Content-Based Copyright Denial,
2015
University of South Carolina
Content-Based Copyright Denial, Ned Snow
Indiana Law Journal
No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of …
Content-Based Copyright Denial,
2015
University of South Carolina - Columbia
Content-Based Copyright Denial, Ned Snow
Faculty Publications
No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of …
Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty,
2015
Cleveland-Marshall College of Law, Cleveland State University
Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty, Alan C. Weinstein
Law Faculty Articles and Essays
This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. …
The Strictest Scrutiny: How The Hobby Lobby Court's Interpretation Of The "Least Restrictive Means" Puts Federal Laws In Jeopardy,
2015
Benjamin N. Cardozo School of Law
The Strictest Scrutiny: How The Hobby Lobby Court's Interpretation Of The "Least Restrictive Means" Puts Federal Laws In Jeopardy, Talya Seidman
Cardozo Public Law, Policy & Ethics Journal
No abstract provided.
Nonconsensual Pornography And The First Amendment: A Case For A New Unprotected Category Of Speech,
2015
University of Miami Law School
Nonconsensual Pornography And The First Amendment: A Case For A New Unprotected Category Of Speech, Alix Iris Cohen
University of Miami Law Review
Nonconsensual pornography, or the distribution of sexually graphic images of individuals without their consent, is not illegal at the federal level, nor is it illegal in the majority of states. Failure to pass laws prohibiting nonconsensual pornography, commonly referred to as “revenge porn,” leaves many victims without recourse. Opponents of legislation regulating revenge porn claim that it cannot be banned because it constitutes speech that is protected by the First Amendment. This Comment argues that nonconsensual pornography should be considered an unprotected category of speech, which would enable it to be prohibited without triggering First Amendment concerns. The method of …
Injury-In-Fact In Chilling Effect Challenges To Public University Speech Codes,
2015
The Catholic University of America, Columbus School of Law
Injury-In-Fact In Chilling Effect Challenges To Public University Speech Codes, Jennifer L. Bruneau
Catholic University Law Review
Campus speech codes began to spring up on university campuses during the 1980s and continue to operate today. The codes regulate various forms of arguably offensive speech, including speech regarding race, gender, sexual orientation, ideology, views, and political affiliation. Numerous litigants have challenged the chilling effect these policies have on student and faculty speech, but in cases where the challenged code has not yet been enforced, some courts find that the plaintiff has not met the “injury-in-fact” requirement for Article III standing. The Supreme Court has not ruled on standing requirements in speech code challenges and lower courts are divided. …
Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty,
2015
Cleveland State University
Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty, Alan Weinstein, Brian Connolly
All Maxine Goodman Levin School of Urban Affairs Publications
This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. Practically, …
There Are No Racists Here: The Rise Of Racial Extremism, When No One Is Racist,
2015
Indiana University Maurer School of Law
There Are No Racists Here: The Rise Of Racial Extremism, When No One Is Racist, Jeannine Bell
Michigan Journal of Race and Law
At first glance hate murders appear wholly anachronistic in post-racial America. This Article suggests otherwise. The Article begins by analyzing the periodic expansions of the Supreme Court’s interpretation of the protection for racist expression in First Amendment doctrine. The Article then contextualizes the case law by providing evidence of how the First Amendment works on the ground in two separate areas —the enforcement of hate crime law and on university campuses that enact speech codes. In these areas, those using racist expression receive full protection for their beliefs. Part III describes social spaces—social media and employment where slurs and epithets …
A Struggle For Recognition: The Controversy Over Religious Liberty, Civil Rights, And Same-Sex Marriage,
2015
University of North Carolina School of Law
A Struggle For Recognition: The Controversy Over Religious Liberty, Civil Rights, And Same-Sex Marriage, Steven J. Heyman
First Amendment Law Review
No abstract provided.
Revisiting The Right To Fair Warning After Garcia V. Does,
2015
University of North Carolina School of Law
Revisiting The Right To Fair Warning After Garcia V. Does, Caleb Hayes-Deats
First Amendment Law Review
No abstract provided.
Rethinking The Context Of Hate Speech Regulation,
2015
University of North Carolina School of Law
Rethinking The Context Of Hate Speech Regulation, Robert A. Kahn
First Amendment Law Review
No abstract provided.
