Tag: Constitutional Law

The Presses Won’t Stop Just Yet: Shaping Student Speech Rights in the Wake of Hazelwood’s Application to Colleges – Note by Jeff Sklar

From Volume 80, Number 3 (March 2007)
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As word of the decision in Hosty v. Carter spread in the summer of 2005, many college journalists were outraged. To them, it was the end of free speech as they knew it. In Hosty, the en banc Seventh Circuit became the first court to apply in a college the framework of the Supreme Court’s Hazelwood case, which for nearly twenty years had given high school administrators wide latitude to restrict the content of student-run newspapers. As a result, many college journalists believed they were powerless against university presidents and deans, who they believed could charge into their newsrooms, lock up their computers, and even stop their presses – all with the blessing of the First Amendment.

In truth, the outrage did not begin with Hosty. It began seventeen years earlier with the Supreme Court’s decision in Hazelwood School District v. Kuhlmeier. In Hazelwood, the Supreme Court held that in high schools, where school-sponsored student speech does not occur in a public forum, the school may regulate the content of that speech for reasons that are “reasonably related” to any of a range of “legitimate pedagogical concerns.” Thus, many people believed Hazelwood gave high school administrators near free reign to stop students from participating in one of our nation’s most sacred traditions – a free and independent press. And in Hazelwood, the Supreme Court explicitly left open the possibility that the case’s analytical framework might be applied to student publications in colleges too. But until June 2005, no court had dared to do so. Hosty was the first.

 

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An Unworkable Rule of Law: The ADA, Education, and Sovereign Immunity; An Argument for Overruling Seminole Tribe of Florida v. Florida Consistent with Stare Decisis – Note by Christopher Cowan

From Volume 80, Number 2 (January 2007)
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On July 26, 2005, President George W. Bush released a proclamation celebrating the fifteenth anniversary of the Americans with Disabilities Act (“ADA”), signed into law by the former President Bush. In the proclamation, President Bush “call[ed] on all Americans…to fulfill the promise of the ADA [and] to give all people the opportunity to live with dignity, work productively, and achieve their dreams.” At the time of its signing there were more than forty-three million disabled persons in the United States; this number has grown to more than forty-nine million. The purpose of the ADA was to eliminate discrimination against this growing population in a number of areas by providing a “legal recourse to redress such discrimination.”

While the overall success of the ADA is debatable, it is clear that private enforcement of the ADA has been under attack for the last ten years – at least when the defendant is a sovereign state. Since the controversial Seminole Tribe of Florida v. Florida decision in 1996 – holding that Congress can abrogate a state’s sovereign immunity only through a valid exercise of Section 5 of the Fourteenth Amendment – the survival of a private cause of action against a state entity under the ADA has been questionable. In the last five years, the Court has attempted to provide an answer. In Board of Trustees of the University of Alabama v. Garrett, the Court held that Title I of the ADA, which prohibits disability discrimination in the context of employment, was not a valid exercise of Section 5 and therefore could not abrogate state immunity. Although the Garrett decision was limited to Title I, many of the lower courts assumed that the sovereign immunity bar would extend to Title II, which regulates access to public services and programs. Then, in Tennessee v. Lane, the Court held that Title II’s application to the fundamental right of access to the courts was a valid exercise of Section 5, and the immunity bar was tentatively lifted.

 

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Laughter at the Court: The Supreme Court as a Source of Humor – Article by Laura Krugman Ray

From Volume 79, Number 6 (September 2006)
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The United States Supreme Court, with its black-robed justices and its marble columns, has long been regarded as the most formal and opaque branch of the federal government. While the president and the members of Congress have deliberately wooed the public with election campaigns that attempt to humanize the candidate, the justices have preferred to maintain the Court’s traditional aura of remote dignity by steadfastly refusing to televise its proceedings. Even the current willingness of some justices to present themselves directly to the public through extrajudicial writings and television interviews has not yet erased the public image of the Court as a solemn institution. When a legal scholar recently tracked the incidence of humorous exchanges during the Court’s oral arguments, the New York Times considered the idea of laughter at the Court worthy of a front page article. Yet even if there have been few occasions for laughter in the courtroom, the Court itself has in the past half century become a consistent source of humor in the pages of another, less solemn American institution, The New Yorker magazine. The emergence of the Court as a reliable subject for New Yorker cartoons suggests two related developments: the growing public awareness of the Court’s role in American life and the parallel willingness of the public to appreciate – and laugh at – the impact of the Court’s jurisprudence on its own domestic life.

 

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Due Process and Punitive Damages: The Error of Federal Excessiveness Jurisprudence – Article by A. Benjamin Spencer

From Volume 79, Number 5 (July 2006)
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The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three “guideposts” set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant’s conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any “civil or criminal penalties that could be imposed for comparable misconduct.” Following up on this pronouncement in State Farm Mutual Automobile Insurance Company v. Campbell, the Court indicated that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Unfortunately, neither the “guideposts” nor the single-digit multiple rule have any basis in the law of due process and represent nothing more than the imposition of the Court’s own standards for punishment in place of those of the states.

