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Articles 31 - 60 of 265
Full-Text Articles in First Amendment
Commercial Speech In Crisis: Crisis Pregnancy Center Regulations And Definitions Of Commercial Speech, Kathryn E. Gilbert
Commercial Speech In Crisis: Crisis Pregnancy Center Regulations And Definitions Of Commercial Speech, Kathryn E. Gilbert
Michigan Law Review
Recent attempts to regulate Crisis Pregnancy Centers, pseudoclinics that surreptitiously aim to dissuade pregnant women from choosing abortion, have confronted the thorny problem of how to define commercial speech. The Supreme Court has offered three potential answers to this definitional quandary. This Note uses the Crisis Pregnancy Center cases to demonstrate that courts should use one of these solutions, the factor-based approach of Bolger v. Youngs Drugs Products Corp., to define commercial speech in the Crisis Pregnancy Center cases and elsewhere. In principle and in application, the Bolger factor-based approach succeeds in structuring commercial speech analysis at the margins of …
Graffiti Museum: A First Amendment Argument For Protecting Uncommissioned Art On Private Property, Margaret L. Mettler
Graffiti Museum: A First Amendment Argument For Protecting Uncommissioned Art On Private Property, Margaret L. Mettler
Michigan Law Review
Graffiti has long been a target of municipal legislation that aims to preserve property values, public safety, and aesthetic integrity in the community. Not only are graffitists at risk of criminal prosecution but property owners are subject to civil and criminal penalties for harboring graffiti on their land. Since the 1990s, most U.S. cities have promulgated graffiti abatement ordinances that require private property owners to remove graffiti from their land, often at their own expense. These ordinances define graffiti broadly to include essentially any surface marking applied without advance authorization from the property owner. Meanwhile, graffiti has risen in prominence …
Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise
Ideology 'All The Way Down'? An Empirical Study Of Establishment Clause Decisions In The Federal Courts, Gregory C. Sisk, Michael Heise
Michigan Law Review
As part of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause rulings by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as the proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in …
Context And Trivia, Samuel Brenner
Context And Trivia, Samuel Brenner
Michigan Law Review
My academic mantra, writes Professor James C. Foster in the Introduction to BONG HiTS 4 JESUS: A Perfect Constitutional Storm in Alaska's Capital, which examines the history and development of the Supreme Court's decision in Morse v. Frederick, "[is] context, context, context" (p. 2). Foster, a political scientist at Oregon State University, argues that it is necessary to approach constitutional law "by situating the U.S. Supreme Court's ... doctrinal work within surrounding historical context, shorn of which doctrine is reduced to arid legal rules lacking meaning and significance" (p. 1). He seeks to do so in BONG HiTS 4 JESUS …
Citizens United And The Illusion Of Coherence, Richard L. Hasen
Citizens United And The Illusion Of Coherence, Richard L. Hasen
Michigan Law Review
The self-congratulatory tone of the majority and concurring opinions in last term's controversial Supreme Court blockbuster, Citizens United v. Federal Election Commission, extended beyond the trumpeting of an absolutist vision of the First Amendment that allows corporations to spend unlimited sums independently to support or oppose candidates for office. The triumphalism extended to the majority's view that it had imposed coherence on the unwieldy body of campaign finance jurisprudence by excising an "outlier" 1990 opinion, Austin v. Michigan Chamber of Commerce, which had upheld such corporate limits, and parts of a 2003 opinion, McConnell v. FEC, extending Austin to unions …
Free Speech Federalism, Adam Winkler
Free Speech Federalism, Adam Winkler
Michigan Law Review
For decades, constitutional doctrine has held that the Constitution's guarantee of freedom of speech applies equally to laws adopted by the federal, state, and local governments. Nevertheless, the identity of the government actor behind a law may be a significant, if unrecognized, factor in free speech cases. This Article reports the results of a comprehensive study of core free speech cases decided by the federal courts over a 14-year period. The study finds that speech-restrictive laws adopted by the federal government are far more likely to be upheld than similar laws adopted by state and local governments. Courts applying strict …
Conditions On Taking The Initiative: The First Amendment Implications Of Subject Matter Restrictions On Ballot Initiatives, Anna Skiba-Crafts
