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2002

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Articles 31 - 60 of 102

Full-Text Articles in First Amendment

The Idea Of Public Reason Resuscitated, James P. Madigan Apr 2002

The Idea Of Public Reason Resuscitated, James P. Madigan

William & Mary Bill of Rights Journal

In this Article, James Madigan examines the role of public reason in a democratic government, including what views should play a role in determining public reason. Madigan criticizes John Rawls for including comprehensive views in constitutional debates, and argues that only reasons grounded in political values should be used when debating constitutional issues and fundamental rights.

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"Charitable Choice" And The Accountability Challenge: Reconciling The Need For Regulation With The First Amendment Religion Clauses, Michele E. Gilman Apr 2002

"Charitable Choice" And The Accountability Challenge: Reconciling The Need For Regulation With The First Amendment Religion Clauses, Michele E. Gilman

Vanderbilt Law Review

Charitable choice, or the use of federal money to fund social services provided by religious organizations, has engendered controversy and confusion since its inception in the 1996 welfare reform legislation. Under the welfare reform statute, entitled the Personal Responsibility and Work Opportunity Reconciliation Act ("PRA"), states may contract out administration of their welfare programs to private entities, including houses of worship. President Bush is promoting the expansion of charitable choice into other federal social service programs as a major policy initiative of his administration. Federal funding of faith-based organizations has supporters and opponents on both the left and the right. …

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First Amendment Limits On Copyright, C. Edwin Baker Apr 2002

First Amendment Limits On Copyright, C. Edwin Baker

Vanderbilt Law Review

Although the tension between copyright and the First Amendment has long been noted and increasing numbers of First Amendment challenges to copyright have recently been filed, few scholarly commentaries have gone beyond relatively narrow attempts at doctrinal accommodation. Under the assumption either that existing copyright law fully accommodates First Amendment interests or that some balance is appropriate, commentators have avoided any principled exploration of the full force of First Amendment principles. This Essay aims to fill that gap. Rather than use mechanical doctrine to evaluate existing copyright law, this Essay begins with a theoretical approach to the First Amendment and …

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Assessing The Risk Of Executing The Innocent: A Case For Allowing Access To Physical Evidence For Posthumous Dna Testing, Anne-Marie Moyes Apr 2002

Assessing The Risk Of Executing The Innocent: A Case For Allowing Access To Physical Evidence For Posthumous Dna Testing, Anne-Marie Moyes

Vanderbilt Law Review

On February 5, 1985, Helen Schartner was raped and murdered on her way home from a bar in Virginia Beach. Joseph O'Dell was at the same bar that night, and fellow patrons claim he left the bar shortly after Schartner departed. Several hours later, O'Dell was seen entering a convenience store with blood on his hands, face, and clothes. O'Dell's estranged girlfriend--who had previously falsely accused O'Dell of other murders--read about Schartner's murder and called the police to report that O'Dell had left some bloody clothes in her garage. The police arrested O'Dell and charged him with the rape and …

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Lavine V. Blaine School District: Fear Silences Student Speech In The Ninth Circuit, Shannon M. Mcminimee Apr 2002

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 …

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“Certain Fundamental Truths”: A Dialectic On Negative And Positive Liberty In Hate-Speech Cases, W. Bradley Wendel Apr 2002

“Certain Fundamental Truths”: A Dialectic On Negative And Positive Liberty In Hate-Speech Cases, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

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The Rhetoric Of Judicial Critique: From Judicial Restraint To The Virtual Bill Of Rights, Michael J. Gerhardt Apr 2002

The Rhetoric Of Judicial Critique: From Judicial Restraint To The Virtual Bill Of Rights, Michael J. Gerhardt

William & Mary Bill of Rights Journal

Professor Michael Gerhardt traces the rhetoric employed by national leaders and commentators over the past century to describe popular conceptions of the judicial function. In particular, Professor Gerhardt examines the evolution of the terminology used in popular and political rhetoric, revealing their inconsistent application to political ideologies through time. Professor Gerhardt argues that such shifts in usage correspond with transfers of power between the political authorities controlling the central interests at stake in constitutional adjudication. Professor Gerhardt applies the shortcomings of traditional political rhetoric to the issues surrounding technological advancements, concluding that the proper treatment of technology by the Supreme …

