First Amendment Commons^™

The Fact-Conjecture Framework In U.S. Libel Law: Four Problems, Brian C. Murchison

Scholarly Articles

A requirement of U.S. defamation law is that an actionable statement be factual in nature, but courts since Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), have had considerable difficulty in distinguishing factual from non-factual statements and in articulating the value of non-factual public discourse in all its diversity. This Article reviews four topics - intent, context, conjecture, and hyperbole - that have been particularly troublesome to courts. It argues for a fresh appraisal of Justice Brennan's dissenting opinion in Milkovich and brings into the conversation the works of several current political theorists on the contributions of passionate political …

Tough Pill To Swallow: Whether Catholic Institutions Are Obligated Under Title Vii To Cover Their Employees’ Prescription Contraceptives, Craig W. Mandell

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

A Cross To Bear: The Need To Weigh Context In Determining The Constitutionality Of Religious Symbols On Public Land, Catherine Ansello

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Bailing Out The Print Newspaper Industry: A Not-So-Joking Public Policy And First Amendment Analysis, Clay Calvert

McGeorge Law Review

No abstract provided.

Political Marketplace Metaphor From A Labor Perspective, The, Thomas Tso

McGeorge Law Review

No abstract provided.

Mt. Soledad In The Supreme Court's Crosshairs: Why Legislative Recognition Should Be Considered In Public Displays Of Religion, Adrian R. Conteras

McGeorge Law Review

No abstract provided.

Changing The Rules Of Establishment Clause Litigation: An Alternative To The Public Expression Of Religion Act, Christopher D. Tomlinson

Vanderbilt Law Review

In 2004, the American Civil Liberties Union ("ACLU") threatened to sue the city of Redlands, California, if it did not remove a small cross from its city seal.' The cross represented the city's religious heritage and its history as a city of churches. Instead of facing the possibility of litigation and the more daunting risk of losing in court and being forced to pay the ACLU's attorneys' fees in addition to its own, the Redlands City Council agreed to change the seal. The City of Redlands not only could ill afford the risk of paying the ACLU's attorneys' fees; it …

Freedom Of Association, The Communist Party, And The Hollywood Ten: The Forgotten First Amendment Legacy Of Charles Hamilton Houston, Jose Felipe Anderson

McGeorge Law Review

No abstract provided.

Battle Of The Lists: The Use Of Approved Versus Restricted Religious Book Lists In Prisons, Joanna E. Varner

McGeorge Law Review

No abstract provided.

The Source Of The Problem Of Sources: The First Amendment Fails The Fourth Estate, Joel Gora

Faculty Scholarship

No abstract provided.

An Analysis Of Historical And Legal Sanctuary And A Cohesive Approach To The Current Movement, 42 J. Marshall L. Rev. 135 (2008), Pamela Begaj

UIC Law Review

No abstract provided.

Building A 'New Institutional' Approach To Corporate Speech, Michael R. Siebecker

Sturm College of Law: Faculty Scholarship

This Article represents the second installment in a three-part series designed to articulate a New Institutional approach to corporate speech that could foil the otherwise inevitable collision between the commercial speech doctrine and the Supreme Court's disparate approach to corporate political speech.

The problem arises because corporations are attempting to escape regulation or liability in a variety of settings by investing commercial messages with just enough political content to render the amalgam of politically tinged corporate speech fully protected under the First Amendment. Why would this strategy work? If corporate speech is political, existing Supreme Court jurisprudence suggests that government …

Applying Genericide To The Right Of Publicity, Zoe Argento

Vanderbilt Journal of Entertainment & Technology Law

This article proposes applying genericide to the right of publicity as a way to cabin the over-expansion of publicity rights. The article offers a different approach than previous proposals, which seek to either narrow the definition of publicity rights or bolster defenses, such as the First Amendment. Like trademark genericide, the celebrity's image comes to refer to an idea, not to the identity of the source of the product or to the identity of the celebrity. This article proposes a test: whether the aspect of the celebrity's persona at issue has been used in the public dialogue with a clearly …

Magic Words And Millionaires: The Supreme Court's Assault On Campaign Funding, 42 J. Marshall L. Rev. 1 (2008), Michael J. Kasper

UIC Law Review

No abstract provided.

The Lactating Angel Or Activist? Public Breatsfeeding As Symbolic Speech, Elizabeth Hildebrand Matherne

Michigan Journal of Gender & Law

The only way to combat this stigma against public breastfeeding is through the act of breastfeeding in public. The author proposes that breastfeeding is a powerful act of symbolic speech vital for discarding one of the lingering shackles of women's inequality that triggers first amendment protection. Breastfeeding in public addresses this stigma by treating two ills at once: 1) greater public exposure to the practice decreases the severity of society's reactions, and 2) the less stares and confrontation that publicly nursing mothers receive, the more likely they will be to breastfeed, whenever or wherever their baby is hungry. This will …

Reflections On The Mirror Image Doctrine: Should The Federal Trade Commission Regulate False Advertising For Books Promising Wealth, Weight Loss, And Miraculous Cures?, Keith R. Fentonmiller

West Virginia Law Review

No abstract provided.

Balancing Public School Students' First Amendment Freedoms With The Blackboard Jungle: Are Students In Danger Of Becoming Another Brick In The Wall After Hazelwood?, Daniel Lattanzi

West Virginia Law Review

No abstract provided.

