First Amendment Commons^™

Revisiting The Vast Wasteland, Newton N. Minow, Fred H. Cate

Federal Communications Law Journal

No abstract provided.

Avoiding Slim Reasoning And Shady Results: A Proposal For Indecency And Obscenity Regulation In Radio And Broadcast Television, Jacob T. Rigney

Federal Communications Law Journal

This Note explores the relevant law regarding the issue of indecency and obscenity in broadcast, with particular focus on a 2001 Policy Statement released by the FCC. The Author examines the major problems with the regulatory scheme as it now exists, and offers an alternative. The Author concludes by arguing that leaving the subjective decisions regarding indecency to market forces, leaving parents to determine what should or should not be indecent, and leaving the FCC free to pursue obscenity with greater zeal is the most appropriate course of action for the future.

Attacking Brandenburg With History: Does The Long-Term Harm Of Biased Speech Justify A Criminal Statute Suppressing It?, Anuj C. Desai

Federal Communications Law Journal

Book Review: Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements, Alexander Tsesis, New York: New York University Press, 2002, 246 pages.

A review of Alexander Tsesis's Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements, New York University Press, 2002. At one level, Alexander Tsesis's thesis is simply one in a long line of arguments about the need to regulate racist speech. Yet on another level, it is fundamentally different from much American literature on "hate speech" because Tsesis draws on a broad historical swath, and because he contends that the United States …

Justice Isn't Deaf--A Behind The Scenes Look At How Bijoux Records' Executives Discuss The Potential Liability For Violence, Renee M. Moore

Vanderbilt Journal of Entertainment & Technology Law

The music industry is an interesting phenomenon. It is a world that exists on image--and everyone has a say. For that very reason, the music industry is no stranger to critics. At its heart, they are what the industry is all about. Critics are the driving force in the business--their written and verbal exchange of ideas predicts the rise and fall of stars. Critics come in all shapes and sizes--they are the everyday consumer, the media at large, the hopeful artist, the record company executive, the legal scholar, and even our nation's government. This article will take you on a …

Cross-Burning Case Explores Free-Speech Controversy, John G. Douglass

Law Faculty Publications

Virginia v. Black was Smolla's first oral argument before the Supreme Court, but his appearance on the national stage of First Amendment controversy was nothing new. Among academics, Smolla has long been regarded as a leading First Amendment voice. His publications include a widely-used casebook, top law review articles, plays, short stories, a forthcoming novel, and a nonfiction work that became the script for a popular movie. As a litigator of two decades experience, he has argued First Amendment appeals in dozens of state and federal courts around the nation. Early in his career, he had a knack for finding …

Judging Reputation: Realism And Common Law In Justice White's Defamation Jurisprudence, John C.P. Goldberg

University of Colorado Law Review

No abstract provided.

Should Klansmen Be Lawyers? Racism As An Ethical Barrier To The Legal Profession, Carla Pratt

Faculty Articles

No abstract provided.

You Can't Ask (Or Say) That: The First Amendment And Civil Rights Restrictions On Decisionmaker Speech, Helen Norton

Publications

Federal, state, and local civil rights laws regulate private decisionmaking about whom an employer may hire or fire, to whom a landlord may rent an apartment, or to whom a creditor may extend credit. In prohibiting discriminatory conduct, however, these laws also limit the speech of those making these decisions. In this Article, Professor Norton explores how we might think about these civil rights laws in the context of the First Amendment, and their place within the Supreme Court's commercial speech jurisprudence. She concludes that the speech restricted by these laws may be characterized as falling outside the protection of …

Jon Newman’S Theory Of Disparagement And The First Amendment In The Administrative State, Edward L. Rubin

NYLS Law Review

No abstract provided.

The New Software Jurisprudence And The Faltering First Amendment, Liam S. O'Melinn

Vanderbilt Journal of Entertainment & Technology Law

Given that courts reviewing restrictions on the development and distribution of software are increasingly invoking the First Amendment, it should follow that software will receive strong protection. Yet, while there have been judicial decisions which lend credence to the view that the Constitution can be invoked to protect software, subsequent developments in this area, which I term "the new software jurisprudence" cast severe doubt on the ability of the courts to apply the First Amendment so as to shield software effectively. These developments include the faults of previous strains of First Amendment analysis and then add more, with the ironic …

Right To Write - Free Expression Rights Of Pennsylvania's Creative Students After Columbine, Barbara Brunner

