First Amendment Commons^™

No Jokes About Dope: Morse V. Frederick's Educational Rationale, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

This piece begins with a “protective” reading of Morse v. Frederick, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens’ dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools—as part of teaching students about the gravity of drug use—should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to explain why …

Using Feathery Birds To Disguise Hateful Speech: Avatar, Hillary: The Movie, Citizens United, And How Birds Of The Same Feather Flock Together, Angela Mae Kupenda

Journal Articles

Some types of hateful speech may be called commercialism or entertainment. Yet, this speech disguises hate. This speech seems to be harmless entertainment, as harmless as doves or feathery birds. However, in reality this speech drowns out the truth in the marketplace, as individuals appear to become more gullible in watching film and other commercial speech. This essay explores this quandary by asking, and attempting to answer, four questions. First, is there any possible negative influence from commercial media, especially film, in the marketplace of ideas about nonwhites (i.e., has the truth about race and about nonwhites already won out …

Child Sexualization In The Media: A Need For Reform, Punam Panchal Alam

Student Works

No abstract provided.

The Tools Of Political Dissent: A First Amendment Guide To Fun Registries, Thomas E. Kadri

Articles

No abstract provided.

"Smut And Nothing But": The Fcc, Indecency, And Regulatory Transformations In The Shadows, Lili Levi

Articles

No abstract provided.

Can We Please Stop Talking About Neutrality? Koppelman Between Scalia And Rawls, Chad W. Flanders

All Faculty Scholarship

In his essay, Religious Liberty as Liberty, Douglas Laycock cautioned against what he would later dub “the Puritan mistake,” which is the mistake, as he put it, of looking at whether religion is a good (or bad) thing rather than seeing religious liberty as “first and foremost a guarantee of liberty.” We should not, Laycock warned, let our understanding of the religion clauses be driven by what we think, substantively, about the value of religion. It should be driven, instead, by an interest in protecting the freedom of religion, and not religion per se.

Although Andy Koppelman positions himself in …

The Contraception Mandate, Caroline Mala Corbin

Articles

Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the "contraception mandate" violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This Essay explains why the contraception mandate violates none of them.

Why Non-Discrimination Policies In Higher Education Require A Second Look: The Battle For First Amendment Freedom In The University Setting, Rebecca D. Ryan

Catholic University Law Review

No abstract provided.

Supreme Court Nixes Requirement For Anti-Prostitution Pledge, Arthur S. Leonard

Other Publications

No abstract provided.

Can Moving Pictures Speak? Silent Film, Free Speech, And Social Science In Early 20th Century Law, Jennifer Petersen

Studio for Law and Culture

When the Supreme Court was first confronted with a First Amendment case involving film, it was confronted with a difficult and fascinating question: were silent films speech? The decision in the case, Mutual v. Ohio (1915), famously answered no. The decision is usually understood to be part of a tradition of interpretations of the First Amendment as applying primarily to political opinion; in this reading, film was not protected because it was entertainment and/or commerce. However, Mutual also contains a set of arguments about the nature of film as more akin to action than to speech — arguments embedded in …

Evangelicals And Catholics Together On Law: Some Personal And Jewish Reflections, Michael J. Broyde

Faculty Articles

At its core this is both my religious and practi­cal problem with the Evangelicals and Catholics Together on Law statement. I sense that according to the Jewish tradition the theology and practice of secular law and justice ought to not be a religious one at all. In the eyes of the Jewish tradition, one should not seek from the secular government a law that maximizes Godliness, never mind observance of God's law. We do not look to secular law to reflect our religious morals-we look to secular law to provide us with life, liberty and the freedom to pursue our …

Keeping The “Free” In Teacher Speech Rights: Protecting Teachers And Their Use Of Social Media To Communicate With Students Beyond The Schoolhouse Gates, Mark Schroeder

Richmond Journal of Law & Technology

Debate is raging within many school districts around the country about public school teachers’ interactions with their students outside of school through social media sites, such as Facebook and MySpace.

