercial and noncommercial broadcasters and continuing the trend toward loosening …

Tension Between The First And Twenty-First Amendments In State Regulation Of Alcohol Advertising, Brian S. Steffey

Vanderbilt Law Review

This Recent Development examines the tension between the first and twenty-first amendments when a state uses its twenty-first amendment power to regulate advertisements of alcoholic beverages that qualify for first amendment protection. Part II of this Recent Development explores the Court's standard of review in cases in which the twenty-first amendment impinges upon a fourteenth amendment right. Part II also reviews the scope of constitutional protection that the first amendment accords commercial speech. Part III examines three recent cases in which states have regulated alcohol advertising. Part IV criticizes these decisions for misapplying the appropriate standard and for relying extensively …

When Religious Exercise Is Not Free: Deprogramming And The Constitutional Status Of Coercively Induced Belief, Richard Delgado

Vanderbilt Law Review

The present Article offers a defense of deprogramming and a reply to its critics, particularly Shapiro. Part II reviews what hap-pens in many instances of cult joining and offers a conceptual account that justifies deprogramming of cult members who are unable to comprehend or surmount the coercive and deceptive influences that led to their commitment. Part III addresses constitutional problems that are triggered in the event that deprogramming should affect religious belief-an event that is by no means inevitable. Part IV discusses deprogramming and whether some variant of it is capable of remedying the type of situation ad-dressed in part …

The Lemon Test Soured: The Supreme Court's New Establishment Clause Analysis, Kenneth M. Cox

Vanderbilt Law Review

This Recent Development argues that the Court's apparent trend toward basing establishment clause analysis on the pervasiveness or historical significance of government-supported religious activities represents an undesirable move away from strict examination of the questionable law or activity under the Lemon test. Part II briefly examines the theoretical bases of the establishment clause, then traces the Court's applications of each element of the Lemon analysis. Part III discusses the Marsh and Lynch decisions as the most recent Supreme Court additions to establishment clause doctrine. Finally, part IV analyzes two major effects of these decisions: first, the emergence of the historical …

Forced Disclosure Of Academic Research, J. Graham Matherne

Vanderbilt Law Review

This Note advocates that courts follow the procedures that rule 45 and its progeny provide to evaluate the special concerns of academic researchers, rather than rely on the Constitution to shield the academic researcher under the mystical guise of academic freedom. Part II of this Note examines the four cases in which federal courts have decided whether to force an academic to disclose his research. Part III focuses on the guidelines that the relevant Federal Rules establish for forced disclosure. Part IV discusses the academic freedom approach to forced disclosure and the common law and constitutional arguments that favor academic …

The Tort Liability Of Investigative Reporters, John W. Wade

Vanderbilt Law Review

One of the most significant developments in recent years, in both constitutional and tort law, began with the holding in New York Times v. Sullivan that the first amendment places substantial restrictions on the common law tort action for defamation. Although the ramifications of New York Times are still developing,that continuing reform of the law of defamation will result is to be expected. The readjustment of the balancing of conflicting interests that New York Times represents came about at the behest of the press,and the press have been the primary beneficiaries of these developments. Indeed, some commentators contend that the …

The First Amendment And Nonpicketing Labor Publicity Under Section 8(B)(4)(Ii)(B) Of The National Labor Relations Act, Lee Goldman

Vanderbilt Law Review

This Article attempts to provide the appropriate constitutional analysis of restrictions on nonpicketing labor publicity. Part II describes the relevant statute and illustrative cases, including the Supreme Court's DeBartolo decision, that have raised but not resolved the first amendment issues concerning nonpicketing labor publicity. The cases focus attention on two restrictions the courts have imposed on nonpicketing labor publicity-the "producer-distributor" and the "for the purpose of" requirements. Part III analyzes the protected status of the nonpicketing labor speech by comparing nonpicketing labor publicity with labor picketing and commercial speech-two areas that bear superficial similarity to nonpicketing labor publicity and that …

First Amendment Protection Of Artistic Entertainment: Toward Reasonable Municipal Regulation Of Video Games, John E. Sullivan

Vanderbilt Law Review

This Note proposes that video game software, the driving force of all video game entertainment, is an artistic creation of a video game designer. Because the United States Supreme Court repeatedly has recognized that artistic expression and entertainment are forms of expression that the first amendment protects, video game software deserves first amendment protection. Video game software is the "heart and soul"" of the video game, and first amendment protection, therefore, also should blanket the game itself. Accordingly, free "speech" liberties give video game manufacturers, distributors, and operators a fundamental right to purvey the protected expression; and the public a …

