First Amendment Commons^™

HarperOoning, GRoeIng And BrownIng The First Amendment, Mark A. Graber

Faculty Scholarship

No abstract provided.

Overcriminalizing Speech, Michal Buchhandler-Raphael

Scholarly Articles

Recent years have seen a significant expansion in the criminal justice system’s use of various preemptive measures, aimed to prevent harm before it occurs. This development consists of adopting a myriad of prophylactic statutes, including endangerment crimes, which target behaviors that merely pose a risk of future harm but are not in themselves harmful at the time they are committed.

This Article demonstrates that a significant portion of these endangerment crimes criminalize various forms of speech and expression. Examples include conspiracies, attempts, verbal harassment, instructional speech on how to commit crimes, and possession crimes. The Article argues that in contrast …

The Lingering Bigotry Of State Constitution Religious Tests, Allan W. Vestal

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

No abstract provided.

Lane V. Franks: The Supreme Court Clarifies Public Employees’ Free Speech Rights, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Beyond Nexus: A Framework For Evaluating K-12 Teacher Off-Duty Conduct And Speech In Adverse Employment And Licensure Proceedings, John E. Rumel

Articles

No abstract provided.

Free Speech And Democracy In The Video Age, Justin F. Marceau, Alan K. Chen

Sturm College of Law: Faculty Scholarship

The pervasiveness of digital video image capture by large segments of the public has produced a wide range of interesting social challenges, but also presents provocative new opportunities for free speech, transparency, and the promotion of democracy. The opportunity to gather and disseminate images, facilitated by the reduced expense and easy access to camera phones and other hand-held recording devices, decentralizes political power in transformative ways. But other uses of this technology represent potentially significant intrusions on property rights and personal privacy. This tension creates a substantial dilemma for policymakers and theorists who care about both free speech and privacy. …

Speech And The Truth-Seeking Value, Brian C. Murchison

Scholarly Articles

Courts in First Amendment cases long have invoked the truth-seeking value of speech, but they rarely probe its meaning or significance, and some ignore it altogether. As new cases implicate questions of truth and falsity, thorough assessment of the value is needed. This Article fills the gap by making three claims. First, interest in truth-seeking has resurfaced in journalism, politics, philosophy, and fiction, converging on a concept of provisional or “functional” truth. Second, the appeal of functional truth for the law may be that it clarifies thinking about a range of human priorities—survival, progress, and character—without insisting on truth in …

Effectively Regulating E-Cigarettes And Their Advertising—And The First Amendment, Eric N. Lindblom

O'Neill Institute Papers

If tobacco smoking did not exist in the United States, there would be no reason, from a public health perspective, to allow addictive, nicotine-containing e-cigarettes to be marketed and sold. Because e-cigarette use, by itself, is neither beneficial nor benign to users and nonusers, the only public health justification for allowing e-cigarettes in the existing U.S. market would be if doing so would not sustain or increase existing smoking levels but would help smokers quit completely or provide addicted smokers a less harmful way to obtain the nicotine they crave. Yet e-cigarettes are now pervasive in the U.S. market, being …

Bridging Troubled Waters: Linking Corporate Efficiency And Political Legitimacy Through A Discourse Of Theory Of The Firm, Michael R. Siebecker

Sturm College of Law: Faculty Scholarship

As corporations increasingly dominate our economic, social, and political lives, and as shareholders vie for greater influence over business policies, can a new “discourse theory” of the firm guide the evolution of corporate law better than current theories primarily focused on shareholder wealth maximization? A series of related developments render the question of paramount importance to sustaining the basic efficacy of business decisions and the legitimacy of our polity as well. First, existing corporate law principles provide insufficient guidance regarding how managers should take into account the various shareholder and stakeholder interests expressed with increasing variety and intensity. Second, the …

Protecting Freedom Of Expression Over The Internet: An International Approach, Alan Sears

Notre Dame Journal of International & Comparative Law

Writing primarily in 2013, Alan Sears examines different aspects of the international legal framework as to how freedom of expression over the Internet may be protected. Even though the Internet has largely incorporated the concept of freedom of expression from its inception, the need for such protection has become increasingly evident. States around the world have progressively cracked down on Internet speech, a trend highlighted by recent events occurring during the Arab Spring. Alan thus focuses on the Middle East when exploring how Internet governance may be shaped, and human rights and trade agreements may be utilized, in order to …

Free Exercise For All: The Contraception Mandate Cases And The Role Of History In Extending Religious Protections To For-Profit Corporations, 48 J. Marshall L. Rev. 605 (2015), Joseph Swee

UIC Law Review

No abstract provided.

