First Amendment
Lawsuits as Information: Prisons, Courts, and a Troika Model of Petition Harms
122 Yale L.J. 1024 (2013). This Note is about the practice of conditioning recovery for violations of prisoners’ intangible constitutional rights, like First Amendment petition rights, upon a showing of physical injury. It argues that the prior physical injury requirement of the Prison Litigation Reform Act is unconstitutional as applied to petition violations because it arbitrarily impairs prisoners’ right to access the courts and, in doing so, enables retaliation against prisoner litigants to go unchecked. This Note outlines a theoretical portrait of petition violations as threefold structural harms, comprising distinct harms to plaintiffs, to the public, and to the courts as institutions. It uses that portrait to intervene in a doctrinal debate over the nature of the right to petition and to illuminate flaws in contemporary First Amendment doctrine both within and outside the prison context.
A Winn for Educational Pluralism
**This Essay is part of a new Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.** Over the past decade, scholarship tax credit programs, like the one at issue in Arizona Christian School Tuition Organization v. Winn, have emerged as a popular education policy tool. While details vary by state, scholarship tax credit programs allow individuals or corporations (and in some cases, including Arizona, both) to receive a state income tax credit for donations to charitable organizations—called “scholarship tuition organizations” in Arizona—that provide scholarships for children to attend private schools. Currently, seven states—Arizona, Florida, Georgia, Indiana, Iowa, Pennsylvania, and Rhode Island—have such programs in place. During the 2010-2011 school year, the scholarship organizations participating in these programs awarded nearly $290 million through over 123,000 scholarships. With two exceptions, scholarship tax credit programs exclusively target low-to-moderate-income students. For example, in Florida—the state with the largest scholarship tax credit program in the nation—eligibility is limited to students qualifying for free or reduced-price lunches, and scholarships are disproportionately awarded to Latino and African-American students. And the most recent evidence suggests that even the non-means-tested tax credit program at issue in Winn—Arizona’s individual scholarship tax credit program—disproportionately benefits low-income kids. Thus, scholarship tax credit programs help open the doors of high-quality private schools to thousands of children of modest means who might otherwise languish in failing public schools.
Winn and the Inadvisability of Constitutionalizing Tax Expenditure Analysis
**This Essay is part of a new Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.** In Arizona Christian School Tuition Organization v. Winn, the U.S. Supreme Court decided, by the thinnest of margins, that Arizona taxpayers cannot mount an Establishment Clause challenge to Arizona’s state income tax credits for “contributions to school tuition organizations.” Writing for a five-Justice majority, Justice Kennedy held that Flast v. Cohen only bestows standing upon taxpayers contesting direct monetary outlays on Establishment Clause grounds. Flast, the majority held, does not extend standing to taxpayers objecting under the Establishment Clause to tax provisions such as the Arizona income tax credit. In dissent, Justice Kagan, joined by three of her colleagues, concluded that Flast does afford standing to the Arizona taxpayers challenging the state’s tax credits for contributions to school tuition organizations. Central to Justice Kagan’s dissent was her invocation of the academic doctrine of “tax expenditure” analysis. That analysis, Justice Kagan wrote, recognizes that “targeted tax breaks . . . are just spending under a different name.” The Court has often confronted the question of whether direct public outlays and tax subsidies are equivalent for constitutional purposes. However, Justice Kagan’s dissent in Winn is only the second time that tax expenditure doctrine has formally played such an explicit, prominent role in the Court’s decisionmaking.
Snyder v. Phelps, the Supreme Court’s Speech-Tort Jurisprudence, and Normative Considerations
Tinker’s Tenure in the School Setting: The Case for Applying O’Brien to Content-Neutral Regulations
Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment
Fantasy Liability: Publicity Law, the First Amendment, and Fantasy Sports
119 Yale L.J. 131 (2009).
Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech
Is There a Place for Religious Charter Schools?
118 Yale L.J. 554 (2008). Recently, religious groups have sought to become charter school providers. Scholarship and popular commentary dispute the desirability of this prospect. Religious charter schools can address unmet needs of religious groups and keep them invested in the public school system. But the balkanization of school districts, oppression of nonadherents, and entanglement between church and state remain important concerns. This Note argues that there is a place for religious charter schools primarily in districts best able to ameliorate these concerns—those that have sufficient resources and the diversity of religious groups necessary to create a variety of religious and nonreligious school options.
The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright
118 Yale L.J. 186 (2008). The concept of the author is deemed to be central to copyright law. An important strand of copyright scholarship explores how the development of modern copyright law was intertwined with the rise of a new ideology of authorship as an individualist act of creation ex nihilo. This Article remedies two common shortcomings of this scholarship: implying that the process of embedding original authorship in copyright law was complete by the end of the eighteenth century, and presenting the relation between the ideology of authorship and copyright law as an exact correlation. These two shortcomings neglect the complexity of the interaction between authorship and copyright law and attract the criticism that much of modern copyright doctrine seems diametrically opposed to the presuppositions of original authorship. This Article focuses on copyright law and discourse in nineteenth-century America. It argues that much of the weaving of the ideology of authorship into copyright law took place during this later period and in three main contexts: originality doctrine, the emergence of the notion of copyright as ownership of an intellectual work, and the rules that allocate initial copyright ownership. The result was the modern structure of copyright-authorship discourse as a motivated distortion. Various parts of this discourse incorporate conflicting images and assumptions about authorship, which often stand in tension with the legal doctrines of copyright and their actual effects. These patterns, which still dominate copyright law today, are traceable to the history of the power struggles, economic interest motivations, and the ideological constraints that produced them.