This Article reveals the defectiveness of this jurisprudence by exposing the absence of precedential foundation for the Court’s current view. More significantly, this Article demonstrates that the Court’s interpretation of the Due Process Clause is at odds with important rules of constitutional construction, mainly those supplied by the Ninth and Tenth Amendments, which protect unenumerated rights and limit the national government to exercising delegated powers, respectively. Together, these amendments prohibit expansive interpretations of the Constitution that disparage rights retained by the people and that arrogate to the national government powers that neither the states nor the people ever relinquished. The Court’s interpretation of the Due Process Clause with respect to punitive damages transgresses both of these limitations. This Article suggests that a proper understanding of due process reveals that the doctrine requires only that punitive awards be reserved for wrongdoing beyond simple negligence, jurors be instructed that any punitive award they impose must be designed to further states’ legitimate interest in punishment of instate conduct and deterrence, and judicial review of the awards be available to check adherence to these requirements. Beyond that, the Due Process Clause fails to require punitive damages awards be constrained to a particular level.

 

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Legislative Arrogance and Constitutional Accountability – Article by Caitlin E. Borgmann

From Volume 79, Number 4 (May 2006)
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A movement is quietly gaining traction – state legislatures are enacting social policy through laws specially designed to evade constitutional review by the courts. These laws give individuals a private right of action to seek massive damages against those who engage in constitutionally protected but controversial conduct. The coercive nature of potential, massive civil liability has the same effect as an outright ban on constitutionally protected acts. But federal appellate courts have found legal challenges to these laws barred by the doctrines of Article III standing and state sovereign immunity. The resulting legislative arrogation of power is a dangerous trend, forewarned of by the Framers of the Constitution. It contravenes federal supremacy and upsets the balance of power among coordinate branches of government. This Article argues that the courts can address this new phenomenon based on time-honored constitutional principles and a long-overdue reevaluation of the doctrine of Ex parte Young.

 

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Closing a Resentencing Loophole: A Proposal to Amend 28 U.S.C. § 2255 – Note by Julie Austin

From Volume 79, Number 4 (May 2006)
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Historically, habeas corpus relief has provided a remedy in extraordinary cases for prisoners incarcerated in violation of the U.S. Constitution. Habeas relief brings to mind gross injustices – prisoners serving sentences for crimes they did not commit or prisoners who are incarcerated because they were not represented by counsel at their trials. Yet under current law, prisoners serving enhanced federal sentences may reduce their sentences without necessarily proving that any constitutional violation or error has occurred.

 

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The Right of Publicity vs. the First Amendment: Will One Test Ever Capture the Starring Role? – Note by Gloria Franke

From Volume 79, Number 4 (May 2006)
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America’s fascination with fame and celebrities is self-evident. In our culture, fame is used effectively to persuade, inspire, and inform the public in almost every aspect of our lives. Thus, for celebrities, fame has an inherent economic value, which they endeavor to enhance and protect through the relatively recent legal doctrine of the right of publicity. Broadly defined, the right of publicity is the “inherent right of every human being to control the commercial use of his or her identity.” Celebrities invoke this right to prevent the unauthorized commercial use of their names, likenesses, or other aspects of their identities in order to protect and control their valuable personas.

The public’s fascination with celebrities has evolved into the ubiquitous use of stars to symbolize individual aspirations, group identities, and cultural values. Celebrity images are therefore important expressive and communicative resources and the public’s use of these images is vital to the realization of the First Amendment goals of self-expression and the creation of a robust public discourse. Thus, there is a direct conflict between a celebrity’s right of publicity and the public’s right to free expression embodied in the First Amendment. Courts, in struggling to accommodate these competing interests, have failed to articulate a clear standard to resolve the conflict, resulting in a confusing morass of inconsistent, incomplete, or mutually exclusive approaches, tests, and standards. The chaos surrounding the scope of publicity rights in works protected by the First Amendment has led to a real hit on free expression that is especially troubling as we enter the digital age – with the Internet providing a global platform for expression in our multicultural society. Courts need a clear standard to take the leading role in resolving the conflict between the First Amendment and the right of publicity in expressive works. This Note proposes a test with the clarity and nuance to take center stage and resolve this conflict.

 

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Architectural Censorship and the FCC – Article by Christopher S. Yoo

From Volume 78, Number 3 (March 2005)
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Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and diversity of media content. The specific examples analyzed include (1) efforts to foster and preserve free television and radio, (2) rate regulation of cable television, (3) horizontal restrictions on the number of outlets one entity can own in a local market, and (4) regulations limiting vertical integration in television and radio. Unfortunately, current First Amendment doctrine effectively immunizes architectural censorship from meaningful constitutional scrutiny, and it appears unlikely that existing doctrine will change or that Congress or the Federal Communications Commission will step in to fill the void.

 

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