First Amendment Commons^™

Closing The Barn Door After The Genie Is Out Of The Bag: Recognizing A "Futility Principle" In First Amendment Jurisprudence, Eric Easton

All Faculty Scholarship

This article argues for a simple proposition: the First Amendment imposes a presumption against the suppression of speech when suppression would be futile. Suppression is futile when the speech is available to the same audience through some other medium or at some other place. The government can overcome this presumption of futility only when it asserts an important interest that is unrelated to the content of the speech in question, and only when the suppression directly advances that interest.

In Part I, the article explores the role that this unarticulated "futility principle" has played in Supreme Court and other decisions …

New Restrictions On Academic Free Speech: Jeffries V. Harleston Ii, Richard H. Hiers

UF Law Faculty Publications

Notwithstanding academic freedom's venerable and near-sacrosanct place among academicians in the United States today, the Supreme Court first accorded it constitutional status only in the 1950s. The Court did not recognize First Amendment speech rights of public employees generally until 1968. In subsequent years, the Court evolved two separate lines of cases: the one relating to, and generally protective of, academic freedom in public colleges and universities; the other, relating to the speech rights of public school teachers and public employees in other work contexts. The Supreme Court has yet to address the question whether the severely restrictive standards developed …

Constitutional Law—Freedom Of Speech—Homeowner Wins In Battle To Limit City Government's Power To Ban Residential Signs. City Of Ladue V. Gilleo, 114 S. Ct. 2038 (1994)., Stan M. Weber

University of Arkansas at Little Rock Law Review

No abstract provided.

Religion-Based Peremptory Challenges After Batson V. Kentucky And J.E.B. V. Alabama: An Equal Protection And First Amendment Analysis, Benjamin Hoorn Barton

Michigan Law Review

This Note argues that under Batson, J.E.B., the First Amendment, and the Equal Protection Clause, religion-based peremptory challenges are unconstitutional. This Note asserts that the analysis of governmental religious discrimination, such as a peremptory challenge, is the same under either the First Amendment or the Equal Protection Clause because both apply strict scrutiny to purposeful government discrimination.

Part I examines Batson and J.E.B. in greater detail and states a model for analyzing discriminatory peremptory challenges in which such challenges are treated as intentional governmental discrimination subject to heightened scrutiny. Part II argues that under the First Amendment, intentional governmental …

At Work In The Marketplace Of Ideas: Academic Freedom, The First Amendment, And Jeffries V. Harleston, Stephen A. Newman

Articles & Chapters

No abstract provided.

Of "Sloppy Journalism," Corporate Tyranny," And Mea Culpas: The Curious Case Of Moldea V. New York Times, David A. Logan

William & Mary Law Review

No abstract provided.

Section 6: Freedom Of Speech And Press, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Association, Advocacy, And The First Amendment, Victor Brudney

William & Mary Bill of Rights Journal

No abstract provided.

The Wall Crumbles: A Look At The Establishment Clause Rosenberger V. Rector & Visitors Of The University Of Virginia, Paul L. Hicks

West Virginia Law Review

No abstract provided.

Censorship Of Cyberspace A Personal Choice, I. Trotter Hardy

Popular Media

No abstract provided.

Turner Broadcasting, The First Amendment , And The New Electronic Delivery Systems, Henry Geller

Michigan Telecommunications & Technology Law Review

After ducking the issue of the First Amendment status of cable television for years, the United States Supreme Court rendered its most important decision concerning the regulation of the new electronic media in Turner Broadcasting, Inc. v. FCC. Turner involved the constitutionality of the "must-carry" provisions of the 1992 Cable Act (the "Act" or "Cable Act") which require cable systems to carry specified local broadcast television stations. While cable television began over four decades ago as a community antenna service, it changed drastically after the advent of satellite in the mid-1970's to also provide scores of satellite-delivered programs and to …

The Ironic State Of Religious Liberty In America, Frederick Mark Gedicks

Mercer Law Review

The constitutionality of organized graduation or classroom prayer in public schools is an issue of continuing controversy in the United States. There are, of course, numerous policy arguments for and against allowing prayer in public schools, but I will be focusing on the constitutional issues and consequently will have rather less to say about policy. (I will disclose, however, that as a matter of policy, I think there are problems with public schools' organizing and sponsoring group prayer as part of graduation ceremonies or classroom activities; it would seem that Mr. Peck, Mr. Sekulow, and I all agree on that, …