First Amendment Right To Record Police: When Clearly Established Is Not Clear Enough, 49 J. Marshall L. Rev. 101 (2015), Matthew Slaughter

UIC Law Review

First Amendment jurisprudence supports the recognized right to film police activity as articulated by the circuits. Some commenting circuits have held the right is clearly established, while others have declined to extend their holdings so far. Practically, citizens are restrained from freely exercising their right to film police activity in public even in circuits that have found the right clearly established. Because reasonable restrictions have not yet been clearly articulated, such uncertainty will inevitably lead to a chilling effect on the otherwise protected activity. A national standard should affirmatively memorialize such a right, as well as articulate objective reasonable restrictions …

Biting The Bullet: Why The Gun Free Schools Act Must Be Repealed To Protect Student Speech, 49 J. Marshall L. Rev. 593 (2015), Aaron Brand

UIC Law Review

No abstract provided.

Content-Based Confusion And Panhandling: Muddling A Weathered First Amendment Doctrine Takes Its Toll On Society's Less Fortunate, Clay Calvert

Richmond Journal of Law and the Public Interest

This article examines multiple problems now plaguing the fundamental dichotomy in First Amendment jurisprudence between content-based and content-neutral regulations of speech. The troubles were highlighted by the U.S. Supreme Court's 2014 divided decision in McCullen v. Coakley. Building from McCullen, this article uses a quartet of federal court rulings from 2014 and 2013 involving anti-begging ordinances affecting the homeless as analytical springboards for examining these issues in depth. Ultimately, the article proposes a three-step framework for mitigating the muddle and calls on the nation's high court to take action to clarify the proper test for distinguishing between content-based and content-neutral …

Constitutional Contraction: Religion And The Roberts Court, Marc O. Degirolami

Scholarly Articles

This Article argues that the most salient feature to emerge in the first decade of the Roberts Court's law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways.

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its …

Stubborn Things: An Empirical Approach To Facts, Opinions, And The First Amendment, Daniel E. Herz-Roiphe

Michigan Law Review First Impressions

This essay offers an empirical approach to the problem, rooted in an argument that the underlying rationale for the fact/opinion distinction in compelled speech doctrine tells us something about how this distinction should be policed. Commercial speech enjoys protection by virtue of its value to listeners, it is from the listener's vantage point, then, that courts should assess whether a compelled disclosure is fact or opinion. And if we are interested in learning how disclosures will affect listeners, we might try asking them, just as courts adjudicating trademark suits frequently use consumer surveys to determine how customers understand the meaning …

Intentional Discrimination In Establishment Clause Jurisprudence, Caroline Mala Corbin

Articles

In Town of Greece, New York v. Galloway, the Supreme Court upheld a legislative prayer practice with overwhelmingly Christian prayers in part because the Court concluded that the exclusion of all other religions was unintentional. This requirement-that a religiously disparate impact must be intentional before it amounts to an establishment violation-is new for Establishment Clause doctrine. An intent requirement, however, is not new for equal protection or free exercise claims. This Essay explores the increased symmetry between the Establishment Clause, the Equal Protection Clause, and the Free Exercise Clause. It argues that many of the critiques of the intentional …

New Problems For Subsidized Speech, Joseph Blocher

Faculty Scholarship

The constitutionality of conditional offers from the government is a transsubstantive issue with broad and growing practical implications, but it has always been a particular problem for free speech. Recent developments suggest at least three new approaches to the problem, but no easy solutions to it. The first approach would permit conditions that define the limits of the government spending program, while forbidding conditions that leverage funding so as to regulate speech outside the contours of the program. This is an appealing distinction, but runs into some of the same challenges as public forum analysis. The second approach would treat …

That We Are Underlings: The Real Problems In Disciplining Political Spending And The First Amendment, Jedediah Purdy

Faculty Scholarship

In the area of money in politics, change at the doctrinal level will follow only from change at the political level. The current doctrine is coherent, intelligible, and profoundly misplaced. Shifting it will take a movement.

Can A One-Star Review Get You Sued? The Right To Anonymous Speech On The Internet And The Future Of Internet “Unmasking” Statutes, 48 J. Marshall L. Rev. 693 (2015), Jesse Lively

UIC Law Review

No abstract provided.

Defamation And The Government Employee: Redefining Who Constitutes A Public Official, Jeffrey Omar Usman

Loyola University Chicago Law Journal

No abstract provided.