Conditions On Taking The Initiative: The First Amendment Implications Of Subject Matter Restrictions On Ballot Initiatives, Anna Skiba-Crafts
Michigan Law Review
Nearly half of U.S. states offer a ballot initiative process that citizens may use to pass legislation or constitutional amendments by a popular vote. Some states, however, impose substantive restrictions on the types of initiatives citizens may submit to the ballot for a vote-precluding, for example, initiatives lowering drug penalties or initiatives related to religion. Circuit courts are split on whether and how such restrictions implicate the First Amendment. This Note argues that-rather than limiting "expressive conduct" protected only minimally by the First Amendment, or limiting pure conduct that does not garner any First Amendment protectionsubject matter restrictions on ballot …
Establishing Inequality, Gene R. Nichol
Establishing Inequality, Gene R. Nichol
Michigan Law Review
Part I outlines Nussbaum's thesis and her similarly interesting, if perhaps not always completely consistent, applications of it. Part II touches on some challenges and potential shortcomings her theory presents-for clearly there are such. But, in Part III, I argue that her wide-ranging study of the work of the religion clauses nonetheless touches something residing at the core of American citizenship. No bosses. No masters. No insiders. None outcast. Finally, and far more idiosyncratically, in Part IV I explore and expand on Nussbaum's thesis in light of a modestly serious and rather public dispute over religious equality that occurred at …
The Life Of The Mind And A Life Of Meaning: Reflections On Fahrenheit 451, Rodney A. Smolla
The Life Of The Mind And A Life Of Meaning: Reflections On Fahrenheit 451, Rodney A. Smolla
Michigan Law Review
Fahrenheit 451 still speaks to us, vibrantly and passionately, still haunts and vexes and disturbs. The novel has sold millions of copies, was reset for a fiftieth anniversary printing, and continues to be assigned reading in middle school, high school, and college courses. That power to endure is well worth contemplation, both for what it says about Ray Bradbury's literary imagination, and, more powerfully, for what it teaches us about our recent past, our present, and our own imagined future. First Amendment jurisprudence has taken giant leaps since Fahrenheit 451 was written, and American society has managed to avoid the …
Rationing The Infinite, Leonard M. Niehoff
Rationing The Infinite, Leonard M. Niehoff
Michigan Law Review
This Review raises a number of objections to Baker's arguments and proposals. Furthermore, this Review raises the fundamental question of whether Baker's central operating assumption-that media is a scarce resource that should be fairly distributed-remains timely in light of the far-reaching and fast-paced changes wrought by the internet. Nevertheless, this Review also recognizes that, as with Baker's prior works, Media Concentration and Democracy makes a serious contribution to the discussion of the political, social, and economic dynamics that challenge the existence of a strong and independent media. Media Concentration and Democracy does a better job of raising questions than of …
Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford
Free Speech And The Case For Constitutional Exceptionalism, Roger P. Alford
Michigan Law Review
Embodied in the Universal Declaration of Human Rights is the evocative proposition that "[e]veryone has the right to freedom of opinion and expression." Beneath that abstraction there is anything but universal agreement. Modern democratic societies disagree on the text, content, theory, and practice of this liberty. They disagree on whether it is a privileged right or a subordinate value. They disagree on what constitutes speech and what speech is worthy of protection. They disagree on theoretical foundations, uncertain if the right is grounded in libertarian impulses, the promotion of a marketplace of ideas, or the advancement of participatory democracy. They …
On Communication, John Greenman
On Communication, John Greenman
Michigan Law Review
Everybody knows that communication is important, but nobody knows how to define it. The best scholars refer to it. Free-speech law protects it. But no one-no scholar or judge-has successfully captured it. Few have even tried. This is the first article to define communication under the law. In it, I explain why some activities-music, abstract painting, and parading-are considered communicative under the First Amendment, while others-sex, drugs, and subliminal advertising-are not. I argue that the existing theories of communication, which hold that communicative behaviors are expressive or convey ideas, fail to explain what is going on in free-speech cases. Instead, …