First Amendment Facelift?: Rehnquist Court Crafts New Scrutiny Level For Content- Neutral, Speech Restricting Injunctions In Madsen V. Women's Health Center, Richard A. Griggs

Mercer Law Review

Recently, in Madsen v. Women's Health Center, the United States Supreme Court evaluated the constitutionality of an injunction that had completely prohibited antiabortion protestors from coming within a thirty-six foot "speech-free" buffer zone around an abortion clinic. Petitioners, Judy Madsen, Ed Martin, and Shirley Hobbs, are officers of Rescue America and members of Operation Rescue. The predominant goal of these two antiabortion, activist organizations is to shut down abortion clinics throughout the country. Respondents, Women's Health Center, Inc., Aware Woman Center for Choice, Inc., EPOC Clinic, Inc., and Central Florida Women's Health Organization, Inc., operate abortion clinics throughout central …

Business Information And "Personal Data": Some Common-Law Observations About The Eu Draft Data Protection Directive, James Maxeiner

All Faculty Scholarship

Discusses the public interest in the free flow of information.

Graduation Prayer After Lee V. Weisman: A Cautionary Tale, Stephen B. Pershing

Mercer Law Review

Loudoun County, Virginia, is a lush expanse of fields and rolling hills at the edge of the burgeoning Washington metropolis. Its growing population is heavily white, affluent, and Christian. In 1993, a year after the Supreme Court's decision in Lee v. Weisman, the county not surprisingly became an arena for the resurgence of a familiar prayer in America's public schools.

This Article tells the story of the Loudoun County graduation prayer litigation, and tries to set the case in context. It ponders doctrinal questions from an unabashedly separationist perspective, but it offers words of caution for both sides in the …

The Threat To The American Idea Of Religious Liberty, Robert S. Peck

Mercer Law Review

With the Supreme Court unlikely to overturn its public school prayer decisions, those who seek a greater religious presence in education have launched two complementary strategies intended to expand existing guarantees of school-related worship rights.

The first strategy is a renewed effort to pass a school prayer constitutional amendment utilizing the political muscle that conservative religious interests demonstrated in the 1994 elections and which resulted in the first Republican controlled Congress in forty years. The amendment movement dangerously attempts to authorize the use of government offices for purposes of religious indoctrination. Though previous efforts at authorizing public school prayer through …

Proposed Guidelines For Student Religious Speech And Observance In Public Schools, Jay Alan Sekulow, James Henderson, John Tuskey

Mercer Law Review

The First Amendment to the United States Constitution provides, "Congress shall make no law respecting an establishment of religion .... " The First Amendment also provides, "Congress shall make no law ... abridging the freedom of speech, or of the press.. ." Perhaps no question has so bedeviled American courts in this century as that of how to reconcile these two provisions in this nation's public schools. Questions that arise include: Does allowing students to pray, share their faith with other students, or even discuss their religion at the public schools constitute an "establishment of religion?" May public schools go …

The First Amendment: Has The Supreme Court Overlooked Its Role As Guardian Of Our Freedom By Failing To Distinguish Between Real Threat And Mere Shadow?, Jimmy Daniels

Mercer Law Review

"Congress shall make no law respecting an establishment of religion "

This single phrase, referred to as the Establishment Clause, has created much confusion among legal scholars throughout the latter part of the Twentieth Century and particularly the past two decades. This confusion, in my opinion, can be attributed to historical ignorance, misapplication, or both.

Board Of Education Of Kiryas Joel Village School District V. Grumet: A Missed Opportunity For The Supreme Court To Clarify Establishment Clause Analysis, John Kevin Moore

Mercer Law Review

The village of Kiryas Joel in Orange County, New York is populated entirely by practitioners of Satmar Hasidim, a strict form of Judaism. The Satmar Hasidics, incorporated the village in 1977, and the boundaries included only the 320 acres owned and inhabited by Satmar Hasidics. Two private, gender-segregated religious schools provided the education for most of the village's children. However, these schools were not able to offer special services to handicapped children who are entitled under state and federal law to special education services even when enrolled in private schools. Thus, in 1984 the Monroe-Woodbury Central School District began providing …

S.L.A.P.P. Suits: A First Amendment Issue And Beyond, Alice Glover, Marcus Jimison

North Carolina Central Law Review

No abstract provided.