Cable Franchising And The First Amendment, William E. Lee

Vanderbilt Law Review

In awarding and regulating cable franchises, cities often extract from cable operators promises and conditions such as access channels in exchange for exclusive use of public rights-of-way. Professor William Lee in this Article argues that this cable franchising process violates the first amendment rights of cable operators. Professor Lee rejects the two rationales for municipal cable regulation by contending that cable is not a natural monopoly in every market and that cable's use of public rights-of-way requires content neutral regulation. The exacting of conditions such as access channels, however, is not content neutral regulation. Furthermore, censorship decisions that municipalities require …

Problems In Giving Obscenity Copyright Protection: Did Jartech And Mitchell Brothers Go Too Far?, Kurt L. Schmalz

Vanderbilt Law Review

This Recent Development traces in part II the emergence of the rule that obscenity is not copyrightable. Part III then examines the courts' reasoning in Mitchell Brothers and Jartech and analyzes the impact of these cases on copyright law. Part IV finds that although these courts properly vindicate free expression, they fail to recognize adequately the national policy against obscenity and the inconsistency of affording federal copyright protection to materials that violate federal obscenity laws. Thus, this Recent Development argues that the strong national policy against obscenity, as manifested in federal anti-obscenity statutes, requires courts in some cases to deny …

Free Speech And The Assumption Of Rationality, Frederick Schauer

Vanderbilt Law Review

First amendment doctrine is now both broad and complex, and the task of writing about all of it seems at least forbidding and perhaps impossible. Unthwarted by the magnitude of the mission, however, Franklyn Haiman has attempted, in Speech and Law in a Free Society,7 to survey and to integrate almost every area in which the first amendment restricts or should restrict the powers of the states and the federal government. Haiman's book is in some ways reminiscent of Thomas Emer-son's The System of Freedom of Expression." Like Emerson,Haiman devotes only a relatively brief introductory portion of his book to …

Freedom Of Association And State Regulation Of Delegate Selection: Potential For Conflict At The 1984 Democratic National Convention, Platte B. Moring, Iii

Vanderbilt Law Review

This Note begins with a discussion of the history of the regulation of state parties by state law and national party rules. The Note then traces the development of case law concerning state regulation of party delegate selection procedures. Finally, the Note explores the potential for credentials disputes and litigation on the primacy of state party rules over contrary state laws if both the party rules and the state regulations comply with the Delegate Selection Rules for the 1984 Democratic National Convention. The Note concludes that the first amendment right of freedom of association guarantees that a state party may …

Categories And The First Amendment: A Play In Three Acts, Frederick Schauer

Vanderbilt Law Review

In the foregoing pages I have attempted to flesh out three different aspects of what has been broadly called "categorization."Implicit in this project is the premise that it is often quite revealing to search for important differences in the face of superficial similarity. Very often, however, when we search for differences we may discover additional points of similarity that are not at first apparent. This seems to be the case here, in that one recurrent feature is what one might inelegantly call "learnability." The concept of learnability is comprehensible only in the con-text of a separation of roles.' Thus, if …

Conflicting Standards For Applying The Corporate Attorney-Client Privilege, Kay E. Stephenson

Vanderbilt Law Review

The attorney-client privilege protects confidential communications between client and attorney from forced disclosure.' Dating back to at least 1577, the privilege arose from the belief that it was a point of honor for the attorney to keep his client's confidences.'The modern rationale for the privilege, however, is the perceived need to encourage full and frank discussion between attorney and client by removing the fear of forced disclosure.' Thus, the privilege rests on the premise that the social benefits derived from uninhibited communication and from the attorney's access to all the facts outweigh the detrimental effects of concealing information during trial.' …

Judicial Restrictions On Attorneys' Speech Concerning Pending Litigation: Reconciling The Rights To Fair Trial And Freedom Of Speech, Sally R. Weaver

Vanderbilt Law Review

The constitutionality of restraints on attorneys' speech has been considered by only two federal circuit courts: the Seventh Circuit, in Chicago Council of Lawyers v. Bauer,' and, more recently, the Fourth Circuit, in Hirschkop v. Snead.' Relying on many of the same precedents, the circuits nevertheless developed seemingly contrary standards. This Recent Development compares the analyses of these recent cases and suggests an appropriate standard for the accommodation of the conflicting rights of free speech and a fair trial.

