MORSE V. FREDERICK
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Constitutional Law Mnemonics
CONSTITUTIONAL LAW MNEMONICS 1) PEG a violation of the Establishment Clause: P – The state statute or activity must have a primarily secular PURPOSE as opposed to the purpose of advancing or inhibiting religion E – The law’s primary or inevitable EFFECT must neither disapprove of nor endorse religion AND G – The law or conduct can’t foster excessive GOVERNMENTAL religious entanglement 2) A content-neutral regulation must be a reasonable SON of the First Amendment: S – The restriction must be justified by a SIGNIFICANT governmental interest O – The regulation must leave OPEN ample alternative channels of communication AND N – The regulation must be NARROWLY tailored to further the government’s goal, but doesn’t have to be least restrictive means of doing so 3) All commercial speech restrictions with STAN are valid: S – Government must have a SUBSTANTIAL INTEREST to restrict the speech T – Advertisements must be TRUTHFUL and concern lawful products and services A – Governmental restrictions must directly and materially ADVANCE the government’s “substantial interest” in enacting the law (and there must be “reasonable fit” between the state’s goal and means used to achieve that goal) N – The regulation must be NARROWLY-DRAWN and must not be more extensive than necessary to achieve the government’s substantial interest 4) The statute’s primary purpose must be a secular (non-religious) purpose, as opposed to a DOE purpose of Disapproving Or Endorsing religion 5) SLAP POP’S PAW is simply obscene, and is not constitutionally protected: SLAP – -
US Constitution First Amendment: an Overview
US Constitution first amendment: an overview The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. See U.S. Const. amend. I. Freedom of expression consists of the rights to freedom of speech, press, assembly and to petition the government for a redress of grievances, and the implied rights of association and belief. The Supreme Court interprets the extent of the protection afforded to these rights. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress. Furthermore, the Court has interpreted, the due process clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments. See U.S. Const. amend. XIV. Two clauses in the First Amendment guarantee freedom of religion. The establishment clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the "separation of church and state." Some governmental activity related to religion has been declared constitutional by the Supreme Court. For example, providing bus transportation for parochial school students and the enforcement of "blue laws" is not prohibited. The free exercise clause prohibits the government, in most instances, from interfering with a person's practice of their religion. The most basic component of freedom of expression is the right of freedom of speech. The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. -
Full Article
467 O'NEIL 2/28/2013 3:54 PM HATE SPEECH, FIGHTING WORDS, AND BEYOND—WHY AMERICAN LAW IS UNIQUE Robert M. O‘Neil* During the waning days of the turbulent presidential campaign of 2012, the issue of free speech was bound to emerge. President Barack Obama chose this moment to declare to the United Nations General Assembly his abiding commitment to the uniquely American value of unfettered expression.1 In a diverse society, he reaffirmed, ―efforts to restrict speech can become a tool to silence critics, or oppress minorities.‖2 The catalyst for this declaration was the appearance of ―a crude and disgusting video‖3 caricaturing the Prophet Muhammad which had triggered violent protests in more than twenty nations, mainly in the Middle East.4 President Obama made clear both his disdain for the video and his unswerving faith in the singularly American insistence on free expression.5 Curiously (or some would say paradoxically) the Obama Administration only weeks earlier had actively supported passage of a resolution in the United Nations Human Rights Council to create an international standard restricting some anti-religious speech; the Egyptian ambassador to the United Nations had lauded this measure by recognizing that ―‗freedom of expression has been sometimes misused‘ to insult religion.‖6 Secretary of State Hilary Clinton had added her view that speech or protest resulting in the destruction of religious sites was not, she noted, ―fair game.‖7 In a recent and expansive analysis of these contrasting events, * University of Virginia and Association of Governing Boards, Albany Law Review Symposium, September, 2012. -
Matal V. Tam & the Right to Own Disparaging Words
WHAT’S IN A NAME?: MATAL V. TAM & THE RIGHT TO OWN DISPARAGING WORDS I. INTRODUCTION In June 2017, the Supreme Court decided Matal v. Tam,1 a rare case in which intellectual property and First Amendment law collided.2 The principal question was whether the Lanham Act’s (“the Act”) Disparagement Clause was constitutional.3 While the Court had declined to answer this question with previous plaintiffs, such as the Washington Redskins (“the Redskins”), the Court granted certiorari to Simon Tam (“Tam”) and his Asian-American bandmates to decide whether the U.S. Patent and Trademark Office (“PTO”) had wrongly denied trademark registration for their band name: The Slants.4 Tam and his bandmates (collectively “The Slants”) are more sympathetic plaintiffs than the Washington Redskins: they are Asian-Americans reclaiming an outdated term derogatory to Asian-Americans.5 The Redskins, on the other hand, operate under a long-reviled racist term for Native Americans, and at best, a slim minority of their members is Native American.6 The Slants won their Supreme Court case, but the Court left unresolved the next question, which is what this decision means for less-than-sympathetic parties like the Redskins.7 This paper will explore what rights individuals and organizations have in owning derogatory terminology. Part II provides the background of trademark registration criteria and benefits, a summary of the process to appeal rejected trademarks, an introduction to the Act and Disparagement Clause, and a brief overview of First Amendment law. Part III provides a history 1 137 S. Ct. 1744 (2017). 2 See generally id. -
First Amendment Tests from the Burger Court: Will They Be Flipped?
