First Amendment Commons^™

A Symposium: The Legal And Polticial Implications Of Buckley V. Valeo (1976), Christopher P. Banks, John C. Green

Akron Law Review

One of the most vexing issues in constitutional jurisprudence concerns the political regulation of money and its democratic implications. The resolution of the constitutional question for democracy involves striking a balance between two competing interests: the protection of political liberty under the First Amendment and the legitimate interest government has in preventing money from having a corrosive or corrupting effect on the political system. With its landmark ruling in Buckley v. Valeo, some say that the Supreme Court successfully reconciled these interests and, in fact, strongly preserved the basic ideal of American freedom. Different commentators, however, maintain that the Supreme …

Paps' A.M. V. City Of Erie: The Wrong Route To The Right Direction, Michael Mcbride

Akron Law Review

This note will examine the Pennsylvania Supreme Court’s decision in Pap’s A.M. v. City of Erie, by looking at the policy behind the decision, while also examining the decision in light of the previous United States Supreme Court decision in Barnes v. Glen Theatre. The note will examine why the decision in Pap’s A.M. was an unnecessary misinterpretation of the United States Constitution. It will examine how and why the Pennsylvania Supreme Court could have settled the issue of nude dancing in Pennsylvania and avoided review by the United States Supreme Court by deciding the case under the Pennsylvania Constitution …

Citizenship Education And The Free Exercise Of Religion, Tyll Van Geel

Akron Law Review

Part One of this article provides a broad-brush overview of constitutional doctrine as it bears on citizenship education in the public schools. The remaining parts of the article focus on a Free Exercise challenge to the introduction of a Callaneseque program of citizenship education in a public school. Part Two thus explicates Callan’s theory. Part Three outlines my approach to the Free Exercise Clause. Part Four applies that approach to a challenge brought against a Callanesque program of citizenship education. Part Five takes up other possible rights-based limits on the education power and offers a suggestion regarding how citizenship education …

Teaching Free Speech From An Incomplete Fossil Record, Michael Kent Curtis

Akron Law Review

The second part of this symposium has been devoted to how we teach the Constitution. It has emphasized what gets left out. The reader will see a pattern. Paul Finkelman is a leading scholar on the law of slavery and the Constitution. Paul thinks – and I believe he is correct – that the immense influence of slavery on American constitutional law is too often neglected in our constitutional law courses. James Wilson has studied how political philosophers – Aristotle, Rousseau, James Harrington, and others – have understood the distribution of wealth as a central factor affecting how the constitution …

Aclu V. Capitol Square Review And Advisory Board: Is There Salvation For The Establishment Clause? "With God All Things Are Possible.", Theologos Verginis

Akron Law Review

Part II of this Note provides a cursory review of the evolution of Establishment Clause jurisprudence, and it particularly focuses on the primary tests for analyzing the Establishment Clause that the Supreme Court has promoted over the years. Part III discusses the procedural history of the "Ohio State Motto" case with particular emphasis on the courts' decisions and their reasoning. Part IV analyzes the decision by the Court of Appeals for the Sixth District and addresses some of the concerns that inhere in the decision. Finally, Part V concludes the Note.

Kirsch V. Wisconsin Department Of Corrections: Will The Supreme Court Say "Hands Off" Again?, Owen J. Rarric

Akron Law Review

This Note examines the struggle of prison inmates to gain access to religious materials; materials that have been forbidden by prison officials. Part II of the Note will examine the historical development of inmates’ constitutional rights. It will also analyze the Supreme Court’s standard for reviewing prison regulations involving inmates’ constitutional rights. Moreover, the Note discusses Congress’ attempt to set the standard of review. The Note then examines the significance of the Kirsch decision. Finally, the Note analyzes the fourth factor of the Turner Standard used in Kirsch and explores the possible effect of a new legislative act on prisoners’ …

Rolling John Bingham In His Grave: The Rehnquist Court Makes Sport With The 14th Amendment, Stephen E. Gottlieb

Akron Law Review

The Warren Court organized the concept of strict scrutiny in Shelton v. Tucker. Where the defendant was obligated to treat people without regard to membership in a suspect class and failed to do that, the Court would hold them liable for their behavior unless it was done for a compelling public reason and there was no less damaging alternative.