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Commercial Speech And The Unconstitutional Conditions Doctrine: A Second Look At "The Greater Includes The Lesser", Mitchell N. Berman Apr 2002

Commercial Speech And The Unconstitutional Conditions Doctrine: A Second Look At "The Greater Includes The Lesser", Mitchell N. Berman

Vanderbilt Law Review

Over half a century ago, the Puerto Rico legislature legalized casino gambling in an effort to promote tourism to the island.' To help ensure that the local population would not overindulge in this particular vice, however, the legislature at the same time provided that "[n]o gambling room shall be permitted to advertise or other- wise offer their facilities to the public of Puerto Rico."' Thirty years later a casino operator challenged the statutory advertising ban and its implementing regulations as violating the freedom of speech guaranteed by the First Amendment. Although the Superior Court of Puerto Rico agreed with the …

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"Charitable Choice" And The Accountability Challenge: Reconciling The Need For Regulation With The First Amendment Religion Clauses, Michele E. Gilman Apr 2002

"Charitable Choice" And The Accountability Challenge: Reconciling The Need For Regulation With The First Amendment Religion Clauses, Michele E. Gilman

All Faculty Scholarship

Since 1996, Congress has included charitable choice provisions in several social welfare statutes to encourage the participation of religious organizations in administering government-funded social service programs. In this Article, Professor Michele Gilman discusses the lack of accountability to beneficiaries that occurs when public funds are given to religious organizations for secular programs, and she proposes solutions to this problem. As Professor Gilman explains, doctrines that constrain abuses of governmental discretion, such as administrative procedure acts and constitutional restrictions, generally do not apply when public programs are privatized. Moreover, religious organizations are often insulated from public scrutiny because of First Amendment …

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Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton Apr 2002

Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton

Articles

No abstract provided.

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The Puffery Of Lawyers, Rodney A. Smolla Mar 2002

The Puffery Of Lawyers, Rodney A. Smolla

Scholarly Articles

Not available.

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Ministerial Exception And Title Vii Claims: Case Law Grid Analysis, Janet S. Belcove-Shalin Mar 2002

Ministerial Exception And Title Vii Claims: Case Law Grid Analysis, Janet S. Belcove-Shalin

Nevada Law Journal

No abstract provided.

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Smut On The Small Screen: The Future Of Cable-Based Adult Entertainment Following United States V. Playboy Entertainment Group, Bradley A. Skafish Mar 2002

Smut On The Small Screen: The Future Of Cable-Based Adult Entertainment Following United States V. Playboy Entertainment Group, Bradley A. Skafish

Federal Communications Law Journal

This Note argues that the most important aspect of Playboy is the Court's determination that cable television is not analogous to broadcast media. Provided it withstands the test of time, this distinction allows the cable industry to avoid the more stringent regime placed upon broadcast media. The Playboy decision also shows the Court's willingness to invalidate laws even when they serve a compelling interest and impose less restrictions than a complete ban. Members of the Court differed on whether "signal bleed" actually constituted an influence harmful to children. This discrepancy evinces a significant disagreement on where lines should be drawn …

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Revenue Bonds And Religious Education: The Constitutionality Of Conduit Financing Involving Pervasively Sectarian Institutions, Trent Collier Mar 2002

Revenue Bonds And Religious Education: The Constitutionality Of Conduit Financing Involving Pervasively Sectarian Institutions, Trent Collier

Michigan Law Review

The Establishment Clause - and particularly the issue of government funding of religious education - is one of the murkiest areas of Supreme Court jurisprudence. The Supreme Court has acknowledged as much, and the sharp divide in the Court's most recent forays into Establishment Clause territory illustrates the point that the current jurisprudential standards allow for a broad range of interpretation. There is some hope that the Supreme court will provide further clarification of its Establishment Clause standard in the near future. For now, however, it appears that the dominant mode of the Establishment Clause analysis is the examination of …

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The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett Mar 2002

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Cardozo Law Review

No abstract provided.