Defending the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism Profiling
117 Yale L.J. 920 (2008). Counterterrorism officials increasingly seek to scrutinize conduct and behavior that they believe, however uncertainly, to be probative of terrorist activity. When such conduct- based profiling specifically targets activity that is also expressive of Muslim identity, it may inflict pervasive dignitary and stigmatic harms upon the American Muslim community. Those seeking redress from such policies through litigation would find that existing constitutional doctrine does not readily let judges account for group harms when balancing the interests at stake. This Note, however, argues that Muslim plaintiffs can use the Free Exercise Clause doctrine of “hybrid situations,” announced in Employment Division v. Smith, to plead that certain profiles’ burdens upon their religiously motivated exercise of secular constitutional rights threaten to subordinate their religious community as a whole.
Justice Breyer Throws Down the Gauntlet
115 Yale L.J. 1699 (2006) A Supreme Court Justice writing a book about constitutional law is like a dog walking on his hind legs: The wonder is not that it is done well but that it is done at all. The dog's walking is inhibited by anatomical limitations, the Justice's writing by political ones. Supreme Court Justices are powerful political figures; they cannot write with the freedom and candor of more obscure people. But just as Shakespeare managed to write great plays under official censorship, so Justice Breyer has managed to write a good book under self-censorship. In recent years, the initiative in constitutional debate has passed to the conservatives. They have proposed, and to an extent achieved, a rolling back of liberal doctrines (notably in regard to states' rights, police practices, and executive power) and of the methodology of loose construction that enabled liberal Justices to provide a plausible justification for those doctrines. The liberals continue to win a significant share of victories, in such areas as homosexual rights, affirmative action, and capital punishment, but for the most part their stance, their outlook, has been defensive: defense of the Warren Court and Roe v. Wade. Justice Breyer is a liberal (though a moderate one), but he wants to do more than defend liberal decisions, doctrines, and methods piecemeal. He wants an overarching approach to set against the "textualism" and "originalism" of his judicial foes. His book articulates and defends such an approach, which he calls "active liberty."
Grand Theft Oreo: The Constitutionality of Advergame Regulation
115 Yale L.J. 227 (2005) In recent years, companies have increasingly embraced alternative forms of marketing that deviate from the conventional advertising model. One new type of marketing that has received particular attention is "advergames." The term--a combination of "advertisement" and "video games"--refers to video games created by companies to promote their products or brand. The use of advergames reflects a broader trend in marketing practices away from segmented advertisements and toward advertising messages that are integrated into what have traditionally been viewed as forms of highly protected noncommercial speech. As the media landscape becomes increasingly filled with advertising hybrids--types of media that are essentially advertisements but are presented as, for example, movies, books, or songs--courts will have to decide how regulations of these hybrids should be evaluated. This Comment explores that issue by analyzing advergames used to promote unhealthy food to children. Because the use of these advergames has already prompted calls for government regulation, this context provides an ideal vehicle for analyzing a vital but unexplored legal question: What First Amendment standard should apply to regulations of advergames? To address this question, this Comment will examine two highly unsettled areas of First Amendment law: the appropriate level of scrutiny for evaluating regulations of video games, on the one hand, and commercial speech, on the other. Applying these aspects of First Amendment doctrine to restrictions on advergames, this Comment proposes a general framework for how courts should review First Amendment challenges to regulations of advertising hybrids. Part I explains the nature of advergames, why they have become central to advertising and marketing practices (including those for unhealthy food aimed at children), and what types of regulation may soon be applied to them. Part II examines a potentially major obstacle to the regulation of advergames: the line of recent federal cases that apply heightened First Amendment protection to video games. This Comment argues that these cases do not present an insurmountable barrier to the regulation of advergames because they do not hold that video games are a per se category of highly protected speech. Rather, properly read, these cases hold that video games are considered highly protected speech for the purposes of First Amendment analysis only if they have certain characteristics such as narratives, themes, and sophisticated visual and auditory elements. Because most, if not all, existing advergames do not possess these characteristics, this Comment concludes that they do not qualify for the heightened First Amendment protection given to movies, books, and some video games. As a result, Part III asserts that regulations of advergames should be assessed using the less restrictive standards for evaluating limitations on commercial speech, under which it would be possible for the government to regulate the use of advergames that promote unhealthy food to children. The Conclusion then discusses the broader implications of this argument for other types of advertising hybrids.
Limiting Coercive Speech in Class Actions
114 Yale L.J. 1953 (2005) Courts once routinely banned communications of named parties and their counsel with potential class members, until the Supreme Court, in Gulf Oil Co. v. Bernard, called for "specific findings" and a "weighing of interests" before the imposition of such bans. Most courts have interpreted the opinion to require evidence that inappropriate communications have already occurred before imposing limitations. This Note argues that Bernard can and should be interpreted differently. Specifically, it recommends that courts issue prophylactic restrictions when a structurally coercive relationship, such as employer-employee, exists between defendants and potential class members.