Limiting A Constitutional Tort Without Probably Cause: First Amendment Retaliatory Arrest After Hartman, Colin P. Watson
Limiting A Constitutional Tort Without Probably Cause: First Amendment Retaliatory Arrest After Hartman, Colin P. Watson
Michigan Law Review
Federal law provides a cause of action for individuals who are the target of adverse state action taken in retaliation for their exercise of First Amendment rights. Because these constitutional torts are "easy to allege and hard to disprove," they raise difficult questions concerning the proper balance between allowing meaningful access to the courts and protecting government agents from frivolous and vexatious litigation. In its recent decision in Hartman v. Moore, the U.S. Supreme Court tipped the scales in favor of the state in one subset of First Amendment retaliation actions by holding that plaintiffs in actions for retaliatory …
Life-Giving Speech Amid An Empire Of Silence, Walter Brueggemann
Life-Giving Speech Amid An Empire Of Silence, Walter Brueggemann
Michigan Law Review
It will come as no surprise to readers of the Law Review that James Boyd White is a daring and wise practitioner of what Clifford Geertz terms "blurred genres." By appeal to Kenneth Burke, Victor Turner, and Paul Ricoeur, among others, Geertz envisions a broad interpretive venture that breaks out of the rigid regulations of a particular discipline to the larger constructive enterprise that entertains life and its meaning as a "game" of face-to-face engagement, or as a "drama" that presses on to the next scene. White's work fits that vision precisely. In Living Speech: Resisting the Empire of Force, …
Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill
Putting Religious Symbolism In Context: A Linguistic Critique Of The Endorsement Test, B. Jessie Hill
Michigan Law Review
The treatment of Establishment Clause challenges to displays of religious symbolism by the Supreme Court and the lower courts is notoriously unpredictable: a crèche is constitutionally acceptable if it is accompanied by a Santa Claus house and reindeer, a Christmas tree, and various circus figures, but unacceptable if it is accompanied by poinsettias, a "peace tree," or a wreath, a tree, and a plastic Santa Claus. A menorah may be displayed next to a Christmas tree, or next to Kwanzaa symbols, Santa Claus, and Frosty the Snowman, but not next to a crèche and a Christmas tree. A number of …
Private Attorneys General And The First Amendment, Trevor W. Morrison
Private Attorneys General And The First Amendment, Trevor W. Morrison
Michigan Law Review
The "private attorney general" is under fire again. It has been in and out of favor in the six decades since it was named, in part because it has come to signify so many different things. At its core, however, the term denotes a plaintiff who sues to vindicate public interests not directly connected to any special stake of her own. The remedies sought in such actions tend to be correspondingly broad: rather than seeking redress for discrete injuries, private attorneys general typically request injunctive or other equitable relief aimed at altering the practices of large institutions. From school desegregation …
Scylla Or Charybdis: Navigating The Jurisprudence Of Visual Clutter, M. Ryan Calo
Scylla Or Charybdis: Navigating The Jurisprudence Of Visual Clutter, M. Ryan Calo
Michigan Law Review
This Note argues that passing close to Discovery Network is the safest route - municipalities can still drastically reduce visual clutter by regulating commercial speech alone without violating the First Amendment. Part I looks at the onsite/offsite distinction, a singularly popular method of sign regulation, and concludes that this distinction runs squarely afoul of Metromedia. Part II looks at the once-accepted alternative route - the commercial/noncommercial distinction - and argues that this distinction does not run afoul of Discovery Network. Rather, a close reading of Discovery Network permits the regulation of exclusively commercial billboards where, as typically, they …
American Conversations With(In) Catholicism, Richard W. Garnett
American Conversations With(In) Catholicism, Richard W. Garnett
Michigan Law Review
The jacket photo for John T. McGreevy's Catholicism and American Freedom is striking. In the foreground, a young and vigorous Pope John Paul II, censer in hand, strides across an altar platform on the Mall in Washington, D.C. His attention is fixed off-camera, presumably at the altar he is about to reverence with incense. At the bottom of the picture, gathered around and below the platform, sits a grainy group of mitre-wearing bishops. Looming directly over the scene, in the background yet dominating the photograph, is the towering dome of the U.S. Capitol Building. This picture is worth many thousand …
