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The Myth Of Church-State Separation, David E. Steinberg 2011 Thomas Jefferson School of Law

The Myth Of Church-State Separation, David E. Steinberg

Cleveland State Law Review

This article asserts that the church-state separation interpretation of Establishment Clause history is simply wrong. The framers were focused on the first five words of the amendment, which read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The original Establishment Clause was a guarantee that the federal government would not interfere in state regulation of religion-whatever form that state regulation took. Rather than enacting the Establishment Clause to mandate a separation of church and state, the framers adopted the clause to protect divergent state practices-including state establishment of …


Preface, Frank H. Wu 2011 UC Hastings College of the Law

Preface, Frank H. Wu

Faculty Scholarship

No abstract provided.


The End Of Indecency - The Second Circuit Invalidates The Fcc's Indecency Policy In Fox Televisions Stations, Inc. V. Fcc, John V. O'Grady 2011 Villanova University Charles Widger School of Law

The End Of Indecency - The Second Circuit Invalidates The Fcc's Indecency Policy In Fox Televisions Stations, Inc. V. Fcc, John V. O'Grady

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.


Kiddie Porn In The Gallery: Defending The Artist's Corpus Or Invading The Corporal Integrity Of The Subject, Jessica N. White 2011 Villanova University Charles Widger School of Law

Kiddie Porn In The Gallery: Defending The Artist's Corpus Or Invading The Corporal Integrity Of The Subject, Jessica N. White

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.


Brand Renegades, Jeremy N. Sheff 2011 St. John's University School of Law

Brand Renegades, Jeremy N. Sheff

Faculty Publications

Recent appearances of trademarks in popular culture-in rap lyrics, on reality TV shows, even in youth riots have raised the question whether the owners of those trademarks might pursue legal remedies to protect their brands from unwanted social associations. This Article argues that they cannot, and that we should understand this limitation on trademark rights as grounded in a principle that consumption of certain brands is an expressive act that First Amendment principles place outside trademark owners' control.


Shouting "Fire!" In A Theater And Vilifying Corn Dealers, Vincent A. Blasi 2011 Columbia Law School

Shouting "Fire!" In A Theater And Vilifying Corn Dealers, Vincent A. Blasi

Faculty Scholarship

Five years ago, Fred Schauer published an article with the intriguing title: "Do Cases Make Bad Law?" Playing off Holmes' observation that "[g]reat cases like hard cases make bad law," Schauer explored the possibility, as he put it, that "it is not just great cases and hard cases that make bad law, but simply the deciding of cases that makes bad law.” His concern, confirmed and deepened by his characteristically balanced inquiry, was that general principles forged in the resolution of specific legal disputes can suffer by virtue of that provenance. Because such principles by definition are meant to carry …


The Media, The Jury, And The High-Profile Defendant: A Defense Perspective On The Media Circus, John C. Meringolo 2011 New York Law School

The Media, The Jury, And The High-Profile Defendant: A Defense Perspective On The Media Circus, John C. Meringolo

NYLS Law Review

No abstract provided.


Law School Clinics And The First Amendment, Jonathan L. Entin 2011 Case Western Reserve University School of Law

Law School Clinics And The First Amendment, Jonathan L. Entin

Faculty Publications

No abstract provided.


Have You Been Drinking Tonight Ms. Prynne - Ohio's Scarlet Letter For Ovi/Dui Offenders: A Violation Of First Amendment Protection Against Compelled Speech, William Livingston 2011 Cleveland State University

Have You Been Drinking Tonight Ms. Prynne - Ohio's Scarlet Letter For Ovi/Dui Offenders: A Violation Of First Amendment Protection Against Compelled Speech, William Livingston

Cleveland State Law Review

This note examines the history of scarlet letter punishments. These types of sanctions raise many constitutional concerns; this Note will specifically address First Amendment compelled speech. Different standards of constitutional review for First Amendment violations and probation conditions will also be discussed. The note will also explain how Ohio's special license plate violates the First Amendment. Because the license plate is a legislative requirement that infringes upon free speech and eliminates judicial sentencing discretion, the state's interest must pass strict scrutiny. This analysis will confirm that the state's interest is legitimate but not compelling. The special license plate fails to …


Cohen V. Google, Inc., Eirik Cheverud 2011 New York Law School Class of 2011

Cohen V. Google, Inc., Eirik Cheverud

NYLS Law Review

No abstract provided.


Hope-Fulfilling Or Effectively Chilling? Reconciling The Hate Crimes Prevention Act With The First Amendment, Carter T. Coker 2011 Vanderbilt University Law School

Hope-Fulfilling Or Effectively Chilling? Reconciling The Hate Crimes Prevention Act With The First Amendment, Carter T. Coker

Vanderbilt Law Review

Living on a meager disability pension and without means of transportation, forty-nine-year-old African American James Byrd, Jr. of Jasper, Texas thought he had caught a break when three white men offered him a ride home on June 6, 1998. The following morning, police found Byrd's torso in the middle of the road, his head and arm in a ditch a mile away, and a three-mile trail of blood staining the road. That racial animus was the motivation for Byrd's torture, dragging, and death was hardly in dispute. Two of the three perpetrators were members of white supremacist organizations and bore …


Citizens United And The Illusion Of Coherence, Richard L. Hasen 2011 Loyola Law School-Los Angeles

Citizens United And The Illusion Of Coherence, Richard L. Hasen

Michigan Law Review

The self-congratulatory tone of the majority and concurring opinions in last term's controversial Supreme Court blockbuster, Citizens United v. Federal Election Commission, extended beyond the trumpeting of an absolutist vision of the First Amendment that allows corporations to spend unlimited sums independently to support or oppose candidates for office. The triumphalism extended to the majority's view that it had imposed coherence on the unwieldy body of campaign finance jurisprudence by excising an "outlier" 1990 opinion, Austin v. Michigan Chamber of Commerce, which had upheld such corporate limits, and parts of a 2003 opinion, McConnell v. FEC, extending Austin to unions …


Religious Freedom, Church-State Separation, And The Ministerial Exception, Thomas C. Berg, Kimberlee Wood Colby, Carl H. Esbeck, Richard W. Garnett 2011 University of St. Thomas School of Law

Religious Freedom, Church-State Separation, And The Ministerial Exception, Thomas C. Berg, Kimberlee Wood Colby, Carl H. Esbeck, Richard W. Garnett

Journal Articles

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism - the project of protecting political freedom by marking boundaries to the power of government - has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects - as ours does - both the importance of, and the distinction between, the spheres of political and religious …


The Limits Of Tort Privacy, Neil M. Richards 2011 Washington University in St. Louis School of Law

The Limits Of Tort Privacy, Neil M. Richards

Scholarship@WashULaw

The conception of tort privacy developed by Warren, Brandeis and Prosser sits at the heart of American understandings of privacy law. Rooted in protection of private information against unwanted collection, use, and disclosure, tort privacy protects against emotional injury, and was directed by design against disclosures of true, embarrassing facts by the media. In this essay, I argue that as conceived by Warren and Brandeis and interpreted by Prosser, tort privacy is a poor vehicle for grappling with problems of privacy and reputation in the digital age. Tort privacy, especially the disclosure tort, has from its inception been in conflict …


Pornography As Pollution, John Copeland Nagle 2011 Notre Dame Law School

Pornography As Pollution, John Copeland Nagle

Journal Articles

Pornography is often compared to pollution. But little effort has been made to consider what it means to describe pornography as a pollution problem, even as many legal scholars have concluded that the law has failed to control internet pornography. Opponents of pornography maintain passionate convictions about how sexually-explicit materials harm both those who are exposed to them and the broader cultural environment. Viewers of pornography may generally hold less fervent beliefs, but champions of free speech and of a free internet object to anti-pornography regulations with strong convictions of their own. The challenge is how to address the widespread …


Adult Websites And The Top-Level Domain Debate: Icann's Adoption Of .Xxx Dras Adult-Industry Ire, Robert D. Richards, Clay Calvert 2011 The Pennsylvania State University

Adult Websites And The Top-Level Domain Debate: Icann's Adoption Of .Xxx Dras Adult-Industry Ire, Robert D. Richards, Clay Calvert

Cardozo Arts & Entertainment Law Journal

No abstract provided.


The Association Of Adult Businesses With Secondary Effects: Legal Doctrine Social Theory, And Empirical Evidence, Alan C. Weinstein, Richard McCleary 2011 Cleveland-Marshall College of Law

The Association Of Adult Businesses With Secondary Effects: Legal Doctrine Social Theory, And Empirical Evidence, Alan C. Weinstein, Richard Mccleary

Cardozo Arts & Entertainment Law Journal

No abstract provided.


Citizens United, Stevens And Humanitarian Law Project: First Amendment Rules And Standards In Three Acts, William D. Araiza 2011 Brooklyn Law School

Citizens United, Stevens And Humanitarian Law Project: First Amendment Rules And Standards In Three Acts, William D. Araiza

Faculty Scholarship

No abstract provided.


The Curious Life Of In Loco Parentis At American Universities, Philip Lee 2011 St. John's University School of Law

The Curious Life Of In Loco Parentis At American Universities, Philip Lee

Faculty Publications

In this article I trace the legal history, through court opinions, of in loco parentis (Latin for “in the place of the parent”) as applied to the relationship between American universities and their students. I demonstrate that until the 1960s, the in loco parentis doctrine allowed universities to exercise great discretion in developing the “character” of their students without respect to their students’ constitutional rights. The demise of this doctrine forced courts, and universities themselves, to redefine the relationship of universities with their students in important ways.


American Library Association, Bradburn, And The Movement To Censor The Internet, Olivia J. Greer 2011 Benjamin N. Cardozo School of Law

American Library Association, Bradburn, And The Movement To Censor The Internet, Olivia J. Greer

Cardozo Arts & Entertainment Law Journal

No abstract provided.


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