Where's The Harm?: Free Speech And The Regulation Of Lies, Lyrissa Lidsky

Faculty Publications

The United States Supreme Court has interpreted the First Amendment to accord a measure of protection to outright lies. This essay seeks to explain why. Using Holocaust denial as an example of verifiably false speech, this essay poses the question of whether such speech poses a more serious danger than First Amendment jurisprudence traditionally has acknowledged. This essay also probes the unintended consequences of governmental attempts to impose criminal punishment on lies.

A Time To Mourn: Balancing The Right Of Free Speech Against The Right Of Privacy In Funeral Picketing, Njeri Mathis Rutledge

Maryland Law Review

No abstract provided.

Garcetti V. Ceballos: Misconstruing Precedent To Curtail Government Employees’ First Amendment Rights, Matthew R. Schroll

Maryland Law Review

No abstract provided.

Taking Safety Seriously: Using Liberalism To Fight Pornography, John M. Kang

Michigan Journal of Gender & Law

Liberalism, as a jurisprudential principle, need not be pornography's indifferent observer or spineless sycophant; liberalism can be used to fight pornography. In this Article, the author proposes to illuminate what appears to be the most essential aspect of liberalism in its inviolable dedication to peace and safety. By drawing upon the work of the early liberals, the author argues that liberalism's most basic ethos is conceptually incompatible with pornography, as the latter celebrates an unjustified form of violence as its own end.

The Problem Of Religious Learning, Marc O. Degirolami

Scholarly Articles

The problem of religious learning is that religion-including the teaching about religion-must be separated from liberal public education, but that the two cannot be entirely separated if the aims of liberal public education are to be realized. It is a problem that has gone largely unexamined by courts, constitutional scholars, and other legal theorists. Though the U.S. Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence, and scholars frequently urge policies for or against such controversial subjects as Intelligent Design or graduation prayers, insuffi- cient attention has been paid …

Silence At The Schoolhouse Gate: The Diminishing First Amendment Rights Of Public School Employees, Neal H. Hutchens

Kentucky Law Journal

No abstract provided.

Avalanche Or Undue Alarm? An Empirical Study Of Subpoenas Received By The News Media, Ronnell Anderson Jones

Utah Law Faculty Scholarship

For more than 30 years, proponents and opponents of a federal reporter's shield law have debated the necessity of a privilege for members of the news media and have disagreed sharply about the frequency with which subpoenas are issued to the press. Most recently, in the wake of several high-profile contempt cases, proponents have pointed to a perceived "avalanche" of subpoenas, while opponents have contended that the receipt of subpoenas by reporters remains very rare. This article summarizes the results of an empirical study on the question. The study gathered data on subpoenas received by daily newspapers and network-affiliated television …

Do Churches Matter - Towards An Institutional Understanding Of The Religion Clauses, Richard W. Garnett

Villanova Law Review (1956 - )

No abstract provided.

Why Monuments Are Government Speech: The Hard Case Of Pleasant Grove City V. Summun, 58 Cath. U. L. Rev. 7 (2008), Mary Jean Dolan

UIC Law Open Access Faculty Scholarship

No abstract provided.

Mixed Speech: When Speech Is Both Private And Governmental, Caroline Mala Corbin

Articles

Speech is generally considered to be either private or governmental, and this dichotomy is embedded in First Amendment jurisprudence. However, speech is often neither purely private nor purely governmental but rather a combination of the two. Nonetheless, the Supreme Court has not yet recognized mixed speech as a distinct category of speech. This Article suggests considerations for identifying mixed speech and exposes the shortcomings of the current approach of classifying all speech as either private or governmental when determining whether viewpoint restrictions pass First Amendment muster. Treating mixed speech as government speech gives short shrift to the free speech interests …

Freedom Of The Press 2.0, Edward Lee

Georgia Law Review

In today's digital age, copyright law is changing. It now attempts to regulate machines. Over the past twenty years, and particularly with the advent of the Internet, copyright holders increasingly have invoked copyright law to regulate directly-even to prohibit-the manufacture and sale of technology that facilitates mass dissemination of expressive works. Although the concerns of copyright holders about the ease of digital copying are understandable,the expansion of copyright law to regulate technologies raises troubling questions. Can the government, consistent with the First Amendment, use copyright law to regulate technologies that facilitate the dissemination of speech? If so, are there any …

Do Not Feed The Homeless: One Of The Meanest Cities For The Homeless Unconstitutionally Punishes The So-Called "Enablers", D. Matthew Lay

Nevada Law Journal

No abstract provided.

An Immoral Fight: Shielding Moral Rights With First Amendment Jurisprudence When Fair Use Battles With Actual Malice, 8 J. Marshall Rev. Intell. Prop. L. 190 (2008), Mark A. Petrolis

UIC Review of Intellectual Property Law

Moral rights give an artist personal rights to her work. Because an artist puts her personality, spirit, and soul into the creation of her work, her honor and reputation may be harmed if her works are mistreated. In 1990, the Visual Artists Rights Act incorporated moral rights into U.S. copyright law. However, fair use became an absolute defense to moral rights violations. This comment proposes that fair use should not be an absolute defense, and applies First Amendment jurisprudence developed from defamation law to both fair use and moral rights. Defamation shares similarities with both. Like moral rights, defamation law …