First Amendment Commons^™

Mistaken Identity: Unveiling The Property Characteristics Of Political Money, Spencer A. Overton

Vanderbilt Law Review

This Article argues that money contributed to and spent on political campaigns ('political money") possesses many of the traits that explain judicial respect for regulation of property, and that courts reviewing restrictions on political money should consider doctrines associated with the Fifth and Fourteenth Amendment Property Clauses. As evidenced by the different degrees of respect afforded to regulations of property and speech, judicial treatment of a particular liberty interest can be explained by the presence and particular posturing of distinct functional issues such as distrust, scarcity, distribution, and interference with others' interests. Campaign finance jurisprudence, however, has categorized political money …

Anything Goes: Examining The State's Interest In Protecting Children From Controversial Speech, Catherine J. Ross

Vanderbilt Law Review

Protecting children from contamination by speech has become the focus of national attention. The content of the protected speech that the state seeks to regulate is as varied as the form of communications targeted, including the allegedly indecent, sacrilegious, and violent in media ranging from books to the Internet. Echoing similar crusades to protect children from virtually every new form of entertainment over the last century, contemporary regulatory efforts to protect children reflect the unique legal status of children and the fragility of constitutional liberties where their vulnerabilities are invoked. But content-based restrictions on speech--even in the name of protecting …

The Graduation Prayer Cases: Coercion By Any Other Name, Colin Delaney

Vanderbilt Law Review

The Supreme Court's decision in Lee v. Weisman held clergy- delivered invocations at public-school graduation ceremonies unconstitutional. In the wake of this landmark case, school boards across the country instituted a variety of policies to avoid the establishmentarian attributes fatal to the prayers in Lee. Several Courts of Appeals soon heard cases involving authorities seeking to divorce themselves from speakers and speaker selection, in the apparent belief that school involvement placed the imprimatur of the state on graduation prayer. Yet two facts mark all of the situations challenged to date. First, an agent of the state, the school board, exercised …

Protecting Privacy On The Front Page: Why Restrictions On Commercial Use Of Law Enforcement Records Violate The First Amendment, Jason L. Cagle

Vanderbilt Law Review

An individual is involved in an automobile accident and is arrested for driving under the influence. A few days after being re- leased, he receives several letters in the mail. One is from a chiropractor offering services to treat his injuries. Another is from an alcohol abuse treatment center. Yet another is from an attorney who defends traffic offenses. Each of the solicitors obtained the individual's name and address from publicly available records concerning the incident. The letters are truthful and not misleading, but utilize publicly available information for purely commercial purposes at the expense of the individual's privacy.

Several …

Speech, Service And Sex: The Limits Of First Amendment Protection Of Sexual Expression In The Military, Ross G. Shank

Vanderbilt Law Review

Since the close of the Gulf War, the United States's military organs have endured the exposure of a rash of sex-related scandals. These embarrassments have run the gamut from alarming charges of abuse of power in integrated training environments to the sensationalized, adultery-related discharge of the Air Force's first female bomber pilot. In response, Congress has reconsidered the vexing issues presented by recently adopted policies that have changed the roles of gender and sexual preference in the military. Lawmakers have entertained a wide variety of suggested remedies. At one extreme, Representative Barney Frank proposed lifting entirely the existing ban on …

Concern With Public Concern: Toward A Better Definition Of The "Pickering / Connick" Threshold Test, Karin B. Hoppmann

Vanderbilt Law Review

The term "public employer" is something of a legal oxymoron. Although the law has established a jurisprudence for the employer, consisting of a network of state and federal statutory requirements,' and a jurisprudence for the governmental body, governed by the Constitution, the public employer belongs to neither of these. It is an entity that functions as a private business, charged with maintaining an efficient and productive workplace. It is constantly under pres- sure to improve performance, and it is just as concerned with discipline, morale, and efficiency as any private employer. Yet it is also part of the sovereign and …

Taking Liberties With The First Amendment: Congress, Section 5, And The Religious Freedom Restoration Act, Jay S. Bybee

Vanderbilt Law Review

In July 1788 the North Carolina legislature was considering ratification of the Constitution, a constitution that did not contain a Bill of Rights. As the delegates reached the Religious Test Clause, Henry Abbot remarked:

"Some are afraid... that, should the Constitution be received, they would be deprived of the privilege of worshiping God according to their consciences, which would be taking from them a benefit they enjoy under the present constitution. They wish to know if their religious and civil liberties be secured under this system, or whether the general government may not make laws in- fringing their religious liberties.... …

San Filippo V. Bongiovanni: The Public Concern Criteria And The Scope Of The Modern Petition Right, Kara E. Shea

