First Amendment Commons^™

The First Amendment In Trans-Border Perspective: Toward A More Cosmopolitan Orientation, Timothy Zick

Faculty Publications

This Article examines the First Amendment’s critical trans-border dimension—its application to speech, association, press, and religious activities that cross or occur beyond territorial borders. Judicial and scholarly analysis of this aspect of the First Amendment has been limited, at least as compared to consideration of more domestic or purely local concerns. This Article identifies two basic orientations with respect to the First Amendment—the provincial and the cosmopolitan. The provincial orientation, which is the traditional account, generally views the First Amendment rather narrowly—i.e., as a collection of local liberties or a set of limitations on domestic governance. First Amendment provincialism does …

The Religion Clauses As Mutually Reinforcing Mandates: Why The Arguments For Rigorously Enforcing The Free Exercise Clause And Establishment Clause Are Stronger When Both Clauses Are Taken Seriously, Alan Brownstein

Cardozo Law Review

No abstract provided.

Exemptions And The Establishment Clause, Angela C. Carmella

Cardozo Law Review

No abstract provided.

The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett

Cardozo Law Review

No abstract provided.

Religious Use Of Copyrighted Works After Smith, Rfra, And Eldred, Steven D. Jamar

Cardozo Law Review

No abstract provided.

Game Over: Violent Video Games And Juvenile Crimes, Randy Beck, Cheryl Olson, Gerry Weber, Dan Islett

Working in the Public Interest Conferences

Discussion of possible relationship between video games and childhood violence. Includes considerations of First-Amendment rights of manufacturers and implications of Schwarzenegger v. Entertainment Merchants Association.

Criminal Procedure And The Racial Profiling Issue For Professor Gates And Sergeant Crowley, L. Darnell Weeden

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Government Property And Government Speech, Joseph Blocher

William & Mary Law Review

The relationship between property and speech is close, but complicated. Speakers use places and things to deliver their messages, and rely on property rights both to protect expressive acts and to serve as an independent means of expression. And yet courts and scholars have struggled to make sense of the property-speech connection. Is property merely a means of expression, or can it be expressive in and of itself? And what kind of “property” do speakers need to have—physical things, bundles of rights, or something else entirely?

In the context of government property and government speech, the ill-defined relationship between property …

Citizens United, Stevens, And Humanitarian Law Project: First Amendment Rules And Standards In Three Acts, William Araiza

Faculty Scholarship

No abstract provided.

Awakening The Press Clause, Sonja R. West

Scholarly Works

The Free Press Clause enjoys less practical significance than almost any other constitutional provision. While recognizing the structural and expressive importance of a free press, the Supreme Court has never recognized explicitly any right or protection as emanating solely from the Press Clause. Recently in the Court’s Citizens United decision, Justices Stevens and Scalia reignited the 30-year-old debate over whether the Press Clause has any function separate from the Speech Clause.

The primary roadblock to recognizing independent meaning in the Press Clause is the definitional problem - who or what is the “press”? Others have attempted to define the press, …

Facebook Fatalities: Students, Social Networking, And The First Amendment, Thomas Wheeler

Pace Law Review

No abstract provided.

Teacher Facebook Speech: Protected Or Not?, Rachel A. Miller

Brigham Young University Education and Law Journal

No abstract provided.

When Even The Truth Isn't Good Enough: Judicial Inconsistency In False Light Cases Threatens Free Speech, Sandra F. Chance, Christina M. Locke

First Amendment Law Review

No abstract provided.

Police Privacy In The Iphone Era: The Need For Safeguards In State Wiretapping Statutes To Preserve The Civilian's Right To Record Public Police Activity, Jesse Harlan Alderman

First Amendment Law Review

No abstract provided.

Contents, First Amendment Law Review

First Amendment Law Review

No abstract provided.

Hear No Evil, See No Evil - Speak No Evil - A Re-Examination Of Public Employee Free Speech Rights, Erika Eisenoff

First Amendment Law Review

No abstract provided.

The Time, Place, And Manner Of Survival: An Analysis Of Day Laborers And First Amendment Limits On State Action To Exclude, Will Johnson

First Amendment Law Review

No abstract provided.

