First Amendment Commons^™

The Reach Of The Schoolhouse Gate: The Fate Of Tinker In The Age Of Digital Social Media, Mickey Lee Jett

Catholic University Law Review

No abstract provided.

The Speech Act Defends The First Amendment: A Visible And Targeted Response To Libel Tourism, Marissa Gerny

Student Works

No abstract provided.

The End Of Forgetting And "Administrative Rights" To Our Online Personas, Jamie R. Lund

IP Theory

No abstract provided.

Between Semiotic Democracy And Disobedience: Two Views Of Branding, Culture And Intellectualproperty, Sonia K. Katyal

Faculty Scholarship

Even though most scholars and judges treat intellectual property law as a predominantly content-neutral phenomenon, trademark law contains a statutory provision, section 2(a), that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous.” This provision has raised intrinsically powerful constitutional concerns, which invariably affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a …

Can Students Be Disciplined For Off-Campus Cyberspeech: The Reach Of The First Amendment In The Age Of Technology, Charles J. Russo, Allan G. Osborne Jr.

Educational Leadership Faculty Publications

The widespread use of technology in today's schools has ushered in a host of legal issues that educators and parents could not have contemplated just a few years ago. Within the past decade, students have had the unprecedented ability to send text messages and instant messages, create websites, post blogs, construct Internet profiles, and post messages on burgeoning social networking sites, most notably Facebook. Even when students engage in such speech-related activity off campus using their personal computers, their actions and posts on such social networking sites as MySpace and Facebook can have carryover effects into school and classroom environments. …

Foia The First Amendment: Representative Democracy And The People’S Exclusive “Right To Know”, Barry Sullivan

Faculty Publications & Other Works

No abstract provided.

Beyond The Water Cooler: Speech And The Workplace In An Era Of Social Media, Ann C. Mcginley

Scholarly Works

No abstract provided.

Citizens, United And Citizens United: The Future Of Labor Speech Rights?, Charlotte Garden

Faculty Articles

Within hours of its announcement, the Supreme Court's decision in Citizens United v. FEC came under attack from progressive groups. Among these groups were some of America's largest labor unions-even though the decision applies equally to unions and for-profit corporations. The reason is clear: there exist both practical and structural impediments that will prevent unions from benefitting from Citizens United to the same extent as corporations. Therefore, Citizens United stands to unleash a torrent of corporate electioneering that could drown out the countervailing voice of organized labor.

This article, however, takes a broader view of Citizens United to explore a …

The Crazy Horse Malt Liquor Case: From Tradition To Modernity And Halfway Back (Part Iii Of South Dakota Law Review Trilogy), Frank Pommersheim

Faculty Publications

No abstract provided.

Secrets, Lies, And Disclosure, Helen Norton

Publications

This symposium essay suggests that we can sometimes understand those who resist campaign disclosure or disclaimer requirements as interested in keeping a secret and occasionally even in telling a sort of lie about the source or intensity of support for a particular candidate or cause. Such secrets and lies threaten listeners’ autonomy interests when the speaker seeks to keep such secrets (and sometimes seeks to tell such lies) to enhance her ability to influence her listeners’ decisions. For these reasons, I suggest greater attention to the reasons speakers seek to keep secrets (or occasionally tell such lies) in assessing the …

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

Scholarly Works

This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article concludes …

Decoding First Amendment Coverage Of Computer Source Code In The Age Of Youtube, Facebook And The Arab Spring, Jorge Roig

Scholarly Works

Computer source code is the lifeblood of the Internet. It is also the brick and mortar of cyberspace. As such, it has been argued that the degree of control that a government can wield over code can be a powerful tool for controlling new technologies. With the advent and proliferation in the Internet of social networking media and platforms for the publication and sharing of user-generated content, the ability of individuals across the world to communicate with each other has reached truly revolutionary dimensions. The influence of Facebook in the popular revolutions of the Arab Spring has been well documented. …

Standing On Holy Ground: How Rethinking Justiciability Might Bring Peace To The Establishment Clause, John M. Bickers

Cleveland State Law Review

The Establishment Clause is home to both procedural and substantive disorder. Particularly when evaluating religious speech by the government, the Supreme Court has applied a number of distinct tests, with varying degrees of strictness. There has never been an overarching principle for determining which test would appear at which time; commentators, and occasionally the Justices themselves, have suspected that desired results drove the choice of tests. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting …

Adventist Eschatology In Relation To The Religious Left And The Religious Right, Michael F. Younker

Journal of the Adventist Theological Society

No abstract provided.

Layshock Ex Rel. Layshock V. Hermitage School District, Matthew Beatus

NYLS Law Review

No abstract provided.

Marketing Pharmaceuticals: A Constitutional Right To Sell Prescriber-Identified Data?, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Pharmaceutical companies have strong economic interests in influencing physician-prescribing behaviors. They advertise direct-to-the-consumer and to the physician. Beyond general marketing, manufacturers promote their drugs to physicians through “detailing”—sales representatives (“detailers”) visiting medical offices to persuade physicians to prescribe their products.

