First Amendment Commons^™

Terrorism And The Bill Of Rights, Rodney A. Smolla

Law Faculty Publications

This year is the Tenth Anniversary of the William & Mary Bill of Rights Journal, and the Journal is very fortunate and honored to have Professor Rodney Smolla publish an article in this year's volume. Professor Smolla played an integral role in the founding and organizing of not only the Journal, but also the Institute of Bill of Rights Law at William & Mary Law School. The J oumal extends its most appreciative thanks to Professor Smolla for all his help.

In this Article, Professor Smolla examines the right to free speech in the context of Black v. …

Law And Information Platforms, Philip J. Weiser

Publications

No abstract provided.

The "Ultimate Question": A Limited Argument For Trafficking In Stolen Speech, Matthew J. Coleman

Oklahoma Law Review

No abstract provided.

Telemarketing, Commercial Speech, And Central Hudson: Potential First Amendment Problems For Indiana Code Section 24-4.7 And Other "Do-Not-Call" Legislation, Steven R. Probst

Law Faculty Publications

No abstract provided.

Jefferson And Madison As Icons In Judicial History: A Study Of Religion Clause Jurisprudence, David J. Reiss

Cornell Law Faculty Publications

No abstract provided.

Your Money Or Your Speech: The Children's Internet Protection Act And The Congressional Assault On The First Amendment In Public Libraries, Steven D. Hinckley

Faculty Scholarship

This article examines the inherent conflict between This article examines the inherent conflict between two Congressional approaches to public access to the Internet - the provision of federal funding support to schools and public libraries to ensure broad access to online information regardless of financial means, and federal restrictions on children's use of school and public library computers to access content that the government feels could be harmful to them. It analyzes the efficacy and constitutionality of the Children's Internet Protection Act (CIPA), Congress's attempt to use its powers of the purse to control objectionable online content in the very …

Vouchers And Steering, Vincent A. Blasi

Faculty Scholarship

Does the Establishment Clause require that educational voucher programs not be designed in a manner that encourages parents to choose religious schools over secular alternatives? If there is such an "anti-steering" principle implicit in the First Amendment, how should courts elaborate and enforce it?

In this response, I will compare how Professors Lupu and Tuttle and the Court majority in Zelman v. Simmons-Harris, the decision last June upholding the Cleveland voucher plan, answer these important questions. I will evaluate their analyses at three levels: (1) basic Establishment Clause values and priorities; (2) doctrinal standard for identifying impermissible favoritism toward …

From Hit Man To Encylcopedia Of Jihad: How To Distinguish Freedom Of Speech From Terrorist Training, Rodney A. Smolla

Law Faculty Publications

Late last summer, Professor F. Jay Dougherty invited me to participate in "Tune In, Turn On, Cop Out? The Media and Social Responsibility," the Fourth Annual Entertainment Law Symposium sponsored by Loyola Law School of Los Angeles. I learned that one of the issues to be examined was media liability for violent audience behavior, exploring from both social science and legal perspectives the alleged link between violent speech and violent conduct. Little did I or Professor Dougherty or anyone connected to the conference then know that within weeks a catastrophic terrorist attack on the United States-an attack largely spurred by …

The Right Questions About School Choice: Education, Religious Freedom, And The Common Good, Richard W. Garnett

Journal Articles

As this Essay goes to press, the Supreme Court is considering whether Ohio's school-choice program violates the First Amendment to the United States Constitution. In my view, the Ohio program is sound public policy, and it is consistent with the Justices' present understanding of the Establishment Clause. I also believe that the Court will and should permit this experiment, and our conversations about its merits, to continue. The purpose of this Essay, though, is not to predict or evaluate ex ante the Court's decision. Instead, my primary aim is to suggest and then sketch a few broad themes that--once the …

Regulating Political Parties Under A Public Rights First Amendment, Gregory P. Magarian

