First Amendment Commons^™

National Endowment For The Arts V. Finley: First Amendment Free Speech No Longer Guaranteed For The Arts, Andrea Mccoy

Mercer Law Review

In National Endowment for the Arts v. Finley, the United States Supreme Court confronted the decency and respect criteria of the 1990 Amendment ("Amendment") to the National Foundation on the Arts and Humanities Act of 1965. At issue was whether the Amendment violated the First and Fifth Amendments of the United States Constitution by impermissibly discriminating based on viewpoint and being void for vagueness. The Supreme Court upheld the Amendment as facially valid.

Is There An Obligation To Listen?, Leslie Gielow Jacobs

University of Michigan Journal of Law Reform

This Article thoroughly considers the question whether the constitutional guarantee of "freedom of speech" includes an obligation to listen. It first reviews the scopes of the right to speak, the right to listen, and the right to be left alone from things other than unwanted speech, and the relevance to each of physical location. It concludes that, consistent with constitutional doctrine and the Court's articulations, the government's ability to protect individuals from unwanted speech should not vary according to the listener's location. After noting that the actual protection of unwilling listeners may differ because of the different physical realities of …

Equality In The Information Age, William E. Kennard

Federal Communications Law Journal

Forum: New Approaches to Minority Media Ownership, Columbia Institute for Tele-Information, Columbia University.

The Copyright Dilemma Involving Online Service Providers: Problem Solved . . . For Now, Christian C.M. Beams

Federal Communications Law Journal

The Internet environment has presented copyright law with a development unlike any other this century. The illegal trading of copyrighted works has become easier than ever. Until recently, it was possible to hold online service providers strictly liable for the infringing actions of their users, regardless of whether the provider had knowledge of any infringing activity. While promoting the policy of copyright law, upholding such a standard had the potential to limit Internet speech and retard its growth. Seeing this, Congress began to debate on legislation that would protect innocent service providers from this liability. This Note argues that with …

Television In The Courtroom: Mightier Than The Pen?, Richard P. Matsch

Michigan Law Review

In his Introduction, author Ronald L. Goldfarb explains that his purpose is to address all the arguments advanced against televised trials, cover the points made by proponents of televised trials, and find a sensible solution to what he believes is the fundamental issue: "How can we best blend new media technologies with our traditional and revered commitment to democracy and justice?" (p. xxiv). He ends the book with this prospective paragraph: "I expect that all the courtrooms of the future - state and federal, trial and appellate - will be equipped with cameras. I suggest that all trials should be …

The Qualities Of Completeness: More? Or Less?, Mark R. Killenbeck

Michigan Law Review

On January 14, 1983, Chief Judge W. Brevard Hand announced what he knew would be widely regarded as a rather startling proposition. Believing that "[t]he first amendment in large part was a guarantee to the states which insured that the states would be able to continue whatever church-state relationship existed in 1791," Judge Hand held that the people of Alabama were perfectly free to "establish[] a religion," in this instance by allowing public school teachers to begin the school day with prayer. The ruling reversed an earlier decision in the same case, which characterized the statutory provision at issue as …

Punishing Hateful Motives: Old Wine In A New Bottle Revives Calls For Prohibition, Carol S. Steiker

Michigan Law Review

Hate crimes are nothing new: crimes in which the victim is selected because of the victim's membership in some distinctive group (be it racial, ethnic, religious, or other) have been with us as long as such groups have coexisted within legal systems. What is relatively new is their recognition and designation as a discrete phenomenon. But as appellations like "sexual harassment" and "community policing" have begun to teach us, words are only the beginning of the life cycle of a new socio-legal concept. What follows are debates about whether the new category is really a coherent one, what activities should …

The Convergence Of The First Amendment And Vatican Ii On Religious Freedom, Robert F. Drinan S.J.