A Uniform Test Isn't Here Right Now, But Please Leave A Message: How Altering The Spence Symbolic Speech Test Can Better Meet The Needs Of An Expressive Society, Caitlin Housley

Kentucky Law Journal

No abstract provided.

Lance Armstrong Wins Again By Surviving A Lawsuit For Misrepresentations And Fraud Without So Much As A "Slapp" On The Wrist, Anna Haslinsky

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Sentencing Complexities In National Security Cases, Chris Jenks

Faculty Journal Articles and Book Chapters

Military national security courts-martial infrequently occur. When they do occur, military counsel, judges, and court personnel endeavor to perform their function at a high level. Unfortunately, the process by which the U.S. government conducts classification reviews and the military’s inexperience in national security cases often results in the form of safeguarding classified information trumping the substantive function of the underlying trial process. And by the time the sentencing phase is reached, understandable but unfortunate focus is placed on simply concluding the trial without mishandling classified information.

This article examines the sentencing complexities in military national security cases, first defining a …

A "Faustian Pact"? Native Advertising And The Future Of The Press, Lili Levi

Articles

As technology undermines the economic model supporting the traditional press, news organizations are succumbing to the siren call of "native advertising" – a new marketing technique for unobtrusively integrating paid advertising into editorial content. Brands are increasingly turning to native ads to preempt consumers' well-documented ad avoidance. Although the native advertising model debuted on digital-native news sites, it is now ubiquitous in elite legacy media as well. Everyone knew "native" had arrived for good when the venerable New York Times not only introduced its online "Paid Post," but incorporated sponsored content in its print editions, and even hired an in-house …

Protest, Policing, And The Petition Clause: A Review Of Ronald Krotoszynski's Reclaiming The Petition Clause, Christina E. Wells

Faculty Publications

This essay, a short book review of Ronald Krotoszynski Jr.'s book, Reclaiming the Petition Clause Seditious Libel, "Offensive" Protest, and the Right to Petition the Government for Redress of Grievances, examines the variety of restrictions that actually affect protestors in the modern landscape. Professor Krotoszynski effectively argues that the Supreme Court's current use of content neutral time place and manner restrictions allows government officials to engage in surreptitious content censorship and also revives the defunct crime of seditious libel. His proposal to locate protestors' rights in the petition clause of the First Amendment is both historically grounded and attempts to …

Student Press Law: Past, Present, And Future, David R. Wheeler

Theses and Dissertations--Communication

This dissertation will identify and describe the state of the law regarding student speech and press freedom. The following questions will be explored: What rights do young people have? What standards have state and federal courts established? To what extent and how clearly have state statutes defined student expressive rights? What do state laws say about this topic? What issues have yet to be addressed, either because a case has not raised certain issues or because the issue does not lend itself to compromise or a clear solution? How does the capacity of social media for widespread and rapid dissemination …

A Critique Of Hobby Lobby And The Supreme Court's Hands-Off Approach To Religion, Samuel J. Levine

Scholarly Works

Over the past several decades, the United States Supreme Court has demonstrated an increasing refusal to engage in a close evaluation of the religious nature of Free Exercise and Establishment Clause claims, instead deferring to adherents’ characterizations of the substance and significance of a religious practice or belief. The Supreme Court’s hands-off approach, which it has justified on both constitutional and practical grounds, has attracted considerable scholarly attention, producing a substantial and growing body of literature assessing and, at times, critiquing the Court’s approach.

Part I of this Essay provides a brief overview for analyzing the Supreme Court’s hands-off approach …

Land Use Law Update: Reed V. Town Of Gilbert Redux, Sarah Adams-Schoen

Scholarly Works

The Winter 2015 Land Use Law Update asked whether the Supreme Court’s decision in Reed v. Town of Gilbert would require municipalities throughout the country to rewrite their sign codes. The short answer is “yes.”

At a minimum, following the Supreme Court’s decision that the Town of Gilbert’s temporary directional sign regulations violated petitioners Good News Community Church’s and Pastor Clyde Reed’s First Amendment rights, municipalities will want to act quickly to amend their sign codes if they regulate different categories of signs differently. A code that places fewer restrictions on political or ideological signs than on directional signs likely …

Land Use Law Update: Will Reed V. Town Of Gilbert Require Municipalities Throughout The Country To Rewrite Their Sign Codes?, Sarah Adams-Schoen

Scholarly Works

The author discusses the imminent Supreme Court decision in Reed v. Town of Gilbert. Depending on how the Court decides the case, municipalities may need to act quickly to amend their sign regulations.