Vanderbilt Law Review

If the "person on the street" were asked to name a right guar- anteed to all Americans by the First Amendment of the United States Constitution, freedom of speech would likely come quickly to mind, along with the concomitant right of free press. The rights to practice one's religion and peaceably assemble, even the judicially created right of free association might follow closely behind. Few people, how- ever, would mention the "right of the people.., to petition the government for redress of grievances."' Fewer still would be able to give a good definition of petitioning, or to describe the types …

A Coherent Methodology For First Amendment Speech And Religion Clause Cases, Thomas R. Mccoy

Vanderbilt Law Review

It seems clear that any deliberate effort by government to impose religious orthodoxy will be held unconstitutional per se. A religiously motivated restriction on disfavored religious practices will be held to violate the Free Exercise Clause. Similarly, a religiously motivated attempt to promote or subsidize favored religious practices will be held to violate the Establishment Clause. These complimentary restrictions are now so ingrained in our political culture that the legislatures rarely transgress them.

The problem that has bedeviled the Supreme Court for many years is that government regulatory schemes and benefit programs designed to serve purely nonreligious objectives inevitably impact …

The First Amendment And Homosexual Expression: The Need For An Expanded Interpretation, Brent H. Allen

Vanderbilt Law Review

"Homosexuality is today essentially a form of political, social, and moral dissent on par with the best American traditions of dissent and even subversive advocacy.... Those that support criminalization find today in homosexuality what they found before in the family planning of Sanger, the atheism of Darwin, the socialism of Debs, or the Marxist advocacy of the American Communist Party."

Ostensibly, the First Amendment guarantees all people freedom of expression of every belief. The free exchange of ideas forms the basis of a democratic government. Only citizens with unhindered access to the famed "marketplace of ideas" can participate meaningfully in …

R.A.V. V. City Of St. Paul: The Continuing Confusion Of The Fighting Words Doctrine, Melody L. Hurdle

Vanderbilt Law Review

Communication contributes to the marketplace of ideasI which is the only way to promote the discovery of truth in society. The importance of communication has led the United States Supreme Court to herald freedom of expression as "the matrix, the indispensable condition, of nearly every other form of freedom." Indeed, the Court protects few other constitutional rights with such fervor. First Amendment protection is not absolute, however, and the United States Supreme Court consistently has asserted that certain forms or classes of expression may be regulated without violating the Constitution. Generally speaking, the Court has carved exceptions to First Amendment …

Duke V. Cleland: The Eleventh Circuit Neglects The First Amendment Rights Of Political Parties And Allows States To Limit Ballot Access Of Presidential Primary Candidates, Steven A. Kirsch

Vanderbilt Law Review

Notwithstanding H. Ross Perot's strong third place finish in the 1992 Presidential election,' history suggests a successful presidential candidate must be a member of one of the two major political parties to win. As a result, many candidates compete for each major party's nomination. Moreover, the leaders of state Democratic and Republican parties that hold presidential primaries often have attempted to remove the lesser-known, and sometimes politically unpopular, candidates from the ballot. One argument advanced by state party leaders in support of their attempts to prevent some candidates from appearing on the ballot is that the political party has a …

State Restrictions On Violent Expression: The Impropriety Of Extending An Obscenity Analysis, Jessalyn Hershinger

Vanderbilt Law Review

A group of minors allegedly attacked a nine-year-old girl at a San Francisco beach and "artificially raped" her with a bottle. The minors attacked the girl after watching and discussing a television network movie that portrayed a similar rape. The victim sued the network, claiming that it was negligent in airing the program.' In Miami Beach, a teenage boy shot and killed his eighty-three- year-old neighbor. Following his conviction, the minor sued three television networks for damages, alleging that a decade of viewing extensive television violence had incited him to imitate the acts that he had seen. Nineteen-year-old John McCollum …

Liberal Visions Of The Freedom Of The Press, Michael Gerhardt

Vanderbilt Law Review

Liberals have long regarded the First Amendment's freedom of the press guarantee as their special plaything.' For most of this century, liberals have dominated the scholarship and the doctrinal debate on the freedom of the press. They have often urged the federal courts to establish the press as "a fourth institution outside the Government as an additional check on the three official branches." Liberal judges have ensured virtual autonomy for the print media through the cumulative effect of their rulings to immunize the press from damages for the publication of falsehoods about public figures unless the publication was done knowingly, …

Barnes V. Glen Theatre, Inc.: Nude Dancing And The First Amendment Question, Zachary T. Fardon

Vanderbilt Law Review

Erotic dancers Gayle Sutro, Carla Johnson, and Darlene Miller can no longer dance nude in Indiana. In Barnes v. Glen Theatre, Inc. the United States Supreme Court held that Indiana's prohibition of nude dancing did not violate the First Amendment to the United States Constitution. The Court's holding ended years of controversy and debate over Indiana's public indecency statute.