Contents,
2015
University of North Carolina School of Law
The Epistemic Neutrality Of The Marketplace Of Ideas: Milton, Mill, Brandeis, And Holmes On Falsehood And Freedom Of Speech,
2015
University of North Carolina School of Law
The Epistemic Neutrality Of The Marketplace Of Ideas: Milton, Mill, Brandeis, And Holmes On Falsehood And Freedom Of Speech, Christoph Bezemek
First Amendment Law Review
No abstract provided.
Fighting Slurs: Contemporary Fighting Words And The Question Of Criminally Punishable Racial Epithets,
2015
University of North Carolina School of Law
Fighting Slurs: Contemporary Fighting Words And The Question Of Criminally Punishable Racial Epithets, William C. Nevin
First Amendment Law Review
No abstract provided.
The First Amendment Case For Corporate Religious Rights,
2015
University of Nevada, Las Vegas -- William S. Boyd School of Law
The First Amendment Case For Corporate Religious Rights, John D. Moore
Nevada Law Journal
In the wake of the Supreme Court’s controversial decision in Burwell v. Hobby Lobby Stores, Inc., this article makes the case for extending First Amendment religious protections to for-profit corporations. It argues that logical application of the First Amendment allows for no other result. The article then proposes a novel framework—deeply rooted in existing First Amendment law— for determining which corporations are actually engaged in religious practice. Rather than focusing on profit motives or ownership structure, courts deciding corporate religious claims should extend First Amendment protection to those corporations that have demonstrated sincere religious beliefs through their corporate charter …
Freedom Of Expression And Morality-Based Impediments To The Enforcement Of Intellectual Property Rights,
2015
University of Nevada, Las Vegas -- William S. Boyd School of Law
Freedom Of Expression And Morality-Based Impediments To The Enforcement Of Intellectual Property Rights, Marc J. Randazza
Nevada Law Journal
No abstract provided.
The Nlrb's Restrictions On The Employer's Right Of Free Speech,
2015
The University of Akron
The Nlrb's Restrictions On The Employer's Right Of Free Speech, D. Richard Froelke
Akron Law Review
In fiscal year 1968 more than a half million employees cast ballots in NLRB-conducted representation elections. Over the years more than twenty-five million employees have cast ballots in NLRB-supervised elections. Consequently, it seems worthwhile to review, in the light of the First Amendment, the NLRB's attempt to regulate the conduct of elections in which employees choose whether to become organized.
The Protection Accorded Picketing By The First Amendment,
2015
The University of Akron
The Protection Accorded Picketing By The First Amendment, Joseph J. Corso
Akron Law Review
In the context of labor law, the origin of the relationship between free speech and peaceful picketing is the case of Thornhill v. Alabama. The speech aspects of picketing and the necessarily accompanying First Amendment protections were stressed by the Supreme Court in holding unconstitutional a state statute which constituted a broad ban on all picketing. The Court expressly limited the holding by recognizing that a narrowly worded statute, such as one merely interdicting picketing en masse or picketing portending imminent danger may be valid. An additional limitation of the decision is the fact that it was reached under a …
Constitutional Law - Flag Desecration Statutes - Freedom Of Expression; Parker V. Morgan,
2015
The University of Akron
Constitutional Law - Flag Desecration Statutes - Freedom Of Expression; Parker V. Morgan, Bruce C. Heslop
Akron Law Review
Viewed in its broad perspective, Parker v. Morgan has further clarified and circumscribed the constitutional limits of the state's power to protect the American flag from public acts of desecration. In this respect it may be considered to provide further insight into the constitutional questions involved in this relatively untouched area of the law. However, until authoritative consideration has been given to the nature and source of those protective powers which are reserved to a state, Parker v. Morgan cannot be regarded to have drawn the ultimate lines of demarcation for the constitutional validity of flag desecration statutes. A meaningful …
Obscenity - New First Amendment Standards; Miller V. California,
2015
The University of Akron
Obscenity - New First Amendment Standards; Miller V. California, Stacy E. Wolfe
Akron Law Review
It has been over fifteen years since the Supreme Court embarked on its precarious course of determining the Constitutional boundaries for control of obscenity by the state and federal governments. The Court's first attempt to define the meaning of obscenity and ultimately determine the Constitutional protection afforded this expression was in Roth v. United States. What has followed can only be characterized as a series of irreconcilable conflicts and discrepancies that have left the law in this area in total confusion. Recently, the Court in Miller v. California has again attempted to provide "concrete guidelines to isolate 'hard core' pornography …