Faculty Scholarship

This comment analyzes the current state of students' free speech rights in the context of creative writing assignments and examines potential First Amendment applications to the Pennsylvania System of School Assessment (PSSA), a statewide, mandatory, standards-based exam administered to Pennsylvania public school students. The PSSA, which currently contains a writing assessment for students in sixth, ninth, and eleventh grades requiring students to write essays in response to prompts, is scored anonymously by private entities under contract with the Pennsylvania Department of Education. Those private subcontractors have "red-flagging" procedures in place to identify essays containing imagery or themes that indicate imminent …

Smolla Argues Before The Highest Court: Cross-Burning Case Explores Free-Speech Controversy, John G. Douglass

Law Faculty Publications

A First Amendment advocate's greatest burden can be his own client. Those clients range from the offbeat to the dangerous, from pornographers to neo-Nazis. Yet in standing up for the disreputable client, the free speech advocate stands for one of more cherished freedoms: "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989). As one of the nation's leading First Amendment advocates, Allen Professor Rodney Smolla understands that burden …

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Publications

No abstract provided.

Copyright And The First Amendment: After The Wind Done Gone, Joseph M. Beck

Vanderbilt Journal of Entertainment & Technology Law

On March 16, 2001, plaintiff SunTrust Bank filed a complaint in the United States District Court for the Northern District of Georgia against defendant Houghton Mifflin Company, alleging copyright and trademark infringement based on defendant's yet-to-be published novel The Wind Done Gone. On March 23, plaintiff filed a motion for a temporary restraining order and preliminary injunction barring the book's imminent publication. The district court held a hearing on the motion for a temporary restraining order on March 29,2001, and then set down a second hearing for April 18, 2001. On April 20,2001, the district court filed a fifty-one page …

Public Importance: Balancing Proprietary Rights And The Right To Know, Eric Easton

All Faculty Scholarship

Articulating a coherent, all-encompassing First Amendment doctrine for freedom of speech and of the press has so far eluded every scholar who has tried, not least because of the variety of analytical approaches and potentially dispositive factors in Supreme Court jurisprudence. For example, the same regulation might be enforceable in one medium, but not another; in one forum, but not another. Enforceability may depend on the regulator's purpose and drafting skill, or not, depending in turn on whether the speech deserves full protection, some protection, or no protection at all. Sometimes enforceability depends on the speaker's intent, or knowledge, or …

Queers Anonymous: Lesbians, Gay Men, Free Speech, And Cyberspace, Edward D. Stein

Articles

The expansion of cyberspace in the past decade has created unprecedented opportunities for communication, both across the globe and across the street. The Internet and other forms of cyberspace have provided new avenues for anonymous and pseudonymous communication. Individuals can now interact without the traditional constraints of time, place, and manner of communication.

The U.S. Supreme Court Addresses The Child Pornography Prevention Act And Child Online Protection Act In Ashcroft V. Free Speech Coalition And Ashcroft V. American Civil Liberties Union, Sue Ann Mota

Federal Communications Law Journal

Both the Child Pornography Prevention Act ("CPPA") and the Child Online Protection Act ("COPA") were intended by Congress to protect minors. The CPPA was intended to protect minors from the harmful effects of virtual child pornography. The COPA was intended to protect minors from pornography currently available commercially on the World Wide Web. However, in 2002, the U.S. Supreme Court addressed the constitutionality of both statutes: The Court struck down sections of the CPPA as overbroad and unconstitutional in Ashcroft v. Free Speech Coalition. In Ashcroft v. ACLU, the Court upheld some sections of COPA as not unconstitutionally overbroad, but …

Choice Programs And Market-Based Separationism, Paul E. Salamanca

Law Faculty Scholarly Articles

The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious or …

Injunctive Relief In The Internet Age: The Battle Between Free Speech And Trade Secrets, Adam W. Johnson

Federal Communications Law Journal

The information revolution has led to technological innovations in the movement, storage, and dissemination of information. The Internet allows a person, with good or bad intent, to distribute information to millions of people. This ability raises serious implications when trade secret information is the subject of Internet postings. Once a trade secret becomes publicly available, it loses its legal secrecy, and special legal protection. Additionally, competitors and everyone else on the Internet can gain access to the information. For those who rely on trade secret protection to guard their inventions, this presents a growing concern.

This Note will illustrate the …

Commercial Speech And The Unconstitutional Conditions Doctrine: A Second Look At "The Greater Includes The Lesser", Mitchell N. Berman

Vanderbilt Law Review

Over half a century ago, the Puerto Rico legislature legalized casino gambling in an effort to promote tourism to the island.' To help ensure that the local population would not overindulge in this particular vice, however, the legislature at the same time provided that "[n]o gambling room shall be permitted to advertise or other- wise offer their facilities to the public of Puerto Rico."' Thirty years later a casino operator challenged the statutory advertising ban and its implementing regulations as violating the freedom of speech guaranteed by the First Amendment. Although the Superior Court of Puerto Rico agreed with the …

Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton

Articles

No abstract provided.