General Laws, Neutral Principles, And The Free Exercise Clause, G. Michael Mccrossin

Vanderbilt Law Review

This Note examines several recent Supreme Court decisions considering the first amendment's free exercise clause to determine whether, collectively, the decisions are results of principled decision making. During the past two decades the Court has had four significant opportunities to deal with the free exercise clause. In all but one, the Court made important statements about the constitutional protection afforded the free exercise of religious belief. In each case the basic issue was the same: was interference with the exercise of religion unconstitutional when that interference resulted from the application of a general law that promoted a valid public policy …

Antitrust Enforcement, Freedom Of The Press, And The "Open Market": The Supreme Court On The Structure And Conduct Of Mass Media, William E. Lee

Vanderbilt Law Review

This Article examines the Supreme Court's attempts to foster open markets by altering either the structure or the conduct of mass media enterprises." Structure and conduct are the two main determinants of market performance. Market structure "means those characteristics of the organization of a market that seem to exercise a strategic influence on the nature of competition and pricing within the market." Some characteristics of market structure include degree of buyer concentration, degree of seller concentration, degree of product differentiation, and entry conditions. Market conduct, on the other hand, comprises the practices, policies, and devices which firms employ in adjusting …

Regulation Of Programming Content To Protect Children After Pacifica, Dabney E. Bragg

Vanderbilt Law Review

This Note examines the "protect the children" rationale as justification for the regulation of program content to determine if it is likely to withstand future challenges. Initially, the Note reviews the Pacifica decisions to illustrate how the rationale recently has been employed. The Note then considers this rationale in light of traditional first amendment analysis and the interface of that analysis with the rights of children, concluding that the rationale does not justify abridgment of the first amendment. The Note then considers the effect of broadcasting's "unique characteristics" upon this analysis, concluding that this added element does not tip the …

Attorney Advertising Over The Broadcast Media, I. Terry Currie

Vanderbilt Law Review

This Note will examine the first amendment issues that broadcast attorney advertising raises. The Note will begin with a general discussion of the analytical approach adopted by the Supreme Court in freedom of speech and commercial speech cases. Next, the Note will explore the "special problems" and unique characteristics of the broadcast media as they relate to the interests affected by broadcast attorney advertising, concluding that the benefits afforded to consumers outweigh the potential risks created by such advertising. The Note will also briefly consider various regulations on broadcast advertising adopted by the bar at both the state and federal …

First Amendment Restrictions On The Ftc's, Robert D. Eckinger

Vanderbilt Law Review

The Supreme Court has suggested a "degree of protection"approach to reconcile the first amendment protection of commercial speech with the need to effectively regulate false or misleading advertising. In so doing, however, the Court has failed to establish clearly the judicial standard of review appropriate in examining regulative measures. In the absence of adequate guidance, several circuit court decisions have adopted an unjustified standard of strict judicial scrutiny. The continued use of this standard by the circuit courts in reviewing FTC decisions will present increasing institutional problems for the courts and will seriously undermine the Commission's ability to protect consumers …

Recent Cases, Alan W. Duncan, Elton G. Snowden, William A. Holby, Joseph W. Gibbs

Vanderbilt Law Review

Constitutional Law -- Newsperson's Privilege - The First Amendment Guarantee of a Free Press Protects Against Compelled Disclosure of a Journalist's Exercise of Editorial Control and Judgment

Plaintiff, a former army officer who had achieved national prominence by claiming that his superiors ignored his reports of atrocities by American forces in Vietnam,' brought a libel suit against defendant television producer, reporter, and network for broadcasting a program that cast doubt upon plaintiff's allegations. Contending that defendant did not present available information corroborating plaintiff's claims, plaintiff sought discovery of the producer's beliefs, opinions, intent, and conclusions in preparing the program.

Alan …

Recent Cases, Robert E. Banta, Oby T. Brewer, Iii, Cornelia A. Clark, I. Terry Currie, Douglas W. Ey, Jr.