Scholarship@WashULaw

The recently-enacted McCain-Feingold campaign finance law pushes to the fore the questions of whether and to what extent the First Amendment allows government to regulate the electoral activities of political parties. One of the new law's primary components is its attempt to eliminate so-called "soft money"- unlimited donations to national political parties that the Democrats and Republicans have used to circumvent legal limits on campaign contributions? One congressional opponent of the new law called it "the death knell" for political parties' role in elections." Not surprisingly, both major parties have attacked McCain-Feingold. Most Republicans in Congress opposed the legislation, and …

Brief Of The Becket Fund For Religious Liberty As Amicus Curiae In Support Of Petitioners, Richard W. Garnett, Kevin J. Hasson, Eric W. Treene, Roman P. Storzer, Anthony R. Picarello Jr.

Court Briefs

Nos. 00-1751, 00-1777, 00-1779
Susan Tave Zelman v. Doris Simmons-Harris

On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Summary of the Argument

Petitioners and other amici undoubtedly will address fully how the program at issue in this case should be upheld on the grounds that it involves the same principle that led to this Court upholding the aid in Mueller v. Allen, 463 U.S. 388 (1983), Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481 (1986), and Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. …

Prosecuting Conduit Campaign Contributions - Hard Time For Soft Money, Robert D. Probasco

Faculty Scholarship

In recent years, there have been several high-profile prosecutions for violations of the Federal Election Campaign Act, involving contributions nominally by one individual but funded or reimbursed by another individual deemed to be the true contributor. Prosecutions of these “conduit contribution” cases have been surprising in at least three significant respects. First, the prosecutions have been based on violations of FECA’s reporting requirements and may not have involved any violations of the substantive prohibitions or limitations of contributions. Second, the defendants were the donors rather than campaign officials who actually filed reports with FECA. Third, the cases were prosecuted as …

Rendering Unto Caesar Or Electioneering For Caesar--Loss Of Church Tax Exemption For Participation In Electoral Politics, Alan L. Feld

Faculty Scholarship

The restriction on church participation in political campaigns contained in the Internal Revenue Code operates uneasily. It appears to serve the useful purpose of separating the spheres of religion and electoral politics. But the separation often is only apparent, as churches in practice signal support for a particular candidate in a variety of rays that historically have not cost them their exemptions. Although the limited enforcement by the Internal Revenue Service has reflected the sensitive nature of the First Amendment values present, the federal government should provide more formal elaboration by statute or regulation. Focus on the use of funds …

Rewriting Near V. Minnesota: Creating A Complete Definition Of Prior Restraint, Michael I. Meyerson

All Faculty Scholarship

The decision in Near v. Minnesota, while establishing the prior restraint doctrine as a critical element for First Amendment analysis, failed to give a definition of prior restraint. The result has been inconsistent and unpredictable application of the doctrine as well as diminished protection of free expression. This article takes the next critical step in the journey begun by Near v. Minnesota; it attempts to create a comprehensive definition of prior restraint using the principles of separation of powers. Because all three branches can create 'prior restraints,' the prevention of unconstitutional restraints will necessitate different safeguards depending on which branch …

Constitutionality Of "No-Citation" Rules, Salem M. Katsh, Alex V. Chachkes

The Journal of Appellate Practice and Process

No-citation rules raise serious constitutional concerns. Assuming that it is constitutional to designate an opinion as nonprecedential, it is not constitutional to prohibit citing an opinion. No-citation rules are unconstitutional for two reasons. The first, citation prohibitions interfere with a litigant’s First Amendment right of speech and petition. Second, citation prohibitions violate the separation of powers.

Filth, Filtering, And The First Amendment: Ruminations On Public Libraries’ Use Of Internet Filtering Software, Bernard W. Bell

Federal Communications Law Journal

Traditionally, whenever the government has sought to regulate speech, analysis of its action focused on conventional issues, such as the type of forum involved, whether the government acted in a regulatory or a proprietary role, and whether the regulation could be defined as a prior restraint. With the advent of the Internet and the opportunity for the widespread dissemination of viewpoints, however, new issues have arisen. This Article focuses on the complex questions public libraries face when filtering material, usually of a sexually explicit nature, from the public using filtering software. This Article contends that public libraries require a unique …

Faith In Justice: Fiduciaries, Malpractice & Sexual Abuse By Clergy, Zanita E. Fenton

Articles

No abstract provided.