Ministerial Exception And Title Vii Claims: Case Law Grid Analysis, Janet S. Belcove-Shalin

Nevada Law Journal

No abstract provided.

The First Amendment And The New Civil Liability, Rodney A. Smolla

Scholarly Articles

Not available.

The Government Tunes In To Tune Out The Marketing Of Violent Entertainment To Kids, Shannon Mccoy

Vanderbilt Journal of Entertainment & Technology Law

This Note examines the recent investigation conducted by the Federal Trade Commission ("FTC" or "Commission") and its 2001 Follow-Up to that inquiry. The September 2000 Report ("Report") concluded that the entertainment industry intentionally and aggressively advertises both R and PG-13 movies to children under the age of 18. As a solution, the FTC recommended self-regulation by the entertainment industry. The 2001 Follow-Up to the Report ("Follow-Up") found that although the movie industry has made progress, a greater effort must be exerted to successfully eliminate the marketing of violent entertainment to children.' Both the Report and the Follow-Up demonstrate that self-regulation …

Brandenburg And The United States War On Incitement Abroad: Defending A Double Standard, Lyrissa Lidsky

Faculty Publications

While it is perfectly legitimate for the United States to attempt to persuade foreign citizens and media not to engage in advocacy of violent acts, the administration's rhetoric suggests that the United States expects foreign governments to take action against speech that would be protected by the First Amendment in the United States. What explains this apparent hypocrisy? Is this simply another example of the United States touting democracy at home while supporting despotism abroad? Or is the Brandenburg incitement standard so socially and culturally contingent that it is not appropriate for export, at least to the Arab Middle East? …

Shoot First, Talk Later: Blowing Holes In Freedom Of Speech, Jacqueline Tresl

Animal Law Review

Ms. Tresl examines the constitutionality of hunter harassment laws. When a five-step doctrinal analysis is applied to hunter harassment statutes, it is clear that the statutes are content-based and subject to the strictest of scrutiny. Because the statutes fail the strict scrutiny test, they therefore violate the American citizenry’s First Amendment right to free expression.

Prior Restraint In Wartime, Paul E. Salamanca

Law Faculty Popular Media

In this article for Bench & Bar Magazine (the Kentucky Bar Association's magazine), Professor Paul E. Salamanca discusses the First Amendment during times of war or conflict.

Brandenburg And The United States' War On Incitement Abroad: Defending A Double Standard, Lyrissa Barnett Lidsky

UF Law Faculty Publications

While it is perfectly legitimate for the United States to attempt to persuade foreign citizens and media not to engage in advocacy of violent acts, the administration's rhetoric suggests that the United States expects foreign governments to take action against speech that would be protected by the First Amendment in the United States. What explains this apparent hypocrisy? Is this simply another example of the United States touting democracy at home while supporting despotism abroad? Or is the Brandenburg incitement standard so socially and culturally contingent that it is not appropriate for export, at least to the Arab Middle East? …

Reacting To Ashcroft V. Free Speech Coalition And The Burial Of The Cppa: An Argument To Regulate Digital Child Pornography Because It Incites Imminent Lawless Action, Justin Leach

Vanderbilt Journal of Entertainment & Technology Law

Part I discusses the nature and origin of digital child pornography and how child pornography has traditionally fit into First Amendment analysis. Part II discusses Congress' reaction to digital innovations in child pornography by passing the Child Pornography Prevention Act and, Part II further explains the federal appellate courts' treatment of the CPPA. Part III discusses the history and arguments made for each side in Ashcroft v. Free Speech Coalition. Part IV discusses the legal and constitutional analysis of the Supreme Court in striking down the regulations that banned digital child pornography. Finally, Part V makes an additional constitutional argument, …

Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin Roger Scordato

Scholarly Articles

The tragic events of September 11th generated numerous proposals for greater security measures and increased police powers that might, if implemented, constrict the customary scope of free speech in the United States. Legitimate concerns for internal security have placed increased pressures on traditional constitutional protections for expressive activity. It is against this backdrop that this article presents a careful examination of the basic rationales for adopting constitutional level protections for free speech. The article analyzes the nature of, and many of the conflicts among, the traditional rationales for a constitutional right of free expression. It also suggests that much of …