First Amendment Commons^™

The State Secrets Privilege In The Post-9/11 Era, 30 Pace L. Rev. 778 (2010), Steven D. Schwinn

UIC Law Open Access Faculty Scholarship

No abstract provided.

Regulating Offensiveness: Snyder V. Phelps, Emotion, And The First Amendment, Christina E. Wells

Faculty Publications

In its upcoming term, the Court will decide in Snyder v. Phelps whether Albert Snyder can sue the Reverend Fred Phelps and other members of the Westboro Baptist Church for invasion of privacy and intentional infliction of emotional distress for protesting near his son’s funeral. Those arguing in favor of tort liability claim that the Phelps’ speech during a time of mourning and vulnerability is especially outrageous and injurious and that the First Amendment allows such regulation. Their arguments, however, effectively rely on the offensiveness of the Phelps’ message rather than on any external indicia of harm, such as noisy …

Speech, Truth, And Freedom: An Examination Of John Stuart Mill's And Justice Oliver Wendel Holmes's Free Speech Defenses, Irene M. Ten Cate

Faculty Scholarship

No abstract provided.

Essay: Religious Displays And The Voluntary Approach To Church And State, Thomas Berg

Oklahoma Law Review

No abstract provided.

Panel Discussion

Oklahoma Law Review

No abstract provided.

Essay: Curing A Monumental Error: The Presumptive Unconstitutionality Of Ten Commandment Displays, Peter Irons

Oklahoma Law Review

No abstract provided.

Antitrust Censorship Of Economic Protest, Hillary Greene

Faculty Articles and Papers

Antitrust law accepts the competitive marketplace, its operation, and its outcomes as an ideal. Society itself need not and does not. Although antitrust is not in the business of evaluating, for example, the “fairness” of prices, society can, and frequently does, properly concern itself with these issues. When dissatisfaction results, it may manifest itself in an expressive boycott: a form of social campaign wherein purchasers express their dissatisfaction by collectively refusing to buy. Antitrust should neither participate in nor censor such normative discourse. In this Article, I explain how antitrust law impedes this speech, argue why it should not, and …

Nobody's Fools: The Rational Audience As First Amendment Ideal, Lyrissa Barnett Lidsky

UF Law Faculty Publications

Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called core speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the marketplace of ideas …

Robert Tsai, Eloquence And Reason: Creating A First Amendment Culture Book Review, Zanita E. Fenton

Articles

No abstract provided.

Poison Pens, Intimidating Icons, And Worrisome Websites: Off-Campus Student Speech That Challenges Both Campus Safety And First Amendment Jurisprudence, Kathy Luttrell Garcia

St. Thomas Law Review

As the line between off-campus and on-campus student speech is increasingly blurred by the internet, educators and courts alike are struggling to determine the limits of school authority to restrict student speech that originates off-campus but is directed toward an on-campus audience. Although students retain their First-Amendment-protected rights of free speech and expression on school campuses during school hours, these rights are subject to exceptions. These exceptions are constitutionally permissible, even where the speech could not be restricted off campus, because "student First Amendment rights are 'applied in light of the special characteristics of the school environment." Because of these …

Fighting The New Wars Of Religion: The Need For A Tolerant First Amendment, Leslie C. Griffin

Scholarly Works

No abstract provided.

Snyder V. Phelps: Searching For A Legal Standard, Leslie C. Griffin

Scholarly Works

No abstract provided.

Constitutional Protection For Non-Media Defendants: Should There Be A Distinction Between You And Larry King?, Rebecca Phillips

Campbell Law Review

This Comment considers the current law, contemplates the rapid growth of technology and proposes an answer to the following two questions: Should there be a distinction between media and nonmedia defendants? If so, who should be offered more protection: You or Larry King? To answer these questions, Part I summarizes traditional and current defamation law and the First Amendment protections that have been meted out by the courts. Part II discusses the court decisions that have noted whether a distinction between media and nonmedia defendants is meritorious and critiques those conclusions in light of the development of defamation law. Part …

When Is Religious Speech Outrageous?: Snyder V. Phelps And The Limits Of Religious Advocacy, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

The Constitution affords great protection to religiously motivated speech. Religious liberty would mean little if it did not mean the right to profess and practice as well as to believe. But are there limits beyond which religious speech loses its constitutional shield? Would it violate the First Amendment to subject a religious entity to tort liability if its religious profession causes emotional distress? When is religious speech outrageous?

These are vexing questions, to say the least; but the United States Supreme Court will take them up next term—and it will do so in a factual context that has generated as …

The Texas Mis-Step: Why The Largest Child Removal In Modern U.S. History Failed, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

This Article sets forth the historical and legal reasons as to how the State of Texas botched the removal of 439 children from the Fundamentalist Church of Jesus Christ of Latter-Day Saints parents residing in Eldorado, Texas. The Department of Family and Protective Services in Texas overreached its authority by treating this case like a class-action removal based on an impermissible legal argument, rather than focusing on the facts and circumstances that could have been substantiated for a select group of children at risk. This impermissible legal argument regarding the “pervasive belief system” of a polygamist sect that allowed minor …

Propaganda For War And Transparency, Richard B. Collins

Publications

No abstract provided.

