First Amendment Commons^™

Contemplating Masterpiece Cakeshop, Terri R. Day, Danielle Weatherby

Washington and Lee Law Review Online

Next term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will consider whether a baker’s religious objection to same-sex marriage justifies his violation of Colorado’s public accommodation law in refusing to bake a cake for a same-sex wedding. At the centerpiece of Masterpiece Cakeshop is a clash between the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Equal Protection Clause or, more precisely, the principles of equality in commercial life as grounded in Colorado’s public accommodation law. In exploring the purpose inherent in regulating private conduct through public accommodation laws, this Essay suggests that …

Looking Beyond The Veil, Immanuel Chioco

Indiana Journal of Global Legal Studies

From establishments of state religions to bans on headscarves, religious minorities experience discrimination. In the post-September 11, 2001, world, Muslim women in particular have faced harsh forms of discrimination and stereotyping; this stigma has only been worsened with the recent influx of immigrants into Europe. With increasing numbers of immigrants, some countries have attempted to assimilate minority religious groups by banning the religious use of headscarves. EEOC v. Abercrombie & Fitch Stores, Inc., a case from the United States Supreme Court, was a break for Muslim women. This case, which involved a Muslim plaintiff, held that religious practices are to …

A Theory Of Bribery, Deborah Hellman

Cardozo Law Review

In a unanimous opinion in McDonnell v. United States, the Supreme Court invalidated the conviction of the former Governor of Virginia on charges of bribery and called attention to the critical role that bribery laws play in democratic government. Bribery laws fulfill this function by determining what actions of governmental officials are, and are not, for sale. Bribery laws also undergird the Court's campaign finance cases. Campaign finance doctrine rests on the assumption that a legitimate campaign contribution is distinguishable from a bribe, at least in theory. But is it? In order to answer this question, we need a theory …

Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick

Faculty Publications

Commentators have expressed concerns that litigants are invoking the First Amendment's Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label- "opportunism "-and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept offree speech "opportunism." It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person's gender. Would such challenges be "opportunistic, " as the term has been defined? What …

Fighting The Troll Toll: The Case For Judicial Review Of The U.S.P.T.O. Director's Denial Of A Petition To Institute An Inter Partes Review, Renoj Zachariah

Cardozo Law Review

The note challenges the Federal Circuit's ruling in St. Jude Medical, LLC v. Volcano Corp., which held that the Director of the U.S. Patent and Trademark Office's (USPTO) decision to deny an Inter Partes Review (IPR) is final and non-appealable under 35 U.S.C. § 314(d). Arguing that this ruling misinterprets the statute and undermines the goals of the America Invents Act (AIA), the article advocates for judicial review of such decisions to ensure fairness, prevent abuse of discretion, and align IPR proceedings with administrative law principles. It also highlights the inconsistency in allowing judicial review for Covered Business Method …

Big Brother Or Big Pharma: The Lion Fight Over The Surveillance And Promotion Of Pharmaceutical Use In America, Patrick Bailey

Florida State University Law Review

No abstract provided.

Mad Men And Dead Men: Justification For Regulation Of Computer-Generated Images Of Deceased Celebrity Endorsers, Kerry Barrett

Cleveland State Law Review

Pursuant to the Federal Trade Commission Act, the Federal Trade Commission (FTC) is charged with consumer protection through the prohibition of unfair and deceptive trade practices. An unfair and deceptive trade practice is gaining in prominence and has not yet been subjected to FTC regulation. Computer-generated imagery (CGIs) of deceased celebrity endorsers are misleading to consumers and constitute a false advertisement. This Note evaluates how digitally resurrected endorsers pervert the consumer decision-making process through analysis of issue-relevant thinking, the match-up hypothesis, event-study analysis, social adaptation theory, and transfer theory. This Note also accounts for the macroeconomic effect of regulation of …

Today's Porn: Not A Constitutional Right; Not A Human Right, Patrick Trueman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Money, Speech, And Chutzpah, Joel Gora

Faculty Scholarship

No abstract provided.

Amend The Communications Decency Act To Protect Victims Of Sexual Exploitation, Samantha Vardaman

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

The Freedom From Sexploitation Agenda: Policy And Legislative Recommendations To Curb Sexual Exploitation, Dawn Hawkins

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Constitutional Law—Why Amending The Consitution To Overrule Citizens United Is The Wrong Way To Fix Campaign Finance In The United States, Zachary Hale

University of Arkansas at Little Rock Law Review

No abstract provided.

