First Amendment Commons^™

The Association Of Adult Businesses With Secondary Effects: Legal Doctrine, Social Theory, And Empirical Evidence, Alan C. Weinstein, Richard D. Mccleary

Law Faculty Articles and Essays

In the decade since the U.S. Supreme Court’s decision in Alameda Books v. City of Los Angeles, 535 U.S. 425 (2002), the adult entertainment industry has attacked the legal rationale local governments rely upon as the justification for their regulation of adult businesses: that such businesses are associated with so-called negative secondary effects. These attacks have taken a variety of forms, including: trying to subject the studies of secondary effects relied upon by local governments to the Daubert standard for admission of scientific evidence in federal litigation; producing studies that purport to show no association between adult businesses and negative …

Whistleblowing And Freedom Of Conscience: Towards A New Legal Analysis, Richard Haigh, Peter Bowal

Comparative Research in Law & Political Economy

Most of us have an instinctive understanding of what “whistleblowing” is: the act of alerting the public to scandal, danger, malpractice, corruption or other immoral or unethical behaviour. For a long time, whistleblowers were treated poorly – today, they are now acknowledged, and sometimes even admired, but there is still some way to go. We believe that a strongly developed and distinct freedom of conscience, as expressed in s. 2(a) of the Canadian Charter of Rights and Freedoms, could go some way towards achieving that goal. In law, however, conscience is often treated as inseparable from religion, without any meaningful …

Talking Chalk: Defacing The First Amendment In The Public Forum, Marie Failinger

Faculty Scholarship

This article examines the surprising outcomes of cases challenging arrests of protesters for chalking sidewalks in public forums, and argues that courts have been careless in analyzing these blanket prohibitions under the time, place and manner doctrine.

United States V. Stevens: Win, Loss, Or Draw For Animals?, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

Robert J. Stevens, proprietor of “Dogs of Velvet and Steel,” was indicted for marketing dog-fighting videos in violation of 18 U.S.C. §48, a law criminalizing visual or auditory depictions of animals being “intentionally mutilated, tortured, wounded, or killed” if such conduct violated federal or state law where “the creation, sale, or possession [of such materials]” takes place.” The law aimed principally at makers and distributors of “crush videos” wherein women wearing high heels and depicted from the waist down, grind small animals to death. However, the language of 18 U.S.C. §48 extended to dog-fighting as well. Stevens challenged the law …

No Cause Of Action: Video Surveillance In New York City, Olivia J. Greer

Michigan Telecommunications & Technology Law Review

In 2010, New York City Police Commissioner Raymond Kelly announced a new network of video surveillance in the City. The new network would be able to prevent future terrorist attacks by identifying suspicious behavior before catastrophic events could take place. Kelly told reporters, "If we're looking for a person in a red jacket, we can call up all the red jackets filmed in the last 30 days," and "[w]e're beginning to use software that can identify suspicious objects or behaviors." Gothamist later made a witticism of Kelly's statement, remarking, "Note to terrorists: red jackets are not a good look for …

Is Honor Tangible Property?, James Santiago

University of Michigan Journal of Law Reform Caveat

United States Marine Corps Sergeant Dakota Meyer said, “When they told me that I would be receiving the Medal of Honor I told them that I didn’t want it, because I don’t feel like a hero.” This statement reflects the feelings of many real war heroes who deserve and are given recognition yet feel that they are unworthy of such accolades. Unfortunately, there are also individuals who want the recognition of being a war hero but lie about having served. Nevertheless, the First Amendment will continue to guarantee the freedom of speech of those who lie about unearned military honors …

Endless Pursuit: Capturing Technology At The Intersection Of The First Amendment And Attorney Advertising, Jan L. Jacobowitz, Gayland O. Heathcote Ii

Articles

No abstract provided.

Debate: The Contraception Mandate And Religious Freedom, Steven D. Smith, Caroline Mala Corbin

Articles

No abstract provided.

The Problem Of Trans-National Libel, Lili Levi

Articles

Forum shopping in trans-national libel cases-"libel tourism"- - has a chilling effect on journalism, academic scholarship, and scientific criticism. The United States and Britain (the most popular venue for such cases) have recently attempted to address the issue legislatively. In 2010, the United States passed the SPEECH Act, which prohibits recognition and enforcement of libel judgments from jurisdictions applying law less speech-protective than the First Amendment. In Britain, consultation has closed and the Parliamentary Joint Committee has issued its report on a broad-ranging libel reform bill proposed by the Government in March 2011. This Article questions the extent to which …