Cyberspace Is Outside The Schoolhouse Gate: Offensive, Online Student Speech Receives First Amendment Protection, Joseph A. Tomain

Articles by Maurer Faculty

Normative and doctrinal analysis shows that schools do not possess jurisdiction over offensive online student speech, at least when it does not cause a substantial disruption of the school environment. This article is a timely analysis on the limits of school jurisdiction over offensive online student speech.

On February 4, 2010, two different Third Circuit panels issued opinions reaching opposite conclusions on whether schools may punish students based on online speech created by students when they are off-campus. The Third Circuit vacated both decisions and is considering these cases in a consolidated en banc appeal. Another case addressing the same …

Honest To Blog: Balancing The Interests Of Public Figures And Anonymous Bloggers In Defamation Lawsuits, Yang-Ming Tham

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

The Myth Of The Level Playing Field: Knowledge, Affect, And Repetition In Public Debate, Jeremy N. Sheff

Faculty Publications

The industrialization of the channels and scale of communication has led some well-meaning reformers to try to regulate the ability of powerful private actors to leverage economic inequality into political inequality, particularly in the area of campaign finance. Such reform efforts are ostensibly intended to further the deliberative democratic ideal of rational, informed public decision making by preventing well-funded private interests from improperly influencing democratic debate and, by extension, political outcomes. This Article examines empirical findings in political science, psychology, and marketing and argues that, in the context of contemporary American society, the normative principles of deliberative democracy and formal …

Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew J. Steilen

Journal Articles

Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the article …

Hate Speech And The Language Of Racism In Latin America: A Lens For Reconsidering Global Hate Speech Restrictions And Legislation Models, Tanya K. Hernandez

Faculty Scholarship

In Latin America, like many countries in Europe, hate speech is prohibited. Yet Latin America is rarely included in the transnational discussion regarding the regulation of hate speech. Instead, the discourse focuses on a comparison of the advisability of Europe's hate speech regulations and free speech acceptance of hate speech in the United States. As a result, the ability to fundamentally examine the connections between hate speech and inequality, in addition to the most effective legal mechanisms for addressing it, is undermined. It is especially critical to broaden the hate speech debate now that we are seeing an apparent rise …

Speech Platforms Law Review Symposium 2010: Government Speech: The Government's Ability To Compel And Restrict Speech, Abner S. Greene

Faculty Scholarship

The state plays different roles, and free speech doctrine should (and sometimes does) respect these roles. We properly insist (with some categorical exceptions) that the state not regulate private speech based on subject matter or point of view. If private speakers want to praise the Nazis or condemn homosexuality, the state has no place stopping them, even if firmly convinced these ideas are wrong. Why we have such firm protection for speech we abhor is a matter of much debate. To some extent, it's because we don't trust the state to make content-based judgments consistently as a matter of principle; …

What The Abortion Disclosure Cases Say About The Constitutionality Of Persuasive Government Speech On Product Labels, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

No abstract provided.

Don't Feed The Alligators: Government Funding Of Political Speech And The Unyielding Vigilance Of The First Amendment, Joel M. Gora

Faculty Scholarship

No abstract provided.

Protecting Free Speech For Unequivocal Fair Users: Rethinking Our Interpretation Of The §512(F) Misrepresentation Clause, Jordan Koss

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Sects' Offenders: The Inefficacy Of Sex Offender Residency Laws And Their Burdens On The Free Exercise Of Religion, Amol N. Sinha

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

The Singer Did Not Approve This Message: Analyzing The Unauthorized Use Of Copyrighted Music In Political Advertisements In Jackson Browne V. John Mccain, David C. Johnston

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Access To Prescription Drugs: A Normative Economic Approach To Pharmacist Conscience Clause Legislation, Joanna K. Sax

Faculty Scholarship

The goals of this Article are two-fold: (1) to explain that pharmacist conscience clause legislation may be expanded to areas concerning controversial biomedical research; and (2) to demonstrate that welfare economics can be applied to analyze pharmacist conscience clause legislation. Regarding the first goal, the broad language of existing and proposed conscience clause legislation creates an umbrella that allows a pharmacist to escape liability for refusing to fill a prescription for almost any type of medication. With respect to the second goal, this Article applies welfare economics to demonstrate that pharmacist conscience clauses are a part of tort law and …

A Duty To Serve?: Assessing The Application Of Religious Exemptions For Marriage Officiants In Same-Sex Marriage Laws With Lessons Learned From The Reproductive Rights World, Christina Coiro

Student Works

No abstract provided.

Modern Application Of The Right Of Publicity To Virtual Avatars, Elina Slavin

Student Works

No abstract provided.