Reclaiming Hazelwood: Public School Classrooms And A Return To The Supreme Court's Vision For Viewpoint-Specific Speech Regulation Policy, Brad Dickens

Richmond Public Interest Law Review

Federal and circuit courts continue to fiercely debate whether the Supreme Court's 1988 ruling in Hazelwood v. Kuhineier requires school policies regulating student speech and expression to be viewpoint neutral. However, this note suggests that the language of Hazelwood itself shows that the Circuit debate may be misguided. The Supreme Court intended Hazelwood to stand as a narrow exception to its earlier holding in Tinker, and Hazelwood only applies in instances where the government's own voice is implicated, largely in a public context. When the school, and in effect the government, is speaking with its own voice, the school must …

'Simple' Takes On The Supreme Court, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay assesses black literature as a medium for working out popular understandings of America’s Constitution and laws. Starting in the 1940s, Langston Hughes’s fictional character, Jesse B. Semple, began appearing in the prominent black newspaper, the Chicago Defender. The figure affectionately known as “Simple” was undereducated, unsophisticated, and plain spoken - certainly to a fault according to prevailing standards of civility, race relations, and professional attainment. Butthese very traits, along with a gritty experience under Jim Crow, made him not only a sympathetic figure but also an armchair legal theorist. In a series of barroom conversations, Simple ably critiqued …

Is There Blood On Your Hands-Free Device?: Examining Legislative Approaches To The Conflict Minerals Problem In The Democratic Republic Of Congo, Emily Veale

Cardozo Journal of International and Comparative Law

The article argues that Section 1502 of the Dodd-Frank Act, which mandates SEC disclosures for conflict minerals, is insufficient to address the violence and governance issues in the Democratic Republic of the Congo (DRC). It advocates for comprehensive legislation that ties U.S. foreign assistance to specific reforms in the DRC, such as military and governance improvements, to effectively combat the conflict minerals crisis. The SEC’s role in promoting social and foreign policy goals is critiqued, and the article proposes a tiered incentive system to encourage meaningful change in the DRC’s mining sector.

A Private Underworld: The Naked Body In Law And Society, Lawrence M. Friedman, Joanna L. Grossman

Buffalo Law Review

No abstract provided.

The Fda’S Graphic Tobacco Warning And The First Amendment, David Orentlicher

Scholarly Works

No abstract provided.

The Sins Of Hosanna-Tabor, Leslie C. Griffin

Scholarly Works

The Supreme Court has lost sight of individual religious freedom. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court for the first time recognized the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Court ruled unanimously that Cheryl Perich, an elementary school teacher who was fired after she tried to return to school from disability leave, could not pursue an antidiscrimination lawsuit against her employer.

This Article criticizes Hosanna-Tabor as a profound misinterpretation of the First Amendment. The Court mistakenly protected religious institutions' …

The Origins Of The Privileges Or Immunities Clause, Part Iii: Andrew Johnson And The Constitutional Referendum Of 1866, Kurt T. Lash

Law Faculty Publications

This Article divides the events of 1866 into four phases. First, I discuss the early framing debates and the political rupture between congressional Republicans and President Andrew Johnson that occurred in the spring of 1866. Johnson’s March 27 veto of the Civil Rights Act and the congressional override were major public events and signaled what would become the central issue in the fall elections: whether the southern states should be readmitted without condition, or whether they must first be forced to protect the rights of citizens of the United States. The second Part discusses the final framing and initial public …

Religious Freedom Legislation In The 2013 Virginia General Assembly, Ellis M. West

Richmond Public Interest Law Review

This article consists of the following sections: Section one presents the content of the proposed amendment and explains the ways in which it is unclear, redundant, and otherwise poorly written. Section two addresses the issue of whether the provisions intended to protect religious expression, including prayer, are necessary and can solve the problems they are intended to solve. It also identifies the crucial challenge in cases involving religious expression - namely, determining correctly whether it is the government or a private individual or group that is expressing or promoting a religious belief or practice. This determination must be made because …

To Ban Or Not To Ban Blasphemous Videos, Evelyn Aswad

Faculty Articles

No abstract provided.

