First Amendment Commons^™

The Public Broadcasting Act: The Licensee Editorializing Ban And The First Amendment, John C. Grabow

University of Michigan Journal of Law Reform

This article contends that the public is deprived of an important source of information on public affairs issues as a result of the section 399(a) prohibition on editorializing. After an examination of the legislative history of Section 399(a), and the heritage of broadcast regulation in the United States, the article concludes that the prohibition on editorializing is an improper restriction on free expression in violation of the First Amendment.

Fighting Words As Free Speech, Stephen W. Gard

Law Faculty Articles and Essays

It is now settled that "above all else, the first amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Despite the universal acceptance of this general principle, the United States Supreme Court has created several exceptions. In appropriate cases libel, obscenity, commercial speech, and offensive language may be censored without contravention of the first amendment guarantee of freedom of expression. The source of each of these exceptions to the general principle of governmental neutrality regarding the content of expression is Chaplinsky v. New Hampshire.

The Impact Of Pacifica Foundation On Two Traditions Of Freedom Of Expression (With Endress), Stephen W. Gard

Law Faculty Articles and Essays

The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. The admonition that the perceived wisdom of governmental regulations should never be confused with the issue of their constitutionality remains appropriate. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily have much to say by implication on this issue. The purpose of this article is rather to assess the impact of Pacifica on the two traditions of freedom of expression which continue …

The Impact Of Pacifica Foundation On Two Traditions Of Freedom Of Expression, Stephen W. Gard, Jeffrey Endress

Cleveland State Law Review

The United States Supreme Court, in FCC v. Pacifica Foundation, had a magnificent opportunity to either begin the process of defining first amendment limitations on the scope of the authority of the FCC to regulate the content of broadcast expression, explicate a rational ground for the differential status of broadcasting, or perhaps both. The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily …

The Impact Of Pacifica Foundation On Two Traditions Of Freedom Of Expression, Stephen W. Gard, Jeffrey Endress

Cleveland State Law Review

The United States Supreme Court, in FCC v. Pacifica Foundation, had a magnificent opportunity to either begin the process of defining first amendment limitations on the scope of the authority of the FCC to regulate the content of broadcast expression, explicate a rational ground for the differential status of broadcasting, or perhaps both. The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily …

The Nonpartisan Freedom Of Expression Of Public Employees, Michigan Law Review

Michigan Law Review

Governmental activities affect each of us in a myriad of ways. The government's role as employer may pale in comparison with the more glamorous activities of the government as national defender, law enforcer, and allocator of scarce resources. Yet the legal ramifications of public employment-where the public interest in efficient governmental operation often conflicts with the public employee's freedom-have a profound influence upon American society.

In 1968, the Supreme Court in Pickering v. Board of Education formulated a test designed to balance these interests in defining the scope of a public employee's freedom of expression. In examining the nonpartisan free …

Libraries, Librarians And First Amendment Freedoms, Robert M. O'Neil

Articles by Maurer Faculty

No abstract provided.

Political Candidates' Loyalty Oaths, Jeffrey F. Liss

University of Michigan Journal of Law Reform

When Washington mustered his revolutionary army, when South Carolinians called for secession, and when Senator Joseph P. McCarthy kindled fears of Communist infiltration, many people affirmed their loyalty to the nation by swearing oaths. Perhaps the oath givers hoped to subdue the anxieties of those anxious times by reducing the ambiguities in the behavior and beliefs of others. Candidates for political office have not escaped suspicion; eight states still require political candidates to swear oaths of loyalty before their names can appear on the ballot. But constitutional doctrine and changing times have diminished the loyalty oath's scope and significance. This …

Campus Pamphleteering: The Emerging Constitutional Standards, Morton M. Rosenfeld

University of Michigan Journal of Law Reform

Beginning with Lovell v. City of Griffin, the Supreme Court has consistently held the distribution of handbills to be a fundamental right under the first amendment. Since Lovell, the Court has liberally construed the concept of a public forum where first amendment rights can be properly exercised. More recently, the Court has held that schools cannot arbitrarily or absolutely regulate students' constitutional rights of expression. These three principles would suggest great protection for handbilling rights on state university campuses. A further analysis of case law indicates that broad free speech standards governing such rights exist and that the …

First Amendment "Due Process", Henry Paul Monaghan

Faculty Scholarship

A number of recent Supreme Court opinions, primarily in the obscenity area, have fastened strict procedural requirements on governmental action aimed at controlling the exercise of first amendment rights. Professor Monaghan believes that there are two basic principles that can be distilled from these cases: that a judicial body, following an adversary hearing, must decide on the protected character of the speech, and that the judicial determination must either precede or immediately follow any governmental action which restricts speech. The author argues that these two broad principles should limit any governmental activity which affects freedom of speech, no matter how …

Constitutional Law--Freedom Of Expression--Symbolic Free Speech, Nestor L. Olesnyckyj

Kentucky Law Journal

No abstract provided.