Vanderbilt Law Review

Constitutional Law-First Amendment-School Authorities May Prohibit High School Student's Distribution of Sex Questionnaire to Prevent Possible Psychological Harm to Other Students Robert Edward Banta

Plaintiff, editor of a high school publication,' brought suit in federal court seeking an order compelling defendant school officials to allow the student publication to distribute a sex questionnaire,to students in the high school and to publish the results. Plaintiff claimed that defendants had not shown that the planned distribution would disrupt school activities and that, therefore, defendants'prohibition of the questionnaire violated 42 U.S.C. § 19831 and the first and fourteenth amendments. Pointing to potential psychological …

Lawyers, Privileged Communications, And The Foreign Agents Registration Act Of 1938, Phyllis K. Fong

Vanderbilt Journal of Transnational Law

Originally enacted to control the spread of subversive propaganda during World War I, the Foreign Agents Registration Act of 1938 (Act) now regulates the conduct of lobbyists, public relations counsellors, attorneys, and other agents acting on behalf of foreign entities. The Act no longer prohibits dissemination of political propaganda, but requires that foreign agents register and disclose the nature and extent of all activities conducted pursuant to the agency agreement, on the assumption that adequate disclosure and publicity of agents' activities will make it impossible for foreign agents to take advantage of an unwary public. Congress has imposed, moreover, penal …

Recent Cases, Samuel E. Stumpf, Jr., M. Carolyn Barefield, Robert S. Reder, Stephen C. Morton, Randolph C. Coley

Vanderbilt Law Review

Noerr-Pennington Immunity for Joint Efforts to Influence Governmental Action - Intent to Cause Competitive Injury, Evidenced by Repeated, Baseless Opposition Before an Adjudicatory Body, Does Not Result in Loss of Noerr-Pennington Immunity Absent Specific Allegations of Conduct External to or Abusive of the Adjutory Processes

Samuel E. Stumpf, Jr.

Constitutional Law - First Amendment - Student's Right to Receive Information Precludes Board's Removal of Allegedly Offensive Books from High School Library

M. Carolyn Barefield

Constitutional Law-Search and Seizure - Federal Courts Are Bound by Federal Wiretapping Statutes and Will Not Exclude Evidence Seized by State Agents in Violation of More …

Private Copyright And Public Communication: Free Speech Endangered, Lyman R. Patterson

Vanderbilt Law Review

Copyright as it has developed is essentially a private copyright for private communications made public for profit. Theoretically,the right to copyright is derived from the act of creation, and the choice of making his creations public is that of the author. As the copyright clause makes clear, the purpose of the private monopoly of copyright is to encourage the author to make his creations available for public learning. Television, on the other hand, is primarily a medium of public communication that has as a major function the transmission of public information to the public. To apply the present law of …

Buckley V. Valeo, Its Aftermath, And Its Prospects: The Constitutionality Of Government Restraints On Political Campaign Financing, Brice M. Clagett, John R. Bolton

Vanderbilt Law Review

The Supreme Court's decision in Buckley v. Valeo' undoubtedly will be the forerunner of many future decisions dealing with the complex area of political campaign finance and thus will exert a profound influence on the structure of American politics. From a broader perspective, the decision significantly applies fundamental constitutional law doctrines concerning the first amendment and separation of powers. Accordingly, a clear understanding of what the Court did and did not do in Buckley is essential to any further legislative or judicial initiatives in the regulation of political activity. This article will examine the Court's holdings in Buckley, describe the …

State Court Reactions To Gertz V. Robert Welch,Inc.: Inconsistent Results And Reasoning, Charles W. Gerdts, Iii, Kevin J. Wolff

Vanderbilt Law Review

This Recent Development will examine the state court reactions to Gertz, describe the reasons for the lack of uniformity in their conclusions, and suggest an approach to balancing the first amendment and reputational interests.

Jurisdiction--The Short-Lived Death Of The Ker-Frisbie Doctrine, C. Jedson Nau

Vanderbilt Journal of Transnational Law

Why the Second Circuit Court of Appeals chose to retreat from its Toscanino holding is unclear. The drastic nature of the remedy afforded by Toscanino to any defendant illegally abducted has been criticized as too inflexible. On the other hand, the Lujan rule allows the remedy only in the limited circumstances of egregious conduct. The problem remains to determine what remedy, if any, should be available to victims who are subjected to illegal but not outrageous governmental conduct.

The government has vigorously argued that federal narcotics law enforcement depends upon the freedom of officers to abduct suspects, particularly from South …

Recent Cases, Robert L. Teicher, Timothy C. Maguire

Vanderbilt Law Review

In the 1930 decision of State ex rel. LaFollette v. Kohler, the Wisconsin Supreme Court rejected the earliest free speech challenge to a candidate expenditure limitation. The court held that the state's interest in protecting the integrity of its electoral process outweighed the individual's right of communicating with the public without governmental infringement." The court's identification of the communicative effect of campaign spending anticipated the United States Supreme Court's ruling in Stromberg v. California" that communicative conduct was entitled to protection from government infringement. The Court, however, hampered the effectuation of this protection by failing to define conclusively the point …