Are Contemporary Community Standards No Longer Contemporary, Roman A. Kostenko

Cleveland State Law Review

This note concurs with the decision reached by the Third Circuit. The federal obscenity law, which incorporated the contemporary community standards test is unconstitutional as applied to expression on the internet because it has chilling effect on the exercise of freedom of speech as guaranteed by the First Amendment to the Constitution of the United States. Because freedom of speech would be restrained by any incorporation of community standards in federal regulation of the internet, the legislature should refrain from adopting a standard that would apply in all internet situations. Rather, with respect to obscenity, the internet should be left …

The Neglected History Of The Prior Restraint Doctrine: Rediscovering The Link Between The First Amendment And The Separation Of Powers, Michael I. Meyerson

All Faculty Scholarship

The prior restraint doctrine, once so fundamental to Constitutional Jurisprudence, has lost much of its effectiveness over the years. Nevertheless, prior restraint doctrine is crucial to preserving the line between protected and unprotected speech. One of the fundamental problems that contribute to the current ineffectiveness of prior restraint doctrine is that there exists no comprehensive definition of "prior restraint". This article chronicles the historical roots of prior restraint in order to arrive at a generally accepted legal definition. Through the course of this historical journey, the article yields a heretofore unexplored aspect of prior restraint doctrine, namely that prior restraint …

Constitutional Law: State Campaign Contribution Limits: Nixon V. Shrink Missouri Government Pac: An Abridgment Of Freedom In The Name Of Democracy, Richard J. Baker

Oklahoma Law Review

No abstract provided.

Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael L. Wells

Georgia Law Review

Constitutional rights have little value in the absence of effective remedies for their violation, includingsuitsfor damages to redress past constitutional wrongs and for injunctive relief to prevent continuing and future violations. Recognizing this, the Supreme Court has, especially over the past forty years, constructed an elaborate body of remedial doctrine. The Court has often acted on the premise that the remedial law should be more or less the same across the whole range of constitutional rights. The problem with this approach is that, from a remedial perspective, there are differences among the real world contexts in which constitutional violations occur. …

First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz

Scholarly Works

No abstract provided.

"Closet Case": Boy Scouts Of America V. Dale And The Reinforcement Of Gay, Lesbian, Bisexual, And Transgender Invisibility, Darren L. Hutchinson

Faculty Articles

This Article argues that the Supreme Courts decision in Boy Scouts of America v. Dale misapplies and ignores controlling First Amendment precedent and incorrectly dermes "sexual identity" as a clinical or biological imposition that exists apart from expression or speech. This Article provides a doctrinal alternative to Dale that would protect vital interests in both equality and liberty and that would not condition, as does Dale, sexual "equality" upon the silencing of gay, lesbian, bisexual, and transgender individuals.

Misperception And Misapplication Of The First Amendment In The American Pluralistic System: Mergers Between Catholic And Non-Catholic Healthcare Systems, Jason M. Kellhofer

Journal of Law and Health

This note questions the wisdom of those who content that Catholic health providers, to constitutionally qualify for government assistance or be permitted to merge with public entities, must be stripped of that which makes them most effective - their religious identity. The threat to sectarian healthcare has steadily been on the rise as can be seen in actions such as the American Public Health Association's recent approval of a policy statement recommending more government oversight to preclude the dropping of reproductive services when Catholic and Non-Catholic hospitals merge. Section II explores why these mergers occur and why certain services are …

Framing And Blaming In The Culture Wars: Marketing Murder Or Selling Speech?, Clay Calvert