Michigan Law Review

Did the United States radiate the views of James Madison on the free exercise of religion to the world? That, in essence, is the main thrust of this provocative study by John T. Noonan, Jr., Professor Emeritus at the University of California Law School, Berkeley, and a Senior Judge of the U.S. Court of Appeals for the Ninth Circuit. Noonan is, of course, the author of magisterial books on abortion, birth control, legal ethics, and related issues. He writes as a committed Catholic who takes pride in the religion that he learned as a child in his native Brookline, Massachusetts. …

Monuments To The Past In A Leveling Wind, Benjamin Means

Michigan Law Review

Early in the twentieth century, the Emperor Franz Joseph sponsored a monument to Hungary's history - a Millennium Monument containing statues of the country's heroes, as well as statues of the proud sponsor and his family (p. 5). When the communists took over in 1919, the statues of Franz Joseph and the rest of the Hapsburgs were dragged out of the Millennium Monument and replaced with more politically correct statuary (p. 8). Counterrevolutionaries, though, retook the country and reinstated the Hapsburg Statues in the Millennium Monument - until a later regime once again reshuffled the millennial display (pp. 9-10). Professor …

In Brief, Spring/Summer 1999, New York Law School

New York Law School In Brief

No abstract provided.

Roger Williams's Gift: Religious Freedom In America, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Power, The Establishment Clause, And Vouchers, Marci A. Hamilton

Articles

No abstract provided.

A Reply, Marci A. Hamilton

Articles

It is not often that one gets such immediate (and lengthy) written responses to one's work. It is both humbling and a blessing. My five interlocutors have offered me the opportunity to gaze at my own work as it is reflected in five different pools. I like some of what I see, do not recognize some of it, and will refine other aspects in this brief reply. My only regret is that I simply cannot in the space of a reply respond to many of the interesting and worthy points raised.

Aggressive Newsgathering And The First Amendment, Erwin Chemerinsky, Robert Nagel, Robert O'Neil, Diane Zimmerman

University of Richmond Law Review Symposium

The University of Richmond School of Law sponsored the "Aggressive Newsgathering and the First Amendment." The symposium covered such topics as surreptitious newsgathering techniques, the constitutionality of recent proposed legislation regarding paparazzi, and the question of the appropriate dividing line, if any, between public and private life. The symposium featured a mix of scholars, journalist, lawyers, judges, and public figures, who discussed these issues in three sessions. Scholarly papers generated by the symposium were published in 33 U. Rich. L. Rev. 1143 (1999). The authors of those papers also participated in the symposium proceedings and they were:

Professor Erin Chemerinsky, …

The First Amendment Case Against Fcc Ip Telephony Regulation, Tuan N. Samahon

Federal Communications Law Journal

This Comment argues that IP telephony, like handbills and traditional print media, deserves First Amendment protection against FCC regulatory authority. After briefly reviewing the IP telephony phenomenon within the larger context of "digital convergence," the Comment examines the FCC and Supreme Court’s technologically driven First Amendment jurisprudence—particularly, the First Amendment’s conspicuous absence from the IP telephony dialogue, and, correspondingly, the prominence of assurances of regulatory forbearance in Congress, the courts, and the FCC. In response, the Author offers First Amendment content-based and content-neutral arguments against the proposed telephony regulations. At the very least, the affordability and innovation IP telephony offers …

Betting On The Net: An Analysis Of The Government’S Role In Addressing Internet Gambling, Stevie A. Kish

Federal Communications Law Journal

The Internet Gambling Prohibition Act represents the U.S. Senate’s response to the development of a new online industry—Internet gambling. While this ban could arguably reduce the dangers associated with Internet gambling, such as fraud and addiction, it can only do so by exacting a substantial cost on principles of federalism. Rather than enacting this federal prohibition, Congress should instead leave the issue of whether Internet gambling should be legalized to the states.

State Supported Speech, Steven J. Heyman

All Faculty Scholarship

No abstract provided.

The Hatefulness Of Protected Speech: A Comparison Of The American And European Approaches, Sionaidh Douglas-Scott

William & Mary Bill of Rights Journal

In its First Amendment jurisprudence, the United States Supreme Court has construed very broadly the constitutional protection of free speech. Similarly democratic governments in Europe, however, have adopted laws restricting certain types of speech-particularly hate speech-based on the view that the human rights of oppressed groups cannot be protected fully if hate speech is permitted In this provocative Article, Professor Douglas-Scott briefly examines the American approach and contrasts it with the rationale underpinning European, especially German, law. Focusing on hate speech and the denial of the Holocaust voiced largely by neo-Nazi and other right-wing groups, she argues that such speech …

The Brandeis Gambit: The Making Of America's "First Freedom," 1909-1931, Bradley C. Bobertz

William & Mary Law Review

No abstract provided.