Freedom Of Expression And Its Competitors, George C. Christie

Faculty Scholarship

The recognition of an increasing number of basic human rights, such as in the European Convention on Human Rights, has had the paradoxical effect of requiring courts in the common-law world to consider whether the extensive protection given by the common law to expression that was not false or misleading must be modified to accommodate these newly recognized basic rights. The most important of these newly recognized rights is the right of privacy, although expression has other competitors as well, such as what might be called a right to be spared the emotional trauma caused by abusive language. This article …

Lutheran And Yet Not Lutheran: A Church School Tests The Dilemma Of Church And State, Marie Failinger

Faculty Scholarship

A small Lutheran church school dispute became a nationally debated case, Hosanna-Tabor Evangelical Lutheran Church and v. EEOC, decided by the Supreme Court on 11 January 2012. At the heart of the Supreme Court case was a controversy over the so-called "ministerial exception" to federal anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Until the Sixth Circuit Court of Appeals decision in Hosanna-Tabor, finding that Cheryl Perich was not a minister within the exception, all circuit courts to rule on the issue had recognized a ministerial exception in order …

Building Picket Fences: Maryland’S Funeral Picketing Law After Snyder V. Phelps, Michael Bakhama

Maryland Law Review

No abstract provided.

Games Are Not Coffee Mugs: Games And The Right Of Publicity, 29 Santa Clara Computer & High Tech. L.J. 1 (2012), William K. Ford, Raizel Liebler

UIC Law Open Access Faculty Scholarship

Are games more like coffee mugs, posters, and T-shirts, or are they more like books, magazines, and films? For purposes of the right of publicity, the answer matters. The critical question is whether games should be treated as merchandise or as expression. Three classic judicial decisions, decided in 1967, 1970, and 1973, held that the defendants needed permission to use the plaintiffs' names in their board games. These decisions judicially confirmed that games are merchandise, not something equivalent to more traditional media of expression. As merchandise, games are not like books; instead, they are akin to celebrity-embossed coffee mugs. To …

Selling Land And Religion, Eang Ngov

Faculty Articles

Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object. Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the …

Does A Broad Free Exercise Right Require A Narrow Definition Of Religion, 39 Hastings Const. L.Q. 357 (2012), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

In the 1990 case of Employment Division v. Smith, a sharply divided Supreme Court abandoned the routine application of strict scrutiny when considering Free Exercise Clause claims seeking exemption from generally applicable legal duties or prohibitions. The Court returned to an older view of the Free Exercise Clause as protecting believers only from government acts that were aimed specifically at beliefs, and that grew out of hostility to the religion rather than a desire to further legitimate secular goals.

Reaction to Smith was largely negative, and legislative and state court responses followed, seeking to restore strict scrutiny as the appropriate …

The First Amendment, Public School Students, And The Need For Clear Limits On School Officials' Authority Over Off-Campus Student Speech, Rory A. Weeks

Georgia Law Review

When, if ever, can school officials punish a student's off-
campus speech? The Supreme Court's student-speech
jurisprudence does not provide a clear answer. But this
much is clear: School officials do not possess absolute
authority over students' on-campus speech. Public school
students do not shed their First Amendment rights at the
schoolhouse gate. And yet during school or school-related
activities, public school students do not have coequal First
Amendment rights with adults in other contexts. During
school or school-related activities, school officials may
proscribe otherwise-permitted speech in order to fulfill the
school's basic educational mission, which includes
instructingstudents in civility. …

Government May Not Speak Out-Of-Turn, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

Johanns v. Livestock Marketing Association5 was about whether government could compel individual beef producers to pay for general beef advertising credited to "America's Beef Producers;" even if they disagreed with the message and wanted to spend their advertising money to distinguish their certified Angus or Hereford beef. That "compelled subsidy" case became the unlikely authority for a doctrine invented in Pleasant Grove City, Utah v. Summum6 that government could discriminate, based on viewpoint, on a subject for which it had no power to act. Each case has been criticized in its own right, but the attempt to make Johanns precedent …

Privacy And The Right Of Free Expression, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Nobody likes to be talked about but everybody likes to talk. Trying to stop the dissemination of private information is, however, an impingement on free expression and the freedom to observe. A freestanding “right of privacy” that violates these interests is constitutionally permissible only if it can be justified using one of the standard bases for allowing restrictions on First Amendment rights. The three most likely possibilities are that the law in question: (1) can pass strict scrutiny, (2) fall within a recognized “categorical” exception, or (3) places only an “incidental” burden on First Amendment interests. Of these three, only …

Cybersex: Protecting Sexual Content In The Digital Age, 11 J. Marshall Rev. Intell. Prop. L. 815 (2012), Nicole Chaney