Anonymous Campaign Literature And The First Amendment, Erika King

North Carolina Central Law Review

No abstract provided.

Constitutional Law — "Words That Injure: Laws That Silence:" Campus Hate Speech Codes And The Threat To American Education, Jeanne M. Craddock

Florida State University Law Review

No abstract provided.

New York Law School Reporter, Vol 12, No. 2, April 1995, New York Law School

Student Newspapers

No abstract provided.

Up In Smoke: The Ftc's Refusal To Apply The "Unfairness Doctrine" To Camel Cigarette Advertising, John Harrington

Federal Communications Law Journal

RJR Nabisco's cigarette advertising icon "Joe Camel" has become one of the most-recognized marketing mascots in America. Unfortunately, the debonair cartoon character attracts recognition, and cigarette buyers, among children. The huge popularity of the advertising campaign among an arguably inappropriate market prompted action by both legislators and the Federal Trade Commission. However, 1990 legislation did not pass the committee stage, and the FTC ended its investigation of the questionable effect the advertising had on children in 1994.

Although the FTC chose not to limit or ban RJR Nabisco's use of Old Joe, this Note contends that regulation was within the …

People Do Read Large Ads: The Law Of Advertising From Outer Space, Don E. Tomlinson, Rob L. Wiley

Federal Communications Law Journal

Although many may not be aware of it; the .technological capability currently exists to launch large, billboard-type advertisements into outer space. These ads could be as large as a full moon, and last for an almost infinite duration. Reaction to the possibility of space advertising has been generally negative, with many expressing concerns about the aesthetic effect of floating space billboards. One recent example of this is the proposal to launch a billboard containing the five-ring Olympic symbol in connection with Atlanta's hosting the 1996 Olympics, which was rejected by Mayor Maynard Jackson as "environmental pollution." Despite the fact that …

Deja Vu, All Over Again: The Supreme Court Revisits Religious Liberty, Gerard V. Bradley

Journal Articles

The Supreme Court is at it again. The justices are looking this term at two church-state questions which have long perplexed them. One is the yuletide baby-Jesus-in-the-public-square problem. This time, in the case of Pinette v. Review Board, a private group set up a Latin cross near the Ohio state capitol. This public space has long been used by all sorts of private speakers, including, it would seem, people with religious messages. The Knights of the Ku Klux Klan, Ohio Realm put up a sign disclaiming all public sponsorship. Was this still an "establishment" of religion? Federal appeals court …

Love Speech: The Social Utility Of Pornography, Jeffrey G. Sherman

All Faculty Scholarship

No abstract provided.

Bad News, Good News For The First Amendment, In Supreme Court Review Of The 1993-94 Term,, David F. Forte

Law Faculty Articles and Essays

With the passage of the Freedom of Access to Clinic Entrances Act (F.A.C.E.), and the Supreme Court’s decision in NOW v. Scheidler, pro-life activists who engage in civil disobedience will suffer far greater legal disabilities than have been placed upon other protest movements in American history. But following Madsen, pro-life demonstrators can now take advantage of protections not previously articulated by the Court. So long as they do not engage in repetitive illegalities, pro-life demonstrators can count on strong First Amendment guarantees.

The Separation Of The Religious And The Secular: A Foundational Challenge To First Amendment Theory, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

The Constitutionality Of Lobby Reform: Implicating Associational Privacy And The Right To Petition The Government, Steven A. Browne

William & Mary Bill of Rights Journal

Lobbyists currently are required to register and report to the United States Congress under the Federal Regulation of Lobbying Act of 1946. Because of poor draftsmanship, the 1946 Act actually covers few lobbyists and is not enforced by the federal government. One recent federal bill attempts to reform lobbying registration by addressing the inadequacies of the current law. If enacted, this bill might be challenged as an impediment to First Amendment rights. Any attempt at lobby reform implicates the First Amendment right to petition the government and the right of associational privacy. These issues have been analyzed by state and …