The concept of strict scrutiny had nothing to do with intentions. The issue for the Warren Court was whether one party had injured another because of a forbidden reason. That concept of causation was understood broadly. The Court was not looking …

Lorillard Tobacco Co. V. Reilly: The Supreme Court Sends First Amendment Guarantees Up In Smoke By Applying The Commercial Speech Doctrine To Content-Based Regulations, Kerri L. Keller

Akron Law Review

This note examines why the Supreme Court’s application of the commercial speech doctrine to purely “content-based” regulations erodes First Amendment guarantees. Section II provides a brief history of the First Amendment and discusses the different levels of judicial scrutiny applied in First Amendment cases. Section III provides the statement of facts, the procedural history, and the United States Supreme Court’s decision in Lorillard. Finally, Part IV examines the decision in Lorillard and discusses why the Court should have applied strict scrutiny to the regulations at issue. It further discusses how the Court’s refusal to apply strict scrutiny to content-based commercial …

Ashcroft V. Free Speech Coalition: Can We Roast The Pig Without Burning Down The House In Regulating "Virtual" Child Pornography?, Ryan P. Kennedy

Akron Law Review

This Note will explore the struggle in the area of child pornography between the state’s legitimate interest in the protection of children and the First Amendment’s guarantee of free speech. Part II provides a brief history of the free speech doctrine as related to the area of child pornography prevention. Part III discusses the circuit split, as well as the facts, procedural history, and the holding of the Supreme Court. Finally, Part IV will examine the effect of the Court’s interpretation of the statute as unconstitutional, explain why the decision was correct, and look at Congress’ recent efforts at new …

Transformation: The Bright Line Between Commercial Publicity Rights And The First Amendment, W. Mack Webner, Leigh Ann Lindquist

Akron Law Review

The Right of Publicity provides to each and every person the right to use his or her persona for his or her benefit and provides a cause of action to stop the unauthorized use of that persona for commercial purposes.

This right is one of the many provided by the laws of unfair competition. Infringement of this right has become a frequently pleaded count made by attorneys who are trying to protect their clients from the unauthorized use of the client’s persona for commercial purposes. While the genesis of the right has been commonly thought to be a splintering from …

United States V. American Library Association: The Choice Between Cash And Constitutional Rights, Barbara A. Sanchez

Akron Law Review

This Note discusses the possibility that the Court, in its eagerness to protect children, twisted established First Amendment doctrines to uphold CIPA and declined to address other legal issues that weaken CIPA’s constitutionality. Part II provides a historical background of previous legislation attempting to protect children accessing the Internet, explains what CIPA is and compares it to previous legislation, and also discusses current filtering technology and its limitations. Part III provides a statement of the facts, including the procedural history of the case. Part IV analyzes the Court’s confusing and inconsistent application of firmly established rules dealing with Congress’ spending …

Newdow Calls For A New Day In Establishment Clause Jurisprudence: Justice Thomas's "Actual Legal Coercion" Standard Provides The Necessary Renovation, James A. Campbell

Akron Law Review

This Comment examines the concurring opinions of Justice O’Connor and Justice Thomas in Newdow and explores whether either approach is able to solve the problems inherent in the Court’s current analysis. Section II discusses the meaning of the Establishment Clause and explores its historical background. Section III outlines current Establishment Clause analysis and its inherent hostility toward religion. Section IV introduces O’Connor’s ceremonial deism approach and Thomas’s “actual legal coercion” test, as outlined in Newdow. Section V discusses the inability of O’Connor’s approach to solve the inherent deficiencies in the Court’s current analysis, whereas, Section VI argues that Thomas’s actual …

Professor Nimmer Meets Professor Schauer (And Others): An Analysis Of "Definitional Balancing" As A Methodology For Determining The "Visible Boundaries Of The First Amendment", Norman T. Deutsch

Akron Law Review

This article examines definitional balancing as a methodology for determining the “visible boundaries of the First Amendment.” More specifically, it focuses on the Court’s use of definitional balancing, as a technique for drawing definitional lines within categories of speech, to distinguish between speech that is included within the First Amendment, and speech that is excluded so that it may be proscribed based on its content. Part II describes definitional balancing in Professor Nimmer’s terms. Part III discusses the Court’s application of definitional balancing and the issues raised by commentators.