FIRST AMENDMENT TESTS FROM THE BURGER COURT: WILL THEY BE FLIPPED? David L. Hudson, Jr. † and Emily H. Harvey †† I. INTRODUCTION ........................................................................ 52 II. THE LEMON TEST ..................................................................... 53 III. THE MILLER TEST .................................................................... 58 IV. THE CENTRAL HUDSON TEST ..................................................... 63 V. CONCLUSION ........................................................................... 66 I. INTRODUCTION When scholars speak of the Burger Court, they often mention the curtailing of individual rights in the criminal justice arena, 1 federalism decisions, 2 its “rootless activism,” 3 a failure in equal † David L. Hudson, Jr., is a Justice Robert H. Jackson Legal Fellow with the Foundation for Individual Rights in Education (FIRE) and the Newseum Institute First Amendment Fellow. He teaches at the Nashville School of Law and Vanderbilt Law School. He would like to thank his co-author Emily Harvey, the student editors of the Mitchell Hamline Law Review , and Azhar Majeed of FIRE. †† Emily H. Harvey is the senior judicial law clerk for the Hon. Frank G. Clement, Jr., of the Tennessee Court of Appeals. 1. See Yale Kamisar, The Warren Court and Criminal Justice: A Quarter-Century Retrospective , 31 TULSA L.J. 1, 14, 44 (1995); Steven D. Clymer, Note, Warrantless Vehicle Searches and the Fourth Amendment: The Burger Court Attacks the Exclusionary Rule , 68 CORNELL L. REV . 105, 129, 141, 144–45 (1982). 2. See David Scott Louk, Note, Repairing the Irreparable: Revisiting the Federalism Decisions of the Burger Court , 125 YALE L.J. 682, 686–87, 694, 710, 724–25 (2016); Lea Brilmayer & Ronald D. Lee, State Sovereignty and the Two Faces of Federalism: A Comparative Study of Federal Jurisdiction and the Conflict of Laws , 60 NOTRE DAME L. -
Courtside Paul M
College of William & Mary Law School William & Mary Law School Scholarship Repository Popular Media Faculty and Deans 2005 Courtside Paul M. Smith Katherine A. Fallow Daniel Mach Aaron-Andrew P. Bruhl William & Mary Law School, [email protected] Repository Citation Smith, Paul M.; Fallow, Katherine A.; Mach, Daniel; and Bruhl, Aaron-Andrew P., "Courtside" (2005). Popular Media. 412. https://scholarship.law.wm.edu/popular_media/412 Copyright c 2005 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/popular_media COURTSIDE BY PAUL M. SMITH, KATHERINE A. FALLOW, DANIEL MACH, AND AARON A. BRUHL As sometimes happens, the most dramatic efforts. Shortly thereafter, columnist a libertarian advocacy group, and the development at the Supreme Court for Robert Novak wrote a piece revealing attorneys general of thirty-four states and First Amendment lawyers in recent that "senior administration officials" the District of Columbia. The brief of the weeks probably was the denial of review told him that Wilson had been sent to attorneys general in support of certiorari in reporter's privilege cases arising Iraq on the recommendation of his wife, was particularly striking in arguing that from the disclosure of the identity of Valerie Plame, a CIA "operative." Critics the absence of a federal privilege frustrat Valerie Plame as a CIA operative-an of the Bush administration alleged that ed state policies because all of those action that resulted in the jailing of one White House officials leaked the infor states (in addition to almost every other prominent journalist. -
Free Speech Or Hate Speech? a Conversation Regarding State V
Free Speech or Hate Speech? A Conversation Regarding State v. Liebenguth November 16, 2020 4:00 p.m. – 6:00 p.m. CT Bar Association Webinar CT Bar Institute, Inc. CT: 2.0 CLE Credits (1.0 General / 1.0 Ethics) NY:2.0 CLE Credits (1.0 AOP / 1.0 Ethics) No representation or warranty is made as to the accuracy of these materials. Readers should check primary sources where appropriate and use the traditional legal research techniques to make sure that the information has not been affected or changed by recent developments. Page 1 of 163 Table of Contents Lawyers’ Principles of Professionalism...................................................................................................................3 Agenda ....................................................................................................................................................................6 Faculty Biographies ................................................................................................................................................7 Hate Crime Laws ..................................................................................................................................................10 State v. Liebenguth ................................................................................................................................................26 State v. Liebenguth 181 Conn.App. 37 ..................................................................................................................49 State v. Baccala .....................................................................................................................................................67 -
Limiting Political Contributions After Mccutcheon, Citizens United, and Speechnow Albert W
Florida Law Review Volume 67 | Issue 2 Article 1 January 2016 Limiting Political Contributions After McCutcheon, Citizens United, and SpeechNow Albert W. Alschuler Follow this and additional works at: http://scholarship.law.ufl.edu/flr Part of the Election Law Commons Recommended Citation Albert W. Alschuler, Limiting Political Contributions After McCutcheon, Citizens United, and SpeechNow, 67 Fla. L. Rev. 389 (2016). Available at: http://scholarship.law.ufl.edu/flr/vol67/iss2/1 This Article is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. Alschuler: Limiting Political Contributions After <i> McCutcheon</i>, <i>Cit LIMITING POLITICAL CONTRIBUTIONS AFTER MCCUTCHEON, CITIZENS UNITED, AND SPEECHNOW Albert W. Alschuler* Abstract There was something unreal about the opinions in McCutcheon v. FEC. These opinions examined a series of strategies for circumventing the limits on contributions to candidates imposed by federal election law, but they failed to notice that the limits were no longer breathing. The D.C. Circuit’s decision in SpeechNow.org v. FEC had created a far easier way to evade the limits than any of those the Supreme Court discussed. SpeechNow held all limits on contributions to super PACs unconstitutional. This Article argues that the D.C. Circuit erred; Citizens United v. FEC did not require unleashing super PAC contributions. The Article also considers what can be said for and against a bumper sticker’s declarations that “MONEY IS NOT SPEECH!” and “CORPORATIONS ARE NOT PEOPLE!” It proposes a framework for evaluating the constitutionality of campaign-finance regulations that differs from the one currently employed by the Supreme Court. -
Taking First Amendment Procedure Seriously: an Analysis of Process in Libel Litigation
Taking First Amendment Procedure Seriously: An Analysis of Process in Libel Litigation SUSAN M. GiLLEs* This Article addresses a critical problem in libel law: when should established procedural rules be altered to protect free speech. The Supreme Court has repeatedly recognized that special or modified proceduralrules are necessary to safeguard First Amendment interests. Yet, as Professor Gilles demonstrates, the Court has failed to articulate a rationalefor determining what proceduralrules should apply in libel cases. Instead, it has proceeded on a case by case basis, granting and denying procedural breaks without explanation. While the process created by the Court seems highly effective at safeguardingfree speech interests, a second glance reveals that jury error is rampant, with reversal, remand, and damage reduction rates running at over 70%. Professor Gilles argues that the Court has created a procedural quagmire which serves neitherplaintiffs, defendants, nor the FirstAmendment. Professor Gilles then reexamines what we mean by First Amendment process. She contends that the problems of the current system stem from the Court's preoccupation with accuracy and its failure to recognize the equally vital goals of speed and efficiency. Professor Gilles argues that ifthe Court adopted a more balancedapproach, giving consistent consideration of all three goals, it could rationalize and improve the process for deciding libel cases. This Article concludes by offering a number of specific reforms toward that end. "[It is important to ensure not only that the substantiveFirst Amendment standardsare sound, but also that they are applied through reliable procedures.,,1 I. INTRODUCTION I have often imagined a debate between Justices Brennan and Black over the case of New York Times Co. -
Fighting Words in the Era of Texts, Ims and E-Mails: Can a Disparaged Doctrine Be Resuscitated to Punish Cyber-Bullies?