In 1979, in State v. Baysinger, the Indiana Supreme Court held that Indiana's public indecency statute could be used to prohibit nude dancing. The court stated that the statute could not prohibit some larger forms of expression involving the communication of …

Prescription Drug Approval And Terminal Diseases: Desperate Times Require Desperate Measures, John P. Dillman

Vanderbilt Law Review

It is no surprise that the press, in exercising its traditional first amendment freedom, often discloses truthful information about individuals that those individuals would prefer to keep private. An inevitable tension exists between the public's right to know and the individual's right to be let alone.' What is surprising, however, especially given the historic recognition of both a free press and individual privacy as rights fundamental to the preservation of American society, is that the privacy interests of the individual almost always lose. The prevalent rationale for this lopsided result is that the first amendment protects the values promoted by …

Product Health Claims And The First Amendment: Scientific Expression And The Twilight Zone Of Commercial Speech, Martin H. Redish

Vanderbilt Law Review

Imagine, for a moment, that Congress has enacted the "False and Misleading Medical and Scientific Reporting Act of 1990." The law is premised on a fear that scientific quackery may cause significant societal harm by confusing the public and inducing its members to seek out costly, worthless, and possibly harmful medical cures or supposed scientific advances. The Act establishes a special commission of scientific and medical experts to rule on the accuracy of any proposed scientific or medical theory that conceivably could cause public harm or confusion. Such scientific or medical assertions must be substantiated to the commission's satisfaction, or …

Rico Threatens Civil Liberties, Antonio J. Califa

Vanderbilt Law Review

The history of conspiracy, according to Justice Robert Jackson, exemplifies the "'tendency of a principle to expand itself to the limit of its logic.' "" This same phenomenon is present today in the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO). RICO has moved beyond logic and intent into areas far removed from racketeering. Originally intended to combat organized crime, RICO is used increasingly in ideological disputes. For example, it has been used against abortion clinic protesters and anti-pornography groups.

This Article argues that using RICO in ideological disputes is inappropriate and harmful because it results in the chilling …

Regulating Violent Pornography, Deana Pollard

Vanderbilt Law Review

In recent years the regulation of pornography has received much attention. Traditionally, conservatives have scorned pornography of all types on the basis that pornography is immoral. More recently, some feminists have attacked pornography from a civil rights perspective,claiming that pornography is the sexually explicit subordination of women that leads to discrimination against women in all aspects of life. Nonetheless, the first amendment currently protects all forms of pornography from regulation unless the material is deemed "obscene.

"Researchers, however, have shown that certain types of pornography, such as violent, sexually explicit materials, specifically harm women. The proven relationship between violent pornography …

First Amendment Standards For Government Subsidies Of Artistic And Cultural Expression: A Reply To Justices Scalia And Rehnquist, Lionel S. Sobel

Vanderbilt Law Review

May an opera house limit its productions to operas, or must it also show rock musicals? May a municipal theater devote an entire season to Shakespeare, or is it required to book any potential producer on a first come, first served basis?"'" As Professor Kenneth Karst observed in his comment on Southeastern Promotions, the Court's majority "answered these questions with silence."The failure of the Court to respond to Justices Scalia and Rehnquist is puzzling, because in both cases their questions are easily answered. ...

None of these answers, however, would have required a different result in Arkansas Writers' Project or …

Trends In First Amendment Protection Of Commercial Speech, Mary B. Nutt

Vanderbilt Law Review

Recent Development:

The first amendment guarantees that "Congress shall make no law... abridging the freedom of speech or of the press."' Over the past few decades, the Supreme Court has applied the first amendment to commercial speech only sporadically. The Court has vacillated between refusing to apply the first amendment, liberally extending first amendment guarantees,4 and applying limited first amendment protections to commercial speech.' This expansion and contraction of first amendment protection stems partly from three factors: (1) the Court's characterization of the speech at issue as commercial or noncommercial, (2) the Court's perception of the relevant regulation as content-based …

Public Access To Civil Court Records: A Common Law Approach, Ronald D. May

Vanderbilt Law Review

Courts have long recognized a general common law right of access to courtroom proceedings' and court records. Recently, however, courts have begun to consider whether the first amendment of the Constitution protects this right of access. In 1980 the United States Supreme Court in Richmond Newspapers, Inc. v. Virginia held that the press and the public have a first amendment right to attend criminal trials. The Supreme Court found this right implicit in the various clauses of the first amendment. Although the Supreme Court has taken few opportunities since Richmond Newspapers to define precisely the contours of the first amendment …

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 …