The Media At The Tip Of The Spear, Kevin A. Smith
The Media At The Tip Of The Spear, Kevin A. Smith
Michigan Law Review
Due largely to the first widespread availability of the telegraph, through which breaking stories could be transmitted to the presses in moments, the debut of the American war correspondent occurred during the Civil War. From their beginning, American war correspondents have frequently "embedded" with the troops on whom they reported. General Grant, for example, allowed his favorite New York Herald reporter to travel with his entourage, and even used him as a personal messenger. Reporters proved an important component of the war effort for both the North and the South. Papers on both sides proved willing providers of propaganda to …
The Banality Of Evil And The First Amendment, W. Bradley Wendel
The Banality Of Evil And The First Amendment, W. Bradley Wendel
Michigan Law Review
In the late spring and early summer of 1994, hundreds of thousands of people in Rwanda - an estimated ten percent of the population - were brutally murdered by their fellow citizens, generally for the "crime" of belonging to the socially and economically dominant, but numerically minority Tutsi ethnic group. The slaughter followed a systematic propaganda campaign coordinated by the Rwandan government, dominated by members of the Hutu ethnic group, who had long harbored grievances against Tutsis. The campaign demonized Tutsis as "devils," stirred up fear among the largely rural and poor Hutu population by propagating false information about a …
The "Horizontal Effect" Of Constitutional Rights, Stephen Gardbaum
The "Horizontal Effect" Of Constitutional Rights, Stephen Gardbaum
Michigan Law Review
Among the most fundamental issues in constitutional law is the scope of application of individual rights provisions and, in particular, their reach into the private sphere. This issue is also currently one of the most important and hotly debated in comparative constitutional law, where it is known under the rubric of "vertical" and "horizontal effect." These alternatives refer to whether constitutional rights regulate only the conduct of governmental actors in their dealings with private individuals (vertical) or also relations between private individuals (horizontal). In recent years, the horizontal position has been adopted to varying degrees, and after systematic scholarly and …
Boring Lessons: Defining The Limits Of A Teacher's First Amendment Right To Speak Through The Curriculum, R. Weston Donehower
Boring Lessons: Defining The Limits Of A Teacher's First Amendment Right To Speak Through The Curriculum, R. Weston Donehower
Michigan Law Review
Margaret Boring's classes were anything but boring. She taught Advanced Acting at Owen High School in rural Buncombe County, North Carolina, and her classes' performances regularly won regional and state awards. In the fall of 1991, Ms. Boring chose a controversial play, Independence by Lee Blessing, for her students to perform. Independence "powerfully depicts the dynamics within a dysfunctional, single-parent family - a divorced mother and three daughters; one a lesbian, another pregnant with an illegitimate child." Prior to the first performance at the school, Ms. Boring informed the principal of the play's title but not its content. After the …
First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji
First Amendment Equal Protection: On Discretion, Inequality, And Participation, Daniel P. Tokaji
Michigan Law Review
The tension between equality and discretion lies at the heart of some of the most vexing questions of constitutional law. The considerable discretion that many official decisionmakers wield raises the spectre that violations of equality norms will sometimes escape detection. This is true in a variety of settings, whether discretion lies over speakers' access to public fora, implementation of the death penalty, or the recounting of votes. Is the First Amendment violated, for example, when a city ordinance gives local officials broad discretion to determine the conditions under which political demonstrations may take place? Is equal protection denied where the …
Civil Liberties And The Terrorism Prevention Paradigm: The Guilt By Association Critique, Robert M. Chesney
Civil Liberties And The Terrorism Prevention Paradigm: The Guilt By Association Critique, Robert M. Chesney
Michigan Law Review
Faysal Galab is a twenty-seven-year-old American citizen of Yemeni descent who was born and raised in Buffalo, New York. He is married, has three children, and used to run a gas station in the Buffalo suburb of Lackawanna. Perhaps you have heard of him; he will be spending some or all of the next ten years in federal prison because in spring of 2001 he and six other Lackawanna residents traveled to Afghanistan and trained with Al Qaeda.