Vanderbilt Journal of Entertainment & Technology Law

This Article uses the Pahler legal battle as a case study to examine the current culture wars that have placed the Hollywood recording and entertainment industries in the legal crosshairs of both legislative and judicial efforts to redefine popular teen culture. The first section demonstrates how the theories at issue in Pahler mirror the tactics used in the recent war against tobacco industry advertising that also allegedly targeted minors. Next, the Article situates Pahler within the context of Congressional hearings in the fall of 2000 that focused attention on the alleged Hollywood marketing of products featuring violent content to minors. …

The Peculiar Case Of State V. Terry Lynn Nichols: Are Television Cameras Really Banned From Oklahoma Criminal Proceedings?, Robert D. Nelon

Vanderbilt Journal of Entertainment & Technology Law

The truck bomb ripped into A.P. Murrah Federal Building on April 19, 1995, at 9:02 a.m. One hundred sixty-eight men, women, and children died. None knew Timothy McVeigh or Terry Lynn Nichols, nor did McVeigh and Nichols know them. In fact, Nichols was not even in Oklahoma City when the bombing occurred. He is now--occupying a special cell in the Oklahoma County Jail, awaiting trial on state charges of murder, conspiracy to commit murder, and aiding in placing a bomb near a public building.

Nichols' trip to Oklahoma City was circuitous. Initially, separate federal proceedings against McVeigh and Nichols were …

For Entertainment Purposes Or Ad Majorem Dei Gloriam: Televangelism In The Marketplace Of Ideas, Juan G. Villasenor

Vanderbilt Journal of Entertainment & Technology Law

This Note discusses the proposed legal responses to the problem of fraud by televangelists. Finding the solutions constitutionally deficient, politically unsound, or practically ineffective as deterrents, it then explores the possibility of a content-based restriction on televangelists' speech. The Note concludes that such a deliberate restriction on speech cannot withstand First Amendment scrutiny, regardless of the dishonesty or disingenuousness one may find in televangelists' tactics. Accordingly, despite the great potential for deception, televangelists' activities are, and should be, absolutely protected by the First Amendment. Any proposed remedy to deal with televangelism must occur in the marketplace of ideas, which is …

Irreconcilable Congressional Treatment Of Internet Service Providers As Speakers, Raymond Shih Ray Ku

Vanderbilt Journal of Entertainment & Technology Law

This Article argues that under the CDA and OCILLA, Congress adopted facially inconsistent approaches towards ISP liability for expression. Nonetheless, despite the overt differences, it is possible to discern an underlying principle for determining when ISPs should be considered speakers that reconciles this inconsistency. Put simply, the CDA and OCILLA support an approach toward determining when ISPs are speakers that focuses on whether an ISP exercises editorial control over its network. This approach is evidenced by the fact that both statutes recognize that ISPs are able to exercise editorial control over any and all content on their networks, and both …

Common Schools And The Common Good: Reflections On The School-Choice Debate, Richard W. Garnett

Journal Articles

Thank you very much for this timely and important discussion on school choice, religious faith, and the public good.

First things first—Steven Green is right: The Cleveland school-voucher case is headed for the Supreme Court. And I am afraid that Mr. Green is also correct when he observes that the question whether the First Amendment permits States to experiment with meaningful choice-based education reform will likely turn on Justice O'Connor's fine-tuned aesthetic reactions to the minutiae of Ohio's school-choice experiment.

Putting aside for now the particulars of the Cleveland case, though, I would like to propose for your consideration a …

Voluntary Campaign Finance Reform, John Copeland Nagle

Journal Articles

Any effort to achieve voluntary campaign finance reform raises two questions: Is it really voluntary, and does it really work? In Part I of this Essay, I examine the voluntariness of "voluntary" campaign finance reform. Agreements like that reached by Clinton and Lazio last year—what I term "purely voluntary agreements"—satisfy most legal tests for voluntariness. By contrast, the voluntariness of spending limits and other campaign restrictions that are imposed as a condition for receiving government funding of a political campaign—what I term "governmentally induced agreements"—is more doubtful. The extant jurisprudence recognizes that Buckley prohibits governmental actions that are more coercive …