Tag: First Amendment

Testation and Speech

David Horton

When I was practicing, I represented a mechanic, Barry, who was bitter rivals with his brother, Stan. Their father had left the lion’s share of his property to Barry. Stan challenged the will on the grounds of undue influence. Barry and Stan proceeded to litigate tooth-and-nail until they’d spent… Read More »

The Age of Consent: When is Sexting No Longer “Speech Integral to Criminal Activity?”

Antonio M. Haynes

Jane met her boyfriend Jim at a high school football game. Jane was just a few days shy of sixteen at the time, and she and Jim, seventeen, instantly connected. They began dating, and, a few months later but before Jim’s eighteenth birthday, the two had sex together for the… Read More »

Who Will Watch the Watchmen?: Citizens Recording Police Conduct

Michael Potere

“Get off the motorcycle!  Get off the motorcycle!  Get off the motorcycle!  State Police . . . put your hands up!” off-duty Maryland State Trooper J.D. Uhler yelled as he jumped out of his car, pulled out his gun, and ran towards motorcyclist Anthony Graber.  Trooper Uhler exited his personal vehicle wearing street clothes… Read More »

A New Approach to Nineteenth-Century Religious Exemption Cases

Wesley J. Campbell

In Employment Division v. Smith (1990), the Supreme Court held that the First Amendment does not afford individuals a right to receive exemptions from neutral and generally applicable laws that incidentally burden their exercise of religion. Although Justice Scalia wrote the majority opinion, the Court’s decision came without any discussion… Read More »

The Barracuda Lacuna: Music, Political Campaigns, and the First Amendment

Sarah Schacter

On a Wednesday in September 2008, presumptive vice-presidential candidate Sarah Palin was introduced at the Republican National Convention in St. Paul, Minnesota for her much-anticipated speech accepting the Republican nomination.  Before she spoke, the rock band Heart’s classic song “Barracuda” was played for the energized crowd.  The song was played again… Read More »

The Substantive Due Process Turn: Identity-Based Uses of Copyrighted Works

Jennifer E. Rothman - Loyola Law School

The dominant theoretical frame for conceptualizing uses of copyrighted works is the First Amendment’s protection for free speech.  Despite numerous calls for greater First Amendment scrutiny in copyright cases, there has been an almost unrelenting rejection of independent First Amendment review in copyright cases.  Even when free speech values are… Read More »

Mixed Speech: When Speech Is Both Private and Governmental

Caroline Mala Corbin - University of Miami School of Law

Is it constitutional for a state to issue a “Say Yes to Jesus” automobile license plate?  May it refuse to issue an “Aryan Nation” license plate?  May it deny a “pro-choice” license plate when it has allowed a “pro-life” one?  Under current free speech jurisprudence, the answer depends on whether… Read More »

A Relational Approach to Schools’ Regulation of Youth Online Speech

Benjamin F. Heidlage - Law Clerk to Judge Patrick Higginbotham

In 2006, Aaron Wisniewski, a middle school student at Weedsport Middle School in upstate New York, logged onto his home computer after school hours and sent his friends instant messages featuring a buddy icon depicting a gun shooting a cartoon individual and bearing the caption “Kill Mr. VanderMolen,” a teacher… Read More »

Constraining Public Employee Speech: Government’s Control of Its Workers’ Speech to Protect Its Own Expression

Helen Norton - University of Colorado School of Law

Government increasingly claims the power to control its employees’ expression to protect its own speech, a trend that imperils the public’s interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental… Read More »

Does Media Consolidation Stifle Viewpoints?: How the Supreme Court Can Provide an Answer

Daniel E. Ho & Kevin M. Quinn

When Rupert Murdoch launched his failed bid for Newsday last year at a price of $580 million consumer groups were up in arms.  Common Cause assailed the proposed acquisition as “a step back that will hurt our democracy.” S. Derek Turner of Free Press charged, “New York, like the rest of… Read More »

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