An Analysis Of The Legality Of Television Cameras Broadcasting Juror Deliberations In A Criminal Case, Daniel H. Erskine Esq.

Akron Law Review

This work sets out the constitutional, statutory, and common law applicable to television’s intrusion into the jury room. The first section addresses federal constitutional considerations focusing on Article III Section 2, the Sixth Amendment, and the First Amendment. The second section analyzes certain federal rules and particular statutes applicable to televising federal judicial proceedings, as well as the rationale behind their enactment. Finally, the third section discusses comparative approaches addressing television’s intrusion into the courtroom, particularly focusing on recent jurisprudence from the European Court of Human Rights and the Scottish Court of Session.

Charting The Course For Use Of Small Unmanned Aerial Systems In Newsgathering, Mickey H. Osterreicher

Pepperdine Law Review

News organizations and individual journalists eagerly anticipate safely utilizing Small Unmanned Aerial Systems (sUAS) for newsgathering purposes as lawmakers integrate sUAS into the National Air Space (NAS). For now, these potential users may be flying over an "unchartered" regulatory landscape while the FAA struggles to complete its administrative rulemaking. In order to better understand how media organizations and individual journalists intend to use sUAS for newsgathering purposes, the National Press Photographers Association (NPPA) developed a survey consisting of twenty-one multiple choice questions, with space for elaboration, and three questions seeking narrative responses. The survey was distributed via email to approximately …

Creating The Public Forum, Samantha Barbas

Akron Law Review

This article describes the development of the public forum doctrine in the context of a larger story about the nation’s efforts in this period to come to terms with its first modern crisis of communication...The public forum is both a site for public debate and a means of communication for the less privileged. In the 1930s and 1940s, intellectuals and activists sought to enlist the state in the creation of “public forums” on the radio, in print journalism, and in public space. This article examines this public forum movement and its enduring impact on the free speech doctrine and social …

Doma And Diffusion Theory: Ending Animus Legislation Through A Rational Basis Approach, David J. Herzig

Akron Law Review

The purpose of this Article is to expand the scope of the discussion from one of morality to include a sociological approach, called Diffusion Theory...Section II of this Article explains Diffusion Theory. Section III explores the background of DOMA and the factual background in which DOMA is being challenged by the states and private citizens. Section IV discusses the fundamentals behind the Florida adoption ban and how the change in the message by the challengers has proven effective. The final part, Section V, analyzes whether the approach should center on the inevitability of the change, as reflected in the Justice …

Thomas Jefferson And The Establishment Clause, Mark J. Chadsey

Akron Law Review

The purpose of this paper is to ask whether the historical record actually supports either of these assumptions. A note about my mode of analysis is necessary at this juncture. When inquiring about Jefferson’s influence on the Establishment Clause, it is important to focus on the entire process by which it was adopted rather than its mere introduction by Madison in the House of Representatives. Its adoption, after all, required the assent of two-thirds of both chambers of Congress, three-fourths of the state legislatures, and the support of a majority of the American public. Without the requisite support of all …

The Dangerous Right To Food Choice, Samuel R. Wiseman

Scholarly Publications

Scholars, advocates, and interest groups have grown increasingly concerned with the ways in which government regulations—from agricultural subsidies to food safety regulations to licensing restrictions on food trucks—affect access to local food. One argument emerging from the interest in recent years is that choosing what foods to eat, what I have previously called “liberty of palate,” is a fundamental right.1 The attraction is obvious: infringements of fundamental rights trigger strict scrutiny, which few statutes survive. As argued elsewhere, the doctrinal case for the existence of such a right is very weak. This Essay does not revisit those arguments, but instead …

Balancing Disclosure And Privacy Interests In Campaign Finance, Sarah Harding

Loyola of Los Angeles Law Review

The law of campaign finance pits two important First Amendment interests against each other: disclosure and privacy. The Supreme Court has recognized the need to balance these two interests to allow for effective elections and to safeguard individual rights. However, through the years the Court has failed to balance these interests equally, resulting in vacillating decisions that unfairly sacrifice one for the other. From Burroughs v. United States in 1934 to Citizens United v. FEC in 2010, the Court has failed to provide a workable roadmap for legislatures in the creation of campaign finance disclosure laws and for lower courts …