Carmen: Movies, Censorship And The Law, Abner J. Mikva

Michigan Law Review

A Review of Movies, Censorship and the Law by Ira H. Carmen

Bedi: Freedom Of Expression And Security: A Comparative Study Of The Function Of The Supreme Courts Of The United States And India, Chester J. Antieau

Michigan Law Review

A Review of Freedom of Expression and Security: A Comparative Study of the Function of the Supreme Courts of the United States and India by A.S. Bedi

Constitutional Law-Relation Of State And Federal Governments-Application Of The Hatch Act To The Political Activity Of A State Official, Rolfe A. Worden S.Ed.

Michigan Law Review

Plaintiff brought an action to set aside a determination of the United States Civil Service Commission that his political activities while Illinois State Director of Conservation were in violation of the Hatch Act. The district court held that such an application of the Hatch Act would infringe upon the plaintiff's vested rights, and would contravene the constitutional guarantee to the state of a republican form of government. On appeal, held, reversed. Application of the Hatch Act to state employees does not deprive them of any vested rights under the United States Constitution. Palmer v. United States Civil Sero. Comm'n …

Paul & Schwartz: Federal Censorship: Obscenity In The Mail, Harry Kalven Jr.

Michigan Law Review

A Review of Federal Censorship: Obscenity in the Mail. By James C. N. Paul and Murray L. Schwartz.

"Congress Shall Make No Law…":Ii, O. John Rogge

Michigan Law Review

The framers of the federal bill of rights by the First and Tenth Amendments sought to deny Congress power over utterances unless they were connected with criminal conduct other than advocacy. Any power over such utterances was to reside in the states. However, the Supreme Court departed from the framers' intent.

One of the factors in this development was the emergence of an undefined federal police power. This occurred largely under the commerce and postal clauses. It began over a century ago. As early as 1838 Congress passed a law requiring the installation of safety devices upon steam vessels. Beginning …

"Congress Shall Make No Law..."*, O. John Rogge

Michigan Law Review

It is the position of the writer that, at least so far as Congress is concerned, speech is as free as thought, and that unless and until speech becomes a part of a course of conduct which Congress can restrain or regulate no federal legislative power over it exists. State power, despite the Fourteenth Amendment, may be somewhat more extensive. Certainly the framers of the First Amendment intended that it should be. This article will deal with federal power over speech.

Public Employees And The Right To Engage In Political Activity, Dalmas H. Nelson

Vanderbilt Law Review

Although the right to freedom of expression has become more narrowly circumscribed for everyone in recent years, the abridgments of this right that the courts have held may constitutionally be imposed on public employees are exceptionally extensive. This has been justified basically in terms of the doctrines that public employment is a privilege which the government may extend or withdraw at will and upon such terms as it chooses, and that denial of public employment does not constitute punishment. The upshot is that in this area the government may act with almost complete arbitrariness, even when basic rights such as …

Constitutional Law - Due Process - Freedom Of Expression - Motion Picture Censorship, Constantine D. Kasson S.Ed.

Michigan Law Review

The New York Court of Appeals upheld the denial of a license to exhibit the French motion picture "La Ronde'' upon the grounds that it was "immoral'' and "would tend to corrupt morals." Censorship of the picture, which dealt with promiscuous sex relations, was held to be a proper exercise of the police power, since its exhibition would present a clear and present danger to the morals of the community, and the words "immoral" and "tend to corrupt morals" were held sufficiently definite for purposes of due process. In another censorship case, the Supreme Court of Ohio affirmed the rejection …

Dennis V. United States -- Precedent, Principle Or Perversion?, Chester J. Antieau

Vanderbilt Law Review

Every socio-political group must determine when its survival necessitates proscription of subversive activity. Although some scholars feel no limitation upon speech is therefor justified, most students of the problem are agreed that when national security is at stake somewhere there must be imposed some limitations upon freedom of expression. The Blackstonian notion that, although there could be no prior restraints, anything could be punished after utterance is unworthy. Prior restraints of some kind, such as a prohibition upon publishing in time of war the sailing dates of troopships, are permissible under any rational analysis while, on the other hand, if …