First Amendment Commons^™

Citizens United And The Corporate Form, Reuven S. Avi-Yonah

Articles

In Citizens United vs. FEC, the Supreme Court struck down a Federal statute banning direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. This article argues that by viewing Citizens United through the prism of theories about the corporate form, it is possible to see that the majority and the dissent departed from previous Supreme Court jurisprudence on the First Amendment rights of corporations. It is also possible to then …

Seana Shiffrin's Thinker-Based Freedom Of Speech: A Response, Vincent A. Blasi

Faculty Scholarship

As an instinctive consequentialist so far as First Amendment theory is concerned, I have to admit that I have never been so tempted by a non-consequentialist account as I am by what Professor Shiffrin has produced. My principal interest is the history of ideas regarding the freedom of speech. I have long been struck by how so many of the canonical writers on the subject have built their arguments from the starting point of the central importance of the freedom of thought. This is true of Milton and Mill in a basic, explicit, straightforward way (if Milton can ever be …

Snyder V. Phelps: A Hard Case That Did Not Make Bad Law, Paul E. Salamanca

Law Faculty Scholarly Articles

In Snyder v. Phelps, the Court stood by the First Amendment in hard times. A religious group conducted a protest some 1,000 feet from a fallen marine's funeral, holding such pickets as “God Hates the USA,” “Thank God for Dead Soldiers,” and “You're Going to Hell.” Despite the empathy that virtually anyone would feel for the marine's grieving father, the Court held by a vote of eight to one that his action for intentional infliction of emotional distress and intrusion upon seclusion could not survive, owing largely to the public nature of the issues the protesters had raised. “Hard …

Secular Not Secularist America, Michael Scaperlanda

Campbell Law Review

Other contributors to this symposium see "liberalism"' as the problem and "God" as the solution.' To a large extent, Ithink they have it backwards. "God" is the problem to which "liberalism" provides a particularly creative solution. Power hates a rival,' and God - or allegiance to an all-embracing monotheistic God - poses a significant threat to power because the wild faith of the martyr cannot be tamed by civil authority.

Fifteen Years Of Fame: The Declining Relevance Of Domain Names In The Enduring Conflict Between Trademark And Free Speech Rights, 11 J. Marshall Rev. Intell. Prop. L. 1 (2011), Jude A. Thomas

UIC Review of Intellectual Property Law

Domain name disputes have been the subject of substantial litigation, legislative action, and scholarly debate over the course of the past fifteen years. Much of the debate is the product of disagreement concerning whether trademark rights naturally extend into the domain name space and to what extent those rights are limited by principles of free speech. Gripe sites are paradigmatic examples of this debate. Society’s investment in defining these rights continues to grow, even as the relevance of domain names may be declining, due to: (1) changes in the way users locate content on the Internet; (2) the growth of …

Golan V. Holder: Copyright In The Image Of The First Amendment, 11 J. Marshall Rev. Intell. Prop. L. 83 (2011), David L. Lange, Risa J. Weaver, Shiveh Roxana Reed

UIC Review of Intellectual Property Law

Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer’s response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) “restoring” copyright protection to millions of foreign …

Employment, Sexual Orientation And Religious Beliefs: Do Religious Educational Institutions Have A Protected Right To Discriminate In The Selection And Discharge Of Employees?, Ralph D. Mawdsley

Law Faculty Articles and Essays

The life blood of religious educational institutions is their doctrinal statements and codes of conduct that set standards for employee and student life. The purpose of this paper is to examine the freedom of religious educational institutions to make employment decisions related to three homosexuality related areas: sexual orientation, same-sex sexual activity outside marriage, and same-sex marriage. At the core of the discussion is the basic question whether religious educational institutions have a protected right to enforce doctrinal statements or codes of conduct addressing one or more of these areas.

This paper will examine legal issues related to the ability …

The Equal Protection Implications Of Government's Hateful Speech, Helen Norton

Publications

Under what circumstances should we understand government's racist or otherwise hateful speech to violate the Equal Protection Clause? Government speech that communicates hostility or animus on the basis of race, gender, national origin, sexual orientation, or other class status can facilitate private parties' discriminatory behavior, deter its targets from certain important opportunities or activities, and communicate a message of exclusion and second-class status. Contemporary equal protection doctrine, however, does not yet fully address the harms that such government expression potentially poses. The recent emergence of the Court's government speech doctrine--which to date has emphasized the value of government expression without …

A Standard For Salvation: Evaluating “Hybrid-Rights” Free-Exercise Claims, William J. Haun

Catholic University Law Review

No abstract provided.

Take One Step Forward: Federal Courts Continue To Find That Volunteers Are Shielded From Retaliation Based On Protected Speech Under The First Amendment, David A. Grenardo

Faculty Articles

As an issue of first impression in the Fifth Circuit's jurisdiction, a United States district court in Texas considered whether it is impossible to state a claim for speech retaliation which involves the loss of a plaintiff's volunteer ministry rights and credentials. The court, in line with decisions from other federal courts and analogous Supreme Court cases, determined that being a volunteer is the type of governmental benefit or privilege the deprivation of which triggers First Amendment scrutiny, and it held that the volunteer chaplain stated a valid claim for retaliation. This article summarizes the law concerning retaliation against volunteers …

(Re)Complexioning A Simple Tale: Race, Speech, And Colored Leadership, Angela Mae Kupenda

Journal Articles

Rather than acting as a whitening agent, the law should reflect the natural (re)complexioning of society and adapt to the melting pot that is America. The term "(re)complexioning" is used because the idea that the complexion of America was white at the beginning is false. Prior to the "discovery" of America, native citizens were indeed more deeply complexioned than Whites. Any (re)complexioning of the law since, to reflect the colors of America, then, is just to resort to the recognition of factual premises unjustly rejected when America was usurped from those of color and denied to others of color after …