UIC Review of Intellectual Property Law

Advertisers employ bare-skinned models and sex appeal to seduce American consumers with every magazine, billboard, and television advertisement. The ubiquity of sexual gratification has reached a tangible quality in American culture, but sex is still somehow taboo in our legal system. Despite the vast market for online adult entertainment, obscenity laws have been used to strike down claims for adult content copyright owners. These content owners are producing creative sexual expression for the public benefit, but they are being denied the same economic incentives granted to their mainstream counterparts. Ironically, Playboy Co. is an outlier in the adult entertainment industry …

The Effect Of Rluipa's Land Use Provisions On Local Government, Alan C. Weinstein

Law Faculty Articles and Essays

In the absence of perfect information about how RLUIPA has affected local governments, this article argues that the courts have adopted a pragmatic approach to maneuvering in the difficult terrain that RLUIPA occupies: combining appropriate judicial deference to a legislature that enacts a neutral law of general applicability with the heightened judicial scrutiny that becomes appropriate when that same law is applied to a specific zoning approval, a circumstance that frequently allows for subjectivity, and thus the potential for discrimination or arbitrariness against religious uses, in the approval process. I conclude that: (1) until proven otherwise, the costs RLUIPA undoubtedly …

Too Narrow Of A Holding? How—And Perhaps Why—Chief Justice John Roberts Turned Snyder V. Phelps Into An Easy Case, Clay Calvert

Oklahoma Law Review

This article analyzes the United States Supreme Court’s March 2011 decision in Snyder v. Phelps. Specifically, it demonstrates the narrow nature of the holding, and argues that while narrow framing, in the tradition of judicial minimalism, may have been a strategic move by Chief Justice John Roberts to obtain a decisive eight-justice majority, the resulting opinion failed to advance First Amendment jurisprudence significantly. Instead, the outcome simply—even predictably—fell in line with an established order of decisions. This article examines four tactics employed by the Chief Justice to narrow the case in such a way that its outcome was essentially …

Rights, Reservations, And Religion; International Human Rights Law And The Status Of Women, Mark Goldfeder

Scholarly Works

While human rights law in its current form is less than fifty years old, the issues that it grapples with are much, much older. People oftentimes dismiss religion or religious norms as being out of date, close-minded, or old-fashioned, and label religious views as discriminatory in theory or even in practice. In reality, religions have been dealing with human rights issues since ancient times, and in some ways have laid the groundwork for the very modern discussions that have supplanted them. The answers that religions give, therefore, deserve at the very least a careful and respectful analysis before they are …

Copyright Law And Pornography, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

Sex-for-hire is usually illegal, unless it is being filmed. Debates about pornography tread uneasily into legal terrain that implicates freedom of expression under the First Amendment, the specter of censorship, and genuine concerns about the function and role of pornography in persistent gender inequality. It is less common for conversations about pornography to include a discussion of copyright law. Yet copyright law is a powerful tool that operates to protect the financial interests of pornographers. Owners of copyrighted pornography frequently threaten public exposure of an alleged infringer’s consumption habits in order to force a financial settlement. Thus copyright law operates …

Saving The Press Clause From Ruin: The Customary Origins Of A 'Free Press' As Interface To The Present And Future, Kevin F. O'Neill, Patrick J. Charles

Law Faculty Articles and Essays

Based on a close reading of original sources dating back to America's early colonial period, this article offers a fresh look at the origins of the Press Clause. Then, applying those historical findings, the article critiques recent scholarship in the field and reassesses the Press Clause jurisprudence of the Supreme Court. Finally, the article describes the likely impact of its historical findings if ever employed by the Court in interpreting the Press Clause.

Employee 2.0, Pranay Samdani

Student Works

No abstract provided.

When Bad Speech Does Good, Mary Anne Franks

Articles

No abstract provided.

Not A Free Press Court?, Lyrissa Barnett Lidsky

UF Law Faculty Publications

The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions …

Nonbelievers And Government Speech, Caroline Mala Corbin

Articles

In the past few years, nonbelievers have become much more prominent in the United States. But while their visibility has increased, they are still a small minority, and they remain disliked, distrusted, and not truly American in the eyes of many. As a result, many nonbelievers are hesitant about disclosing their views, and those who do often face hostility and discrimination.

This Article argues that government religious speech such as "In God We Trust" or a Latin cross war memorial violates the Establishment Clause in part because it exacerbates the precarious position of nonbelievers in this country. One of the …

Government Speech: An Introduction To A Constitutional Dialogue, David Day

Faculty Publications

No abstract provided.

Good Intentions, Bad Consequences: How Congress’S Efforts To Eradicate Hiv/Aids Stifle The Speech Of Humanitarian Organizations, Garima Malhotra

Catholic University Law Review

No abstract provided.