First Amendment Commons^™

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 …

Tango Or More - From California's Lesson 9 To The Constitutionality Of A Gay-Friendly Curriculum In Public Elementary Schools, Amy Lai

Michigan Journal of Gender & Law

In August 2009, a group of parents in California filed a lawsuit, Balde v. Alameda Unified School District, in the Superior Court of California, County of Alameda. They alleged that the Alameda Unified School District refused them the right to excuse their children from a new curriculum, Lesson 9, that would teach public elementary school children about gay, lesbian, bisexual and transgender (GLBT) families. The proposed curriculum included short sessions about GLBT people, incorporated into more general lessons about family and health, once a year from kindergarten through fifth grade. Kindergarteners would learn the harms of teasing, while fifth graders …

William H. Sorrell, Attorney General Of Vermont, Et Al. V. Ims Health Inc., Et Al. - Amicus Brief In Support Of Petitioners, Kevin Outterson, David Orentlicher, Christopher T. Robertson, Frank A. Pasquale

Faculty Scholarship

On April 26, 2011, the US Supreme Court will hear oral arguments in the Vermont data mining case, Sorrell v. IMS Health Inc. Respondents claim this is the most important commercial speech case in a decade. Petitioner (the State of Vermont) argues this is the most important medical privacy case since Whalen v. Roe.

The is an amicus brief supporting Vermont, written by law professors and submitted on behalf of the New England Journal of Medicine

Defamation In Good Faith: An Argument For Restating The Defense Of Qualified Privilege, A.G. Harmon

Barry Law Review

Since the 1964 case of New York Times v. Sullivan, the standard for proving defamation has often proven insurmountable to public figure plaintiffs who claim their reputations have been hurt through libel or slander. But, the standard can prove equally insurmountable to “private figure” plaintiffs when a qualified, or “conditional,” privilege applies. Such privileges, intended to further the social policy of candor on certain proscribed occasions, can be claimed regarding otherwise questionable conversations as long as the dialogue is made: 1) in good faith; 2) about a subject in which the speaker has an interest or duty; 3) within …

My Teacher Sux! [Censored]: Protecting Students' Right To Free Speech On The Internet, 28 J. Marshall J. Computer & Info. L. 385 (2011), Katherine Hokenson

UIC John Marshall Journal of Information Technology & Privacy Law

This comment will discusses the problem posed by student speech made on the Internet, how free speech issues are generally addressed by courts, the Supreme Court cases that have specifically addressed the First Amendment rights of students, and factors that courts dealing with student speech made on the Internet have attempted to use in their decisions. The comment will further look at how courts have analyzed online student speech cases in light of available Supreme Court precedent, and will propose that the Court adopt a hybrid of the Tinker test when addressing student speech made on the Internet, which will …

The First Amendment ... United, Joel Gora

Faculty Scholarship

No abstract provided.

Hope-Fulfilling Or Effectively Chilling? Reconciling The Hate Crimes Prevention Act With The First Amendment, Carter T. Coker

Vanderbilt Law Review

Living on a meager disability pension and without means of transportation, forty-nine-year-old African American James Byrd, Jr. of Jasper, Texas thought he had caught a break when three white men offered him a ride home on June 6, 1998. The following morning, police found Byrd's torso in the middle of the road, his head and arm in a ditch a mile away, and a three-mile trail of blood staining the road. That racial animus was the motivation for Byrd's torture, dragging, and death was hardly in dispute. Two of the three perpetrators were members of white supremacist organizations and bore …

Is Modern Legal Liberalism Still Compatible With Free Exercise Of Religion?, Donald R. Mcconnell

Campbell Law Review

Classic liberal legal thought has clearly been shaped by the influence of Christianity. But in recent years, the movement, like ancient Gnosticism, has some Christian elements, but has become a decidedly anti-Christian force in the courts. This comparison tracks well with the analysis of other parallel modern intellectual movements by the political scientist Eric Voegelin. It is also supported by current events such as the recent Federal District Court opinion by Chief Judge Vaughn Walker in Perry v. Schwartzenegger. Liberalism has transformed from an attempt at neutrality, to an established religion that not only promotes its own perverse version of …

Were The Framers - And The Writers Who Influenced Them - Unable To Foresee The Extent Of Secularization That Could Result From The Separation Of Church And State?, Teresa M. Blake

Campbell Law Review

While the United States is filled with religious sects, denominations, worshippers, and even fanatics, the truth is that American society has become largely secular.' When analyzing society's trend toward secularization from a legal perspective, it is only natural to begin with the Establishment Clause of the First Amendment 2-the clause responsible for the separation of church and state. But is today's secular society really the brainchild of the Framers of the Constitution? Or is it an unintended result that was far beyond their realm of foreseeability? This Comment addresses these questions by surveying the writings of several influential Constitutional Framers. …

Equal Access Struggle: Counter-Military Recruitment On High School Campuses, 44 J. Marshall L. Rev. 459 (2011), Phillip Ruben Nava

UIC Law Review

No abstract provided.

Barnes-Wallace V. City Of San Diego: "Psychological Injury" And Its Effect On Standing, 44 J. Marshall L. Rev. 507 (2011), Andrew Meyer

UIC Law Review

No abstract provided.

Foreword: The Impact Of Citizens United, 44 J. Marshall L. Rev. Xxiii (2011), Steven D. Schwinn

UIC Law Review

No abstract provided.

Commentary: Campaign Finance In The Wake Of Citizens United, 44 J. Marshall L. Rev. 583 (2011), Thomas E. Mann

UIC Law Review

No abstract provided.