DePaul Journal of Art, Technology & Intellectual Property Law Volume 21 Issue 1 Fall 2010 Article 2 Fighting Words in the Era of Texts, IMs and E-Mails: Can a Disparaged Doctrine Be Resuscitated to Punish Cyber-Bullies? Clay Calvert Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Clay Calvert, Fighting Words in the Era of Texts, IMs and E-Mails: Can a Disparaged Doctrine Be Resuscitated to Punish Cyber-Bullies?, 21 DePaul J. Art, Tech. & Intell. Prop. L. 1 (2010) Available at: https://via.library.depaul.edu/jatip/vol21/iss1/2 This Lead Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Calvert: Fighting Words in the Era of Texts, IMs and E-Mails: Can a Dispar FIGHTING WORDS IN THE ERA OF TEXTS, IMS AND E-MAILS: CAN A DISPARAGED DOCTRINE BE RESUSCITATED TO PUNISH CYBER-BULLIES? Clay Calvert' One of the few traditional categories of expression falling outside the ambit of First Amendment2 protection - one of the so- called "categorical carve-outs"' - is the much-maligned 4 class of 1. Professor & Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida, Gainesville, Fla. B.A., 1987, Communication, Stanford University; J.D. (Order of the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996, Communication, Stanford University. -
Language Change: Identity Management and the Boundaries of Acceptable Verbal Conduct in School Settings
LANGUAGE CHANGE: IDENTITY MANAGEMENT AND THE BOUNDARIES OF ACCEPTABLE VERBAL CONDUCT IN SCHOOL SETTINGS Lynn Downes BA primAry educAtion, BA pre-primary education, BTTC, Master of EducAtion, Inclusive EducAtion, QUT, Master of EducAtion, TESOL, QUT. CELTA, UQ Principal Supervisor: Associate Professor Margaret Kettle Associate Supervisor: Professor Gordon Tait Associate Supervisor: Dr Peter O’Brien Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy Office of Education Research Faculty of Education Queensland University of Technology May 2019. This page has been intentionally left blank “Fuck is a sacred word?” you ask. Fucking A right it is. It is a word that one should not utter because it is such a terrible word of epic proportions, a word whose mere utterance is a sin. A fucking sin, can you imagine? That’s how fucking important fuck is. And because it’s a sin, using it is so enticing to the young that when they hear it for the first time they are spellbound. And when they use it for the first time, that F and the U bang so deliciously against the hard K, ripping through the lips, it’s as if a caged animal has been unleashed. They feel that they have taken that first mighty step toward adulthood. Some of them may even repeat it over and over, testing to see if God will strike them down for saying it. It’s a word you don’t use in polite conversation or in front of your parents, which makes it even more glorious when chewed up and spit out in the schoolyard or in the bowels of the basement. -
The New Profanity Steven R
® THE LANGUAGE QUARTERLY Vol. XXV, No. 4 Autumn 2000 VERBATIM Editor: Erin McKean Founding Editor: Laurence Urdang The New Profanity Steven R. Finz The Sea Ranch, California nly a few decades ago, no person of culture battle began in the corridors of a California Owould use the f-word in polite company. municipal court, although it was inspired by a dif- Now, although even our courts have stopped ferent kind of battle that was taking place in Viet shrinking from public pronunciation of the word Nam. On April 26, 1968, Paul Robert Cohen fuck, all America heard O. J. Simpson’s defense walked through a Los Angeles County court- lawyer ask witness Mark Fuhrman if he had used house, in the presence of women and children, “the n-word” any time in the past ten years. wearing a jacket bearing the words “Fuck the Ironically, Fuhrman’s answer was “No. Never.” Draft” plainly emblazoned on its back. When Have ethnically offensive terms become the only Cohen entered a courtroom, he removed the dirty words left to our society? jacket and draped it over his arm. A court officer America holds a traditional belief in the ben- asked the judge to hold Cohen in contempt, but efits of free expression. United States Supreme the judge refused, since no offense had been Court Justice Felix Frankfurter wrote that one of committed in his presence. So the police were the prerogatives of American citizenship is the called. Cohen was arrested and convicted of vio- freedom to speak “foolishly and without modera- lating a California law that prohibited disturbing tion.”1 Our courts have a long history of protect- the peace.