High Value Lies, Ugly Truths, and the First Amendment

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies – such as perjury or pretending to be a police officer – are not covered by the First Amendment. But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. U.S. v. Alvarez, 132 S. Ct. 2537 (2012). To date, however, both Supreme Court doctrine and academic commentary has taken for granted that any constitutional protection for lies is purely prophylactic – it protects the liar to avoid chilling truthful speech. This Article is the first to argue, contrary to conventional wisdom, that certain types of lies paradoxically advance the values underlying the First Amendment. Our framework is descriptively novel and doctrinally important insofar as we provide the first comprehensive post-Alvarez look at the wide range of lies that may raise First Amendment issues. Because there was no majority opinion in Alvarez, there is uncertainty about which standard of constitutional scrutiny should apply to protected lies, an issue we examine at length. Moreover, our normative claim is straightforward: when a lie has intrinsic or instrumental value it should be treated differently from other types of lies and warrant the greatest constitutional protection. Specifically, we argue that investigative deceptions – lies used to secure truthful factual information about matters of public concern – deserve the utmost constitutional protection because they advance the underling purposes of free speech: they enhance political discourse, help reveal the truth, and promote individual autonomy. A prototypical investigative deception is the sort of misrepresentation required in order for an undercover journalist, investigator, or activist to gain access to information or images of great political significance that would not be available if the investigator disclosed her reporting or political objectives. Tactical use of such lies have a long history in American journalism and activism, from Upton Sinclair to his modern day heirs. Using the proliferation of anti-whistleblower statutes like Ag Gag laws as an illustrative example, we argue that investigative deceptions are a category of high value lies that ought to receive rigorous protection under the First Amendment. At the same time, we recognize that not all lies are alike and that in other areas, the government regulation of lies serves legitimate interests. We therefore conclude the Article by drawing some limiting principles to our theory.

Memorandum on the impact of the First Amendment to the Constitution upon Federal aid to education : Memorandum on the Constitutional authority of the Congress to enact S. 1021. Federal programs under which institutions with religious affiliation receive Federal funds through grants or loans.

Documents prepared by the Department's legal staff in response to the request of Senator Morse, Chairman, Subcommittee on Education, committee on Labor and Public Welfare.

Ratification of the twenty-first amendment to the Constitution of the United States ; state convention records and laws.

Mode of access: Internet.

Mike Wallace & unidentified Asian-heritage man holding framed Leonard Zeidenberg First Amendment Award, presented March 11, 1998

printing info on back of print includes "IMG_0651.JPG"

Advertising Legalized Gambling: A Late Bloomer Under the First Amendment

New federal laws and court cases have put a new perspective on the ability of the industry to advertise as it has never been able to do before. With gaming becoming more prevalent, the acceptability of the legal industry is making promotion easier. The author discusses these new influences.

Direct to consumer advertising : the case for greater consumer control

A nyone traveling to the United States from countries other than New Zealand will be surprised by the prevalence of health-related advertisements on television, including ads for drugs. Typically, these TV ads follow a pattern: an ad for a burger at only 99 cents, followed by one for a proton-pump inhibitor, then an ad on healthy home-cooked food delivered directly to your home and an ad for a home-based abdominal workout DVD, followed by an ad for a lipid-lowering drug. There are, however, nuances. After 8 pm, the visitor might encounter an ad for the "little blue pill." This sequence sometimes includes an ad featuring antihistamines for allergic rhinitis in spring and one promoting antidepressants in the winter. Such direct-to-consumer advertising (DTCA) of prescription drugs is usual business in the United States and New Zealand but is prohibited in the rest of the world. Why? Because DTCA for prescribing drugs has pros and cons (discussed elsewhere,1-3 including in JGIM4) that are balanced differently in different countries. Constitutional factors-such as the First Amendment protections on speech, including commercial speech, in the United States5 -as well as patient and population safety considerations, which all differ across countries, modulate reactions to DTCA. Additionally, lack of robust data on the impact of DTCA on prescription drug use adds to the confusion. Evidence, though limited, suggests that DTCA increases drug sales. However, whether the increase in sales corrects existing underuse or encourages over/misuse is not clear.

Wolves in sheeps' clothing: Creationist manipulation of Kansas science standards

So the question that animates this paper is this: what happens when a state's education policy seeks to make popular social and religious values a central part of its education standards in direct confrontation with the Establishment Clause of the First Amendment of the U.S. Constitution? I will try to answer that question in three ways. First, I will examine the tactics used in the manipulation of curricula to reflect social and religious values, with special focus on the Kansas case. Second, I will try to ascertain the determinants of success in these efforts; under what conditions are movements to impose creation science on public school curricula likely to succeed, and when to fail? Third, I will try to place these struggles over educational curricula, and between religion and science, in broader context, focusing on what they tell us about the nature of public policy making in the contemporary United States.

Libraries in the Cyberage--Part I

First Amendment issues heat up with the advent of the digital age and its ability to bring pornography to every library, free of charge.

Filter-tipped Libraries

Is it possible to say something positive about Internet filtering in libraries and not have everyone, including your mother, call you a wild-eyed, hidebound, neo-Nazi bashi-bazouk? No, of course not, but I'm going to try to anyway.

As práticas de assistência ao deficiente no município de Assis/SP: delimitações históricas

Coordenação de Aperfeiçoamento de Pessoal de Nível Superior (CAPES)

Men's Modesty, Religion, and the State: Spaces of Collision

This article examines religious practices in the United States, which govern modesty and other dress norms for men. I focus both on the spaces within which they most collide with regulatory regimes of the state and the legal implications of these norms, particularly for observant Muslim men. Undergirding the research are those ‘‘gender equality’’ claims made by many religious adherents, that men are required to maintain proper modesty norms just as are women. Also undergirding the research is the extensive anti-Islam bias in American culture today. The spaces within which men’s religiously proscribed dress and grooming norms are most at issue—indicated by First Amendment legal challenges to rights of religious practice—are primarily those state-controlled, total institutions Goffman describes, such as in the military and prisons. The implications of gendered modesty norms are important, as state control over religious expression in prisons, for example, is much more difficult to contest than in other spaces, although this depends entirely on who is doing the contesting and within which religious context. In American society today—and particularly within the context of growing Islamaphobia following the 9/11 attacks—the implications are greatest for those men practicing ‘‘prison Islam.’’

Iowa State Daily (April 10, 2012)

ContentsState Gym cracks down on ID sharingPreacher takes advantage of First Amendment weekNew event major sees surge in enrollmentModels, designers prepare for showThe highly politicized high courtConference serves up changes

Communication in Cyberspace

This Article examines a problem in cybercrime law that is both persistent and pervasive. What counts as “communication” on the Internet? Defining the term is particularly important for crimes such as cyberstalking, cyberharassment, and cyberbullying, where most statutes require a showing that the alleged perpetrator “communicated” with the victim or impose a similar requirement through slightly different language. This Article takes up the important task of defining communication. As a foundation to our discussion, we provide the first comprehensive survey of state statutes and case law relating to cyberstalking, cyberharassment, and cyberbullying. We then examine the realities of the way people use the Internet to develop a definition of “communication” that reflects those realities. That is, we aim to provide effective tools by which prosecutors can address wrongful conduct without punishing innocuous behavior or chilling speech. We conclude by proposing a model statute that appropriately defines “communication.” We recommend that state legislatures adopt the statute or modify existing laws to match it in pertinent part and demonstrate how the statute would apply in a range of situations.