Small-Donor Public Financing In The Post-Citizens United Era, 44 J. Marshall L. Rev. 619 (2011), Monica Youn

UIC Law Review

No abstract provided.

A Capitalist Joker: The Strange Origins, Disturbing Past, And Uncertain Future Of Corporate Personhood In American Law, 44 J. Marshall L. Rev. 643 (2011), David H. Gans, Douglas T. Kendall

UIC Law Review

No abstract provided.

So What If Corporations Aren't People?, 44 J. Marshall L. Rev. 701 (2011), Ilya Shapiro, Caitlyn W. Mccarthy

UIC Law Review

No abstract provided.

Citizens United And Tiered Personhood, 44 J. Marshall L. Rev. 717 (2011), Atiba R. Ellis

UIC Law Review

No abstract provided.

Ending A Peculiar Evil: The Constitution, Campaign Finance Reform, And The Need For Change In Focus After Citizens United V. Fec, 44 J. Marshall L. Rev. 773 (2011), Carson Griffis

UIC Law Review

No abstract provided.

Free Speech On The Battlefield: Protecting The Use Of Social Media By America's Soldiers, 44 J. Marshall L. Rev. 1085 (2011), David Johnsen

UIC Law Review

No abstract provided.

Regulating Morality Through The Common Law And Exclusionary Zoning, George P. Smith Ii, Gregory P. Bailey

Scholarly Articles

The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards. Broad, …

Religious Freedom, Church-State Separation, & The Ministerial Exception, Carl H. Esbeck, Thomas C. Berg, Kimberlee Wood Colby, Richard W. Garnett

Faculty Publications

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …

Recognizing The Public Schools' Authority To Discipline Students' Off-Campus Cyberbullying Of Classmates, Douglas E. Abrams

Faculty Publications

The American Medical Association, the National Institute of Child Health and Human Development, and the U.S. Centers for Disease Control and Prevention have identified bullying in the public elementary and secondary schools as a "public health problem". This article explains the schools' comprehensive authority, consistent with the First Amendment, to impose discipline on cyberbullies, by suspension or expulsion if necessary. Ever since Tinker v. Des Moines Independent Community School District (1969), the Supreme Court's First Amendment decisions have granted the schools authority to discipline student speech that causes, or reasonably threatens, (1) "substantial disruption of or material interference with school …

Protecting Scientific Integrity: The Commercial Speech Doctrine Applied To Industry Publications, Joanna K. Sax

Faculty Scholarship

Pharmaceutical companies face increasing pressure to bring new treatments to market in order to survive. The economic reality of survival and profits may distort a company’s decision-making process regarding full disclosure on a particular new drug.

Part II of this article analyzes the publication tactics employed by some members of the pharmaceutical industry (hereinafter “industry”) and explains how some of the publications promote misleading information. Part III proposes policy recommendations to require accurate dissemination of the results of clinical trials in order to protect scientific integrity and the public welfare. Part IV of this article addresses whether industry publications are …

Ten Years After: Bartnicki V. Vopper As Laboratory For First Amendment Advocacy And Analysis, Eric Easton

All Faculty Scholarship

How many ways can one approach a First Amendment analysis? What influences a lawyer or a judge to select one analytical approach over another? And what is the long-term effect of a court's choice of one over another? In Bartnicki v. Vopper, a 2001 case in which the U.S. Supreme Court considered federal and state statutes prohibiting the disclosure of illegally intercepted telephone conversations, we are privileged to have a small laboratory through which to study the first two questions. And, from the vantage point of ten years, we ought to be able to make some informed predictions as to …

In An Academic Voice: Antisemitism And Academy Bias, Kenneth Lasson

All Faculty Scholarship

Current events and the recent literature strongly suggest that antisemitism and anti-Zionism are often conflated and can no longer be viewed as distinct phenomena. The following paper provides an overview of contemporary media and scholarship concerning antisemitic/anti-Zionist events and rhetoric on college campuses. This analysis leads to the conclusion that those who are naive about campus antisemitism should exercise greater vigilance and be more aggressive in confronting the problem.

Between Liberalism And Theocracy, John D. Inazu

Campbell Law Review

Our symposium conveners have focused us on "the relationship between liberalism and Christianity and their influence on American constitutionalism."' My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for navigating the relationship between church and state.' By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), I hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are …

Handcuffing The Press: First Amendment Limitations On The Reach Of Criminal Statutes As Applied To The Media, Lee Levine, Nathan E. Siegel, Jeanette Melendez Bead

NYLS Law Review

No abstract provided.

Can Speech By Fda-Regulated Firms Ever Be Noncommercial?, Nathan Cortez

Faculty Journal Articles and Book Chapters

This Article considers whether speech by pharmaceutical, medical device, and other FDA-regulated companies can ever be noncommercial and thus subject to heightened protection under the First Amendment. Since the U.S. Supreme Court first recognized a right to commercial speech in 1976, there have been 24 published federal judicial opinions in which an FDA-regulated firm has argued that its speech was protected. Courts have categorized the speech as commercial in all but two cases, neither of which involved FDA rules or enforcement.

I examine the tests and factors courts claim they use when making this threshold distinction, then identify the various …

Back To The Future? The Effects Of Citizens United V. Fec In The 2010 Election, 44 J. Marshall L. Rev. 595 (2011), Peter L. Francia

UIC Law Review

No abstract provided.

Incendiary Speech And Social Media, Lyrissa Lidsky

Faculty Publications

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An …