Discriminating Speech: The Heterophilia Of The Freedom Of Speech Doctrine, Zvi Triger

Cardozo Journal of Equal Rights & Social Justice

In this Article, I seek to shed light on freedom ofspeech jurisprudence as it is reflected in the Snyder v. Phelps and Skokie cases, as well as in two analogous Israeli cases, namely petitions of members of the extreme right against the pride parades in Jerusalem, as well as petitions by the same petitioners for police permits to hold anti-Arab processions in the Arab town of Umm al-Fahm.

Comparing the cases, I identify the moral relativity built into the interpretation offreedom of expression doctrine in both countries. I introduce the concept of discriminating speech, which is speech that is designed …

When Fear Rules In Law’S Place: Pseudonymous Litigation As A Response To Systematic Intimidation, Benjamin P. Edwards

Scholarly Works

When reprisals and intimidation make certain types of cases too risky for most plaintiffs to file, courts should preserve access to justice by allowing more plaintiffs to proceed pseudonymously. As it stands, courts may be deciding requests to proceed under a pseudonym without understanding the full scope of possible retaliation risks, including that past retaliation may work continuing harm through the stress created by fear.

Unusually heightened retaliation risks may be best exemplified by the nasty reprisals befalling plaintiffs in separation of church and state cases. Although multiple books addressed the issue in the mid-90s, the violent trend has continued …

The First Amendment And The Second Commandment, Amy Adler

NYLS Law Review

No abstract provided.

The Digital Accountability And Transparency Act Of 2011 (Data): Using Open Data Principles To Revamp Spending Transparency Legislation, Jillian Raines '12

NYLS Law Review

No abstract provided.

Liberal Responsibilities, Robin West

Georgetown Law Faculty Publications and Other Works

This essay is a review of When the State Speaks, What Should it Say?: How Democracies can Protect Expression and Promote Equality by Corey Brettschneider (2012) and Ordered Liberty: Rights, Responsibilities, and Virtues by James E. Fleming & Linda C. McClain (2013).

In a parallel fashion, Fleming and McClain articulate and then defend a general conception of “constitutional liberalism” and its core individual rights against various critics, including communitarians such as Mary Ann Glendon and Michael Sandel, and “minimalists” such as Cass Sunstein and Jeremy Waldron, who argue that for various reasons those individual rights have undermined either civic society …

Performance Anxiety: Copyright Embodied And Disembodied, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

The primary economic and cultural significance of copyright today comes from works and rights that weren’t contemplated by the Framers of the Constitution’s Copyright Clause. Performance—both as protected work and as right—is where much of copyright’s expansion has had its greatest impact, as new technologies have made it possible to fix performances in records and films and as cultural change has propelled recorded music and audiovisual works to the forefront of the copyright industries. Yet copyright has never fully conceptualized performance, and this has led to persistent confusion about what copyright protects.

One key problem of performance from copyright’s perspective …

In The System: Facilitating The Reunification Of The Child And The Parents Through Religion, Cherie Nicole Brown

Articles & Chapters

No abstract provided.

A Reporter's Privilege In Florida: Has The Conflict Between The First Amendment And Sixth Amendment Been Reconciled?, Jay B. Rosman

Barry Law Review

This article examines the reporter's privilege in Florida and the inherent conflict between the First Amendment and Sixth Amendment as it exists between the freedom of the press and the right to a fair trial. The salient question addressed is whether the conflict between the First Amendment and the Sixth Amendment has been reconciled on the issue of a reporter's privilege by Florida courts and the Florida Legislature. The author provides both an analytic and empirical study. Analytically, the article looks to the two amendments to define a reporter's privilege and considers the history of the privilege. The article discusses …

Buy My Vote: Online Reviews For Sale, Kendall L. Short

Vanderbilt Journal of Entertainment & Technology Law

The Internet has granted consumers access to a wealth of information to use in researching products and services. A substantial portion of this information consists of online consumer reviews, which hold great influence over consumers' purchasing decisions due to their perceived honesty and independence from the company. The problem with relying on these reviews, however, is that real consumers may not be the authors; instead, companies often hire writers to fabricate reviews, known as "opinion spam," which can either be positive for the hiring company or negative toward an innocent competitor. Because these fake reviews are difficult to detect, both …