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Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman Feb 2002

Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman

All Faculty Scholarship

In recent decades, the doctrine of content neutrality has become the cornerstone of First Amendment jurisprudence. In the leading case of Police Department v. Mosley (1972), the Supreme Court declared that speech may "never" be regulated because of its content, for that would be "the essence of . . . censorship." If this view were taken literally, however, it would disable government from regulating speech even when necessary to prevent serious injury to individuals or society. In response to this concern, the Court has carved out several exceptions to the neutrality doctrine. Yet the Justices have never succeeded in explaining …

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The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken Feb 2002

The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, Samuel R. Olken

William & Mary Bill of Rights Journal

In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …

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The Constitution And The Other Constitution, Michael Kent Curtis Feb 2002

The Constitution And The Other Constitution, Michael Kent Curtis

William & Mary Bill of Rights Journal

In this article, Professor Michael Kent Curtis examines how laws that shape the distribution of wealth intersect with and affect popular sovereignty and free speech and press. He presents this discussion in the context of the effect of the Other Constitution on The Constitution. Professor Curtis begins by taking a close-up look at the current campaign finance system and the concentration of media ownership in a few corporate bodies and argues that both affect the way in which various political issues are presented to the public, if at all. Professor Curtis continues by talking about the origins of our constitutional …

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Assessing The Legitimacy Of Governmental Regulation Of Modern Speech Aimed At Social Reform: The Importance Of Hindsight And Causation, Kenneth J. Brown Feb 2002

Assessing The Legitimacy Of Governmental Regulation Of Modern Speech Aimed At Social Reform: The Importance Of Hindsight And Causation, Kenneth J. Brown

William & Mary Bill of Rights Journal

When governmental regulation or punishment of speech occurs subsequent to the speech itself, such regulation is conducted with the benefit of hindsight. This is important because hindsight enables us to discern whether the expression in question has caused any legally cognizable harm. When speech is responsible for such a harm, its punishment is justfied by this causal connection. Yet conversely, when we know that speech is consequence-free, its ex post punishment is conceptually indefensible. In the first part of this article, Mr. Brown criticizes the imminent lawless action standard articulated in Brandenburg v. Ohio for failing to embrace fully this …

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The First Amendment And The New Civil Liability, Rodney A. Smolla Jan 2002

The First Amendment And The New Civil Liability, Rodney A. Smolla

Scholarly Articles

Not available.

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From Hit Man To Encyclopedia Of Jihad: How To Distinguish Freedom Of Speech From Terrorist Training, Rodney A. Smolla Jan 2002

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

Scholarly Articles

Not available.

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Information As Contraband: The First Amendment And Liability For Trafficking In Speech, Rodney A. Smolla Jan 2002

Information As Contraband: The First Amendment And Liability For Trafficking In Speech, Rodney A. Smolla

Scholarly Articles

Not available.

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Compelled Expression And The Public Forum Doctrine, Howard M. Wasserman Jan 2002

Compelled Expression And The Public Forum Doctrine, Howard M. Wasserman

Faculty Publications

This Article analyzes the theory underlying the Fist Amendment protection against being compelled by government to utter, present, or fund unwanted expression. The author creates a three-part model for determining when the fire speech rights of an objecting payer have been triggered. Under that model, First Amendment rights are implicated when there has been an actual government compulsion requiring an individual to give money to, or for the express benefit of, a specific private speaker for some use that, in itself, should be understood as expressive. This model strikes a necessary balance between the important theoretical underpinnings of the protection …

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Content-Based Regulation Of Electronic Media: Indecent Speech On The Internet, 21 J. Marshall J. Computer & Info. L. 19 (2002), Kelly M. Slavitt, Matthew Knorr Jan 2002