The Campain-Finance Crucible: Is Laissez Fair?, Jamin B. Raskin
The Campain-Finance Crucible: Is Laissez Fair?, Jamin B. Raskin
Michigan Law Review
The 2001 passage of the Bipartisan Campaign Reform Act ("BCRA"), popularly known as "McCain-Feingold," set the stage for a momentous constitutional conflict in the United States Supreme Court in the 2003-04 Term. Among other things, the new legislation bans "soft money" contributions to the national political parties by corporations, labor unions, and individuals; prohibits state parties that are authorized to accept such contributions to spend the proceeds on activities related to federal elections; forbids federal candidates to participate in raising soft money; doubles the amount of "hard money" an individual can contribute in a federal election from $1,000 to $2,000 …
Discussing The First Amendment, Christina E. Wells
Discussing The First Amendment, Christina E. Wells
Michigan Law Review
Since the First Amendment's inception, Americans have agreed that free expression is foundational to our democratic way of life. Though we agree on this much, we have rarely agreed on much else regarding the appropriate parameters of free expression. Is the First Amendment absolute or does it allow some regulation of speech? Should the First Amendment protect offensive speech, pornography, flag-burning? Why do we protect speech - to promote the search for truth, to promote self-governance, or to protect individual autonomy?2 History is rife with disagreements regarding these issues to which there are no definitive answers. Certainly, the text of …
Ifeminism, Ashlie Warnick
Ifeminism, Ashlie Warnick
Michigan Law Review
Laws should be judged not by their words or intentions, but by their effects and consequences. When government enacts laws designed to benefit one group, society should judge those laws first by examining whether they have, in practice, provided a net benefit to the law's intended beneficiaries. Next, any such benefit must be weighed against the costs imposed on the rest of society. If the benefits outweigh the costs, this is a socially efficient law. Government should repeal a law when the costs it imposes outweigh its benefits. When laws do not provide a net benefit to the group they …
The Serpentine Wall Of Separation, John Witte Jr.
The Serpentine Wall Of Separation, John Witte Jr.
Michigan Law Review
The task of separating the secular from the religious in education is one of magnitude, intricacy, and delicacy, Justice Jackson wrote, concurring in McCollum v. Board of Education, the Supreme Court's first religion in public schools case. "To lay down a sweeping constitutional doctrine" of absolute separation of church and state "is to decree a uniform . . . unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change attitudes." If we persist in this experiment, Justice Jackson warned his brethren, "we are …
Cyberdemons: Regulating A Truly World-Wide Web, Andrew P. Lycans
Cyberdemons: Regulating A Truly World-Wide Web, Andrew P. Lycans
Michigan Law Review
In the decade leading up to the twenty-first century, the number of Internet-related legal disputes grew exponentially. This growth continues into the new millennium, introducing old problems in a new context. For instance, in the field of copyright, Eric Eldred, the operator of a website dedicated to posting literary works already in the public domain, challenged the Copyright Term Extension Act ("CTEA"). The CTEA blocked his plans to post works copyrighted in 1923, works which under the previous statute would have entered the public domain in 1999. Looking to trademark law, the field has become obsessed of late with providing …
Disease And Cure?, L. A. Powe Jr.
Disease And Cure?, L. A. Powe Jr.
Michigan Law Review
Sunstein uses Franklin's remark to make two related points. First, citizens bear the burden of maintaining the American republic as a healthy, vibrant place; being a citizen is decidedly different from being a consumer. The former has duties, the latter wants (pp. 113-23). Second, and this is the gist of the slender book, the republic is jeopardized by the possibilities of the Internet. Sunstein assumes the correctness of MIT technology specialist Nicholas Negroponte's conclusion that in the not-too-distant future we will be able to create a "Daily Me" on the Internet that will provide the personalized information (including news) that …