Anti-Cyber Bullying Statutes: Threat To Student Free Speech, John O. Hayward

Cleveland State Law Review

On October 17, 2006, Megan Meier, a thirteen-year-old girl in Dardenne Prairie, Missouri, who had been diagnosed with attention deficit disorder and depression, committed suicide because of postings on MySpace, an Internet social networking site, saying she was a bad person whom everyone hated and the world would be better off without. As a result, the state revised its harassment and stalking statutes to prohibit using electronic means to knowingly "frighten, intimidate, or cause emotional distress to another person."' At the time of this writing, twenty-one states have passed similar legislation with others sure to follow. Many of these statutes …

Tweaking Tinker: Redefining An Outdated Standard For The Internet Era, Shannon M. Raley

Cleveland State Law Review

This Note argues that the Tinker standard needs to be reevaluated to encompass Internet-related cases both by eliminating the “on-campus” requirement and by further defining what constitutes a “substantial disruption.” The “on-campus” requirement should be eliminated for the following reasons: 1) lower federal courts already disregard this condition for Internet-related cases; 2) it leads students to abuse their First Amendment rights; and 3) this requirement threatens the safety of teachers, students, and other school personnel. Additionally, Tinker's “substantial disruption” prong would be better understood as a factors test. This ensures that schools utilize the same criteria in determining whether a …

To Secure These Rights: The Supreme Court And Snyder V. Phelps, Ethan Fishman

St. Thomas Law Review

Historically, the United States Supreme Court has taken a morally neutral approach towards issues involving freedom of expression. Instead of evaluating the content or substance of the views being expressed, the Court has relied primarily upon formalistic time, place, and manner considerations to guide its judgment in such cases. The rationale, as well as the advantages and disadvantages of this judicial approach are vividly illustrated in Snyder v. Phelps-the Court's March 2011 ruling that patently hateful protests at military funerals are protected by the First Amendment of the Constitution. Matthew Snyder was a heterosexual twenty-year-old, Marine Corps Lance Corporal who …

Flawed Assumptions: A Corporate Law Analysis Of Free Speech And Corporate Personhood In Citizens United, Anne M. Tucker

Faculty Publications By Year

In the wake of the January, 2010 Supreme Court decision in Citizens United, special interest groups, citizens, and politicians alike have engaged in a rigorous debate about the role of corporate speech within our democratic process. The First Amendment issues raised in Citizens United - to that extent do corporations have a constitutionally protected right to participate in and influence our elections through expenditures - evoke larger questions about the roles, rights, and responsibilities of corporations within our society. This article concludes that the Supreme Court did not reference corporate law principles when analyzing the fundamental First Amendment debate in …

Symposium On Commercial Speech And Public Health, Jonathan H. Adler

Faculty Publications

Does the constitutional protection of commercial speech impair the government's ability to protect and promote public health? Or does the commercial speech doctrine itself enhance consumer education and harness market competition to advance public health? Do First Amendment limitations on regulation of commercial messages unduly retard governmental efforts to safeguard consumers? Or do they properly constrain illiberal paternalism? If the Court has been over-protective of health-related commercial speech, is there a principled place to redraw the line? And how should those governmental agencies entrusted with the power to protect public health and welfare respond to these constitutional constraints?

The editors …

Virtual Child Pornography Laws And The Constraints Imposed By The First Amendment, Paula Bird

Barry Law Review

This article seeks to navigate through the complexities involved with the uncertain future of virtual child pornography laws. First, this article sets forth a brief history of the legislative actions and court rulings regarding unprotected speech and virtual child pornography, and discusses the current standing of child pornography laws. Entailed in this discussion will be a vigorous inspection of the current statutes and how they simultaneously affect law enforcement, prosecutors, and defendants. Finally, the potential future of laws regarding virtual child pornography is analyzed, including addressing the issues of how the application and interpretation of the laws are changing and …

Opinions, Implications, And Confusions, Leonard M. Niehoff

Articles

The law of defamation is haunted by ancient common law principles, such as the distinction between libel per se and libel per quad, that contribute nothing to our current jurisprudence beyond providing opportunities for misunderstanding and perplexity. Unfortunately, more contemporary doctrines have further complicated the field by sowing fresh confusions. This article explores two such doctrines-the principle that a defamation claim cannot rest upon an opinion and the principle that a defamation claim can rest upon unstated implications- and suggests that there are troublesome contradictions both within them and between them. In short, this article respectfully proposes that these two …

Reviving Slander, Cristina Carmody Tilley

Faculty Publications

Roman law treated differently speech restricted to small, closed communities and speech within or among large, permeable communities. Intracommunity speech was subject to unlimited tort consequences, while intercommunity speech was subject to central government regulation. As English speech law evolved, slander rules governing spoken speech became a convenient proxy for intracommunity speech regulation, while libel rules governing written speech became a convenient proxy for intercommunity speech. In American law, the conceptual collapse of slander and libel meant that constitutional limits designed to lift central government regulation of intercommunity speech perhaps inadvertently vitiated tort consequences for intracommunity speech. The Supreme Court's …

The Constitutional Status Of Speech About Oneself, R. George Wright

Cleveland State Law Review

We have accepted above the well-established idea that speech about oneself that is also intended to convey some sort of political idea or to address some matter of public concern can typically be distinguished from speech about oneself with no such further intent. On this basis, we have argued, contrary to recent contentions, that the latter sort of speech-speech that is "merely" about the self, or about one's merely personal or private concerns-should not generally qualify for any sort of elevated free speech protection. Fundamentally, this is because such speech does not systematically promote any of the consensually recognized and …