Content-Based Regulation Of Electronic Media: Indecent Speech On The Internet, 21 J. Marshall J. Computer & Info. L. 19 (2002), Kelly M. Slavitt, Matthew Knorr

UIC John Marshall Journal of Information Technology & Privacy Law

Using an airing of the Victoria Secret fashion show as an example, the author explores the definition of "indecency" in media. She first discusses the how FCC treats indecency in traditional media (radio, broadcast TV and cable). Then, she addresses numerous failed attempts of applying indecency on the Internet. Consequently, she compares and contrasts the different media. Lastly, she suggests a solution in this regard that would likely pass constitutional muster. The FCC can impose fines or prison sentences on radio and broadcasting licensees for "uttering any obscene, indecent or profane language by means of radio communications." As for cable …

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Begging The Court's Pardon: Justice Denied For The Poorest Of The Poor, Daniel M. Cohen Jan 2002

Begging The Court's Pardon: Justice Denied For The Poorest Of The Poor, Daniel M. Cohen

St. Thomas Law Review

Astonishing as it may seem, if Benjamin Franklin were alive today, and he sought to collect alms for the poor on Fort Lauderdale Beach, he would, by force of law, find himself summarily expelled from the area. If Mr. Franklin then returned, seeking thus to heed the call of his conscience to help the downtrodden and oppressed, the great statesman and Founding Father of the United States would find himself placed under arrest. For the City of Fort Lauderdale, with the imprimatur of the Eleventh Circuit Court of Appeal, has deemed it Right and Good that soliciting a passerby for …

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The Government Tunes In To Tune Out The Marketing Of Violent Entertainment To Kids, Shannon Mccoy Jan 2002

The Government Tunes In To Tune Out The Marketing Of Violent Entertainment To Kids, Shannon Mccoy

Vanderbilt Journal of Entertainment & Technology Law

This Note examines the recent investigation conducted by the Federal Trade Commission ("FTC" or "Commission") and its 2001 Follow-Up to that inquiry. The September 2000 Report ("Report") concluded that the entertainment industry intentionally and aggressively advertises both R and PG-13 movies to children under the age of 18. As a solution, the FTC recommended self-regulation by the entertainment industry. The 2001 Follow-Up to the Report ("Follow-Up") found that although the movie industry has made progress, a greater effort must be exerted to successfully eliminate the marketing of violent entertainment to children.' Both the Report and the Follow-Up demonstrate that self-regulation …

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Effectuating Censorship: Civic Republicanism And The Secondary Effects Doctrine, 35 J. Marshall L. Rev. 189 (2002), Brandon K. Lemley Jan 2002

Effectuating Censorship: Civic Republicanism And The Secondary Effects Doctrine, 35 J. Marshall L. Rev. 189 (2002), Brandon K. Lemley

UIC Law Review

No abstract provided.

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Free Speech In A Digital Economy: An Analysis Of How Intellectual Property Rights Have Been Elevated At The Expense Of Free Speech, 36 J. Marshall L. Rev. 109 (2002), Bernard E. Nodzon Jr. Jan 2002

Free Speech In A Digital Economy: An Analysis Of How Intellectual Property Rights Have Been Elevated At The Expense Of Free Speech, 36 J. Marshall L. Rev. 109 (2002), Bernard E. Nodzon Jr.

UIC Law Review

No abstract provided.

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Freedom Of The Private-University Student Press: A Constitutional Proposal, 36 J. Marshall L. Rev. 139 (2002), Brian J. Steffen, John E. Ferguson Jan 2002

Freedom Of The Private-University Student Press: A Constitutional Proposal, 36 J. Marshall L. Rev. 139 (2002), Brian J. Steffen, John E. Ferguson

UIC Law Review

No abstract provided.

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Reflecting On The Virtual Child Porn Decision, 36 J. Marshall L. Rev. 211 (2002), David L. Hudson Jan 2002

Reflecting On The Virtual Child Porn Decision, 36 J. Marshall L. Rev. 211 (2002), David L. Hudson

UIC Law Review

No abstract provided.

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