Churches' Lobbying And Campaigning: A Proposed Statutory Safe Harbor For Internal Church Communications, Edward A. Zelinsky

Articles

President Trump, reiterating the position he took during the presidential campaign, has recently reaffirmed his pledge to “get rid of and totally destroy the Johnson Amendment,” the provision of the Internal Revenue Code which prohibits tax-exempt institutions from participating in political campaigns. The Code also bars tax-exempt institutions, including churches, from substantial lobbying activities.

Rather than the blanket repeal of the Johnson Amendment proposed by President Trump, I argue for a statutory safe harbor for the internal communications of churches. This limited safe harbor would protect in-house church discussions from both Section 501(c)(3)’s ban on substantial lobbying and from that …

Avoiding Deliberation: Why The "Safe Space" Campus Cannot Comport With Deliberative Democracy, Nicholas A. Schroeder

Brigham Young University Education and Law Journal

No abstract provided.

The Boundaries Of Partisan Gerrymandering, John M. Greabe

Law Faculty Scholarship

[Excerpt] “In my most recent column, I expressed concern about the effectiveness of the constitutional decision rules that currently govern gerrymandering – the redrawing of electoral districts in a manner that favors the incumbent majority at the expense of those out of power.

Briefly, the Constitution has not been interpreted to prohibit redistricting with an eye toward advancing the interests of the political party in power. But it has been interpreted to bar legislators from redistricting on racial grounds – at least in most circumstances.

The problem is that voters from certain racial groups tend to vote overwhelmingly for …

Sony, Cyber Security, And Free Speech: Preserving The First Amendment In The Modern World, Conrad Wilton

Pace Intellectual Property, Sports & Entertainment Law Forum

Reprinted from 16 U.C. Davis Bus. L.J. 309 (2016). This paper explores the Sony hack in 2014 allegedly launched by the North Korean government in retaliation over Sony’s production of The Interview and considers the hack’s chilling impact on speech in technology. One of the most devastating cyber attacks in history, the hack exposed approximately thirty- eight million files of sensitive data, including over 170,000 employee emails, thousands of employee social security numbers and unreleased footage of upcoming movies. The hack caused Sony to censor the film and prompted members of the entertainment industry at large to tailor their communication …

Disentangling The Right Of Publicity, Eric E. Johnson

Northwestern University Law Review

Despite the increasing importance attached to the right of publicity, its doctrinal scope has yet to be clearly articulated. The right of publicity supposedly allows a cause of action for the commercial exploitation of a person’s name, voice, or image. The inconvenient reality, however, is that only a tiny fraction of such instances are truly actionable. This Article tackles the mismatch between the blackletter doctrine and the shape of the case law, and it aims to elucidate, in straightforward terms, what the right of publicity actually is.

This Article explains how, in the absence of a clear enunciation of its …

Reforming State Laws On How Businesses Can Ban Guns: "No Guns" Signs, Property Rights, And The First Amendment, Christine M. Quinn

University of Michigan Journal of Law Reform

Every state has different regulations regarding how businesses can ban guns. Some states mandate that specific signs be posted in specific places while other states say nothing on the issue. This Note first establishes that even under Heller and McDonald, private business owners have a right to control their private property, which includes a right to prohibit their customers from carrying firearms into their buildings. It then introduces some states’ requirements for “No Guns” signs and examines their weaknesses, particularly from a First Amendment, compelled speech perspective. The Note concludes that some current state regulations are ineffective, unclear, and outright …

Finding Common Ground Across Race And Religion: Judicial Conceptions Of Political Community In Public Schools, Stuart Chinn

Utah Law Review

This article opens with a brief discussion of the recent controversies over race, inclusion, and community on American college campuses, focusing on the events at Yale University during the 2015 fall semester. Yale’s controversy is fascinating as one of the most recent, high-profile events that invites a discussion of a deep and persistent issue in American society: how do we construct and maintain a stable political community characterized by enduring differences? I use the Yale example as my jumping-off point for interrogating this question in the context of Supreme Court cases on race and public education, and religion/ideology and public …

Is Your Health Data Really Private? The Need To Update Hipaa Regulations To Incorporate Third-Party And Non-Covered Entities, Latena Hazard

Catholic University Journal of Law and Technology

This note argues that the current framework that governs health care applications and consumer privacy is slacking and outlines strategies to ensure protection against third party accessibility of information that consumers deem private.