Atheists In Foxholes: Examining The Current State Of Religious Freedom In The United States Military, Jeffrey Lakin

First Amendment Law Review

No abstract provided.

Terrorist Speech: Detained Propagandists And The Issue Of Extraterritorial Application Of The First Amendment, Michael J. Lebowitz

First Amendment Law Review

No abstract provided.

Searching For Security: The Proposed Workplace Religious Freedom Act (Wrfa) And Need For Heightened Protections For The Religious Expression Of Prison Employees In The Work Environment, John H. Lawrence

First Amendment Law Review

No abstract provided.

Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman

William & Mary Bill of Rights Journal

No abstract provided.

Speaking Briefly: The First Amendment & Historic Preservation, J. Graham Corriher

First Amendment Law Review

No abstract provided.

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

William & Mary Bill of Rights Journal

Modern First Amendment jurisprudence is deeply paradoxical. On one hand,
freedom of speech is said to promote fundamental values such as individual selffulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes …

Bullying In Public Schools: The Intersection Between The Student's Free Speech Rights And The School's Duty To Protect, Elizabeth M. Jaffe, Robert J. D'Agostino

Mercer Law Review

The 2009 case of eleven-year-old Jaheem Herrera's suicide in Georgia, which resulted after alleged repeated verbal bullying by his classmates, presents an interesting question regarding whether public schools must take action to prevent this type of behavior even if it does not disrupt the classroom. The issue to be addressed is not what speech schools can censor but whether schools must censor or prevent certain speech that has a harmful effect on the educational environment for a specific student or a specifically identifiable group of students.

If a public school student has a civil or liberty right to his education,' …

Preserving Access To Tattoos: First Amendment Trumps Municipal Ban In Anderson V. City Of Hermosa Beach, Richard Hyde

BYU Law Review

No abstract provided.

Brief Of Aarp And The National Legislative Association On Prescription Drug Prices As Amici Curiae In Support Of Petitioners, Sean Flynn

Amicus Briefs & Court Filings

This brief was written in support of Vermont’s Prescription Confidentiality Law, which regulates the confidentiality of prescription records and protects them from being used by pharmaceutical companies as a “targeting tool” to identify doctors most susceptible to sales messages.

Public Policy And Antisocial Testators, Ronald J. Scalise Jr.

Cardozo Law Review

This Article challenges the conventional wisdom that "deadhand" control by testators in certain situations is violative of public policy and should not be enforced. Specifically, it argues that many legacies conditioned on a beneficiary acting a certain way or doing a certain thing, such as not marrying or remarrying, should be enforced. This Article argues that the modern approach of disallowing conditions or restrictions on marital freedom in legacies is a product of a bygone era and that the reasons employed for invalidating such conditions are no longer sufficient justifications in the modern day for the current approach of courts. …

Arizona Free Enterprise Club's Freedom Club Pac V. Bennett, Et Al.: Brief For Amici Curiae Professors Of Constitutional And Election Law In Support Of Respondents, Ellen D. Katz

Appellate Briefs

Amici states confront significant issues of citizen confidence in both state and national governments. We wish to share our view that public financing of state elections should remain available as a tool to restore public confidence.

While specific sources of discontent vary from state to state, at the root of the problem is a sense of powerlessness among the citizenry, powerlessness in the face of large governments and other ever larger financial and business institutions. Whatever one may think of changes proposed by the Tea Party movement, its existence may be traced rather directly to the frustration of ordinary people …

The Journalism Ratings Board: An Incentive-Based Approach To Cable News Accountability, Andrew Selbst

University of Michigan Journal of Law Reform

The American establishment media is in crisis. With newsmakers primarily driven by profit, sensationalism and partisanship shape news coverage at the expense of information necessary for effective self-government. Focused on cable news in particular this Note proposes a Journalism Ratings Board to periodically rate news programs based on principles of good journalism. The Board will publish periodic reports and display the news programs' ratings during the programs themselves, similar to parental guidelines for entertainment programs. In a political and legal climate hostile to command-and-control regulation, such an incentive-based approach will help cable news fulfill the democratic function of the press.

The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, Steven J. Heyman

All Faculty Scholarship

Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes …