First Amendment Commons^™

The Money Blind: How To Stop Industry Bias In Biomedical Science, Without Violating The First Amendment, Christopher Robertson

Faculty Scholarship

The pharmaceutical and medical device industries use billions of dollars to support the biomedical science that physicians, regulators, and patients use to make healthcare decisions—the decisions that drive an increasingly large portion of the American economy. Compelling evidence suggests that this industry money buys favorable results, biasing the outcomes of scientific research. Current efforts to manage the problem, including disclosure mandates and peer reviews, are ineffective. A blinding mechanism, operating through an intermediary such as the National Institutes of Health, could instead be developed to allow industry support of science without allowing undue influence. If the editors of biomedical journals …

Religious And Political Virtues And Values In Congruence Or Conflict?: On Smith, Bob Jones University, And Christian Legal Society, Linda C. Mcclain

Faculty Scholarship

A basic tension in the U.S. constitutional and political order exists between two important ideas about the relationship between civil society and the state: (1) families, religious institutions, voluntary associations, and other groups are foundational sources, or “seedbeds,” of virtues and values that undergird constitutional democracy, and (2) these same institutions guard against governmental orthodoxy and overweening governmental power by generating their own distinctive virtues and values and by being independent locations of power and authority. The first idea envisions a comfortable congruence between civil society and government: the values and virtues - and habits and skills - cultivated in …

Putting The Shock Value In First Amendment Jurisprudence: When Freedom For The Citizen-Journalist Watchdog Trumps The Right Of Informational Privacy On The Internet, Clay Calvert, Mirelis Torres

Vanderbilt Journal of Entertainment & Technology Law

This Article, which takes the July 2010 ruling by the Fourth Circuit in Ostergren v. Cuccinelli as a point of departure, explores the growing tension between the First Amendment right of Free Speech and the nascent right to online informational privacy. The Article addresses the "shock value" in First Amendment jurisprudence, stretching from Cohen v. California and Texas v. Johnson through the recent ruling in Ostergren. The Article also examines the traditional watchdog function of the press increasingly performed on the Internet by so-called citizen-journalists akin to Betty Ostergren. The Article concludes that while the Fourth Circuit's decision in Ostergren …

Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech, Charlotte Garden

Faculty Articles

Corporate targets of union “comprehensive campaigns” increasingly have responded by filing civil Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuits alleging that unions’ speech and petitioning activities are extortionate. These lawsuits are the descendants of the Supreme Court’s unexplained treatment of much labor speech as less worthy of protection than other types of speech. Starting from the position that speech that promotes democratic discourse deserves top-tier First Amendment protection, this article argues that labor speech--which plays a unique role in civil society--should be on an equal footing with civil rights speech. Thus, even if union advocacy qualifies as legal extortion, …

The Architecture Of First Amendment Free Speech, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Book Review: The Free Press Crisis Of 1800: Thomas Cooper's Trial For Seditious Libel, Eric Easton

All Faculty Scholarship

This article was an invited book review of a book of the same title by Peter Charles Hoffer. Hoffer, Distinguished Research Professor of History at the University of Georgia, has published this accessible case history as part of the University Press of Kansas’s Landmark Law Cases & American Society series, which he co-edits.

The book discusses one of the cases arising as a result of the Alien & Sedition Act under the presidency of John Adams, mostly targeting Republicans who editorialized against the Adams administration.

Sending The Principal To The Warden's Office: Holding School Officials Criminally Liable For Failing To Report Cyberbullying, Scott Farbish

Cardozo Journal of Equal Rights & Social Justice

The note argues that current state anti-cyberbullying statutes are insufficient to protect students and that holding school officials criminally liable for failing to address cyberbullying incidents would be a more effective deterrent. It contends that while legislatures have made progress in addressing cyberbullying, the lack of clear definitions and comprehensive measures leaves victims without adequate remedies. The note proposes that criminal liability for school officials would incentivize proactive measures to prevent cyberbullying, particularly in cases where off-campus incidents disrupt the school environment.

From Substance To Shadows: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens

Articles

Most disputes about the Establishment Clause center on its substantive meaning; whether, for example, a state subsidy promotes religion, the phrase “In God We Trust” can appear on currency, or a display of the Ten Commandments is unconstitutional. Often overlooked and lurking behind these substantive disputes is a question about what remedies are available when an Establishment Clause violation is found. Typically, an injunction prohibiting the subsidy, practice, or display is the choice. In Salazar v. Buono, however, the Supreme Court was confronted with an unusual case for two reasons. First, the doctrine of res judicata formally barred the …

Religion And The Purification Of Reason: Why The Liberal State Requires More Than Simple Tolerance, John M. Breen

Campbell Law Review

What could Pope Benedict possibly mean by the astounding claim that reason in public discourse must be "purified" by religion? What does he mean in saying that religion has a "corrective" role to play in the political process? In the essay that follows, first, I explore the meaning of this provocative passage as elucidated in the other documents of Benedict's papacy, in the work of Joseph Ratzinger prior to his election as pope, and in the larger body of papal encyclicals, conciliar documents and episcopal statements collectively known as "Catholic social teaching." Second, I will show how much of what …

Is Constitutionalism Liberal?, Bruce P. Frohnen

Campbell Law Review

Let me begin with the obvious: I am not claiming that any scholar, or educated person, believes that the only constitutions that have ever existed have been liberal. Everyone knows or should know that, for example, the Greek constitutions of Solon, Lycurgus, and others discussed in Aristotle's Politics predate liberalism by many centuries.' Moreover, constitutions come in a wide variety of forms, and many of these, whether written or unwritten, have explicitly been illiberal. What I maintain is that there is a prejudice among lawyers in particular that constitutions must be liberal in order to be worthy of the name. …

"Causing The Blood To Flow Where I Touched Him" - Liberalism, Constitutionalism, Christianity, And The "War" At Covey Farm, Anthony V. Baker

Campbell Law Review

I will begin my critique by going directly to the source here, the famous Philadelphia Constitutional Convention of 1787, and ask us to look somewhat carefully at the work of the "founders" there, in considering the ultimate integrity of the product they fashioned and the world they "created." That they gave us a classical liberal wonder, with tenets of that philosophy writ large in government for the very first time, is undeniable, though it will be submitted that they gave us "something else" as well. It is right for us then to explore that "something else," not abstractly, through ideas, …

From Rosenberger To Martinez: Why The Rise Of Hyper-Modernism Is A Bad Thing For Religious Freedom, Timothy P. Lendino

Campbell Law Review

This Comment will argue that what has been flying under the banner of "postmodernism" is actually an intensification of modem paradigms. Moreover, hyper-modernism is not a friend to religious freedom. Instead, the Court held in Martinez that the ideologies of "diversity," "non-discrimination," and "non-commitment" trump religious freedom.' Postmodernists and Christians alike should find this objectionable. Additionally, the Martinez decision raises serious questions about the socalled rise of postmodern thought and its impact, at least in the minds of all nine Supreme Court justices. This decision may only mark the beginning of a rise in hyper-modern Religion Clause jurisprudence. At the …

Justice Stevens, Religion, And Civil Society, Gregory P. Magarian

Scholarship@WashULaw

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his thirty-five years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he opposed exempting religious believers from laws that interfered with religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with hostility toward religion. This article debunks that conventional analysis …

Religious Argument, Free Speech Theory, And Democratic Dynamism, Gregory P. Magarian

Scholarship@WashULaw

Political theorists have long debated whether liberal democratic norms of public political debate should constrain political arguments grounded in religious beliefs or similar conscientious commitments. In this article, Professor Magarian contends that normative insights from free speech theory have salience for this controversy and should ultimately lead us to reject any normative constraint on religious argument. On the restrictive side of the debate stand prominent liberal theorists, led by John Rawls, who maintain that arguments grounded in religion and other comprehensive commitments threaten liberal democracy by offering illegitimate grounds for government action and destabilizing democratic politics. On the permissive side …

Regulating Morality Through The Common Law And Exclusionary Zoning, George P. Smith Ii, Gregory P. Bailey

Scholarly Articles

The extent to which a free society seeks to regulate sexual expression is problematic. What was defined as immoral or contra bonos mores in the 20th century, has become less of an issue in today’s liberal society. Freedom of sexual intimacy and expression are, to be sure, 1st Amendment and 14th Amendment rights. But, with every assertion of a fundamental right or liberty must come a concomitant understanding that there is a co-ordinate responsibility to exercise that right reasonably. Determining the reasonableness of any conduct grounded in these two amendments must be fact sensitive and guided by community standards. Broad, …

Supreme Court Amicus Brief Of Aarp And The National Legislative Association On Petition Drug Prices In Support Of Petitioners, William H. Sorrell V. Ims Health, Inc., No. 10-779 (Filed March 1, 2011), Sean Flynn, Meredith Jacob, Stacy Canan

Amicus Briefs & Court Filings

This Court should refuse to apply the First Amendment to Vermont’s Prescription Confidentiality Law based on two essential facts. First, the regulation at issue is limited to the commercial use or private-channel distribution of confidential data. It is thus governed by cases of this Court upholding the regulation of uses of information in purely private settings that do not inform or contribute to the public sphere. Bartnicki v. Vopper, 532 U.S. 514, 526-27 n.10 (2001); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Second, it concerns the regulation of secondary uses of information where the government …

Subsidizing The Press, David M. Schizer

Faculty Scholarship

Through beat reporting and investigative journalism, reporters monitor the foundational institutions of our society. This reporting has value even to those who never buy a newspaper or read a website. For example, subscribers and nonsubscribers alike benefit when government officials respond to a critical news story by eliminating an abusive practice. Yet unfortunately, the professional press is experiencing a severe economic crisis. Layoffs are pervasive, and news organizations across the nation are on the brink of insolvency. As a result, a number of commentators have proposed government subsidies for the press. Yet if the press becomes financially dependent on the …

Book Review. Degradation: What The History Of Obscenity Tells Us About Hate Speech By Kevin W. Saunders, Jeannine Bell

Articles by Maurer Faculty

No abstract provided.

Historical Roots Of Citizens United Vs. Fec: How Anarchists And Academics Accidentally Created Corporate Speech Rights, The General Essay, Zephyr Teachout

Faculty Scholarship

This paper looks at how the early rhetoric around the First Amendment enabled later development of corporate political speech rights.

The Anti-Bootlegging Provisions: Congressional Power And Constitutional Limitations, Craig W. Dallon

Vanderbilt Journal of Entertainment & Technology Law

Courts and scholars have considered the constitutional validity of 17 U.S.C. § 1101 (civil), and 18 U.S.C. § 2319A (criminal), known together as "the anti-bootlegging provisions." These provisions prohibit unauthorized recording, copying, and distribution of live musical performances. The provisions have been challenged in three cases, resulting in five published opinions. Two district court opinions held the provisions unconstitutional, but subsequent opinions vacated those decisions. Notwithstanding a sharp division among copyright scholars, the courts have upheld these provisions. The discussion surrounding them is part of a continuing struggle to ascertain limits on congressional power to regulate copying and distribution of …