Menacing Speech And The First Amendment: A Functional Approach To Incitement That Threatens, John A. Rothchild

Law Faculty Research Publications

Constitutional rules of protection cannot be based on purely formal distinctions among modes of utterance that are inattentive to the way the communications actually function....

Yesterday's Love Letters Are Today's Best Sellers: Fair Use & The War Among Authors, 18 J. Marshall J. Computer & Info. L.141 (1999), Sonali R. Kolhatkar

UIC John Marshall Journal of Information Technology & Privacy Law

This Comment will analyze how courts should interpret the four statutory factors in determining a fair use defense for once private documents, such as love letters, and how the courts need to add First Amendment and public policy concerns in deciding whether to allow the fair use. First, this Comment addresses the current definition of the fair use doctrine and its impact on unpublished works. This Comment will also address the need to create a new fair use defense test to include the First Amendment concerns of secondary authors who cannot create their works without the copyrighted information. Secondly, this …

National Endowment Of The Arts V. Finley: The Propriety Of Viewpoint In Arts Funding Still Unknown, Melissa S. Vignovic

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Controversial Speakers On Campus: Liberties, Limitations, And Common-Sense Guidelines, Kenneth Lasson

St. Thomas Law Review

This article reviews the historical context of controversial speakers on campus, examines various liberties and limitations accorded them under the Constitution, and suggests clear and effective standards for dealing with contentious speech in an academic setting.

Shadow Law: Reasonable Unreasonableness, Habeas Theory, And The Nature Of Legal Rules, 2 Buff. Crim. L. Rev. 535 (1999), Alan K. Chen

Sturm College of Law: Faculty Scholarship

The article explores from both doctrinal and theoretical perspectives the interpretation of 28 U.S.C. 2254(d)(1), a section of the Antiterrorism and Effective Death Penalty Act of 1996 that severely curtailed the scope of federal habeas corpus review of state court convictions. The article argues that Congress intended 2254(d)(1) to dramatically change habeas law by codifying an extraordinarily deferential reasonableness standard of review imported from the law of qualified immunity. This interpretation, while controversial, was precisely how five members of the Supreme Court viewed the meaning of the statute in Williams v. Taylor, 529 U.S. 362 (2000), which was decided after …

The Triumph Of Hate Speech Regulation: Why Gender Wins But Race Loses In America, Jon Gould

Michigan Journal of Gender & Law

On March 30, 1995, newspaper headlines declared that hate speech regulations were dead. After six years of litigating over university hate speech codes, Stanford University's rule, one of the most modest and cautiously drafted, had been declared unconstitutional by a California Superior Court. Hate speech regulation is far from over. To the contrary, hate speech rules not only continue to exist, but the courts regularly enforce their provisions. The difference is that these cases are largely restricted to a single category-sexual harassment. Under Title VII of the Civil Rights Act of 1964, and with the regulatory support of the Equal …

A Brief Comment On The Application Of The "Contemporary Community Standard" To The Internet, Phillip E. Lewis

Campbell Law Review

No abstract provided.

Zoning Restrictions On Location Of Adult Businesses, Alan C. Weinstein

All Maxine Goodman Levin School of Urban Affairs Publications

This year's report concentrates on recent legal developments concerning regulation of the location of "adult entertainment businesses." Such regulations raise serious constitutional issues because the First Amendment's guarantee of freedom of expression extends to non-obscene sexually oriented media. The U.S. Supreme Court, however, has established that local government may single out adult businesses for special regulatory treatment in the form of locational restrictions if the local government can show a substantial public interest in regulating such businesses unrelated to the suppression of speech and if the regulations allow for "reasonable alternative avenues of communication," which essentially translates into a reasonable …

State Laws Criminalizing Female Circumcision: A Violation Of The Equal Protection Clause Of The Fourteenth Amendment, 32 J. Marshall L. Rev. 353 (1999), Shea Lita Bond

UIC Law Review

No abstract provided.

The Leonard Jeffries Problem: Public University Professor/Administrators, Controversial Speech, And Constitutional Protection For Public Employees, Michael J. Sherman

Loyola University Chicago Law Journal

No abstract provided.

Viewpoint Discrimination In The Military Context: Defining The Difference Due To The Military Honor And Decency Act Of 1996 In General Media Communications, Inc. V. Cohen, Dirk Simpson

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.