By law, pharmacies receive specific information with every prescription, including the physician’s name, the drug, and the dose. Pharmacies sell these records to Prescription Drug Intermediaries (data miners), who use advanced computing to analyze prescriber-identified information (which physicians prescribe what drugs, in what dose, and with what prescribing patterns). Data miners, in turn, lease sophisticated reports to pharmaceutical companies to …

First Amendment, Fourth Estate, And Hot News: Misappropriation Is Not A Solution To The Journalism Crisis, Joseph A. Tomain

Articles by Maurer Faculty

Journalism is a public good. The Framers understood the importance of a free press in a self-governing society and embedded a structural right for freedom of the press in the First Amendment. There is a journalism crisis. Symptoms of the crisis include layoffs of journalists, diminishing content in newspapers and shuttering of newspapers. The rise of online technologies has exacerbated the crisis, mainly by siphoning advertising revenue away from traditional news organizations to free classified advertisement websites such as Craigslist, search engines and myriad other non-journalistic online endeavors. The internet, however, is not the main cause of the journalism crisis. …

John Hart Ely: An Influential Constitutional Scholar—Protecting "Flag Desecration" Under The First Amendment, Mohammed Saif-Alden Wattad

Barry Law Review

No abstract provided.

Religion, School, And Judicial Decision Making: An Empirical Perspective, Michael Heise, Gregory C. Sisk

Cornell Law Faculty Publications

We analyze various influences on judicial outcomes favoring religion in cases involving elementary and secondary schools and decided by lower federal courts. A focus on religion in the school context is warranted as the most difficult and penetrating questions about the proper relationship between Church and State have arisen with special frequency, controversy, and fervor in the often-charged atmosphere of education. Schools and the Religion Clauses collide persistently, and litigation frames many of these collisions. Also, the frequency and magnitude of these legal collisions increase as various policy initiatives increasingly seek to leverage private and religious schools in the service …

Crosses And Culture: State-Sponsored Religious Displays In The Us And Europe, Mark L. Movsesian

Faculty Publications

This article compares the recent jurisprudence of the US Supreme Court and the European Court of Human Rights on the question of state-sponsored religious displays. Both tribunals insist that states have a duty of religious “neutrality,” but each defines that term differently. For the Supreme Court, neutrality means that government may not proselytize, even indirectly, or appear to favor a particular church; neutrality may even mean that government must not endorse religion generally. For the ECtHR, by contrast, neutrality means only that government must avoid active religious indoctrination; the ECtHR allows government to give “preponderant visibility” to the symbols of …

Hostile Educational Environments, Ari Ezra Waldman

Articles & Chapters

This Article is one in a series about bullying and cyberbullying in schools. I argue that the proper analysis for a First Amendment challenge to school discipline for off-campus misuse of the Internet to harm or harass a member of the school community based on the victim’s identity depends on the nature of the offending behavior. For students who are punished for a single incident – what I will call cyberattacking – a Tinker analysis makes sense. But, given that Tinker’s “substantial disruption” standard originated in the context of student protests and that targeted identity-based harassment can create substantial disruptions …

The Value Of Valor: Money, Medals And Military Labor, Mateo Taussig-Rubbo

Journal Articles

The United States Supreme Court recently overturned the Stolen Valor Act on the grounds that the law’s blanket prohibition on falsely claiming to have received a military medal or decoration violated the First Amendment right to free speech. This Article uses the controversy provoked by the law to explore the implications of offering compensation for military service in the form of medals. How is compensation in medals related to monetary compensation? Querying the distinctions between money and medals — and the ways in which the boundaries around medals are drawn and policed — offers a means of considering the forms …

The Sidis Case And The Origins Of Modern Privacy Law, Samantha Barbas

Journal Articles

The American press, it’s been said, is freer to invade personal privacy than perhaps any other in the world. The tort law of privacy, as a shield against unwanted media exposure of private life, is very weak. The usual reason given for the weakness of U.S. privacy law as a bar on the publication of private information is the strong tradition of First Amendment freedom. But “freedom of the press” alone cannot explain why liberty to publish has been interpreted as a right to print truly intimate matters or to thrust people into the spotlight against their will. Especially in …

Bring In The Nerds: Secrecy, National Security, And The Creation Of International Intellectual Property Law, David S. Levine

Cardozo Arts & Entertainment Law Journal

The negotiations of the international Anti-Counterfeiting Trade Agreement and Trans Pacific Partnership Agreement have been conducted largely in secret, elevating intellectual property piracy to the level of national security concerns for purposes of accessing information through the Freedom of Information Act (FOIA). However, the level of actual secrecy has been tiered, with corporate interests enjoying far more access to negotiation information than the general public. At the same time, similar intellectual property issues were negotiated in the relative transparency of Congress' debate over the Stop Online Piracy Act and PROTECT IP Act, allowing for much greater public involvement. With national …

Switching The Flip: Questioning The Government's Authority To Shut Down Communication Networks In Furtherance Of Public Safety, Eric B. Einisman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Demise Of The Federal Shield Law, William E. Lee

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Internet Advertising After Sorrell V. Ims Health: A Discussion On Data Privacy & The First Amendment, Agatha M. Cole

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Making Of Modern Libel Law: A Glimpse Behind The Scenes, Stephen Wermiel, Lee Levine

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Today’S Paradigm Of Bullying: Cyberbullying And The First Amendment, Fay L. Kogan

Student Works

No abstract provided.

Sports Video Games And Student Athletes: An Analysis Of Publicity Rights And First Amendment Concerns, Kirsten O'Donnell

Student Works

No abstract provided.